Excluding home-schooled students from Leaving Cert calculated grades ‘justifiable’, court hears

Court of Appeal begins hearing appeals by Minister and State over High Court decisions in two cases

Lawyers for the Minister for Education argued before the Court of Appeal today. Photograph: Nick Bradshaw

The exclusion of home-schooled students from the Leaving Certificate calculated grades process was rational and justifiable and the High Court erred in deciding otherwise, lawyers for the Minister for Education have argued before the Court of Appeal (COA).

In upholding separate challenges by two home-schooled students over their exclusion from the process, the High Court intruded on policy considerations and effectively created an “alternative” process, it was argued.

The COA on Tuesday began hearing appeals by the Minister and the State over the High Court decisions in both cases. Ms Justice Aileen Donnelly, presiding, and sitting with Ms Justice Mary Faherty and Ms Justice Una Ni Raifeartaigh, will hear final arguments next Wednesday.

The first appeal concerns Elijah Burke, an 18-year-old student from Co Mayo, who was home-schooled by his mother Martina, a registered teacher. Because of her relationship to him, she was deemed to have a conflict of interest when it came to providing the teacher estimated marks on which the calculated grades process was based.


Last August, the High Court’s Mr Justice Charles Meenan said Mr Burke’s exclusion from the calculated grades process was arbitrary, unfair, unreasonable and contrary to law.

The judge said an independent teacher or teachers should be appointed to award estimated marks in each of Mr Burke’s Leaving Certificate subjects. Mr Burke has since been awarded 577 points under the calculated grades process.

The second appeal is against Mr Justice Meenan’s judgment last September in favour of a 17-year-old student home schooled mainly by her mother, with the assistance of her father and private tutors, none of whom are registered teachers. The girl, a minor, cannot be identified.

She sued after being told it was not possible to give her a calculated grade in the six subjects she had studied due to the absence of “satisfactory, credible evidence from an appropriate source”.

Mr Justice Meenan said the refusal to provide a calculated grade to an applicant home schooled by an unregistered teacher/s was irrational, arbitrary, unfair and unlawful. On Tuesday, Brian Kennedy SC, for the Minister, argued the need to uphold the integrity of the calculated grades process meant estimated marks from a tutor closely related to an out of school learner could not be used for a calculated grades assessment.

The Minister’s view is the calculated grades process is rational and as fair as possible, counsel said. The court should give strong weight to the functions of the Executive and the “very exceptional” circumstances in which the calculated grades system was introduced in determining whether it was appropriate to intervene.

The High Court intruded on policy considerations and its decisions meant moving away from the process established by the Minister and introducing a parallel process involving an “individualised” assessment for home-schooled students by a third-party teacher unfamiliar with the work of those students. Such an assessment would not be available to in-school students.

Eileen Barrington SC, also for the Minister, said there are 929 out-of-school learners, including 173 tutored by persons who are not registered teachers, plus another 1,800 school students who study a foreign language outside school. If the High Court decision stood, those students would be entitled to an individualised assessment with resource implications for the Department.

Paul O’Higgins SC, for Mr Burke, said a core issue was whether there is to be parity between Mr Burke’s teacher, his mother, and an in-school teacher for the purpose of providing evidence for calculated grades.

The Minister had allowed exceptions to be made for certain students but there was a “rooted refusal” to do that for home-schooled students, he said. No one had ever said the Leaving Certificate exam would be compromised to the extent protections would not apply to home-schooled students. He also disputed arguments about resource implications.

When parents have exercised their constitutional right to home school their child, that is a private education initiative which the State is obliged to support but the State’s stance was an interference with the right to home schooling, he said.

The emergency which may have been created in 2020 does not necessarily exhaust itself in one year but parents who are home-schooling are facing a situation where no provision is being made for that, he said.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times