High Court: Challenge to marking scheme for Mandarin Chinese Leaving Certificate Exam dismissed

About this case:

• Citation:
  [2024] IEHC 313
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Garrett Simons stated that “The Mandarin Chinese leaving certificate course has been designed as an ab initio course. Most candidates will only have taken up the subject for the first time in their fifth year of secondary school. The course comprises only 180 contact hours. Hence, there is a need for a greater simplification in terms of the level of the course relative to other language subjects which have been taught since first year.”

Background

The applicant, a secondary school student, commenced a Mandarin Chinese course at his school in 2023 with the intention to undertake an exam in Mandarin Chinese as part of his leaving certificate examinations in 2025.

The applicant’s parents desired to foster the applicant’s Taiwanese and Chinese language heritage, teaching him to read Mandarin Chinese using traditional characters and speaking Mandarin Chinese in the home.

The applicant challenged the marking scheme for leaving certificate Mandarin Chinese, which awarded the highest band of marks to candidates who use mainly simplified characters and who make few to no substitutes of characters using other means, including traditional characters.

The High Court

Mr Justice Simons considered that traditional characters are more complex than simplified characters and that for the purposes of ab initio learning at secondary school level, the practice in many countries is to use simplified characters as there is a greater variety of learning materials and greater ease in finding teachers comfortable with simplified characters.

Examining the Education Act 1998 which confers upon the Minister for Education the function inter alia of determining national education policy, the court observed that the longstanding practice of successive Ministers has been to govern the education system by way of non-statutory administrative circulars such as the ‘Curriculum Specification’ document for Mandarin Chinese.

Having regard to the principal relief sought by the applicant, being an order of mandamus compelling the first and third respondents to provide that the marking of the leaving certificate examination in Mandarin Chinese shall take into account answers written in traditional characters, Mr Justice Simons considered that the question falling for determination was whether it was necessary that the marking scheme for the examination be made by way of Ministerial Regulations.

Finding that the function of organising the leaving certificate examination and marking of same has been delegated to the State Examinations Commission (SEC) established by Ministerial order pursuant to section 54 of the 1998 Act, the court concluded that the responsibility of preparing marking schemes resides with the SEC and that there was no requirement that the marking scheme by embodied in Ministerial Regulations made under section 30 of the 1998 Act.

The court then examined the applicant’s contention that section 6 of the 1998 Act, which requires that those involved in implementing the Act shall have regard to the objects of promoting the language and cultural needs of students, gives rise to an enforceable duty to modify the marking scheme for Mandarin Chinese to accommodate answers in traditional characters.

Determining that this submission was not well-founded as the requirement to “have regard to” the objects does not equate to inter alia an enforceable right to specify the marking scheme for a competitive examination, Mr Justice Simons noted the “privileged position” of the applicant in that he could avail of a course of study in his heritage language, and so his needs in that regard were respected.

The court considered the applicant’s complaint that the Minister, prior to drawing up the Curriculum Specification, had consulted with the Chinese Ministry of Education, which is not a permitted consultee for the purposes of section 30. Finding that submission to be based on a factual error in circumstances where the chronology of events was such that the specification had been published prior to entering a memorandum of understanding with the Chinese Ministry of Education, Mr Justice Simons noted that in any event, the list of potential consultees under section 30 was not exhaustive.

The judge also determined that the attempt on part of the applicant to invoke the ‘freedom of education’ provisions under Article 42 of the Constitution could not be reconciled with Burke v. Minister for Education and Skills [2022] IESC 1, [2022] 1 I.L.R.M. 73 wherein the Supreme Court held that the “freedom” to provide education at home does not involve any right to demand the state to provide an examination system to measure that knowledge and skill.

Similarly, the High Court disagreed with the applicant that the marking scheme unlawfully discriminated against persons whose heritage derives from a country or region where traditional characters are officially used contrary to Article 40.1 of the Constitution and Article 14 of the European Convention on Human Rights (ECHR) when read with Article 2 of the First Protocol.

In that regard, the court observed that it was unnecessary to consider the issue further in circumstances where there is no inequality involved. Noting that “Only differences in treatment which do not have an “objective and reasonable justification” are discriminatory and consequently contrary to Article 14 of the European Convention”, the court recognised that “one of the many unusual features of the claim for discrimination in the present case is that the discrimination is said to consist of the difference itself.”

The court continued, “In circumstances where the examination is open to all comers, the applicant cannot allege that there is any direct discrimination. Rather, the complaint made is that an aspect of the applicant’s own characteristics, namely, his cultural and linguistic heritage, means that the benefit is less valuable to him than to an examination candidate whose cultural and linguistic heritage involves simplified characters.”

Opining that “By definition, one of the purposes of the leaving certificate examination process is to differentiate between candidates by reference to their academic ability”, Mr Justice Simons reasoned that “All candidates will have an equal opportunity to prepare for the examination and will be assessed objectively by reference to the same syllabus and marking scheme.”

Finding the comparators advanced by the applicant to be too broadly and too narrowly drawn, the court concluded that the applicant failed to establish that he had been discriminated against by the marking scheme. The court added that in any event, the characteristics of the Mandarin Chinese course were such that there is a need for greater simplification in terms of the level of the course relative to other language subjects which are taught from first year onwards.

Mr Justice Simons also considered that the modification of the marking scheme to allow for the use of both simplified and traditional characters would present practical difficulties in terms of the recruitment of teachers and examiners, and would necessitate an additional expenditure estimated at €985,000.

Conclusion

Accordingly, the High Court dismissed the application for judicial review in its entirety.

B (a minor) & Anor v Minister for Education & Ors [2024] IEHC 313