Supreme Court to rule later on appeal over rights of home-schooled students

Students have a constitutional right to be educated at home without "unwarranted interference" by the State and their exclusion from the Leaving Cert 2020 calculated grades scheme breached that right, the Supreme Court has been told.

Paul O’Higgins SC, for two home-schooled students, was making submissions opposing an appeal by the Minster for Education over a significant finding that his clients’ exclusion from the scheme breached their constitutional rights.

After the appeal concluded on Wednesday before the five judge court, the Chief Justice, Mr Justice Donal O’Donnell, said the court was reserving judgment.

The appeal centres on whether the Court of Appeal (COA) was correct in identifying a new constitutional right for home-schooled students to have their interests taken reasonably into account when the State is formulating educational policy.

The appeal arises from two cases, one by Elijah Burke, an 18-year-old student 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 case is 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.

Credible

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”.

Ms Power was not named previously because she was a minor aged 17 when her case was initiated. She is now aged 18 and the Supreme Court was told on Wednesday, via her solicitor Anthony Collier, there is no objection to her being identified.

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

A core issue in the Minister’s appeal is whether the Calculated Grades Scheme (CGS) was an exercise of the executive power of the State under Article 28.2 of the Constitution.

The State maintains it was an exercise of executive power but Mr O’Higgins argued on Wednesday that the Government’s decision on the CGS of May 8th, 2020 did not change the nature of the scheme to the extent it became an executive function of the State.

Counsel also argued the State’s duty under Article 42.2 of the Constitution to respect parental choice in education involves much more than simply not taking away the right to home educate.

His clients insist on their right to be judged by the same objective standards as the children of parents who had made different choices concerning their children’s education, counsel said.

They were not seeking “complete isolation” and welcomed and subscribed to any reasonable measure to allow the product of their home education to be measured in a way that allows them to be considered for third level or employment, he said.

They had a legally enforceable right to sit the Leaving Cert on the same terms as other students but, when the 2020 written exam was deferred and the CGS was introduced, they were among a very small group of students deprived of their right to compete alongside school-based students for a college place that year, he argued.

In closing arguments, Eileen Barrington SC, with Brian Kennedy SC, said the Constitution requires the State to protect and not destroy the possibility of home-schooling but there is no concomitant duty on the State to “actively assist” it.

The Minster’s concern about the COA judgment is not so much about accredited grades but about the implications for educational policy making, she said.