Exclusion of some home-schooled students from ‘calculated grades’ for Leaving Certificate was unconstitutional

O'Donnell CJ (nem diss): Education - Leaving Certificate examination - Covid-19 pandemic - lockdown in March 2020 - decision by government to facilitate 'calculated grades' - publication of “A Guide to Calculated Grades for Leaving Certificate Students 2020” - estimated grade - 'in-school alignment' - consideration by school principal - process of standardisation by Department of Education - omission of 'school historical data' (SHD) - option to sit Leaving Certificate at a later date - students whose parents were also their teachers - students pursuing own course of study - Calculated Grades Executive Office - exclusion of applicants from calculated grades scheme - one applicant taught at home by mother who was registered teacher - other applicant taught at home by tutors who were not registered teachers - whether exclusion from scheme was irrational in both cases - whether constitutional rights affected - Article 42 - whether home-schooled child had right to have situation taken into account - whether information available from an appropriate source upon which to base a calculated grade - whether home-schooled children had a right to have their interests taken into account when State devising educational policy - whether rights of applicants interfered with - whether applicants not held equal under the law - whether Ministers decision to refuse to provide calculated grades was invalid.

"Once it is accepted that the express provisions of Article 42 implies corresponding rights and interests on the part of the child, then the plaintiffs’ case can be put more simply, and perhaps more powerfully, as a contention that the operation of the Calculated Grades Scheme in excluding certain home-schooled students is an impermissible interference with (cur isteach ar) the express right of parents to provide education in the home, and the derived right of children to receive it.
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The parents and students involved here were exercising their constitutional freedom in the context of preparation for an examination to be held in June, 2020. The freedom to provide and receive education in a home setting was therefore engaged in a real sense: the preparation for the 2020 Leaving Certificate exam was an exercise and expression of that freedom in a concrete and direct way. The decision of the Government in postponing that examination to a later date precluded entry to third-level that year for anyone sitting the postponed examination. The Calculated Grades Scheme did allow for that possibility, indeed that was one of its principal purposes. The decision to adopt provisions relating to out-of-school candidates and the decisions made consequent upon it that the plaintiffs were ineligible, did therefore, affect the freedom to provide and receive the education out of school, which in this case was directed towards the Leaving Certificate due to take place within a month of the challenged guidelines being issued."

Charleton J (concurring): Home schooling - administration and executive decision - delay - separation of powers - mutual respect between the institutions of State - decisions as to policy - entitlement to access -

"What is clear is that there is a right derived from the Constitution, and stated in explicit terms, for parents to opt for education at home for their children. That is a simple right, put in simple language, as are all other rights declared in the fundamental law or in consequence thereof ...."

"Enabling each branch of government to do its duty and in a timely manner requires that each part not impede the work of the others. Where judicial intervention is required, it should be on a strictly limited basis and where actual governmental decisions are sought to be impugned, in stark contrast to the judicial review of administrative action, a stringent test is necessary."

"In this case, however, due to an error born of urgency, no path was reasonably left open to Elijah Burke or Naomi Power to advance to third level education as home-schooled people in 2020. They could have taken the Leaving Certificate in person in November 2020, but thereby any third level place was gone for the academic year 2020- 2021. Postponement for a year may be posited as a small burden; but delay in garnering a third level place puts the dilatory on shifting sands as grades inflate and requirements for entry change. It must be clearly stated that the government policy did not trammel on the position of the home-educated as exercising a constitutional right. Understandably, however, faced with a need to change in a flash, because of the Covid-19 pandemic, a scheme for examination which had evolved gradually over generations, the Department of Education inadvertently exceeded the jurisdictional limits of the Constitution by leaving the home-schooled with no available entry to third level approximating to that open to school students. Of course, there was no ill-intention involved. The meeting of the demands of 60,000 students at second-level schools was an astonishing feat of administration which, regrettably, erred as regards this very small cohort. In that respect only, there was an excess of jurisdiction in the departmental scheme as required by the Constitution."