All Saints Academy Dunstable, R (on the application of) v Ofsted & Anor

I accept Mr Fisher’s submission that this Ground is not realistically arguable, whether on its own or in combination with Ground 2. The reality is that the School is impermissibly seeking to draw the court into a political argument and/or an area of judgment which is a matter for Ofsted and the Chief Inspector, and without any public law basis for doing so.

Under section 133, the Chief Inspector has a broad discretion as to the framework which she puts in place in relation to inspections. There is room for disagreement about what is the best way to report outcomes from inspections, but it is not the role of the courts to decide this issue. Nor is it the case that there is universal disagreement with the current approach. Views differ, but the fact that they do does not mean that the current system is irrational or unfair, nor that the Chief Inspector is failing in her duties under section 119 of the 2006 Act.

The merit of the current approach is that, overall, the grades assist parents in interpreting the commentary and other information which appears in the inspection report in relation to each of the areas of judgment. The grades also assist in standardising the approach and making comparisons with other years and other schools. It is inevitable that the awarding of grades will involve the making of judgments, but this does not mean that the process is entirely subjective as the EIF sets out the matters which must be considered by inspectors in making a judgment in each of the areas of assessment. There is also very detailed guidance as to grade descriptors in the SIH which the inspectors are required to apply. Moreover, the quality assurance process in relation to a draft report reduces the risk of inconsistent grading.

Contrary to the School’s case, the disparity between the judgments of the first and second teams in the present case is not simply accounted for by the fact that the teams were different and each was applying its subjective judgment. The second team gathered additional evidence and triangulated the evidence which had been gathered, so the evidence was not identical on the second occasion. Equally importantly, the view taken was that the first team had not applied the EIF and the SIH correctly. This was not a case of the framework being applied correctly to the same evidence by two different teams which then came up with different results or radically different results. As a matter of logic and rationality, the two outcomes in this case were not inconsistent because the circumstances in which each set of judgments was made were different.

Nor is the approach under the EIF one which has been adopted without careful consideration. The EIF was the subject of consideration by Ofsted in 2019 and public criticisms of it were taken into account, including criticisms of the system of grading. Whilst the four areas of assessment were modified, the grading system was seen to have more advantages than disadvantages and was, therefore, retained. The Defendants were fully entitled to come to this conclusion whether or not everyone would agree with it.

Subject to Ground 2, nor am I at all convinced that removing the grading approach would materially reduce the adverse consequences for a school when it is criticised by Ofsted inspectors. The commentary and other information in support of the judgment may be very critical, as the current case illustrates, and this is likely to have essentially the same impact on the perception of the school and the morale of staff, even if the judgment is not then summarised in a single word.

None of this is to say that I agree or disagree with the approach under the current EIF. It is not my function to do so. My function is merely to decide whether it is arguable that the current approach is unlawful. In my view, it is not.

This point makes no difference to the outcome for the School, as Mr Fisher points out.

Ground 2, therefore, does not arise in the present case.

Third, in any event, Ground 2 is unsound. It is not the case that a grading of “Inadequate” automatically follows from a finding that safeguarding at a school is “ineffective”: see para.26 of the SIH which states that such a consequence is likely rather than inevitable.

Fourth, I accept Mr Young’s evidence that, although para.147 of the SIH is not expressed consistently with that evidence, there is a similar discretion in respect of overall effectiveness.

Fifth, the very fact that there is a general approach with a discretion to depart from it shows that the relevant statutory powers have not been fettered. It is the function of a policy to set out how a discretional power will be exercised. Provided that policy may be departed from in a given case, it will, in principle, be perfectly lawful: British Oxygen v Minister of Technology [1971] AC 610.

The policy position of Ofsted, in relation to safeguarding is also, in my view, plainly rational. Given the central importance of this issue, the safety of the children at a school is a matter which is specifically required to be addressed in the inspectors’ report: see section 5(5A) of the 2005 Act. Moreover, para.1 of the Department of Education’s document “Keeping Children Safe in Education 2022” defines safeguarding and promoting the welfare of children as follows:

“• protecting children from maltreatment

• preventing the impairment of children’s mental and physical health or development

• ensuring that children grow up in circumstances consistent with the provision of safe and effective care, and

• taking action to enable all children to have the best outcomes.”

