How did you get on in “the Leavin”?

Such is its place deep in the Irish psyche that it doesn’t even need its full title – the “Leaving Certificate” – just like the “All-Ireland” or the “Toy Show”.

The Leaving Cert has been a fundamental rite of passage for our teenagers (mostly) for generations – a crucial staging post before they take their first real steps of independence into the wider world – beyond their immediate family and close circle of friends. From a societal perspective, it plays a crucial role in splitting us out onto different paths. It judges us and gives us a critical taste of modern life in that regard.

All man-made systems are imperfect and that’s what lawyers love. Imperfect systems with flaws and loopholes that are ripe for picking apart. The Leaving Cert is no exception. Criticism of its credibility as an accurate measure of a young person’s emotional and intellectual ability are nothing new – but this year’s changes to the marking/assessment process are radical and have elevated those attacks to a new level. The stakes are also higher in a post- COVID world. The uncertainty of everything is unsettling.

For the first time in the history of the State students did not sit their Leaving Cert in June in the traditional format. Instead a new system of “calculated grades” was devised.

So what’s new?

A two-stage process will seek to give students the fairest possible exam result in a particular subject.

Stage 1 is the “school-based phase” and has four discrete steps

  • First, the student’s class teacher will give the student an estimate of the percentage mark they are likely to have achieved if they had sat the Leaving Cert exam under normal conditions as well as a ranking within their class. This will be based on a range of written material produced by the student over the Leaving Cert cycle as well as course work and previous exam results in the subject (both in-house exams and, with caveats, mock exams)
  • Secondly, the individual percentage marks will be aligned by an “alignment group” within the school consisting of teachers of the particular subject in question to make sure that marks between classes in the same school are not out of kilter.
  • Thirdly, there is provision for the school principal to be involved by way of “oversight” of the above steps. This is to be confined to a review of the data compiled in terms of the marks and class rankings; the principal must be assured of the fairness of the process up to that point and where they identify anomalies/ errors to return the data to the teacher(s). Principals do not re-adjust marks or rankings.
  • Finally, the school sends on the “internal” marks and rankings to the Department for national standardisation.

Stage 2 involves the much-maligned national standardisation process, the aim of which is to take the local marks and rankings and adjust them to a national level to ensure comparability across different schools and that a common national standard is applied.

So far so good.

The devil however is in the detail. The school-based data forwarded by each school to the Department will be combined with “historical examination data” available to the Department through a process known as “national standardisation”. Initially, that historical data was to include:

  • data at national level for Leaving Cert exams for2019 and previous years
  • data at school level for Leaving Cert exams for 2019 and previous years
  • data at individual candidate level for Leaving Cert exams for 2019 and previous years
  • data of the Junior Cert results of the 2020 Leaving Cert group

This data was to be combined with the school-based marks and rankings to produce, via fiendishly complicated algorithms, calculated marks which will be converted into calculated grades to be issued to the students for each of their various subjects.

In the UK, 40% of students had their grades lowered as a result of their standardisation process, with evidence that the reductions disproportionately affected students in less well-off areas. Roger Taylor, Head of the UK’s exams regulator Ofqual, admits the decision to use an algorithm to award results was a “fundamental mistake”. Its exam chief, Sally Collier was forced to resign amidst the fiasco.

This prompted the Department of Education & Skills here to revise the standardisation process. Specifically, the school level data from previous years is no longer being taken into account.  Minister Foley said she had “serious concerns” about “school profiling”. She has confirmed that the decision to revamp the standardisation criteria will result in 79% of the Leaving Cert class of 2020 still getting the grade proposed by their class teacher; 17% will be downgraded and 4% will be upgraded. The key question is whether or not she has done enough to avoid a repeat of the UK experience.

The underlying principles throughout the entire process are objectivity and fairness. This means principals, deputy principals, teachers or any members of the school staff cannot under any circumstances discuss a student’s estimated mark with them. When their grades are issued students will be able to see the final mark that led to their grade.

An Appeals process of sorts has been devised but has already been the source of much criticism. It’s a three-stage process:

  • Checks will be carried out to ensure that all the intended information was properly recorded by the school and correctly transferred to the Department.
  • A review will be carried out to ensure the school-based data was correctly received by the Department.
  • Finally, students who are unhappy with the outcome of this process can seek a review by Independent Appeal Scrutineers.

Thereafter dissatisfied students are left with the choice of accepting their final grade or sitting the exam this coming November. If they choose to sit the written exam and get a higher grade, their initial grade will be amended accordingly.

It is readily apparent, even to non-lawyers, that there is no provision for a substantive appeal of how the teacher(s)/ school arrived at a particular estimated mark for the student. On the face of it being denied full access to your exam script is not the hallmark of a transparent process but that is not to say, it will automatically form the basis of a successful Court challenge, especially if it applies equally to all students.

Why no substantive appeal? According to the Department of Education’s Chief Inspector Harold Hislop: “When you think about it, if that score was allowed to be reopened, there would be an incredible pressure on the teacher to increase that score”.  Given the high stakes involved for the student, it’s not clear that this explanation will put the appeals process beyond legal challenge.

Filing an appeal does not preclude a student from sitting the written exam in that subject in November. From Monday 14 September onwards students who appeal can access an online portal where they will be able to see a record of their individual estimated percentage mark and ranking assigned to them by their school.

