The High Court has refused a Leaving Certificate student - who failed to get permission to challenge mandatory mask wearing - leave to bring a challenge over his treatment under the calculated/accredited grades system.
The boy, who cannot be named, claimed he had to take private tuition because he could not attend school when he was required to wear a mask in common areas. While a screen was provided for him in class - and he did not wear a mask - it was claimed migraine he suffers from was agitated by prolonged wearing of face coverings.
He claimed in calculating his accredited grades, his private tutors should be consulted when his school teachers assessing those grades.
The court heard he sat his Leaving Cert exams, after he was allowed do so in a single room, and is awaiting an accredited grades result as well.
The boy, through his mother, sued the State Examination Commission (SEC) and the Minister of Education and Skills over mandatory mask wearing and over the accredited grades treatment. The defendants opposed the applications.
He lost the application last month over the mask wearing.
On Friday, following a hearing, Mr Justice Charles Meenan also refused permission to bring proceedings over the accredited grades.
The judge also awarded costs to the defendants against the boy's mother.
The judge said the measures introduced by the Government to prevent the spread of Covid were in the context of now some 5,000 deaths and probably physical and mental illness suffered by many thousands of others. But in order for those measures to be effective, they have to trespass and limit various constitutional and other rights enjoyed by citizens, he said.
The wearing of masks does cause a degree of discomfort, but there is no suggestion they are not effective in helping stop the spread of Covid. People can also be excused from wearing them for a valid medical reason, he said.
No medical certificate
In this case, the boy's mother had sworn that no medical certificate excusing him from wearing a mask was forthcoming from his GP. It could only be concluded the GP believed his migraine would not be agitated if he did so, the judge said.
The boy was accommodated by his school while in class but when he was required to wear a mask in common areas, he voluntarily absented himself from school since September last and was not suspended.
The judge observed the mask requirement was in the context that other pupils and staff had to be given whatever protection there could be against the virus.
He was satisfied the views of his mother on the wearing a mask are unsupported by medical evidence, efforts were made to accommodate him, and his non-attendance over the common areas mask wearing was voluntary and not imposed by an unreasonable or irrational requirement by the school.
In relation to the accredited grades issue, the judge was satisfied it would be unfair and inequitable if grades could be augmented by parents who had the means to pay for tutors in circumstances where his non-attendance at school was voluntary and not enforced.
The main thrust of the boy’s argument, made by Padraig Langsch BL, was his client was suffering discrimination in breach of Article 40.1 of the Constitution which provides all citizens, as human persons, be held equal before the law subject to due regard in enactments to differences in capacity, physical, moral and of social function.
The judge was satisfied the essence of an equality claim, in accordance with a Supreme Court decision, was there had to be a comparator (to the person claiming discrimination) and there was no such comparator here.
If there is an inequality, and he was satisfied there was not one here, it was entirely brought about by his voluntary non-attendance at school.
He was satisfied the Minister was entitled, under Article 40.1, to make provision for the awarding of accredited grades depending on the circumstances of any particular group of students.