A memorandum considered by Cabinet before approving the exclusion of historical school data from the Leaving Cert calculated grades process cannot be disclosed on grounds of Cabinet confidentiality, the State has told the High Court.
Brian Kennedy SC, for the Minister for Education and the State, said the memo is neither relevant nor necessary for the action by a Leaving Cert student, Freddie Sherry, who claims he was unfairly disadvantaged by the historical data exclusion.
Mr Sherry’s lawyers were previously given separate briefing material concerning the data exclusion which had been presented to government leaders, counsel said.
That material was similar to that in the memo to Cabinet which Mr Sherry is not entitled to because of the important principle of the privilege attached to Cabinet discussions, he said.
Feichin McDonagh SC, for Mr Sherry, said the State respondents have said the memo gives a full account of matters arising from the Minister for Education’s decision to exclude the school historical data and his side are entitled to see it.
Mr Justice Charles Meenan will decide later whether or not the memo should be provided to Mr Sherry.
Lead challenge
The judge on Tuesday continued the hearing of that and other pre-trial applications prior to the full hearing of the case by Mr Sherry, from Newtown, Celbridge, Co Kildare.
It is the lead challenge of up to 30 separate actions arising from the calculated grades process, introduced in response to the Covid-19 pandemic.
A Leaving Cert student at Dublin’s Belvedere College, Mr Sherry says he was “hugely disappointed” the CAO points total of 542 for him estimated by his teachers was reduced to 487 under the grade standardisation and he lost out on his first choice to study pharmacy at Trinity College.
Among the pre-trial matters to be decided is whether Mr Sherry is entitled to be given certain draft grade standardisation models which showed some schools would benefit and other schools would be adversely affected if historical school data was excluded.
The State says Mr Sherry is not entitled to be given those models.
The State also wants the judge to rule that a sworn statement from Alice Lynch, the principal of St Kilian’s German school in Dublin is inadmissible for Mr Sherry’s case. The school and 12 of its students have a separate case over grade standardisation.
Mr Sherry’s side are seeking to present Ms Lynch as an expert but cannot do so and only one line of her affidavit constitutes opinion, Eileen Barrington SC, also for the State, argued on Tuesday.
State’s concern
The State is concerned the issues raised by Ms Lynch would require the State to provide several detailed affidavits in reply, taking up more time and possibly causing delay in the Sherry case getting on, counsel said.
The issues in this case falls to be addressed by reference to Mr Sherry’s own situation, she said. Mr Sherry’s case could be addressed only by reference to his legitimate expectation and Ms Lynch’s understanding was “neither here nor there”.
There was no unfairness to Mr Sherry in excluding her affidavit, she argued.
Micheál P O’Higgins SC, also for Mr Sherry, argued Ms Lynch’s affidavit is relevant to Mr Sherry’s claims and the opposition to those.
The core issue in Mr Sherry’s case is the lawfulness and rationality of the decision to exclude historical school data.
Mr Sherry argued that decision was unlawful because it produced irrational outcomes not explained by science or statistics or fairness, he said.
Ms Lynch’s evidence showed the model appeared to produce “inexplicable” results for other students and that St Kilian’s students suffered “odd” results. The “true” basis for the State’s application to have Ms Lynch’s evidence deemed inadmissible is that it “does not like it”, he said.
The hearing continues on Wednesday.
