Failure in middle school must be an exceptional fact

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The parents of the minors in question challenged through their defenders the failure to promote their children by censoring a series of issues including the motivation about the non-admission as not supported by a solid argument and adequate motivational system, they also effectively contested the lack of specifications recovery actions by the Institute and the consequent violation and false application of article 6, paragraph 3, of Legislative Decree no. 62 of 2017, etc. Two judgments of the Council of State Section VI, Sent., (Ud. 21-05-2020) 18-06-2020, n. 3906 and Cons. State Section VI, Sent., (Ud. 25-06-2020) 26-06-2020, n. 4107, deal with two missed promotions in first grade secondary school, affirming concepts certainly of general interest.

Failure in middle school must be an exceptional fact

The sentence of the Council of State 3906 of 18 June recognizes that: “Article 6 of Legislative Decree no. 62 of 2017 establishes in the first paragraph that the pupils of the first grade secondary school are admitted to the next class and to the final exam of the first cycle, except for some specific cases of serious disciplinary sanction or of partial or failure to acquire the learning levels in a or more disciplines. In the latter case, paragraph 2 provides that the class council can deliberate, with adequate motivation, not admitting to the next class or to the final exam of the first cycle. The Section has already clarified (judgment no.5917 of 2019) that, on the basis of this legislation, the non-admission to the next class in lower middle school must be considered an exception, given that even when there is an insufficient acquisition of levels of learning in one or more disciplines, non-admission is not automatic but “can” be deliberated with adequate motivation. Furthermore, also for the final assessments, as well as for the periodic ones, the third paragraph of article 6 requires specific strategies to be implemented to improve learning levels. Therefore, the first instance sentence cannot be shared in the part in which it states that the current legislation does not provide for an overall examination of the level of learning not limited to a period or even to a single reference year. In fact, the possibility of activating recovery actions necessarily requires that the school board evaluate the possibility that such recovery does not imply refusing admission to the following year and therefore extends its examination to a wider period of time “.

MIUR also specifies that the promotion can take place in the presence of some shortcomings

On the other hand, the judges note, “the same circular from the Ministry no. 1865 of 2017 specifies that admission to the following classes of the first grade secondary school is generally arranged also in the case of partial or non-acquisition of the learning levels of one or more disciplines. Non-admission is therefore an exception that occurs only on the negative outcome “of the predictive and reasoned examination of the possibilities of recovery in a wider school period” (see the judgment, already mentioned, no. 5917 of 2019). On the other hand, it is evident that this overall examination can only be carried out taking into account the level of learning achieved even in the periods immediately preceding the one in which the deficiencies to be recovered were recorded “.

The class council must carry out a thorough investigation before evaluating the non-promotion

“As already pointed out, the results obtained in the periods immediately preceding the” critical “one, made up of the second quarter of the second class, should have induced the class council to carry out an in-depth global investigation and expressly indicate the reasons why it was nevertheless considered necessary to adopt the “exceptional” decision not to admit in place of that of admission (albeit with the reserve of recovery in the following year) that the same circular of the Ministry already mentioned considers to be arranged “in general” even in the presence of insufficient levels of learning in certain disciplines “.

Unlawful failure to promote in violation of article 6 of Legislative Decree 62 and circular MIUR 1865

With the sentence 4107, in compliance with the previous sentence, the Council of State also states that “the contested judgment is in violation of article 6 of Legislative Decree no. 62 and MIUR circular 10/10/2017, n. 1865, in the part in which it foresees that from the failure to acquire the levels of learning in … more disciplines, attributed to the pupil, it cannot necessarily achieve the non-admission, rather than the admission to the next class, before having evaluated the outcome of the recovery measures to be compulsorily adopted and, in the event of a positive assessment of this, of the possible achievement of the indispensable levels of learning on a biennial scale “. In fact, the judges point out that “expression of the circular n.1865 / 17 cit., According to which the admission to the following classes in the secondary school is generally disposed, even in the case of partial or non-acquisition of the levels of learning in one or more disciplines, therefore recognizes, in coherence (but greater clarity) than what is established by art. 6, Legislative Decree 13 April 2017, n. 62, to be able to evaluate on the basis of broader periods of a single school year the pupil who, in the first class of the first grade secondary school, did not achieve all or part of those levels. The expression arranged, generally indicates that, in the case of partial or non-acquisition of learning levels in one or more disciplines, the rule is admission to the next class, while the exception is non-admission, which can arise only if all the measures required to avoid this conclusion have been adopted without success, such as the activation of specific strategies for improving learning levels, as required by art. 6 cit., and only if the outcome of the predictive and reasoned examination of the possibilities of recovery in a wider school period is hopelessly unfavorable “.





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