Minister loses appeal over calculated grades for home-schooled students

The Minister for Education has lost a landmark Supreme Court appeal over findings that two home-schooled students were unlawfully excluded from the 2020 Leaving Cert calculated grades scheme imposed as a result of the Covid-19 pandemic.

The court ruled on Monday the students’ exclusion from the scheme was invalid and an “impermissible” interference with the constitutional freedom of the family to provide education in the home under article 42.2 of the Constitution.

There is a derived right, protected by the Constitution, for a home-schooled individual to have “reasonable” account taken of their situation when educational policies are being implemented by the State, it found.

In the five-judge court's main judgment the Chief Justice, Mr Justice Donal O'Donnell, held the scheme was clearly an exercise of the executive power of the State for reasons including it was to be delivered through the Calculated Grades Executive Office (CGEO), "a non-statutory executive office".

The correct legal test was not whether the CGEO acted in “clear disregard” of the constitutional rights of the students in initially excluding them from the scheme, he held.

There was, he said, a need to distinguish between proceedings where an individual claims that an executive decision or action infringes the fundamental personal rights of the citizen and proceedings where an individual argues the government has exceeded the limits set by the Constitution in respect of executive power.

In relation to the latter proceedings, the test of “clear disregard” applies, he held.

In cases such as these, where it was claimed the students’ personal rights were infringed by the executive, there was no jurisdiction for applying a clear disregard test, he ruled.

Rather, the court must uphold the Constitution by applying the same standards as would apply in cases alleging those rights had been infringed by the actions of the legislative branch of government.

Constitutional right

The precise constitutional right at issue was the right of parents to provide education in the home and the consequent right of children to receive it, he said.

He rejected arguments that any interference with a family decision in relation to home-schooling would be impermissible, stressing the State cannot be required to design a “bespoke” examination system for home-schooled children.

That had not happened here because the students’ exclusion meant they could not enter third-level education later in 2020 as they would have had to sit the postponed Leaving Cert exam after college places were offered, he said.

This amounted to an “undoubted interference” in their constitutional rights, he held.

The department’s argument that it would be unfair to other students to offer the two an individualised assessment was “insufficient justification” for the disproportionate interference with their rights.

While agreeing the appeal must be dismissed Mr Justice Peter Charleton, in a separate judgment, held the government decision deferring the 2020 Leaving Cert was a clear exercise of executive power but the decision of the CGEO not to award marks to the two students was an administrative act.

The clear disregard test must apply to the government’s decision and the latter decision did not fall foul of that test, he held. Because he also held that the exclusion decision exceeded the jurisdictional limits of the Constitution by leaving the students with no available entry to third-level education, he agreed their exclusion was invalid.

Estimated marks

The appeal arose from two cases, one by Elijah Burke, from Co Mayo, who was home-schooled by his mother Martina, a registered teacher. She was deemed to have a conflict of interest when it came to providing the teacher estimated marks on which the calculated grades process is based.

The second challenge was by Naomi Power, Station Road, Fiddown, Co Kilkenny, who was home-schooled mainly by her mother, with the assistance of her father and private tutors, none of whom are registered teachers. She was told it was not possible to give her a calculated grade in the subjects she had studied due to the absence of "satisfactory, credible evidence from an appropriate source".

After the High Court found in favour of the students, they were both awarded calculated grades.