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

AuthorShivaun Quinlivan
PositionAssociate Professor, University of Galway
[2022 ] Irish Judicial Studies Journal Vol 6(3)
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
This article suggests that the decision in TD v Mini ster for Educati on
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,
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,
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,
adding the words, however limited those capacities may be.
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
TD v Minis ter for Education [2001] 4 IR 259.
O’Dono ghue v Minister fo r Health [ 1993] 2 IR 20.
Ryan v Attorney General [1965] 1 IR 294 [37] .
Ryan (n 3) 350.
O’Dono ghue (n 2) 65.

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