It can hardly be said to be irrational that the leadership and management, and overall effectiveness, of a school which has inadequate safeguarding measures in place, are also likely to be held to be inadequate. Although the hypothetical seems unlikely, if, however, the school is outstanding in all other respects, there is a discretion to take a different approach.

I therefore refuse permission in respect of Ground 2. As I have said, the complaint itself does not seem to me to have merit; second, it does not arise in this case; and, third, for that reason the outcome in the present case would be the same even if the School is right: section 31(3D) of the Senior Courts Act 1981. There is no exceptional public interest which would justify the point being litigated in the present case, nonetheless.

There are two preliminary points in relation to Grounds 3 to 6.

First, there was disagreement about whether these Grounds should be looked at under one heading or separate headings. I will do both, but I agree with Mr Fisher’s submission that it is important that, in Durand Academy Trust v. Ofsted [2018] EWCA Civ. 2813, the Court of Appeal examined Ofsted’s inspection and complaints procedure and made two points. First, that the process up to and including the final report of an inspection should be looked at as a whole, in terms of assessing its fairness, and second that, in principle, the process is fair.

Although the inspection, reporting and complaints process has since been amended, Mr Greatorex did not suggest that this was in a way which would undermine these two key conclusions. On the contrary, he accepted that the fairness of the process should be looked at as a whole where a systemic challenge is made. His submission was that what mattered was how the process had been operated in this particular case. His was, in other words, not a systemic challenge. His argument was that the process had been operated unfairly at each stage and that the unfairness which he identified at each stage had not been addressed by any subsequent stage. He also argued, and ultimately Mr Fisher did not dispute this, that in Durand, whilst the process was found to be fair in principle, the Court of Appeal was not considering a case in which it was being argued that insufficient information had been provided to the school to enable it to challenge the provisional views of the inspectors. Nor were there arguments about the adequacy or otherwise of the reasons set out in the decisions made by Ofsted.

The second preliminary point is that Mr Fisher reminded me of the summary of the duty of fairness at common law drawn from Ex parte Doody, but conveniently located in para.69 of Singh LJ’s judgment in Citizens UK v. Secretary of State for the Home Department [2018] EWCA Civ. 1812, as follows:

“‘… (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer’."

As to what the gist of the case is, Mr Fisher reminded me of the well-known authorities and, in particular, of what Lord Denning said in Re Pergamon Press [1972] Ch. 388, i.e. that:

“where a public body is to make criticism of a person, fairness requires that they must be given a fair opportunity for correcting and contradicting what is said against them, but that there need not be chapter and verse”.

Mr Fisher also referred in his skeleton argument to Re R [2001] EWHC Admin, 571, where Collins J said:

“Fairness does not require that a person to be criticised knows from whom or from what source or why those criticisms have been made. What he needs to know is that the criticism has been made and what that criticism is and to be given sufficient information about it to enable him to deal with it and to make the necessary investigations on his own side and to come up with any explanations or to set right any errors of fact which may lie behind it…”

As to the first of the criticisms made by the School under this heading, what was said at the end of the first inspection is contested but, in any event, the reference to an unidentified person is to the duty HMI. I accept Mr Young’s evidence about the role of the duty HMI and conclude that it is not arguably improper that such a person should be involved in the process in the way that they were in this case.

Secondly, as to the point about insensitive communication, the Ofsted letter of 20 January 2023 did comply with the gathering of additional evidence protocol. It explained why the second visit was necessary. Although the School pleads that there was no apology, there was an apology in the letter as is apparent from the passage which I have quoted. Indeed, in Ofsted’s notes of the debrief at the end of the 24 January 2023 inspection, it is recorded that the inspectors explained what had been wrong with the process in relation to the first inspection and had said, “we can only apologise”.

As to the complaint that the letter of 20 January 2023 did not properly or fairly identify the scope of the second visit, I agree with Mr Young that this is based on an overly narrow reading of the letter of 20 January 2023 and it takes the matter nowhere. The subject areas which were to be focused on were clearly identified in the letter. Education for children with special educational needs and children who attend alternative provision are aspects of quality of education, which was specifically mentioned as a focus of the further inspection. In any event, it is not clear how unfairness resulted from this, given that there were meetings with the relevant people, including staff who were concerned with special educational needs, and who therefore had an opportunity to say what they wished to say.

