The Minister for Education has lost a Supreme Court appeal against findings that two home-schooled students were unfairly excluded from the Leaving Certificate calculated grades process in 2020.
Minister for Education Norma Foley had appealed against the Court of Appeal decisions in two cases.
Today the Supreme Court ruled that the refusal to exclude two home-schooled students from the calculated grades system was an impermissible interference with the constitutional freedom of the family to provide education in the home.
The cases involved two home-school students who were excluded from the calculated grades scheme but were subsequently awarded grades after winning their High Court case.
The State had appealed the cases to the Court of Appeal and the Supreme Court for clarification of certain legal points.
The cases involved 18-year-old Elijah Burke from Co Mayo who was home-schooled by his mother, Martina - a registered teacher. She was deemed to have a conflict of interest in providing estimated marks for the calculated grades process.
The second case involved a 17-year-old girl who was home-schooled mainly by her mother, with assistance from her father and private tutors - none of whom were registered teachers.
The Appeal Court found that excluding both students from any route by which their work might be subject to consideration for a calculated grade, when it was the only way to secure entry into third level in autumn 2020, was unreasonable and constituted a disproportionate interference with their constitutional rights.
In its ruling today, the Supreme Court held the Calculated Grades Scheme (CGS) was clearly an exercise of the executive power of the State. The court held there was "an undoubted interference" in the constitutional rights of the students and the justification offered by the department was insufficient.
The department had argued that it would be unfair to other students if home-schooled students were offered an individualised form of assessment.
The court ruled the decision of the Calculated Grades Executive Officer that it would not be possible to award the students calculated grades was invalid.
The decision clarifies the legal test to be applied when it is claimed that an exercise of executive power has infringed a person's guaranteed right.
The judgment also deals with whether there is a derived right protected by Article 40 of the Constitution for home-schooled students to have their situation taken account of when educational policies are being implemented by the State.
