Up to 3,000 grades may not be awarded to Leaving Cert students this year on the basis that “satisfactory” evidence was not available on which to base an estimated percentage mark.
Department of Education legal documents submitted to the High Court show that it estimates it has been unable to award up to 1,500 grades to out-of-school students. These are students who are either home-schooled or who have been studying outside formal school settings.
In addition, legal records show the department has been unable to award 1,250 grades for students who are attached to a school but taking one or more subjects outside school.
Many of these include students from non-Irish family backgrounds who are studying their family’s first language. In many cases, the student’s only tutor in the language is a close family relative.
Department records indicate that a “significant proportion” of students studying minority languages at home and being taught by a close relative have been refused grades.
Overall, a total of almost 450,000 grades are due to be awarded to 60,000 Leaving Cert candidates on September 7th.
This means that a calculated grade will be awarded in 99.3 per cent of the cases where a student applied to sit an exam but could not do so this summer because of their postponement.
The information is contained in legal documents which were submitted in a High Court challenge by Co Mayo student Elijah Burke, who successfully challenged the Minister for Education's decision to exclude him from the calculated grades process.
He claimed the exclusion of students that were tutored by a parent or close relative at home from the calculated grades process breached his rights and was unfair and discriminatory and that he was being punished for being home schooled.
In a judgement delivered on Wednesday, Mr Justice Charles Meenan found that the policy of excluding home schooled students on the grounds that a teacher had a conflict of interest was "irrational, unreasonable and unlawful."
The judge held that Mr Burke’s work - including assessments, projects and mock exams - should be independently assessed.
His ruling is likely to affect other students who have been unable to get a calculated grade on the basis of having a tutor who is a relative or parent.
Mr Justice Meenan said his decision was applicable to all students who find themselves in the same situation as Mr Burke.
The Department of Education told the court during the case that about 10 other home-schooled students were in exactly the same situation as Mr Burke and have been refused grades. In addition, the department told the court in an earlier sitting that there were a total of 138 out-of-school students who have been refused a grade on the grounds of not having a tutor.
Some of this group are likely to be affected, according to Mr Burke’s solicitor, Eileen McCabe.
The department declined to comment on how many students were likely to be affected by the ruling. It said the Minister for Education and the department will “consider the judgment carefully and provide further comment in the coming days”.
Ms McCabe said the High Court ruling means any home-schooled student or candidate taking a subject out-of-school who has been refused a grade on the basis that their teacher is a relative should now be entitled to have their work independently assessed. However, these students will need to show that they have a body of work to demonstrate their achievements.
“Our argument was that out-of-school learners should be treated in the same way as in-school learners when it comes to conflicts of interest,” she said.
“The department admitted in court that the process was designed for in-school students, but it is guaranteed in the Constitution that you are allowed to be educated at home.”
