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Court found it was ‘unreasonable’ to exclude students from calculated grades scheme 
The Minister for Education has lost her appeals over findings two home-schooled students were unfairly and unlawfully excluded from the Leaving Certificate calculated grades process. 
In a 127-page judgment on Tuesday, the three judge Court of Appeal (COA), comprising Ms Justice Aileen Donnelly, Ms Justice Mary Faherty and Ms Justice Una Ní Raifeartaigh dismissed the appeals concerning 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 exclusion of both students from any route by which their work might be subject to consideration for a calculated grade, being the only route at the material time for securing entry into third level in autumn 2020, was unreasonable and constituted a disproportionate interference with their constitutional rights, it held. 
However, the COA varied the declarations granted by the High Court in both cases. 
Instead of a declaration the refusal “to provide a calculated grade” was unreasonable and unlawful, the COA granted declarations it was unreasonable and disproportionate, and therefore an unlawful breach of the students’ constitutional rights, for the Minister, Norma Foley, to refuse to “consider” them for calculated grades in respect of their work without having in place any system by which it could be determine whether their work was from “a satisfactory, credible source”. 
The court also declared it was unreasonable and disproportionate, and therefore an unlawful breach of the students’ constitutional rights, to fail to provide a means by which each respondent student could receive a calculated grade in the event it was determined their work was from a source meeting this standard. 
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. Because of her relationship to him, 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. 
Last August, the High Court’s Mr Justice Charles Meenan said Mr Burke’s exclusion from the calculated grades process was arbitrary, unfair, unreasonable and contrary to law. 
He said an independent teacher or teachers should be appointed to award estimated marks in each of Mr Burke’s Leaving Certificate subjects. Mr Burke has since been awarded 577 points under the calculated grades process. 
‘Unfair and unlawful’ 
The second appeal was against Mr Justice Meenan’s judgment last September in favour of 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. The girl, a minor, 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”. 
Mr Justice Meenan said the refusal to provide a calculated grade to an applicant home-schooled by an unregistered teacher/s was irrational, arbitrary, unfair and unlawful. 
In the appeals, the Minister’s lawyers argued the exclusion of home-schooled students was rational and justifiable and that, in deciding otherwise, the High Court intruded on policy considerations and effectively created an “alternative” process. 
In its judgment, the COA said both home-schooled students possessed constitutional rights to have reasonable account taken of their situation when education policies were being implemented by the State. 
Both had suffered a “real and significant” impact by their exclusion from the calculated grades scheme and it was “unreasonable and disproportionate” to exclude both entirely from the scheme, it held. 
The COA concluded the government was exercising the executive power of the State under Article 28.2 of the Constitution when it devised an alternative to the Leaving Cert by way of the calculated grades scheme. While the court accepted the presumption of constitutionality applies to exercises of such executive power, and there is a “high judicial deference” to such actions, it decided the court must accommodate both that deference, and the appropriate consideration of individual constitutional rights, as far as possible. 
It said, taking the interwoven pattern of rights, duties and powers, the true constitutional position is there is a duty on the State to protect the family’s authority and the parent’s right to home school. 
That duty must include accommodation of that expression of parental conscientious choice and lawful preference, even with regard to the choice of parents in providing for secondary schooling. 
The rights of the child are not to be treated as “merely incidental” to the exercise of rights of parents and the duties of parents and the State. “Instead, the rights of the child must receive appropriate recognition by the organs of the State”. 
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