Teachers have been warned they could end up facing "enormous" legal costs in a few years if they continue to block plans by the Minister for Education, Mr Dempsey, to introduce new syllabi into second-level schools.
Confidential legal advice submitted to the Association of Secondary Teachers of Ireland (ASTI) warns the union it could face legal actions from students and their families for breach of the constitutional right to an education.
The Minister is trying to introduce new syllabi in biology and home economics but ASTI has refused to co-operate. The union has begun balloting members on whether to maintain the current policy.
The legal advice, from Mr Ercus Stewart SC states: "The costs involved, on behalf of the union in defending, and the exposure to costs of claims, which could be many, would be enormous. It would not be in the interest of the union and its members to have this exposure hanging over them."
The union has refused to co-operate with the Mr Dempsey's plans until its long-standing pay claim is addressed by Government. However, Mr Dempsey has told ASTI he cannot step outside national pay guidelines.
Mr Stewart in his advice, which has been circulated to some union members, states: "There is an exposure to the union and its members. Whatever about the climate in 1989, there is even more litigation around today."
The barrister's advice suggests the ASTI position could run counter to the constitutional right to an education.
A student could argue they have the right to be taught the prescribed curriculum.
Mr Stewart says unions enjoy industrial relations protections but can still be exposed to "damaging litigation" if constitutional rights are breached.
"In this case, the plaintiffs would be infants (under 18 years of age) who in ordinary court proceedings have not only three years to sue but also three years after they attain their majority (age 18). In constitutional actions, they may argue much later, that these limitations do not affect constitutional actions. This all introduces uncertainty."
He adds: "Although the union would strongly contest any legal proceedings brought against it, there is the exposure and very definitely the cost of defending claims. These costs would never be recovered. This would not be in the interest of the union or the membership."