Minister’s challenge to calculated grades for two home-schooled Leaving Cert students is dismissed

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Tim Healy

The Supreme Court has dismissed an appeal by the Minister for Education over a decision that two home-schooled students were unlawfully excluded from the 2020 Leaving Certificate calculated grades scheme.

The five-judge court ruled today that the students’ exclusion was an impermissible interference with the constitutionally protected freedom of the family to provide an education in the home as provided for in Article 42.2.

The decision clarifies the test to be applied when it is alleged that an exercise of executive power has infringed a guaranteed personal right of an individual.

Chief Justice Donal O’Donnell also held that the Calculated Grades Scheme was clearly an exercise of the executive power of the State.

Mr Justice O’Donnell found, however, the Court of Appeal had applied the incorrect legal test when it held that the Calculated Grades Executive Office had acted in “clear disregard” of the constitutional rights of the students in initially excluding them from the system.

In circumstances where it was claimed that the personal rights of the citizen are infringed by the executive, there was no justification for applying a clear disregard of the legal test, the court found.

The court must uphold the Constitution by applying the same standards as would apply in cases where it is alleged that those rights had been infringed by the actions of the legislative branch of Government, and this was the case here.

In a separate concurring judgment, Mr Justice Peter Charleton said there was no decision of Government which has been demonstrated to show any clear disregard of the Constitution.

However, what had been established is an excess of jurisdiction in the departmental scheme through an inadvertent disregard of the rights of the home-schooled under the Constitution, he said.

The two students had brought the legal challenges over their exclusion from the calculated grades scheme which was brought in during the Covid-19 pandemic.

Co Mayo-based Elijah Burke, an 18-year-old pupil was home-schooled by his mother, Martina, who is a registered teacher. She had been deemed to have a conflict of interest when it came to providing teacher-estimated marks on which the calculated grades process was based.

The second challenge was brought by Naomi Power, of Station Road, Fiddown, Co Kilkenny, suing through her mother Breda Power, who was her main home-school teacher. Her father and private tutors also taught her, none of whom are registered teachers.

Ms Power was informed that calculated grades were not possible for her due to the absences of “satisfactory, credible evidence from an appropriate source”.

The High Court found in favour of the pupils and both were subsequently awarded calculated grades.