O Brother, Where Art Thou?

The pandemic has forced grammar schools in Northern Ireland to revisit how they select pupils in the absence of any selection test.

The High Court in Belfast recently heard a challenge to the priority given by one such school to pupils whose siblings had already gone there over other applicants from otherwise socially deprived backgrounds. 

Background

Under the Education (Northern Ireland) Order 1997 the Board of Governors of post-primary schools must make arrangements for the admission of children to their school. This involved drawing up criteria. The Department for Education (DFe) may issue guidance which schools must “have regard to”. 

The criteria published by St Malachy’s College traditional gave priority to selection test results. In the absence of the selection test this year, the Board of Governors published revised criteria for September 2021 entry which included priority to boys who had siblings at the school.  

In the event of there being more candidates in any criterion than places available within such criterion, priority will be given in descending order to those who indicate on the online transfer form/application or its equivalent that they: 
(a) Where registered to sit the GL entrance assessment on 30 January 2021 or were granted special provision; 
(b) Are applicants who are siblings of present or past pupils of St Malachy’s College; [emphasis added]
(c) Are applicants who are the eldest boy of the family eligible to transfer to mainstream post-primary education. This criterion covers ‘only’ children and will treat twins or other multiples as joint eldest; 
(d) Are a pupil who is entitled to Free School Meals at the date of application (the criteria goes on to explain the meaning of free school meals); 
(e) Are pupils from the following contributory primary schools (not listed in order of preference). [63 schools listed] 

An application for judicial review was brought by the mother of an 11-year-boy who had his “heart set” on going to the College. It was contended that the revised criteria unlawfully failed to adhere to guidance issued by the Department of Education (DEd). Notably, priority was being given to siblings over pupils with Free School Meals Entitlement (FSME).

Judgment

It was held that the College was not bound to follow the DEd guidelines, merely “to have regard to them” which meant they: 

…must engage with and give real weight to the guidance. It should only depart from the guidance on the basis of cogent and reasoned justification.

Mr Justice Colton concluded:

In my view the [College] has adopted a patently rational and lawful approach in maintaining it’s previous free school meals entitlement criteria in the way that it did…
In answering the questions posed I consider that the [College] has engaged with and given real weight to the guidelines. Where it has departed from them it has done so on the basis of cogent and reasoned justification. 

The application was dismissed.

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