The Scottish Government is facing growing pressure to make its guidance on maximum class sizes legally binding, following a second legal challenge to a local authority's class size target.
East Lothian Council has become the second to be taken to court by parents for refusing a placing request to a P1 class which it had set at a maximum of 25, under the previous Scottish Executive's guidance.
Earlier this month, West Lothian Council was forced to accept a pupil into one of its P1 classes, bringing the class up to 26 pupils, when it settled a parent's legal challenge before it could be heard by a sheriff. As it was settled out of court, that created no legal precedent.
In the East Lothian case, Sheriff Alan Miller granted a request by parents for their twins to be allowed to join a P1 class outwith their catchment, thus bringing the class up to 26 pupils.
The parents' lawyer argued that the twins should be allowed to go to the primary school because the "undisputed legal maximum" class size was 30 pupils under regulations issued in 1999.
The council's refusal of the placing request was based on its argument that, if it was to maintain class sizes of 25 or less as set by guidance issued in 2007 by the previous Scottish Executive, it would have to employ an additional teacher.
Sheriff Miller's ruling does not give a definitive judgment on whether the 2007 guidance takes precedence over the 1999 regulations. He ruled that the twins should be allowed to go to the school of their choice because placing decisions decided on appeal, which result in additional pupils joining a school, allow them to be treated as "excepted pupils" who are not counted towards class size maxima.
East Lothian Council has lodged a petition for a judicial review at the Court of Session, which means that the sheriff's judgment is suspended. The judicial review is due to be held in early September.
Don Ledingham, director of education and children's services at East Lothian, said: "Our case was premised upon the need to keep places available for district pupils and that we have a maximum class size of 25 for all P1 classes. The effect of the sheriff's judgment is that our maximum class size of 25 for P1 classes can no longer be considered to be the maximum as the courts can use the exceptions as laid out in the 1999 regulations."
Ronnie Smith, general secretary of the Educational Institute of Scotland, said that unless the Scottish Government grasped the nettle and secured delivery of its class size targets, its policy would be nothing more than an aspiration and its promises would ring hollow.
In a reference to the West Lothian case, he said: "The reality is that here is an authority which purports to be keen to move towards maximum class sizes of 18, never mind 25, effectively rolling over because it has no defence as long as the statutory provision remains at 30."