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Crumbling into court

Devon's ex-education chairman Trevor Foulkes has slipped out of the spotlight. But a statement he made in 1991 deserves to outlast his public life: "It would be nice to have modern facilities in all rural schools. But the Victorians came to no harm from having outside school toilets and we have more important priorities today."

Six years on, too many politicians have the same attitude towards school buildings. Every other year there is a furore over "the scandal of Britain's crumbling schools", but after a flurry of headlines, normal service, or lack of it, resumes. The flat roofs spring more leaks, the paint continues to peel and the mobile classrooms remain obstinately immobile.

Whether the legal action being mounted by parent-governors at Childwall School in Liverpool has any more substance than the earlier causes cel bres over shabby schools remains to be seen. But the governors' claim that the dilapidated state of their school threatens the health and safety of children, teachers and visitors is potentially significant. If there is one thing that we have learned in recent years it is that courts can be a much better friend to parents, teachers and their unions than the Government and local education authorities are inclined to be.

The teachers' boycott of national curriculum testing looked doomed until m'learned friends became involved. More recently, the Government insisted that no teacher retiring early at Easter could rematerialise in the summer term as a supply teacher until the Association of Teachers and Lecturers booked a date in the High Court. And now this week we learn that the threat of legal action may have brought a merciful end to the dispute over class sizes in a Calderdale school (see page 5).

The Childwall action is, of course, very different from these cases, not least because it is technically a criminal prosecution. But in some respects it is similar to the action that Queensmead grant-maintained school mounted against Hillingdon Council last December after the borough cut support for pupils with statements of special needs by Pounds 500,000. The LEA pleaded poverty but Mr Justice Collins would hear none of it. If they could not balance their books they should "Cry to Parliament" rather than duck their statutory responsibilities.

A few weeks earlier Lord Browne-Wilkinson, speaking at an Education Law Association meeting, had acknowledged that such cases raised legal problems. But he added: "I tend at the moment to say that the court must just be firm and say that it is still a breach of duty of care. Otherwise, those whose job it is to provide the money will simply run away from their responsibility. Therefore, harsh as it seems, one probably has to hold the line and say that lack of the necessary funding is no defence ..."

That does not mean, of course, that the Childwall case judge is bound to find against Liverpool, which will also be pleading penury. The parent-governors may not even be allowed to take the case to court. Such prosecutions are, after all, normally mounted by an "enforcing authority" (ironically Liverpool Council falls into that category) rather than individuals.

Nevertheless, the governors' action represents an imaginative attempt to smash the circle of buck-passing and hoist school buildings up the political agenda. It also serves as a reminder of how much needs to be spent. If one school needs a Pounds 2 million facelift, the most recently quoted national repair bill of Pounds 3.5bn may be a serious underestimate. But Gillian Shephard probably knew that already. In her home county of Norfolk, 13,000 pupils are being taught in mobile classrooms and 20 per cent of schools need urgent structural repairs.

Of course, this is not just the Government's fault. We are paying the price for shoddy design and building in the 1960s and 1970s and underinvestment in school maintenance by successive governments. But it's now time to accept that a first-class education service cannot be provided in third-class schools, and if the Government won't stop the rot, the courts should.

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