Elijah Burke v The Minister for Education and Skills

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 19 August 2020
• Neutral Citation: [2020] IEHC 418
• Docket Number: [2020 No. 533 JR]
• Court: High Court
• Year: 2020

BETWEEN

ELIJAH BURKE

APPLICANT

AND

THE MINISTER FOR EDUCATION

RESPONDENT

[2020] IEHC 418

Meenan J.

[2020 No. 533 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Declaratory relief – Constitutional justice – Applicant seeking an order of certiorari quashing the decision of the respondent to refuse to provide a calculated grade for the applicant – Whether the refusal to provide a calculated grade was arbitrary, unfair, unreasonable and contrary to constitutional justice

Facts: The applicant, Mr Burke, applied to the High Court seeking: (i) an order of certiorari quashing the decision of the respondent, the Minister for Education, to refuse to provide a calculated grade for the applicant, dated 29 July 2020; and (ii) a declaration by way of judicial review that the refusal to provide a calculated grade in circumstances where the applicant was home-schooled and the applicant’s teacher was a parent was arbitrary, unfair, unreasonable and contrary to constitutional justice. The applicant challenged the provisions made, or rather the lack of such provisions, for persons such as the applicant who are educated at home where the teacher involved has a conflict of interest. This meant that the applicant was excluded from obtaining a calculated grade. He depicted this situation as being unreasonable and unfair. It was submitted that in circumstances where a student may have a certain disability, that student is facilitated in doing the Leaving Certificate; no facility was afforded to the applicant.

Held by Meenan J that a non-conflicted or independent teacher(s) ought to be involved in the place of the applicant’s mother in the system for the award of an estimated percentage mark in each of the applicant’s Leaving Certificate subjects; should it be possible to award such percentage mark(s), then the process set out in the “out-of-school learners” document for the awarding of a calculated grade can operate for the applicant. Meenan J therefore concluded that so much of the system that provided for the giving of estimated percentage marks that excluded the applicant on the grounds that his teacher had a conflict of interest was irrational and unreasonable and, thus, unlawful; it also followed that the decision of the respondent of 29 July 2020 was irrational, unreasonable and, thus, unlawful.

Meenan J proposed to grant the following reliefs: (i) an order of certiorari quashing the decision of the respondent to refuse to provide a calculated grade for the applicant, dated 29 July 2020; and (ii) a declaration by way of judicial review that the refusal to provide a calculated grade in circumstances where the applicant was home schooled and the applicant’s teacher was a parent and thus had a conflict of interest was arbitrary, unfair, unreasonable and contrary to law.

Reliefs granted.

JUDGMENT of Mr. Justice Meenan delivered on the 19th day of August, 2020

Introduction

1 The COVID-19 pandemic has caused dramatic and far-reaching effects on the working, social and family lives of people living in this country. These effects are the result of the various measures that have been taken to prevent and limit the spread of the virus. In the absence of an effective treatment or vaccine, the measures taken are directed towards reducing the assembly and movement of people with the aim of reducing or eliminating the virus.

2 Some 62,000 students were due to sit the Leaving Certificate in 2020. This obviously involved the congregation of significant numbers of people in close proximity in an indoor setting. As the date for the commencement of the Leaving Certificate approached, it was apparent that, though the spread of the virus had been significantly reduced in the community, for reasons of public health, the examination could not take place. For the first time in the history of the State, the Leaving Certificate, due to start in June, 2020, was cancelled.

3 The Leaving Certificate has a central role in the Irish education system. For those who wish to go forward to third level education, the results of the Leaving Certificate are, for the most part, a basis for entry into a particular course and a subsequent career. The importance of the results of the Leaving Certificate cannot be overstated for young people who wish to pursue a particular career or, indeed, for more mature people who may wish to embark on a new and different career. Without a Leaving Certificate, the class of 2020 would have been left stranded so it was imperative that an alternative system be devised to give an accurate assessment, as far as possible, of the standards achieved by exam candidates in various subjects.

