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Students have a constitutional right to be homeschooled without “undue interference” from the state, and their exclusion from the Leaving Cert 2020 calculated grade system violated that right, the Supreme Court said.
Paul O’Higgins SC, for two home-schooled students, was commenting opposing an appeal by the Minister of Education regarding an important finding that excluding his clients from the program violated their constitutional rights.
After the appeal was concluded on Wednesday in the five-judge court, Chief Justice Justice Donal O’Donnell said the court was reserving judgment.
The appeal centers on whether the Court of Appeal (COA) was correct in identifying a new constitutional right for home-schooled students to have their interests reasonably taken into account when the state formulates an educational policy.
The appeal stems from two cases, one of Elijah Burke, an 18-year-old student from Co Mayo, who was homeschooled by his mother Martina, a certified teacher. She was considered to be in a conflict of interest when it came to providing the teacher estimated grades upon which the grading process is based.
The second case is that of Naomi Power, Station Road, Fiddown, Co Kilkenny, who was home-schooled mainly by her mother, with the help of her father and private tutors, none of whom are registered teachers.
Credible
She was told that it was not possible to give her a calculated mark in the subjects she had studied due to the lack of “satisfactory and credible evidence from an appropriate source”.
Ms Power had not been named before as she was a minor and 17 years old when her case was initiated. She is now 18 and the Supreme Court learned on Wednesday, via her lawyer Anthony Collier, that there was no objection to her being identified.
After the High Court ruled in favor of the students, they were both given calculated marks.
A central issue in the minister’s appeal is whether the Calculated Score System (CGS) was an exercise of state executive power under Article 28.2 of the Constitution.
The state maintains that it was an exercise of executive power, but Mr. O’Higgins argued on Wednesday that the government’s May 8, 2020 CGS decision did not change the nature of the regime in the as it has become an executive function of the state.
The lawyer also argued that the state’s obligation under Article 42.2 of the Constitution to respect parental choice in education involves much more than simply not taking away the right to education. home.
His clients insist on their right to be tried by the same objective standards as children of parents who have made different choices about their children’s education, the lawyer said.
They were not looking for “complete isolation” and welcomed and subscribed to any reasonable measure to measure the product of their home education in a way that allows them to be considered for third level or employment. , did he declare.
They had the legally enforceable right to take the Leaving Cert on the same terms as other students but, when the 2020 written exam was postponed and the CGS was introduced, they were part of a very small group of students. students deprived of their right to compete alongside the school. -based students for a place at university that year, he argued.
In conclusion, Eileen Barrington SC, along with Brian Kennedy SC, said that the Constitution requires the state to protect and not destroy the possibility of home schooling, but that there is no obligation concomitant for the State to “actively help”.
The minister’s concern over the COA’s judgment is not so much about the accredited notes as it is about the implications for educational policy-making, she said.
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