If the State succeeded in imposing age 18 as the cut-off for entitlement to free primary education, the main group who would be affected were those "who need it most", disabled people like Mr Jamie Sinnott who was autistic, the Supreme Court heard yesterday.
"The privileges of citizenship in this democracy are not dependent on learning speed," Mr Dermot Gleeson SC, argued. "The promise of free primary education is not a promise just for the brightest. The State can't say that because you will take longer to have the most elementary education you are disqualified. This is an exclusionary rule which captures a subset of citizens who are the most disadvantaged."
Free primary education "is a right of citizenship. This is a promise to all who find themselves educable, who want to be able to do even the most simple things." The State could not say to those suffering from a serious mental handicap who could learn that their time "just ran out".
There was nothing in the Constitution to suggest 18 years as the threshold for entitlement to free primary education. The State was saying only children were entitled to such education, but what about disabled and disadvantaged persons? The age of majority had no meaning for them and no place in determining their educational needs.
He said that since the High Court had directed a specific programme of education for Mr Sinnott (23) he had made spectacular progress. However, autistic persons needed constant repetition because of their capacity to unlearn things. There was no dispute Mr Sinnott required basic education and training for life.
In opposing the State's appeal against the High Court's judgment in actions by Mr Sinnott and his mother, Kathryn, of Ballinhassig, Co Cork, that the right to free primary education is based on need not age, Mr Gleeson suggested the State was seeking to "pare down" the "unique and unequivocal" commitment to free primary education made by the Irish people in the 1937 Constitution.
He said counsel for the State had used the "startling phrase" that it was seeking to "close the door on the meaning of primary education".
There were very few instances of constitutionally-directed expenditure but among these was the constitutional obligation on the State to provide for free primary education, set out in Article 42.4. The people had made this commitment to themselves, or rather their children, in 1937.
When the State failed to meet its obligations under Article 42.4 the courts were entitled to intervene and make mandatory orders against it.
In the High Court, Mr Justice Barr found Mr Sinnott's constitutional right to education was breached by the State, that he and his mother had suffered as a result and he awarded damages of more than £270,000. He also made orders directing the State to fund a home-based Applied Behavioural Analysis (ABA) programme of education for Mr Sinnott over the next three years.
The core of the State's appeal was against the decision that the constitutional entitlement to free primary education was based on need, not age. It also disputes the judge's entitlement to make mandatory orders directing it to fund the ABA programme.
Mr Gleeson said he accepted mandatory orders against the State were rarely made by the courts as the State was expected to act on declaratory orders. However, this was an exceptional case and the Supreme Court had previously stated it could make such orders as were necessary to vindicate constitutional rights. When such rights were downfaced or gainsaid by an organ of State the courts must tackle it.
In this case, the State had proposed no plan for Mr Sinnott's education until the middle of the High Court action and the plan then proposed was ridiculed by experts. The only real proposal advanced was for education according to the ABA method and Mr Justice Barr would have failed in his duty had he not directed such a programme, counsel said.
The appeal continues today.