4 It is difficult, if not impossible, to replicate the fairness of the Leaving Certificate exam. Students doing the Leaving Certificate exam come from various and diverse backgrounds. Families of some students have the financial means to provide additional education by way of grinds. Other families who do not have such financial means may, with great sacrifice, pay for grinds. Many other families simply cannot afford this. However, at the end of the day, all students do the same exam. The correction of each subject in the Leaving Certificate is done entirely anonymously and according to guidelines which, prior to their adoption, have been considered in detail by relevant experts.

5 The alternative system devised and adopted by the respondent involves the giving of a calculated grade to each student in their chosen subjects. The first step in the giving of a calculated grade is the award of an estimated percentage mark in each subject by a teacher involved in the education of the student. The awarding of an estimated percentage mark necessarily involves knowledge of the capacity and ability of the student in question requiring a lookback at relevant past performance. Having awarded an estimated percentage mark, there is a further “alignment process” within the school. After the alignment process, there is a further standardisation process carried out by the Department of Education. Ultimately, a calculated grade is awarded.

6 Not all candidates for the Leaving Certificate attend a school that has numerous staff members, a vice principal(s) and a principal. A number of candidates for the Leaving Certificate (the precise number is not entirely clear but it only makes up a small percentage of those doing this exam) educate themselves, attend “grind schools” or, like the applicant, are home educated. To enable such persons to be awarded a calculated grade, the respondent published “a guide to calculated grades for out of school learners”. This document will be considered in some detail later in the judgment.

7 The awarding by a teacher of an estimated percentage mark to a student requires the exercise of professional judgment. Should the teacher in question have a conflict of interest, for example, being a relative of the student involved, it clearly would not be appropriate for that teacher to award an estimated mark. As to how this issue is addressed is central to this application for judicial review.

The Applicant

8 The applicant is the youngest of ten children, all of whom have been educated at home by their mother, Ms. Martina Burke. Eight of the applicant's siblings had average points in their Leaving Certificates of 520. All have obtained first class honours degrees in the fields of their choice, being: law, arts, education, journalism, economics, science and mathematics. Two have postgraduate degrees from Oxford and the London School of Economics. One is graduating with his PhD in mathematics this year.

9 In his education at home, the applicant states that he followed the Department of Education curriculum and that his home schooling was very similar to in-school teaching. Each day, the timetable was structured to begin at 9:00am and usually finished around 4:00pm. Each day, some six/seven subjects were covered. The applicant's academic calendar was the same as all other secondary schools, including midterms and bank holidays.

10 In his grounding affidavit, the applicant stated that he studied consistently and diligently throughout this Leaving Certificate cycle and hopes to attend NUI Galway to study Biomedical Science or History (with Music). The points required to attain a place in these courses were 533 and 318 respectively last year. On his past performance in mock exams, the applicant expected to obtain the required points.

11 The applicant has always been involved in music and has completed all grades in classical piano. The applicant's achievements in music are evidenced by the fact that he was the overall classical piano cup winner on three different occasions in the Ballina Féis. He was the winner of the RIAM National Composing Competition for three years and has his compositions published in the yearly RIAM Piano Album for Different Grades (2017, 2019, 2020). The applicant is currently studying for an associate diploma in piano teaching.

12 As for extracurricular activities, the applicant took part in public speaking competitions and was the overall winner of the Mayo Association Dublin Inaugural Debating Competition in 2017.

13 The applicant's mother, his teacher, obtained a BA in mathematics and English from UCG in 1981 and a Higher Diploma in Education in 1982. She taught at Tallaght Community School and Greystones Community School from 1982 to 83. Subsequently, she worked as a tutor in Mayo providing private education to children outside the mainstream school system who were home educated and also to those who needed help in different subjects.

14 The applicant's mother has worked as an examiner for the State Examinations Commission since 2016, correcting higher level Junior Certificate and Leaving Certificate English. She also worked for Examcraft, a mock exams company, correcting higher level English and states that she has corrected hundreds of...