There is nothing in the fourth point under Ground 3 either. It seems to me that this point (amongst others) is indicative of a kitchen sink approach on the part of Mr Greatorex, as Mr Fisher submits. It is the case that eight inspectors took part in the inspection and I very much doubt Mr Greatorex’s contention that it would make a material difference to the reader that eight inspectors were said to be parties to the report as opposed to four.

I therefore refuse permission on Ground 3.

The evidence does not support the conclusion that the conduct of the second team of inspectors, or any of them, was such as to render the process unfair. It consists principally of evidence about a handful of instances of behaviour which the witnesses say they felt was dismissive, uninterested in what they had to say or hostile. But a good deal of this aspect of the evidence is based on assertions or what they say they felt, sometimes in hindsight. There is not a great deal of concrete evidence about actual behaviour and much of that is capable of differing interpretations.

It is natural that, in their disappointment, staff should make this sort of criticism of inspectors, who were critical of them. Moreover, they may have detected at the time that the inspectors were critical and interpreted this as being dismissive or not listening. But the allegations of bullying etc. do not sit easily with the evidence that, at the beginning of the feedback session after the second visit, Ms Furber was asked about whether she had any concerns about the conduct of the visit and said that she did not. During the feedback meeting she was asked if she had anything to add, and said that she did not. At the end of the meeting she and the Chair of Governors were asked if they had any comments they wished to make. They paused for thought and then did make comments which challenged what they had been told. But they did not say that the inspectors had behaved badly during the inspection. On the contrary, the Chairman of Governors said that he was not blaming the second team of inspectors.

In addition to this:

Having regard to the inspection reporting, quality assurance moderation and complaints process as a whole, I am satisfied that the School has not made out an arguable case that this aspect of its evidence, on its own or taken with its other criticisms of the process, shows that the process was unfair.

I will come back to Grounds 5 and 6 but, before I do so, I turn to Ground 7.

I agree with Mr Fisher that this Ground has not established material errors of fact which are capable of vitiating the judgments which were reached by the inspectors (see E v. Secretary of State for the Home Department [2004] QB 1044). In truth, the thrust of the complaints under this heading is an attempt to argue that the evidence should have been interpreted in a different way, and different judgments reached. As the pleaded list of key points which I have quoted from the Statement of Facts and Grounds makes clear, the exercise that the court is invited to undertake under Ground 7 is impermissible in a claim for judicial review. As Lindblom LJ said in Crown (Governing Body of X) v. Ofsted [2020 EWCA Civ. 594:

“43.

Two general points can be made at the outset. First, an allegation of irrationality is never easy to establish. In the context of a school inspection, undertaken within a statutory framework by inspectors familiar with the task, and involving issues on which the exercise of evaluative judgment is an essential part of the process, it is likely to be particularly difficult. Secondly, as was recently held by this court in R. (on the application of Durand Academy Trust) v Office for Standards in Education, Children’s Services and Skills [2018] EWCA Civ 2813; [2019] E.L.R. 100, Ofsted’s inspection, evaluation and reporting process, and its procedure for handling complaints, are inherently procedurally fair (see the judgment of Hamblen L.J., as he then was, at paragraph 63). The contrary was not argued before us.

44.

To amplify the first of those two points: dissatisfaction with the findings and conclusions of the inspection report does not, of itself, amount to a demonstration of irrationality.”

In the present case, the School is clearly dissatisfied with the judgments made in the final report, but it has not come close to establishing an arguable case that they are irrational notwithstanding the detailed internal scrutiny which they have undergone through the quality assurance, moderation and complaints process.

Section 13 of the Education Act 2005 requires Ofsted to send the final report to the relevant school without delay. Section 16(3)(c) then requires the school to take such steps as are reasonably practicable to ensure that every parent of a registered pupil at the school receives a copy of the final report within such period following receipt of the report by the proprietor as may be prescribed. The prescribed period is five days.

