THE ATTEMPT to resolve the tension between class size limits and parental choice will generate even more business for the sheriff courts and could imperil one of the Prime Minister's key election pledges, education authority and parent leaders believe.
The row comes as authorities with a large number of popular schools say regulations laid before Parliament last week give them discretion to breach the new infant class maximum of 30 pupils.
Keir Bloomer, vice-president of the Association of Directors of Education, says class size limits are the only one of the Government's "excellence fund" initiatives about which he has real doubts. "I don't see any significant educational advantage coming from such a very marginal decrease in class sizes," Mr Bloomer said.
"Is this really the best way to spend pound;20 million a year?" The authorities' doubts place them in the ironic position of lining up alongside the Scottish Tories whose Holyrood manifesto also dismisses the policy as a waste of money, but pledges to abolish education authorities.
Mr Bloomer, director in Clackmannan, says the Scottish Office has failed to make clear whether legislation on class sizes or on parental choice takes precedence in any clash. Parents have the right of appeal to a sheriff and the court's decision is final.
Bob McKay, director in Perth and Kinross, says Government indecision has taken it "from ambivalence to schizophrenia".
Judith Gillespie, development manager with the Scottish Parent Teacher Council, said ministers would have been more honest if they had acknowledged the conflict with parental choice. Local authorities had simply been told to sort it out themselves in what was "a Pontius Pilate act".
The regulations state apparently unequivocally that "no lower primary class shall contain more than 30 pupils while an ordinary teaching session is conducted by a single qualified teacher".
But some children can be defined as "excepted pupils" and infant classes of up to 33 will continue to be formed if families move into a school's catchment area in the course of the year, or if parents successfully appeal against the refusal of a place.
Pupils whose record of needs specifies they must attend a particular school are also exempt.
Exceptions are valid only for the year the pupils join a school, however, and "corrective action may have to be taken to comply with the regulation in future years".
An "excepted pupil" also covers children who move between mainstream classes and units for special educational needs.
Eleanor Currie, director in East Renfrewshire, says she is working on the assumption that lower primary classes will in most cases still have up to 33 pupils. The authority has the largest number of single-year primary classes with 31 or more pupils (34 per cent) against the next largest of 26 per cent in West Lothian.
The regulations also allow authorities to plead that complying with the limits would "prejudice the provision of efficient education or the efficient use of resources".
Scottish Office officials acknowledge there is "tension" between capping classes and allowing parental choice. But directors say the Government has made a fraught situation worse by introducing contradictions.
Paragraph 21 in the circular says the policy is "to reduce class sizes while maintaining parental choice at the current level". But paragraph 23 states: "There may be no economically efficient approach that allows the intake of a popular school to remain at the current level while adopting the new class size maximum."
Mr McKay said: "Different sheriffs already reach different judgments for different reasons in placing request disputes. We could now end up with contradictory decisions even in the same education authority, as one sheriff leans on paragraph 21 while another leans on 23.
"The very minimum the Government should do is allow authorities the right of appeal against the caprice of a sheriff, in order to introduce some consistency into the situation."