The concern was expressed by Mr Justice Charles Meenan who last week ruled in favour of Elijah Burke, who had challenged the Minister's decision to exclude him from the calculated grades process.
Eighteen-year-old Elijah claimed the exclusion of students 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.
Mr Justice Meenan in his judgement quashed the Minister's decision and held that the calculated grade system which excludes home schooled students on the grounds that a teacher has a conflict of interest was "irrational, unreasonable and unlawful."
The matter was briefly mentioned before the courts on Tuesday when Ms Nuala Bulter SC for the Minister said that her client was working as quickly as possible on a robust and fair system which would allow Elijah be assessed for a calculated grade.
Counsel said that putting an arrangement such as this in place, which may involve teachers from a school local to the candidate assessing the grades, was not a straightforward nor simple task.
When asked by the Judge, counsel said that the Minister could not guarantee that Elijah and other students home-schooled by a close relative would get any grades awarded to them on September 7th, when Leaving Cert students are due to get their results.
CAO offers
The Judge expressed his concern at this and wondered what effect this would have on CAO offers for places at third-level institutions. The first round of offers is due to be made on September 11th.
He said he wanted his judgement where he found the system put in place by the Minister regarding candidates like Elijah to be defective, to have a practical effect.
While the court accepted the Minister has no involvement with offers made by the CAO, the judge said he was adjourning the matter to later this week so the court can be updated on proposals to assess Elijah for a calculated grade.
Paul O'Higgins SC for Elijah said that his client was not aware of what steps the Minister plans to take to assess Elijah for a predictive grade.
In his judgement last week, Mr Justice Meenan said the Minister had refused to give Elijah a calculated grade for each of the nine subjects he has studied because he had been taught by his mother, Martina Burke.
A system had been put in place in schools to deal with scenarios where a Leaving Cert student has been taught by a parent or close relative, he said.
He said that a non-conflicted or independent teacher or teachers ought to be involved in the place of Elijah's mother in the system for the award of the estimated mark in each of the teen's Leaving Certificate subjects.
Should it be possible to award the student marks the process set out by Department of Education for the awarding of calculated grades out of school learners can operate for Elijah, the judge added.
He said the ruling applied to Elijah and some 10 other students in a similar situation.
Elijah hopes to study either Biomedical Sciences or History with Music at NUI Galway is from Cloonsunna, Castlebar, Co Mayo.
He is one of ten siblings who have all been educated at home by their mother.
Opposing the application, the Department of Education argued that it was not possible to give Elijah a calculated grade for any of the nine subjects he has studied due to an absence of credible evidence from an appropriate source on which to base a grade.
This was because Martina Burke was in a position of direct conflict of interest and that accepting estimated marks from a family member would undermine the integrity and credibility of the process.
The State denied that his rights were breached by a system brought in due to the global health emergency caused the Covid-19 pandemic.