In addition to this, section 11 empowers Ofsted itself to publish a report and I am told – and this was not disputed – that the practice of Ofsted is indeed to publish reports itself. I also accept that there is a public interest in the publication of a report, although not only from the point at which it has become final, as Mr Fisher submitted. Tthere is a public interest in the outcome of the inspection of a school being published sooner rather than later, so that the information which the final report contains is current and this interest therefore arises from the point at which the inspection takes place.

In this context, it is understandable that the position of Ofsted was that it would publish the report on the day on which the School was required under statute to do so. When the application to the court was made, however, Ofsted was, in effect, obliged not to publish the report pending the outcome of the application which is currently before me.

I do not accept that, arguably, this was a breach of any public law duty to act fairly towards the School. Mr Greatorex argued that the court should revisit the decisions that were made leading up to Morris J’s Order because the question was one of public interest. In my view, the position leading up to Morris J’s Order has been examined and has been adjudicated on by the grant of interim relief. Insofar as the court may or may not wish to express disapproval of the approach which Ofsted took in relation to the initial application, that is a matter which can be debated in relation to the question of costs when the time comes. In my judgment, it is not appropriate and not central to the present case that the judicial review claim should concern itself with litigation decisions made earlier on in the proceedings.

There is nothing in Ground 9 either. Mr Young explains that the whistleblowing intelligence merely reinforced the concerns which had already arisen in the evidence-based review which I have described and which formed part of the quality assurance process in relation to the first inspection. The decision to gather further evidence, the assessment after the second inspection, the decisions made on the School’s comments on the first draft of the report and on the School’s formal complaint were not affected by this intelligence which, in any event, Ofsted was not in a position to investigate. I also accept that Ofsted was entitled to maintain the confidentiality of this information and that no unfairness resulted to the School as a consequence of it doing so.

I therefore refuse permission on Ground 9, not only on the merits of the Ground but also on the basis that section 31(3D) of the Senior Courts Act 1981 applies and there is no exceptional public interest which would justify this point going forward.

The pursuit of this Ground by Mr Greatorex was surprising. There was a factual dispute as to what the Chief Inspector said or meant in the interview in question, but even if she misdescribed her powers this was of no consequence in the present case. It was common ground that she has the power, and indeed the duty, under section 133 to determine the EIF and Mr Greatorex acknowledged this in his draft amendment. Moreover, this is not a case in which she was formally asked by the School to amend the EIF but declined to do so because, she said, she did not have the power to do so. There was therefore no issue as to the Chief Inspector’s powers in this regard which required adjudication in this case. I therefore refused permission to amend and would have refused permission had the point been pleaded.

I return, then, to Grounds 5 and 6. In summary, I propose to grant permission to allow the School to complain that, in the course of the process which I have described at length, it was not provided with sufficient information to enable it fairly to contest the findings about the School which were proposed by the inspectors to be made. Secondly, I propose to grant permission for the School to complain about the way in which the final report was expressed, in other words to make a reasons-based challenge. These two points reflect the key theme running through Mr Greatorex’s oral submissions and the emphasis of his case, although he spread his net far more widely than this and Grounds 5 and 6 were not formulated in precisely the way in which I have indicated that they are arguable.

I give permission with considerable misgivings and real doubts as to whether the arguments which Mr Greatorex puts forward will succeed, but I note that this appears to be an unusual case in terms of the passage of events that I have described. I note the difference of view as between the first team of inspectors and the second, and I note that the views about the School which were expressed in the final report were extremely critical and, in all likelihood, very damaging.

It seems to me that there is an arguable case that greater information about the evidence on which the draft inspection report was based should have been provided to the School and/or more information should have been provided in writing so as to give the School a better ability to understand and challenge the provisional findings of the inspectors before the report was made final. The likely effect of the final report when published arguably supports the argument that there was a need for greater transparency. Arguably, it was not enough to give oral feedback at the end of the second inspection in the way that it was, particularly given that the outcome was likely to come as a surprise, and/or the reasons given in the draft report were insufficiently detailed.

