Minister seeks Supreme Court appeal over findings favouring home-schooled students

The Minister for Education is seeking a Supreme Court appeal over findings the constitutional rights of two home-schooled students were breached by their exclusion from the Leaving Cert calculated grades process.

The Minister’s grounds include that the Court of Appeal (COA) had made findings with significant potential effects for policy-making and the freedom to make and implement education policy.

It is argued the COA had identified a “new constitutional right” of a home-schooled child to have reasonable account taken of their situation when education policies are being formulated and implemented and not to be excluded from the Leaving Cert.

This is the first time such rights and duties have been identified, and no such right is specified in the Article 42.2 which merely references parents’ rights, the Minister contends.

The Minister says the finding has “significant potential consequences”, including regarding any development of revised means of assessing academic attainment, that is other than conventional exams.

Such matters are of public importance, and if the Supreme Court agreed with the COA that would mean clarification of the relevant rights and duties, it is submitted.

The grounds also argue the COA erred in relation to the appropriate standard for judicial review of Acts/policies of the Executive. The COA had departed from established authority concerning a “clear disregard” standard by developing and applying a new standard incorporating various factors, thus lowering the threshold for review of Executive Acts/polices to a “material, but vague” degree.

Other grounds of appeal include the COA erred regarding the test for reasonableness and in how it applied that test. The COA failed to afford any, or sufficient, deference or regard to the Minister and Government’s assessment and the reasons for the challenged decisions, it is argued.

The court also erred in minimising the resource implications and the time constraints, it is submitted.

A panel of three Supreme Court judges will decide later whether the grounds of appeal fulfil the necessary criteria for the court to hear an appeal. Those criteria require an appeal to raise issues of general public importance or to be necessary in the interests of justice.

COA judgment

The appeal concerns a COA judgment last month dismissing the Minister's appeals over High Court findings in separate cases by the two students.

The COA found it was “unreasonable and disproportionate”, and an unlawful breach of the students’ constitutional rights to exclude them entirely from the calculated grades scheme.

The first appeal concerned 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 is based.

The second appeal concerned 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 was 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”.

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