Michael Forsyth, the Secretary of State, introduced an amendment to the Education Bill this week which he said was designed to end misuses.
Parents at eight schools in Glasgow, Dundee and Highland are currently organising opt-out polls to take advantage of the loophole which prevents a local authority closing a school until after the outcome of the ballot. This can frustrate closure plans for up to six months where a yes vote has to await a final decision by the Secretary of State.
Mr Forsyth has now been forced to concede that the reform of which he was the architect, during his tern as education minister in 1989, has obstructed another plank of Government policy which is to tackle what he described as the "very considerable overprovision of school places".
Ronnie Smith, general secretary of the Educational Institute of Scotland, said the Secretary of State's dilemma was "a wonderful illustration of how dogma gets in the way of policy and it is encouraging to see that the principle of opting out is not sacrosanct any more".
In future parents will not be entitled to hold ballots on opting out once an education authority publishes a consultation paper on closures. At present they are allowed to wait until just before a formal decision on closure is taken. Parents will have to stay their hand for three months from the start of the consultation or until after a closure is confirmed "whichever is the sooner".
Judith Gillespie, convener of the Scottish Parent Teacher Council, described the move as "not so much a U-turn as a triple back flip with double twist. " The council had urged just such a moratorium on Raymond Robertson, the Education Minister, in January but had been turned down flat.
Mrs Gillespie said: "The Secretary of State is now faced with ballots which he will be obliged to turn down if the parents vote to opt out. Parents and school boards will be encouraged to take pre-emptive strikes whenever the merest rumour of possible closure springs up or where people think their school is a likely candidate. All he has done is to put the process back a stage."
This view was endorsed by Jean Smith, who chairs the school board at Levern primary in Glasgow, which wants to opt out. Mrs Smith said that if the change had been law when Glasgow started its doomed attempt at large-scale closures all of the 22 schools targeted would have held ballots instead of the four which finally did so.
The parents at the 180-pupil school are the only ones at the four city schools who say they are not using the legislation as a delaying tactic.
Mrs Smith, who will have three children at the school in August, said parents felt opting out was a viable alternative to control by a city council which was "going nowhere". The authority was taking education back to the 1960s with classes edging up to 35, she said.
Mrs Smith added: "Perhaps cuts were necessary, but the councillors could have saved money by not painting railings or planting trees or renewing their ceremonial robes. I mean they actually went on a fact-finding mission to Canada for a conference which was going to be held in Scotland."
The Government first acted to head off the side-effects of opting out following the campaign of "rolling ballots" in Glasgow's south side in 1993-94. This allowed parents at any related school which might be affected by the closure of another to run an opt-out ballot until that loophole was plugged.