The Supreme Court dismissed Kim Cahill’s appeal over the notation attached to her Leaving Certificate after she received a waiver from grammar and spelling components of three examinations because of mild dyslexia. The judgment was delivered on 24 May 2017.
The Court agreed that bundling the notation with the waiver did not breach sections 3 or 4 of the Equal Status Act 2000. It also agreed that the Act’s standards should not be reduced to a judicial review test based on rationality or the absence of whim, caprice or prejudice, and that section 4(5) did not provide a special defence in an educational case.
The appeal followed earlier proceedings in which the Equality Officer found that the notation was discriminatory. The officer awarded €6,000, directed the Department of Education to issue a new certificate without the notation and ordered an investigation into individually suited examination accommodations. The Department appealed.
At the Circuit Court, expert evidence from Ireland, Britain, Northern Ireland and the United States supported the Department’s approach. The Circuit Court accepted that evidence, finding that notation when an examination component was waived reflected educational practice at the time and that Cahill would not have received accommodation under comparable systems. The High Court upheld the result before the further appeal to the Supreme Court.
Justice O’Donnell agreed with the dismissal and with Justice Laffoy’s judgment. He addressed a separate possibility raised in Justice MacMenamin’s concurring judgment: that the Department’s procedures might have failed to do all that was reasonable under section 4, while potentially being defended under section 5(2)(h). O’Donnell said no such procedural case had been made or tested in the earlier hearings, and no fact-finder had made findings on it. He considered it unsatisfactory to draw conclusions from evidence gathered for a different issue and left those hypothetical questions for a case in which they could be properly argued.
The judgment noted that the dispute concerned the legality of attaching the notation to the waiver, rather than whether Cahill knew about it when she received her results on 15 August 2001. O’Donnell said that if she had been unaware of the waiver and notation that day, that was not something that could be laid at the Department’s door or remedied in these proceedings.