Judgment due on Minister’s appeal against calculated grades ruling

The Supreme Court will give judgment on Monday on a significant appeal by the Minister for Education over a decision that two home-schooled students were unlawfully excluded from the 2020 Leaving Cert calculated grades scheme.

The appeal centres on whether the Court of Appeal 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.

It arises from challenges by two students over their exclusion of the calculated grades scheme, introduced during the Covid-19 pandemic.

One challenge was 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.

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The second challenge was by Naomi Power of 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.

Ms Power 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.

Core issue

A core issue in the Minister’s appeal is whether the calculated grades scheme was an exercise of the executive power of the State under article 28.2 of the Constitution.

During the appeal hearing, the State insisted it was but lawyers for the students argued the Government decision on the system of May 8th, 2020, did not change the nature of the scheme to the extent it became an executive function of the State.

The State’s duty under article 42.2 of the Constitution to respect parental choice in education involved the students’ right to be judged by the same objective standards as the children of parents who had made different choices concerning their children’s education, it was argued.

Lawyers for the Minister told the court the Constitution required the State to protect and not destroy the possibility of home-schooling but there was no concomitant duty on the State to “actively assist” home-schooling.

The Minster’s concern about the Court of Appeal judgment is not so much about accredited grades but about the implications for educational policy making, the court was told.