Elijah Burke v The Minister for Education and Skills
| Jurisdiction | Ireland |
| Judge | Mr. Justice Meenan |
| Judgment Date | 24 September 2020 |
| Neutral Citation | [2020] IEHC 479 |
| Docket Number | [2020 No. 595 JR] |
| Court | High Court |
| Year | 2020 |
[2020] IEHC 479
Meenan J.
[2020 No. 595 JR]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Calculated grades – Declaratory relief – Applicant seeking an order of certiorari quashing the decisions of the respondent to refuse to provide a calculated grade for the applicant – Whether the refusal to provide a calculated grade, in any circumstances where the applicant is home schooled and the applicant’s parents/teacher is not a registered teacher, is irrational, arbitrary, unfair and contrary to constitutional justice
Facts: The High Court (Keane J), on 31 August 2020, granted leave to the applicant to apply by way of judicial review for the following reliefs: (i) an order of mandamus compelling the respondent, the Minister for Education and Skills, to consider and determine, within a reasonable time, the applicant’s application for calculated grades; (ii) an order of certiorari quashing the decisions of the respondent to refuse to provide a calculated grade for the applicant, dated 11 August 2020 and 27 August 2020; (iii) an injunction by way of judicial review restraining the respondent, her servants or agents, from taking any steps to refuse the applicant a calculated grade; (iv) a declaration by way of judicial review that the refusal to provide a calculated grade, in any circumstances where the applicant is home schooled and the applicant’s parents/teacher is not a registered teacher, is irrational, arbitrary, unfair and contrary to constitutional justice; and (v) further and other relief. The applicant was not making the case that she was entitled to a calculated grade but, rather, that she should be allowed to be considered for a calculated grade.
Held by Meenan J that, having applied the same principles as he did in Elijah Burke v The Minister for Education [2020] IEHC 418, the failure to provide a system for the awarding of an estimated percentage mark to a person in the position of the applicant was unreasonable and irrational and, thus, unlawful.
Meenan J granted an order of certiorari quashing the decision of the respondent of 11 August 2020, and repeated on 27 August 2020, refusing to provide a calculated grade to the applicant. He also granted a declaration by way of judicial review that the refusal to provide a calculated grade, in any circumstances where the applicant is home schooled by a teacher(s) who is not a registered teacher(s), is irrational, arbitrary, unfair and unlawful.
Relief granted.
The role which the Leaving Certificate examination plays in Irish life, almost since the foundation of the State, cannot be underestimated. The Leaving Certificate examination provides a pathway for the vast majority of young people who have completed second level education to go onto further education and careers beyond. The Leaving Certificate examination is also a pathway for more mature people who may wish, at a later stage in their lives, to embark on a new and different career. Though the financial resources available to those sitting the Leaving Certificate examination differ greatly, giving some an undoubted advantage over others, the Leaving Certificate is corrected and the grades are awarded on an entirely anonymous basis. This correction and grading is carried out according to guidelines which, prior to their adoption, have been considered in detail by the relevant experts.
In the absence of an effective cure or a vaccine, the measures taken to combat the COVID-19 virus have been directed towards halting or reducing its spread. This has necessitated strict limitations on the numbers of persons congregating in indoor settings. One such setting was the examination halls up and down the country where the Leaving Certificate examination was due to take place in June, 2020. With what, I would imagine, was considerable reluctance, the Leaving Certificate examination of 2020 was cancelled. However, an alternative system had to be put in its place so as to enable the class of 2020 to advance to further education, should they so wish. The complexity and difficulty involved in establishing and running such a system was daunting.
One of the complexities and difficulties was to provide a fair and equitable system for all those who intended to sit the Leaving Certificate examination of 2020. The vast majority of those were educated in schools. However, a minority, including the applicant, received their education at home. The provisions made for such persons are the subject of this application.
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 look back at relevant past performance. Having awarded an estimated percentage mark, there is a further “alignment process” in the school. After the alignment process, there is a further standardisation process carried out by the Department of Education. Ultimately, the calculated grade is awarded.
The respondent published two documents setting out the provisions that apply for the award of calculated grades. The first of these documents covered students who were attending school (the school document). The second document, which covers the applicant's situation, dealt with “out-of-school learners” (the out-of-school document).
It was correctly recognised that both school students and “out-of-school” students had to be dealt with, as far as reasonably possible, fairly and equally. The out-of-school document states: -
“Fairness and equity: The system for calculated grades for out-of-school learners must ensure fairness and equity within this group but also in relation to all other Leaving Certificate students. The system must be such that it neither advantages nor disadvantages, through any grades ultimately awarded, any student in the 2020 Leaving Certificate cohort in its approach and delivery of calculated grades. The arrangements must be as consistent as possible with the general system to ensure fairness and equity.”
The “fairness and equity” of the system, as regards out-of-school learners, was recently considered by this Court in Elijah Burke v. The Minister for Education [2020] IEHC 418.
Elijah Burke v. The Minister for Education
In this case, the applicant was taught in the home by his mother. The respondent refused to accept the estimated percentage marks awarded by his mother on the basis that she had a conflict of interest. Unlike the provisions made for a conflict of interest that occurs in a school, no such provision was made in the case of a home educated student. The Court stated: -
“58. I am satisfied 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.”
In the event “independent teachers” were involved and, apparently, the applicant was awarded calculated grades that gave him 577 points. It should be noted that the respondent has appealed this decision.
The applicant is the third of nine children, all of whom have been educated at home by their mother with the help of her husband and other tutors. The applicant had been attending a national school but was taken out to be home schooled. In an affidavit filed in these proceedings, the applicant's mother stated that she followed the Department of Education curriculum and that the structure of the home schooling “in many ways mirrored the in school structure”.
The applicant's mother engaged Mr. Simon O'Neill and his wife, Mrs. Tatenda O'Neill, to assist in giving grinds to the applicant. These tutors had previously assisted in the education of other members of the family. Mr. Simon O'Neill holds a Bachelor of Engineering from the Waterford Institute of Technology and works as a mechanical engineer. In his affidavit, he stated that he provided grinds in maths and a number of other subjects to the applicant. Mrs. Tatenda O'Neill holds a PhD in Biomedical Chemistry and tutored the applicant in biology.
Neither Mr. Simon O'Neill nor Mrs. Tatenda O'Neill are “registered teachers” under the provisions of the relevant legislation.
On or about 1 July 2020, Mr. Simon O'Neill forwarded a Form A1 to the respondent setting out estimated percentage marks for the applicant in Irish, English, mathematics, geography, biology and home economics.
In response to these forms, the respondent sought from Mr. O'Neill a Teaching Council number which he would have were he a registered teacher.
The applicant was refused calculated grades as communicated in an email, dated 11 August 2020, with an attached letter, which stated as follows: -
“The purpose of this letter is to provide you with the decision of the CGEO that it will not be possible to provide you with a calculated graded in Irish, English, mathematics, geography, biology and home economics, in which you were entered for the 2020 Leaving Certificate examinations. This is due to the absence of satisfactory, credible evidence from an appropriate source on which to base an estimate. The reason for the decision is as...
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Elijah Burke v The Minister for Education and Skills
...setting or a recognised institution or possibly where the student had previously sat the examination through a school. The High Court ( [2020] IEHC 479 (Unreported, Meenan J., 24th September, 2020)) concluded that the exclusion of the applicant from the scheme was unreasonable and quashed t......