High Court: Student fails to overturn calculated grades from the 2020 Leaving Certificate

Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 128
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Charles Meenan

The primary point made by the applicant was that, as a student at Belvedere College, he was unfairly affected by the decision to not include historical school performance in the modelling for the calculated 2020 results.

Giving judgment in the matter, Mr Justice Charles Meenan said that the decision to exclude a school’s past performance in the 2020 results was within the sole discretion of the Minister for Education and that there was no breach of the applicant’s legitimate expectations in the case.

Background

The applicant, Freddy Sherry, was a sixth-year student in Belvedere College for the 2020 Leaving Certificate. Belvedere is a private school and its students have tended to achieve higher Leaving Certificate results on average than those in state-funded schools.

Following the outbreak of the Covid-19 pandemic, the Irish Government chose to cancel the scheduled written exams in June and instead provided predicated grades to students. This involved the teachers providing an estimate of the grades they expected students to get, with those estimates then being standardised by the Department of Education.

Prior to the determination of the Irish results, the English A-Levels were released. The English model for standardisation was similar to the Irish system and included a school’s historic performance in the A-Levels as a factor in the algorithm. As such, many students from public schools in lower socio-economic areas had their grades significantly reduced, causing massive public outcry and political turmoil.

Seeking to avoid that situation, the Minister for Education chose not to include past school performance in the State’s model. She also chose not to include so-called “mapping tool” in the model, which was used to avoid grade inflation and would have reduced about 58 percent of grades.

The applicant opted in to the 2020 predicted grades scheme and received relatively good results from his teachers. However, his grades were reduced after the Department’s standardisation model was applied to his estimates.

The applicant subsequently brought judicial review proceedings against the Minister for Education and other parties, claiming that the standardisation model was incorrect insofar as it did not account for his school’s historic success in the Leaving Certificate. He claimed that he had a legitimate expectation that his school’s historical data would be used to determine his grades. The State respondents opposed the proceedings.

High Court

At the outset of his judgment, Mr Justice Meenan noted that it was very difficult to replicate the fairness of anonymously graded exams. Given that certain children had access to superior private school education while others did not, there was an inherent inequality in the system. However, everyone still had the same opportunity in the exam hall. As such, the task of providing a similarly fair system of calculated grades was not to be underestimated. Further, it was not an option to cancel the Leaving Certificate outright, the court said.

The Minister was required to meet two objectives in the 2020 Leaving Certificate, the court said. First, the results had to be statistically accurate. Second, they had to be acceptable to the universities, future employers and the public at large. The court held that these standards were not easily met, because certain information may have made the model more accurate but less acceptable to the public. For example, if wealthier children from private school got higher results, this would be statistically accurate but not amenable to the public.

The expert evidence indicated that removing school historic data (SHD) was removing a significant source of information for accurate assessment. Having outlined the iterations which the final standardisation was based on, the court held that the SHD would have been included but for the intervention of the Minister, who had expressed doubts throughout the process about its use. In fact, the court found that there was significant internal debate surrounding the proper method of calculation.

It was also noted that the predicted grades of teachers nationwide were very inflated from previous years. In 2019, 5.8 percent of exams resulted in top marks, whereas teachers’ estimated grades for 2020 put that figure at 13.2 percent.

Determination of Issues

After reviewing the evidence, Mr Justice Meenan turned to determine the issues in the case. First, the court held that the decisions taken by the Minister were not justiciable by the court. The judge said that the Minister was fundamentally engaged in policy decisions when devising the new system. The court restated that the purpose of the Minister’s decisions was to create a grading system that was acceptable to the public. Relying on well-established case law such as T.D. v. Minister for Education [2001] 4 I.R. 259 and Garda Representative Association v. Minister for Public Expenditure and Reform [2016] IECA 18, the court said it was not the place for a court to intervene in the merits of these policy decisions taken by the Executive.

Further, the court rejected the applicant’s submissions that the Minister had acted in breach of legitimate expectations. The court held that, while the Minister had ultimately resiled from certain public commitments about the way the system would work, the applicant had failed to demonstrate that there was any unfairness in the decision (Glencar Exploration Plc v. Mayo County Council (No. 2) [2002] 1 I.R. 84).

The evidence was that Belvedere school had substantially overestimated its grades in H1 and H2s. On a percent basis, students were expected to outperform previous years by between 5 and 30 percent in the applicant’s subjects. As such, “it was not at all surprising that the applicant was downgraded,” the court said. Further, after an examination of the statistical modelling, the removal of the SHD and the mapping tool did not in fact alter the applicant’s marks in a substantial way. Statistically, Belvedere was not adversely affected by the modelling as a whole.

Even if the applicant were to have satisfied the prima facie test for breach of legitimate expectations, he would still be defeated by the public interest defence, the court said. Applying the case law, Mr Justice Meenan held that the Minister was fully entitled to make changes to the standardisation model in pursuit of an acceptable model to the public.

Conclusion

The court therefore rejected the application for judicial review, holding that the award of calculated grades was not “arbitrary, unfair, unreasonable, irrational and unlawful and in breach of the applicant’s legitimate expectations”. The court invited the parties to make submissions on costs and consequential orders, noting that this was a lead case for more than 60 other applications.