Expressed as it was, the final report seems likely to have significantly harmed staff morale and parent and pupil confidence in the School and consequently to have led to wider harm to the School in terms of recruitment and retention of staff and enrolment and retention of pupils. That is not to say that it was wrong of the inspectors to criticise the School, but arguably the final report ought to have provided more context for the criticisms made by the inspectors so that the School and parents could understand the scale of the problems identified and, more precisely, what required to be done. Arguably, comments like “Too many pupils do not feel safe at” the School, or “Pupils experience frequent disruption to learning” or “Aggressive and abusive language towards peers and staff is common. Bullying happens.” without additional context to indicate the numbers involved or the scale of each problem meant that the final report was unnecessarily damaging. Arguably the steps needed for the School to improve also lacked precision as to what the flaws in the School were.

I also note that, with respect to counsel, the question of the purpose of the final report was not fully argued before me with reference to the relevant parts of the statutory framework, although certain provisions were produced after the short adjournment in the light of observations by me. My point was that, whilst the parties agreed that the reasons given in the final report had to be “adequate” the question was: “adequate” for what purpose? This was not an adjudication of a legal or a planning dispute. The parties did not agree as to what the purpose of the final report was – was it simply to inform parents or to assist the School to improve, or neither, or both – and I considered that this issue would inform the question as to adequacy of the reasons for the grades which were given in the present case. That question would fall to be considered in the context of the statutory framework and other relevant materials. Neither party had adopted this approach to the reasons issue and the result was that a number of conflicting assertions about the role of Ofsted were made in the course of the hearing.

I also note that the issues which I have identified have not, as far as I am aware, been considered authoritatively by the court.

So, for all these reasons, I am prepared to allow these particular issues to go forward, which may require reformulation of Grounds 5 and 6, but the essence of what I am allowing to go forward I hope is clear. If not, it can be discussed when I conclude my judgment.

I turn, then, to the question of interim relief. The principles applicable to the application for interim relief were helpfully summarised by the judgment in the judgment of the Court of Appeal in Crown (Public and Commercial Services Union and Others) v. Secretary of State for the Home Department [2022] EWCA Civ. 840. In summary, the American Cyanamid principles are modified in relation to public law claims. The principal relevance of the public law context is that, as Sir Clive Lewis said in his book Judicial Remedies in Public Law, 6^th Edition 2020 at para.8-24:

“The adequacy of damages as a remedy will rarely determine whether or not it is appropriate to grant or refuse an interim injunction. For that reason, the courts will normally need to consider the wider balance of convenience and, in doing so, the courts must take the wider public interest into account.”

Second, in considering where the balance of convenience lies, the court has a wide discretion and its task is to take the course which minimises the risk of injustice.

Third, it is well established that in the public law context, the court will have regard to the principle that it is in the public interest that, unless and until it is set aside, a decision of a public body should be respected (see, for example, Crown v. Ministry of Agriculture, Fisheries and Food, ex parte Monsanto PLC [1999] QB 1161 at 1173E).

The relevant principles were also fully considered by the Court of Appeal, specifically in relation to applications to restrain the publication of Ofsted reports, in the X case to which I have referred (see paras.61 to 85 in particular). The key points are that, firstly, at para.66, Lindblom LJ said:

“There is support at first instance for the proposition that, in a public law claim, the court will generally be reluctant to grant interim relief in the absence of a ‘strong prima facie case’ to justify the granting of an interim injunction…. This is not to say that the relevant case law at first instance supports the concept of a ‘strong prima facie case” being deployed as a ‘threshold’ or ‘gateway’ test in such cases, but rather that the underlying strength of the substantive challenge is likely to be a significant factor in the balance of considerations weighing for or against the granting of an injunction.”

Secondly, Lindblom LJ went on to consider the authorities on the level of justification which a court will require for restraining the report of a public body which has a statutory duty to prepare one, including Ofsted reports. At paras.78 and 79, he said:

“78.

Unsurprisingly, and in my view correctly, the case law at first instance has been consistent in emphasizing the need for a suitably demanding approach to applications for an interim injunction to prevent the publication of an Ofsted report. It is important to recognize the scope of Ofsted’s functions under sections 5, 13 and 14 of the 2005 Act, including their powers and duties to secure the timely publication and dissemination of their inspection reports. The inherent purpose of this part of the statutory regime is to promote the public interest in parents, pupils and local communities knowing, without delay, the results of school inspections, and to uphold the rights of those entitled to receive that information. The considerations that would warrant impeding these functions would have to be very powerful.

