Seamus Byrne, University of Liverpool
Introduction
On the 19th August 2020, the Irish High Court in the case of Elijah Burke v The Minister for Education, per Mr. Justice Meenan, delivered an important ruling in the context of the rights of home-schooled children in Ireland. This case arose out of the arrangements which the Department of Education had put in place to accommodate the calculation of Leaving Certificate points following the unprecedented cancellation of the Irish Leaving Certificate, described as a first in “the history of the State”, as a result of the spread of Covid19. In this case, the High Court held that the exclusion of the applicant from the consideration of estimated percentage marks on the basis that his teacher who home-schooled him possessed a conflict of interest (who in this instance was his mother), was unlawful, irrational and therefore unconstitutional. By shining a spotlight on the treatment of home-schooled children as part of the governmental response to Covid19, the Burke case possesses broader constitutional and children’s rights significance for it reasserts the right to education for all children, the importance of procedural fairness and to a lesser extent the right to equality.
This blog post will firstly set out the legal framework governing home-schooling in Ireland and then proceed to examine the Burke judgment. Following this, its broader constitutional and children’s rights significance will be examined. Ultimately it is argued that although the express language of children’s rights was absent from the judgement, it’s influence potentially extends far beyond the relief sought (and obtained) by the applicant and lays the foundations for more children’s rights-based litigation in the future.
Home-Schooling in Ireland
The law relating to home-schooling in Ireland finds expression both constitutionally and legislatively. From a constitutional perspective, and in recognising the family as “the primary and natural educator of the child”, Article 42 (2) states that:
Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.
From a legislative standpoint, the principle provision regarding home-schooling is contained within section 14 of the Education (Welfare) Act, 2000. Designed to ensure the maintenance of a register of children who receive their education other than in a recognised school, including those who are home-schooled, section 14(2) states that:
However, admission on to the register is subject to a well-crafted legislative process. Parents must firstly apply to have their child registered under section 14(3) of the Act, and following this, are subject to an assessment by the Education Welfare Services of the Child and Family Agency (TUSLA) to ensure that the child will receive a “certain minimum education”. This requirement assuages the constitutional tensions inherent in Article 42 which, on the one hand enshrines the right to home education, but on the other recognises the non-absolute nature of this right by mandating the State “as guardian of the common good”, to ensure that children receive a certain minimum education. With no legislative or constitutional definition of what comprises a “certain minimum education”, it has fallen to the courts to flesh out its requirements. As far back as 1943, Chief Justice Sullivan stated that it comprised “a minimum standard of elementary education of general application”, while in DPP v Best, the Supreme Court, per Denham J., stated that not only must the constitution be read as “a living instrument” to be construed of its time, but that the phrase ‘certain minimum education’ amounted to “a minimum education, moral, intellectual and social which must be considered in light of factors … such as the time the issue is determined, -- the family, the parents, their means, the child, the geographical situation, the actual circumstances and the common good”. By imposing neither an overly high threshold which could potentially nullify the right of parents to home-school their children, nor an overly low standard which could potentially abrogate the child’s right to education itself, the courts have adopted a distinctly contextual approach to the requirements arising under “certain minimum education”.
