The Minister for Education is appealing a ruling in favour of the constitutional rights of home-schooled students who were excluded from the Leaving Cert calculated grades process.

A panel of three Supreme Court judges will decide later whether the grounds of appeal merit being hear by the Court.

The case concerns a Court of Appeal (COA) judgment last month dismissing the Minister’s appeals over High Court findings in separate cases by two students.

The COA found it was “unreasonable and disproportionate”, and an unlawful breach of the students’ constitutional rights to exclude them entirely from the calculated grades scheme.

The Minister, however, has argued the COA had identified a “new constitutional right” of a home-schooled child to have reasonable account taken of their situation when education policies are being formulated and implemented and not to be excluded from the Leaving Cert.

This is the first time such rights and duties have been identified, and no such right is specified in the Article 42.2 which merely references parents’ rights, the Minister contends.