The Supreme Court has dismissed the Minister for Education and Skills’ appeal over the exclusion of two home-schooled candidates from Ireland’s 2020 Leaving Certificate calculated grades scheme. The court concluded that their exclusion imposed a substantial and unjustified burden on their constitutionally protected freedom to receive education at home.
The joined proceedings concerned Elijah Burke and Naomi Power, who had prepared for the Leaving Certificate outside school. The scheme required estimated marks to come from specified sources, including registered teachers in some circumstances, and barred a close relative from providing a candidate’s estimate. The Minister refused calculated grades for both candidates under the out-of-school scheme.
The High Court quashed each refusal and made declarations against the Minister. The Court of Appeal upheld the applicants’ claims on a different constitutional basis. Both candidates later received calculated grades through an ad hoc arrangement, but the appeals proceeded because the legal issues had wider importance.
In a judgment delivered on 24 January 2022, Chief Justice O’Donnell said the calculated grades scheme was an exercise of executive power. He rejected the Minister’s argument that a “clear disregard” test should govern the claims. Where executive action is alleged to infringe a person’s constitutional rights, he said, the court must assess the rights claim without applying that heightened test.
The court rejected the claimed standalone right of a home-schooled child to have their circumstances reasonably considered when education policies are made. It instead found that the Constitution protects parents’ freedom to educate children at home and that children have a corresponding interest in receiving that education.
The court stressed the limits of its decision. It said the scheme did not itself prevent the candidates from eventually obtaining a Leaving Certificate, and that the case turned on the specific circumstances: the examination was postponed, the candidates could not receive calculated grades, and they consequently lost the opportunity to progress to third-level education in autumn 2020. They had completed substantial preparation for the examination.
The State argued that making an exception would require individual assessments, threaten fairness between candidates and prove impractical. The court found no evidence that other students had raised such a concern, and considered the burden on these applicants greater than any impact on candidates who could access the scheme.
The court upheld the High Court and Court of Appeal decisions, but on narrower grounds than the Court of Appeal had used. It dismissed the Minister’s appeal. It did not need to decide the wider equality argument under Article 40.1.