The Burke Judgement: Facts and Outcomes
In establishing an alternative grading system for the Leaving Certificate, the Department issued two guidance documents, one for students attending schools (“Guide for Schools on Providing Estimated Percentage Marks and Class Rank Orderings” (21 May 2020)) and another for students who were educated out-of-school, including those who were home-schooled (“A Guide to Calculated Grades for Out-of-School Learners” (June, 2020)). These documents were designed to ensure on objective, fair, transparent, and impartial approach to the computation of student grades. Central to the guidance was the departmental desire to avoid conflicts of interest regarding the way those grades were arrived at, including situations where family members were involved in a student’s education. In situations where a family member was involved in a pupil’s education within a conventional school setting which would result in them being involved in the estimation of their grades, the May 2020 Guidance stated that:
For those educated out-of-school including those who were home-schooled, the June 2020 Guidance recognised four scenarios relevant to such learners. These included students who were engaged with a centre of learning not recognised by the Sate Examinations Commission (SEC), students who were engaged with a centre of learning which was recognised by the SEC, students who were receiving tuition by a registered teacher outside of any centre of learning and students who were repeating their Leaving Certificate, having previously sat their examinations in 2018 or 2019. To be eligible for consideration for an estimated grade in a particular subject, students were to have “engaged in tuition regularly over a sustained period … in order that there is an appropriate source from which to receive the estimate”. In this case, the applicant fell within the third category of scenarios recognised by the Department, namely those educated by a registered teacher outside of any centre of learning as he was educated at home by his mother. It further followed that she would be able to draw on that tuition as the source for providing the estimated marks. Moreover, in keeping with Departmental desires to ensure an objective and transparent estimation process, the June 2020 Guidance further set out relevant guidance to avoid conflicts of interest arising out of the estimation process. It stated:
To uphold the integrity of the process, it will not be possible, under any circumstances, to accept an estimated mark from a teacher or tutor who is closely related to you (including a brother, sister, parent, spouse etc.). This would be a direct conflict of interest and accepting estimated marks from a family member would undermine the credibility of the process. A Conflict of Interest declaration must be completed by all those submitting an estimated percentage mark. (June 2020 Guidance, p 4)
In this case, the applicant was refused to be considered by the respondent for the award of such estimated grades. Given that his mother provided his tuition, the conflict of interest clause within the June 2020 Guidance could not be overcome. This was further compounded by the fact that in applying for his estimated grades, the applicant mother’s was unable to provide the required written confirmation that “there is no conflict of interest in my engagement with this process for this student”. As such, the applicant was shut out from receiving estimated grades, and thus the opportunity to proceed to third level education. In holding that the refusal to consider the applicant for estimated grades was “arbitrary, unfair, unreasonable and contrary to law”, on the basis that his mother was his teacher, the court made an order of certiorari quashing the decision of the respondent. In reaching his conclusions, Meenan J., noted the contrasting departmental guidance which was issued to both in-school and out-of-school learners. In relation to the former cohort of students, their guidance contained a mechanism to overcome actual or potential conflicts of interest whereby the conflicted teacher could hand over the information and data to another non-conflicted teacher, while the guidance relating to the latter cohort of students did not. No procedural backstop was provided. This, he noted was “very striking” and generated a situation whereby students who were faced with similar problems did not have the benefit of a similar solution. Meenan J., stated:
Therefore, in noting the unfairness this generated, the Court quashed the decision of the Respondent on the grounds listed above. However, on deeper analysis, the Burke decision raises broader constitutional, procedural and children’s rights issues which warrant closer inspection.
The Broader Constitutional and Children’s Rights Significance of Burke
The Right to Education
At its core, the Burke case represents an important judgment for upholding the right to education for home-schooled children in Ireland. It further resolved a curious legal paradox that would otherwise persist if children taught by their parents were not considered for estimated grades. The practical consequence of this would be that home-schooled children would remain ineligible for consideration for such grades by the Department, despite the constitutional and legislative permissibility of home-schooling in the first instance. In highlighting this incongruity, and the fact that such an automatic exclusion did not apply for students with comparable conflicts of interests in an ordinary school setting, the Court in many respects exposed the differential departmental treatment accorded to out of school learners, including home-schooled children. The effect of this, if left unremedied, would not only impact the enjoyment of their right to education but arguably reduce the right itself to an illusory status.
Moreover, the context against which the Department’s arrangements were introduced is an important consideration. Resolutely anchored within the social and psychological psyche of the Irish state, the Leaving Certificate has been described by Banks and Smyth “as a very high-stakes exam”. It’s outcome not only shapes the future educational and professional choices which students make, but is one where students devote considerable time and effort in preparing for it. In terms of those preparations and the choices and aspirations which attach to them, home-schooled children are no different. Moreover, the respondent’s suggestion that home-schooled students could still chose to sit the Leaving Certificate which they “hoped will take place in November, 2020”, not only lacked clarity or certainty, but no epidemiological evidence was presented to the court which suggested that such a sitting could occur on that date. In any event, such an option does not account for, nor justify, the differential procedural treatment which in-school and out-of-school children received by the Department.
