DRAFT Supreme Court hears appeal of home-schooled Leaving Cert students

Jamie Mc Carron 

The exclusion of home-schooled students from the Leaving Cert 2020 calculated grades scheme breached their constitutional right to receive an education at home without “unwarranted interference”, the Supreme Court was told last Wednesday.

Minister for Education, Norma Foley, launched an appeal to the Court of Appeal (COA) based on two cases taken by Leaving Cert students who felt unfairly excluded from the calculated grades scheme.

One case was made by Elijah Burke, an 18-year-old student from Mayo, who was home-schooled by his mother Martina, who is a registered teacher.

At the time, she was deemed to have a conflict of interest when it came to providing estimated marks on which the calculated grades process is based.

The second case is by Naomi Power of Kilkenny, who was home schooled mainly by her mother, with help from her father and private tutors, none of whom are registered teachers.

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.”

Paul O’Higgins SC, is representing both students in the appeal.

After the appeal concluded on Wednesday, October the 13th before the five judge court, the Chief Justice, Mr Justice Donal O’Donnell, said the court was reserving judgment.

The appeal questions whether the COA was correct to identify a new constitutional right for home schooled students to have their interests taken into account when the State is creating new educational policy.

A core issue in the Minister’s appeal is whether the Calculated Grades Scheme (CGS) was an exercise of the executive power of the State under Article 28.2 of the Constitution.

O’Higgins argued the State’s duty under Article 42.2 of the Constitution to respect parental choice in education involves much more than simply not taking away the right to home educate.

His clients insist on their right to be judged by the same objective standards as the children of parents who had made different choices concerning their children’s education.

He also argued that the State’s duty under Article 42.2, to respect a parent’s choices in their child’s education, involves more facilitation than simply allowing home-schooling to exist.

Representation for Minister Foley, Eileen Barrington SC, with Brian Kennedy SC, said the Constitution requires the State to protect the right to home-schooling.

However there is no proactive duty on the State to “actively assist” home schooling, they said in closing arguments.

Jamie Mc Carron

Image Credit: William Murphy via Flickr