TD v Minister for Education: A Chilling Effect on Would-be Litigants?

• Author: Shivaun Quinlivan
• Position: Associate Professor, University of Galway
• Pages: 47-54

IRISH JUDICIAL STUDIES JOURNAL

[2022 ] Irish Judicial Studies Journal Vol 6(3)

47

TD V MINISTER FOR EDUCATION

: A CHILLING

EFFECT ON WOULD-BE LITIGANTS?

Abstract: Given that litigation is the last resort for those in need of education, and that there are ongoing

challenges for those with disabilities in particular accessing appropriate education, there is a surprisi ng

paucity of contemporary cases seeking to enforce the right to educatio n under the Irish Constitution. This

article considers the causes of this, and the underexplored possibility that the TD case had a serious chilling

effect on litigation on this constitutional right.

Author: Dr Shivaun Quinlivan, Associate Professor, University of Galway

Introduction

This article suggests that the decision in TD v Mini ster for Educati on

1

has a chilling effect on

would-be litigants of the right to education. The focus of this paper is on the right to

education of children with disabilities, as protected by Article 42 of the Constitution. It is

argued here that the time-bound nature of the right to education, the failure to provide

effective legislative tools, the failure of adequate educational provisi on coupled with the

impact of the decision in TD v Minister for Education has the effect of compromising the right

to education for children with disabilities. It is suggested here that the most appropriate way

to enforce the right to education would be through the introduction of legislation with

effective and timely enforcement mechanisms. However, in the absence of such legislative

intervention, and the absence of adequate, appropriate or any educational provision,

constitutional litigation is often the only option or remedy available. This article highlights

the ongoing issues faced by children with disabilities in accessing and maintaining a full

school place and the surprising lack of attendant cases to enforce the right to education. It

then posits that there are two reasons for the paucity of current cases: increased educational

provision and the impact of TD v Minister f or Educatio n, which has discouraged litigation to

enforce an express right in the Constitution.

Constitutional Context

Article 42.4 obliges the state to provide free primary education for all children. In the context

of disability, O’Donoghue v Minister for Health,

2

perhaps the preeminent case on the right to

education, established that all children with disabilities are educable, that they have a right to

education, and that limited provision does not necessarily fulfil that obligation.

To determine whether all children were educable , O’Hanlon J provided a constitutional

understanding of the term education. In so doing, he referred to Ó Dálaigh CJ’s definition

of education in Ryan v Attorney General,

3

where he stated that the purpose of education was

to ‘make the best possible use of his [or her] inherent and potential capacities, physical,

mental and moral,’

4

adding the words, ‘however limited those capacities may be.’

5

The term

education as used in the Constitution is therefore broader than purely scholastic education

and ensures that all children are encapsulated by the definition. O’Hanlon J held that Article

1

TD v Minis ter for Education [2001] 4 IR 259.

2

O’Dono ghue v Minister fo r Health [ 1993] 2 IR 20.

3

Ryan v Attorney General [1965] 1 IR 294 [37] .

4

Ryan (n 3) 350.

5

O’Dono ghue (n 2) 65.