Judgment reserved in predictive grades case brought by home-schooled student

Counsel for Minister said it would be unfair if candidates home-schooled by a relative were to be assessed by a different system

Leaving Cert students that are home schooled cannot be given calculated grades where there is an absence of credible evidence from an independent source, lawyers for the Minister for Education have told the High Court.

The Minister lawyers were making their submissions in an action taken by Elijah Burke over the State’s decision not to consider his application for calculated grades for those home-schooled by a parent or close relative.

Counsel for the Minister Nuala Butler SC said it would be unfair to other students if the small number of candidates home schooled by a relative were to be assessed by a different system compared to the one put in place due to the Covid-19 outbreak.

Counsel said it had been suggested that students like Elijah, who was home-schooled by his mother Ms Martina Burke, could be given an estimated grade if he was interviewed on his course work by an independent teacher. This scenario would not be acceptable to the Minister as it would give Elijah an advantage over other school-attending students, it was submitted.


Providing “a different system for him”, counsel said, was “not something the Minister could stand over.”

Elijah, represented by Paul O Higgins SC, claims the “unjust and discriminatory” exclusion of home school students from the calculated grades process breaches his rights under the article 42 of the Constitution and the Education (Welfare) Act 2000.

The decision means he cannot progress to third-level education for at least another year.

Mr O’Higgins in rejecting the State’s arguments said his client was being “punished” for being home schooled. Following the conclusion of submissions from both parties on Thursday evening Mr Justice Meenan said he would give his decision on what was “a complex case” sometime next week.

The Minister denies Elijah’s rights have been breached. It is not possible to give Elijah a calculated grade for any of the nine subjects he has studied due to an absence of credible evidence from an appropriate source, the Minister claims. Ms Butler told the court that under the Minister’s scheme, Ms Burke, who home schooled Elijah in all of his subjects, is in a position of direct conflict of interest. Accepting estimated marks from a close relative would undermine the integrity and credibility of the process, counsel said.

In this case counsel said there is insufficient evidence that would allow it to give Elijah, who did not sit the Junior Cert examinations, a predictive grade in any of his subjects.

However, the fact he falls outside of the system put in place due to the global health emergency does not deny him a chance to sit the Leaving Cert. He could sit that exam in November, and if he was successful, he could commence the third-level course of his choice in 2021.

Elijah, the court heard, hopes to continues his studies at NUI Galway.

The 18-year-old from Cloonsunna, Castlebar, Co Mayo, is one of 10 siblings who have all been educated at home by their mother, a registered teacher.

Elijah claims the Minister has acted unlawfully in failing to have in place a process for receiving and determining applications for calculated grades for pupils who are home schooled by a relative. It is believed that there are approximately 10 other students in the same situation as Elijah.

In his judicial review proceedings against the Minister, Elijah seeks various orders and declarations, including orders compelling the Minister to determine his application for calculated grades. He also seeks an order quashing parts of the calculated grades scheme imposing a blanket exclusion on parents acting as tutors for home schooled children.