Court of Appeal: Minister for Education loses appeal against providing calculated grades for home-schooled students
The Court of Appeal has rejected an appeal brought by the Minister for Education that she had acted unlawfully by refusing to assess two home-schooled students for calculated grades during the 2020 Leaving Certificate. The court held that it was unreasonable and disproportionate for the Minister to exclude the students from the scheme in the manner that occurred.
Much of the legal argument in the case surrounded the jurisdiction of the courts to interfere with the Executive’s policy decision not to hold the Leaving Cert examinations in 2020 and replace it with the calculated grades scheme. The appeal raised several significant issues regarding justiciability and the appropriate test to be applied in the case. Ultimately, the court determined that it had to have appropriate deference for the Minister’s decision while also protecting the individual constitutional rights of the students.
Following the cancellation of the 2020 Leaving Cert exams, the calculated grades system was imposed by the Minister. For most students, the system involved a teacher giving an estimated grade in a given subject, with that grade subsequently being standardised by an algorithm approved by the Minister. However, some students, such as the plaintiffs, were home-schooled. Similar to in-school students, the Minister required the estimated grades of home-schooled students to be based on reliable and credible work.
The first student, Mr Elijah Burke, was home-schooled by his mother, who was a registered teacher. He had been refused a calculated grade for the 2020 Leaving Cert on the basis that his mother had a conflict of interest in his grades. It was said that the mother could not provide an independent assessment of her son’s marks and her grades would not be reliable.
The second student, known as NP, had been home-schooled by her mother and two tutors, although none of them were registered teachers. The Minister refused to consider NP for a calculated grade on the basis that NP could not provide reliable evidence from a registered teacher as to her estimated grades.
In both cases, the students had successfully argued before the High Court that the Minister had breached their constitutional rights and acted unlawfully by refusing to consider either of the students for a calculated grade. It was emphasised that the students did not claim to have a right to a specific grade, or a right to third-level education. Rather, the trial judge determined that it was disproportionate for the students to be excluded entirely from the calculated grade system without any consideration of the merits of their work. The court said that the pragmatic solution was for the Minister to arrange for an independent assessment of the students’ work to determine if a calculated grade could be provided.
The Minister appealed the decision to the Court of Appeal. It was claimed that the requirement to provide an independent assessment for the students’ offended against the principles of the system, where every student was to be treated equally. She claimed that it was not possible to give an independently-assessed result to the students because no other in-school student would be able to get that benefit.
Further, the Minister relied on several decisions of the Irish courts which provided that the courts should not interfere with policy decisions relating to Executive functions. In particular, it was said that the students had to show that the Minister had “clear disregard” for their constitutional rights before her decision could be overturned. Also in issue was the extent to which the students’ constitutional rights were actually engaged by the proceedings.
Court of Appeal
On Tuesday, the Court of Appeal rejected the Minister’s submissions and dismissed the appeal. In a lengthy 124-page judgment, the court determined that the Minister had acted in breach of the students’ constitutional rights by excluding them from the calculated grades system. In particular, the court held that decision was disproportionate to achieving fairness in the 2020 results and, further, that the integrity of the results was not affected by the students receiving independent assessments.
The court began by outlining the procedural history of the case and determined that the proceedings were not moot after both students had received calculated grades in the wake of the High Court rulings. The students had each successfully enrolled in college in Autumn 2020.
The court went on to consider the issue of justiciability and the exercise of executive power. The court analysed the well-known case law, including Boland v. An Taoiseach  IR 338, Crotty v. An Taoiseach  IR 713 and TD v. Minister for Education  4 IR 459, and held that the Minister was exercising her executive powers under Article 28.2 of the Constitution when devising the calculated grades scheme. The court accepted that the presumption of constitutionality applied to the scheme and that, ordinarily, a high degree of deference was given to executive action.
However, the court went on to say that there was a “consistent theme” in the case law that a court may interfere with executive policy decisions in order to vindicate constitutional rights. Considering cases such as Meadows v. Minister for Justice, Equality and Law Reform  IESC 3, the court held that the proper test was not whether the Minister had acted in “clear disregard” to the students. The court said that “judicial deference should be adhered to as far as is consistent with the protection of individual constitutional rights,” and that, in some cases, the test of acting in “clear disregard” would not be appropriate to adequately protect those rights.
The court was also satisfied that the students’ constitutional rights were affected by the Minister’s decision. The Family and Education rights under Articles 41 and 42 were “at the heart of the Constitution,” and there was a complex, interwoven relationship between parents, children and the State regarding education. A parent had the right to determine how a child was educated at secondary level and the State had to make provision for this.
After outlining these issue regarding the appropriate test and the students’ constitutional rights, the court determined that the students had “suffered a real and significant impact by their exclusion from the scheme” and it was unreasonable and disproportionate for the Minister to have done this. In particular, the court noted that the Minister had refused to consider students for calculated grades due to the alleged reliability of their tuition, but both had in fact received calculated grades following an independent assessment. This alone indicated that the Minister had made a mistake in saying there was no appropriate source material to assess the students.
Finally, the court rejected the Minister’s argument that the independent assessments of the students would be unfair to in-school students. The court held that the Minister took into account an irrelevant consideration when she considered that assessments for home-schooled students would lead to dissatisfaction for in-school students. In fact, the court held that the ultimate decision to exclude the home-schooled plaintiffs entirely from the calculated grades system was “contrary to reason and common sense” (The State (Keegan) v. Stardust Victims’ Compensation Tribunal  IR 642).
The court concluded that the complete exclusion of the students from the calculated grades scheme was unreasonable and constituted a disproportionate interference with their constitutional rights. As such, the court dismissed the appeal, making only a minor change in the wording of the declarations made in the High Court.