The Supreme Court has agreed to hear a further appeal by the Minister for Education over findings that the constitutional rights of two homeschooled students were breached by their exclusion from the 2020 Leaving Certificate calculated grades process.
In seeking the appeal, the Minister argued the Court of Appeal had made findings with significant potential effects for policymaking and the freedom to make and implement education policy.
The COA, she said, had identified a “new constitutional right” of a homeschooled 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.
No such right is specified in Article 42.2 of the Constitution which merely references parents’ rights and the COA finding has “significant potential consequences”, including regarding any development of revised means of assessing academic attainment other than conventional exams, she said.
A three judge panel of the Supreme Court, in a recently published determination, said the cases raise issues of general public importance which should be decided in a further appeal.
Those issues concern both the operation of an important scheme and the field of administrative and constitutional law, the court said. The issues appear to include the nature of the power being exercised in the establishment of the scheme and the proper legal test to be applied when any such scheme, or decision made under it, is challenged.
Other issues concern whether a candidate has a constitutionally protected right to receive education at home outside a formal school structure, or otherwise, which was affected by the calculated grades scheme, and the correct legal test for addressing that.
The Minister claims the COA has lowered the threshold for review of Executive acts/polices to a “material, but vague” degree.
Further issues include whether or not the Court of Appeal was entitled to take into account matters which occurred after the High Court judgment on the cases.
The issues may be refined during case management of the appeal.
The Minister is not appealing legal costs orders in favour of both students, whose lawyers had agreed the cases raised issues which still require to be addressed.
The appeal concerns a COA judgment last March 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. 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 homeschooled mainly by her mother, with the assistance of her father and private tutors, none of whom are registered teachers. A minor at the time of the proceedings, the girl 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 the students, they were both awarded calculated grades.