Mr Burke had been warned in June, when he was released from Mountjoy, that he if returned to Wilson’s Hospital School in Co Westmeath, he would find himself back behind bars.
Despite that warning from High Court Judge Mark Sanfey, he returned to the school last Thursday, and has continued to attend since students and staff returned from the summer holidays.
In doing so, he has breached the ongoing court order which states that he must stay away from the school, which first moved to suspend him two years ago.
His presence at the school has prompted the board of management to return to court.
RTÉ reported that the board’s barrister, Rosemary Mallon, on Wednesday, asked Judge Barry O’Donnell for permission to serve short notice on Mr Burke of its application to have him committed to prison for contempt of court.
Ms Mallon said the school board was particularly concerned over an allegation that Mr Burke had entered a room in the school’s main building where teachers were holding a staff meeting in respect of the school’s Transition Year class.
Speaking to reporters last week, Mr Burke had himself said: ‘I came back to school today, I attended at it. I was at a meeting in there.
‘I walked into a meeting. Then subsequent to that I was out, I suppose at the edge of the school, greeting parents as they arrived at the school.’
Ms Mallon told the court that it was ‘difficult to monitor’ Mr Burke when he was on the campus.
She said the school was also concerned that other unspecified people had also started attending outside the school in relation to the ongoing situation with Mr Burke.
Judge O’Donnell granted the school permission to serve notice of the proceedings on Mr Burke, and the case will return before the court on Friday.
The former teacher was released from Mountjoy on June 28, after more than 400 days in prison for contempt of court, over two separate occasions.
Judge Sanfey had explained that as the Leaving Cert exams had finished, the school would be closed over the summer holidays.
‘I don’t propose to continue your imprisonment where no apparent purpose is being served,’ the judge ruled.
He said the order to stay away from the school remained valid, and if Mr Burke breached that order again – ‘as I anticipate and expect’ – he would not hesitate to hear a fresh application by the school to have Mr Burke committed back to prison.
Mr Burke had argued before the High Court that it had the power to overturn the order made.
He said the ruling could be tracked back to the email sent to him by his former principal in May 2022, directing him to call a pupil by a new name, and the pronoun ‘they’.
‘That demand has set all of this off. That demand that I endorse and affirm transgenderism, calling a [child] they,’ he said.
‘No principal has the right to make that demand, to compel a member of staff or teacher to accept an anti-Christian faith or gender.’
In giving his judgment, Judge Sanfey said Mr Burke could not ‘pick and choose’ which orders he would obey.
He also said that if Mr Burke had wanted to challenge the order that was made in the spring of 2023, he could have gone to the Court of Appeal but never did, for ‘no reasonable or plausible explanation’.
He said the court order had nothing to do with Mr Burke’s constitutional rights.
Judge Sanfey said Mr Burke, who is still being paid his teacher’s salary as he awaits his challenge to his dismissal, was not being asked to do anything which other litigants were not.