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Following the HCJ ruling on Special Ed


In One Line:
The Supreme Court canceled the Ministry of Education’s policy decision that shortened the school day in the Special Ed system due to a shortage of teaching staff. Although the Ministry’s decision may have had severe repercussions, the implications of the Supreme Court intervening in a thorny issue of public policy may be far worse.

The policy of operating a long school day (until 16:45) for children on the autism spectrum, aimed at assisting the children’s families in their care, has been established in the past decades by several Ministry of Education circulars. The special education facilities maintain particularly small classes combined with a large staff to meet the children’s special needs. In recent years the number of children in these classes has grown astronomically – up to over 5,600 children in the past year alone. The enormous growth in the number of children has created great difficulty in staff recruitment, leading to a real challenge for the Ministry of Education. Following the difficulty in filling the staffing posts, the past year saw a decision to shorten the school day wherever manpower was insufficient.
In advance of the coming school year and following the exacerbation of the situation, the Ministry decided to apply the shorter day to all schools for children on the autism spectrum, so that throughout the country the school day would end at 16:00, forty five minutes earlier than the norm.
The decision was legally challenged and the case came before the Supreme Court. Accepting the petitions, the Supreme Court canceled the director’s policy directive on several grounds. First, the Court ruled that although the Ministry of Education is not obligated to consult the Commission for Equal Rights of Persons with Disabilities, it should have done so; and the fact that it didn’t constituted a significant failing. Second, the decision was published only in June, less than three months prior to the school year, thus failing to grant parents sufficient time to prepare for the change. Third, the states’ response brief made it clear that the manpower shortage occurred primarily in the Tel Aviv, Central and Southern Districts while other areas suffered little to no shortage, meaning that the Ministry of Education’s decision brought about a “leveling down”, whereby everyone received less despite not everyone facing a problem. Such a decision is a violation of the equality principle, since it harms some students unnecessarily. Finally, it was determined that the body authorized to make the decision to shorten the school day was the Minister of Education, while in this instance the Director had done so. On the grounds of all these failings, the challenges were accepted and the Director of the Ministry of Education’s directive was canceled.
The Court’s judgement was praised both by the Leader of the opposition parties as well as by members of the coalition; nevertheless, this ruling exemplifies the problematic nature of the Court’s intervention in complex questions of policy, in which every decision made carries its own costs and difficulties.
No doubt the extra hours are indeed significant for special education students, but the reason the Ministry of Education made this painful decision in the first place was a severe manpower shortage – and the HCJ ruling will not conjure up teachers and preschool staff out of thin air. The Supreme Court ordered the Ministry of Education to find “out of the box” solutions and even made a few suggestions itself, without, of course, examining the applicability or alternative costs of their “solutions”.
Furthermore, although it’s easy to claim that areas without staff shortage shouldn’t be “punished” because of areas that are with, local governments who share the responsibility of running the schools and the transportation apparatus claim that differing ending times create difficulties with transporting children and staff. Will the prohibition on lateral decisions help schoolchildren or in fact harm them? The Court did not review that question.
In other words, the Supreme Court replaced the Ministry of Education as decision makers, but the Justices will not be held accountable for the repercussions of their decision. We’ll likely learn the costs of this ruling only a few years hence, while the Court reaps the praise today.

By: Yishai Rivlin

Published originally in the KPF news-sheet, “One Line Answers” (B’Mishpat Echad)

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