79.

Chamberlain J. was therefore right to refer to the concept of a “high hurdle”, and the various phrases corresponding to it that one sees in the authorities. As the case law shows, the facts will vary from case to case. But it is, I think, highly unlikely that the kind of circumstances justifying the grant of injunction that arose in Interim Executive Board of X will often occur; they were indeed exceptional. In striking the balance overall, the court will keep in mind that only if the factors weighing in favour of an order to restrain publication are nothing less than compelling should such relief be granted”.

At paras.91 and 92, Lindblom LJ said:

“While the judge found that the inspection report contains conclusions that could have severe reputational consequences for the school, this point has another side. It may fairly be said that the greater the possible reputational damage, the greater the public interest in parents, pupils and the local community being made aware swiftly of Ofsted’s concerns. As Farbey J. rightly observed in Remus White Ltd. (at paragraph 26), public confidence in the statutory regime for school inspections is important in the public interest, and this requires Ofsted’s concerns about a school’s performance to be brought into the public domain promptly.

92.

But as Sir James submitted, the school is not powerless to minimize any potential reputational damage. There is nothing to stop it communicating to parents and pupils its criticisms of the Ofsted report, bringing to their notice other reports and surveys that – in its belief – cast doubt upon or disprove the conclusions of that report, and publicizing the measures it has taken to deal with the concerns expressed.”

Mr Greatorex argued that the claim in this case is a strong one and that there were also exceptional features of this case which supported the conclusion that there were compelling reasons for granting interim relief.

In my judgment, interim relief in this case should be refused. Firstly, as I have indicated, the claimant has not established a strong prima facie case. I have given permission, as I said, with some misgivings, to complain or to raise concerns about the level of information provided to the School so as to enable it to challenge the inspectors’ provisional views, and about the adequacy of the reasons set out in the final report, at least in the context of the exceptional circumstances of the present case. But I have expressed doubts about whether, ultimately, those arguments will succeed and have stated, as is the case, that my decision to grant permission is, in part, because the questions raised have not previously been considered in this particular context by the court. So I do not carry out the balancing exercise on the basis that there is a strong prima facie case that the final report will in due course succeed. Moreover, even if the Claim ultimately succeeds it is far from clear that the final report will be quashed given the quality assurance processes which it underwent.

As far as the points raised by Mr Greatorex are concerned, in relation to delay my view, as I have said, is that there is a public interest in the publication of Ofsted reports taking place as rapidly as is consistent with fairness. That is principally because the report reflects an assessment of a school at a particular point in time and it is important that it is therefore as current as possible when it is published. In my judgment there is therefore an imperative to publish which goes into the balance. Moreover, the delays alleged against Ofsted were significant but they were not as a result of dilatory conduct, as Mr Fisher submitted. They were the result of very careful scrutiny of what had been done by the first inspection team and then careful consideration of the arguments put forward by the School.

As far as the conduct of inspectors is concerned, I have expressed my views about that and, in my judgment, the evidence does not amount to the sort of exceptional circumstance which might warrant the publication of the final report being delayed.

As far as the contrast between the outcome of the first inspection and the second is concerned, again, as I have explained in addressing the grounds of challenge in the Statement of Facts and Grounds, rationally or logically there is no inconsistency between the views which were taken. Those views were based on different evidence bases, in the one case applying the relevant criteria correctly and, in the other, not doing so.

As far as the fact that the Ofsted processes are under public scrutiny is concerned, I do not give that a great deal of weight. It seems to me that the contrary can be argued, namely that, given that that is so, it is in the public interest for the report to be in the public domain so that, insofar as there is any discussion of the present case, the public are aware of what the inspectors decided.

In relation to the risk of statutory consequences for the School resulting from the report, I have no doubt that any decisions taken in that regard will be taken in the knowledge that the final report is under challenge in the way in which I have identified. Any such decisions can be examined in due course on their merits.

Individually and cumulatively, in my judgment, there are neither a strong prima facie case, nor the sorts of exceptional compelling features in this case which would justify granting the relief sought by the School pending the determination of the grounds of challenge that I have identified as being arguable.