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Pair claim exclusion from calculated grades process breached constitutional rights 
The Minister for Education has urged the Supreme Court to overturn a significant finding that the exclusion of two home-schooled students from the 2020 Leaving Certificate calculated grades process breached their constitutional rights. 
The appeal centres on whether the Court of Appeal was correct in identifying a new constitutional right for home school students to have their interests taken reasonably into account when the State is formulating educational policy. 
The Minister contends no such derived right can be read from the Constitution and the finding has significant potential consequences for the freedom to make and implement education policy, including any development of revised means of assessing academic attainment other than conventional exams. 
The appeal concerns a COA judgment last March dismissing the Minister’s appeals over High Court judgments 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 (CG) scheme. 
The appeal opened on Tuesday before a five judge court, presided over by the new Chief Justice, Mr Justice Donal O’Donnell, who noted it was the first physical appeal hearing before the court since the first lockdown of March 2020 necessitated by the Covid-19 pandemic. 
In submissions, Eileen Barrington SC, for the Minister, said, because of the pandemic, the 2020 Leaving Cert exam had to be deferred for the first time in its history. 
The CG regime was agreed with stakeholders and put in place over a four month period. More than 60,000 students, representing some 99.4 per cent of Leaving Cert students, were awarded calculated grades “in more or less ordinary time”. 
This complicated and difficult task was “on any analysis, an extraordinary achievement”, done without the political crisis that occurred in other jurisdictions. 
This was all relevant to the factual background, the legal test to be applied and in considering if the High Court was correct in directing the rewriting of the CG scheme insofar as it applied to certain subsets of out-of-school learners, Ms Barrington said. 
The fundamental building block of the scheme was its reliance on the professionalism of teachers, she said. Other principles relied on were fairness and equity and timeliness was a “fundamental” issue because time was of the essence for students wishing to go to third level. 
The COA, she argued, did not pay sufficient regard to the time issue in saying the interests of home schooled students should have been immediately considered. The CG scheme was primarily a school based system because the vast majority of students were attending school. 
The issues in the appeal include whether the Executive was wrong to adopt the CG guidelines and whether the power being exercised when the scheme was established was executive or administrative. If the court finds executive power was being exercised, it will consider the proper legal test to be applied when such a scheme 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 CG scheme. 
The Minister claims the COA has lowered the threshold for review of Executive acts/polices to a “material, but vague” degree. 
The Minister is not appealing legal costs orders in favour of both students. 
The appeal arises from two cases, one taken 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 was by 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. 
A minor at the time of the proceedings, she cannot be identified. 
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”. 
After the High Court found in favour of the students, they were both awarded calculated grades. 
The appeal continues on Wednesday. 
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