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Victory for homeschooled students in Supreme Court 

The Supreme Court has ruled that excluding two home-schooled students from the Leaving Cert calculated grades was invalid and an “impermissible” interference with the constitutional freedom of the family to provide education in the home under article 42.2 of the Constitution.

The landmark ruling was handed down in an appeal taken by the Minister for Education against a High Court decision that two homeschooled students Elijah Burke from Mayo, and Naomi Power from Kilkenny, were entitled to estimated marks in the Leaving Cert as that was the system on which the calculated grades process was based last year .

Elijah Burke was home-schooled by his mother Martina, a registered teacher, but the Department of Education deemed her to have a conflict of interest when it came to providing estimated marks for her son.

Naomi Power was mostly home-schooled by her mother, with the assistance of her father and private tutors, but was told she could not receive calculated grades due to the absence of “satisfactory, credible evidence from an appropriate source”.

The High Court, in August of 2020, found in favour of the students,  and they were both awarded calculated grades. The Minister for Education then appealed that ruling.

The Supreme Court ruled this Monday that there is a derived right, protected by the Constitution, for a home-schooled individual to have “reasonable” account taken of their situation when educational policies are being implemented by the State.

Chief Justice, Mr Justice Donal O’Donnell, said that the government has exceeded the limits set by the Constitution in respect of executive power.

The precise constitutional right at issue was the right of parents to provide education in the home and the consequent right of children to receive it, he said.

He did not agree that any interference with a family decision in relation to home-schooling would be impermissible, and stressed that the State cannot be required to provide a “bespoke” examination system for home-schooled children.

However, he said that in these cases the denial of calculated grades to the students meant they could not enter third-level education later in 2020 as they would have had to sit the postponed Leaving Cert exam after college places were offered.

He ruled that this amounted to an “undoubted interference” in their constitutional rights.

The court held that the Department of Education’s argument that it would be unfair to other students to offer the two students an individualised assessment was “insufficient justification” for the interference with their rights.

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