In finding the arrangements introduced by the Department unreasonable and arbitrary in their effect on home-schooled children, the Burke judgment should not be viewed as a judicial affirmation of the practice of home-schooling itself. Rather, it upholds the necessity to ensure that the right to education for all children and young people is equally enjoyed. In this regard, the judgment is a powerful reminder that administrative ease or departmental short-sightedness, is neither an acceptable nor justifiable basis upon which to cast aside, or substantially diminish, the right to education for home-schooled children, few though they may be.
The Right to Equality
Relatedly, the Burke case raised further issues regarding the constitutional right to equality under Article 40.1 of the Constitution. This states that:
All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
Widely interpreted as amounting to a right to equal treatment, the constitutional provision on equality was clearly engaged within the Burke case. It its assessment of the provision, the Supreme Court has previously stated that:
Although only referred to within the judgment in the context of counsel’s submissions that the applicant’s right to home education should be construed in light of his Article 40.1 rights, the judgment itself speaks more widely to the right of equal treatment for home-schooled children. Specifically, the enactment of departmental guidance designed to give practical effect to the right to education for all children and young people, but which in practice disproportionally, if not exclusively, impacted a certain cohort of those children in the enjoyment of that right, cannot be said to be tantamount to the equal treatment clause within Article 40.1. Indeed, in underlining the differential treatment which in-school and out-of-school children were subject to as a result of the divergent guidance, Meenan J., stated that it would: “at the very least, mean that the applicant would be delayed by one year in commencing his third level course of choice, should he be so admitted to it. This would clearly be detrimental to the applicant.” Thus, in recognising the practical impact which the Department’s guidance would have on the applicant, the Court was acutely aware of the long-term negative effects which would arise. And although the judgment did not expressly engage with the applicant’s right to equal treatment, it arguably affirmed it indirectly.
Children’s Rights Significance
While the applicant in the Burke case was an adult and was thus able to initiate his own legal proceedings, not all young people who sit the Leaving Certificate will have attained majority status. Indeed, shortly after the judgment, a similar case was brought by a young person under 18 years of age on similar grounds. In N.P. (A Minor) & anor -v- The Minister for Education and Skills, Meenan J., again quashed the decision by the Respondent in failing to consider the applicant for estimated grades on the basis that her tutor in this instance was not a registered teacher.
Given that both cases engage the rights of home-schooled students which will invariably include children, it is notable that the express language of children’s rights was absent from the judgments. No reference was made to either the child’s best interests principle or their right to non-discrimination, despite their significance within children’s rights law generally and within the factual and legal contexts of both cases specifically. While these principles may arguably be under-invoked within domestic constitutional litigation, they do however possess much capacity moving forward to add persuasive jurisprudential force to future legal issues concerning children and their rights. In retrospect, one could posit what the judgments would look like if such principles had been argued before the Court and how these arguments would have persuasively influenced or guided the court. While the outcomes would arguably have remained the same, the legal and lexical make-up of the judgments would have contained an arguably rich and influential jurisprudential source from which to further advance children’s rights within domestic litigation on matters affecting children. The fact that these cases had to come before the Court in the first instance highlights the need for more robust engagement with children’s rights principles. Indeed, if left unchecked, the effect of the Department’s guidance could have arguably consigned home-schooled children to an educational hinterland.
Additionally, permeating both cases was the disjunctive procedural processes which where enacted by the Department and which disproportionality impacted home-schooled children. And while the incongruity of such procedures was highlighted by the Court, they do underscore the need to ensure children’s rights are firmly rooted within future departmental decisions, across all government areas. In view of the evolutive nature of Covid19 and the likelihood of future decisions which will undoubtedly impact children, it is imperative more than ever, that the celebrated constitutional visibility of children’s rights underpins all governmental decisions which affect children and young people moving forward.
Seamus Byrne is a lecturer in law at the University of Liverpool.
Suggested citation: Seamus Byrne, ‘Elijah Burke v The Minister for Education: The intersection of home-schooling, Covid19 and children’s rights’ COVID-19 Law and Human Rights Observatory (6 November 2020)
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