Litigation has stalked the Leaving Cert for many years and has attacked different aspects of the system.

In 2017, Kim Cahill, who was diagnosed with dyslexia, brought a claim before the Equality Tribunal challenging the decision of the Department of Education & Science as it then was to issue her with a Leaving Certificate which contained an explanatory note stating that certain parts of the exam she sat had not been assessed and revealed her disability. She claimed this was discrimination and resulted from a failure by the State to make “reasonable accommodation” as required by law. Had such accommodation been made, the note on her Leaving Certificate would not have been recorded. It should be noted that Ms. Cahill had to fight her case from the Equality Tribunal to the Circuit Court, the High Court and finally to the Supreme Court.

The State’s Appeal system for dissatisfied students was roundly criticised by the High Court last year in the much-publicised case of Rebecca Carter. The issue in Ms. Carter’s case related to an incorrect calculation of the marks in one of her subjects which had the effect of denying her a place on her chosen course of veterinary medicine in UCD. The speed at which the appeals process moved meant that she was going to miss out on the course leading Mr. Justice Humphreys to describe it as “manifestly unfit for purpose”.

The results of this year’s unique marking scheme have not yet been issued and already we have had high profile litigation. Elijah Burke an 18-year old student from Co. Mayo and his nine siblings were home schooled throughout their secondary school years by their mother Martina, herself a registered teacher. In a letter sent to his solicitors at the end of July, the Department confirmed that his body of school-work would not be considered for estimated percentage marks.

Significantly, the Department of Education & Skills published two Guides for the grading of this year’s Leaving Cert results – one for in-school students and one for “out of school learners”.

The “in school” Guide provided for a Plan B to cater for those students who had a conflict of interest –  actual or perceived – based on a connection with their teacher For those situations “appropriate arrangements” have to be put in pace to ensure the student in question is kept in the system and given an estimated percentage mark.

However, for the “out of school” student like Elijah, there was no safety net. His mother was his teacher and so a clear conflict arose. However, unlike his in-school counterpart, there was no provision for any arrangements to be made so that Elijah could be awarded an estimated percentage mark. He was effectively being locked out of the system. No estimated percentage mark meant no final calculated grade and ultimately meant no Leaving Certificate.

Not surprisingly, Judge Meenan had little hesitation in finding this aspect of the Department’s marking system for “out of school learners” to be “irrational, unreasonable and unlawful”. Elijah won his case and the Department must put arrangements in place so that he can be considered for estimated percentage marks.

It is interesting that in coming to his decision Judge Meenan was satisfied to rely on the established principles for assessing decisions of State bodies as enunciated in previous Court decisions such as Keegan v Stardust Compensation Tribunal; O’Keefe v An Bord Pleanala and Meadows v Minster for Justice rather than consider the provisions of the Constitution and in particular Article 42 which deals expressly with education or Article 40 which provides for unenumerated rights.

Those decisions made it clear that the decision which would be impugned would be those which were unreasonable and which flew in the face of common sense.

This was also a feature of the Rebecca Carter case above in that the Court of Appeal in that case allowed the Appeal of the State Examinations Commission [SEC] and the Minster for Education against that part of the High Court’s decision asserting an unenumerated Constitutional right to higher education/vocational training. The three Judge Court held that this particular finding should not have formed any part of the High Court’s decision as it was not an issue that was before the Court for determination.

The Court stated that the existence of such a right is of interest to the Minster, but the case before it was concerned with the running of the State Examinations by the State Examinations Commission, a body, which the Court said, was not concerned with the existence of constitutional rights of access to higher education.

When the new calculated grades system was being formulaated earlier in the year, Minister  McHugh spoke of legal vulnerabilities with the system and the issue of student’s legitimate expectation to sit their exam and take up a college place was mentioned as one such vulnerability. The Judgement in Burke was significant in this regard as Judge Meenan specifically decided it would not be necessary for him to consider the principles applicable in (legal) actions for “legitimate expectation”

All of the cases referred to above, involved students who could point to manifest errors or clear discrimination that applied to them individually or to the small cohort of students to which they they belonged. That would seem to be the likeliest route to success for any prospective litigant.

However, students are not the only participants in the process and scrutiny of the system inevitably means that the contribution of teachers cannot be ignored.

This was highlighted by the fact that the legal protection of teachers was one of the main concerns of their Unions when this year’s marking system was being put together. Anonymity has long been hailed as one of the key features of the marking system for State exams. This year’s changes mean that anonymity is gone. This spooked teachers. Rightly or wrongly they felt the changes exposed them to a greater threat of litigation and they wanted a full indemnity in respect of costs associated with legal challenges brought by students who were unhappy with the grades they were given. Following negotiations, the Chief State Solicitor will act on behalf of the State for all those teachers who are joined to any such legal proceedings and so teachers will not have to engage their own legal advisors or incur any associated legal costs. However, in order to avail of the indemnity, teachers must show that they have performed in a professional, or bona fide, manner in relation to applying calculated grades.

We are in unchartered waters. Un-necessarily so according to some who believe it was possible – if the will was really there – to have the traditional exam format in June. All the country’s primary schools lay idle. Urban schools had community centres and hotels in their locality. Were they all off limits? Was every conceivable effort made to look at all available resources?

The consequences of the decision not to proceed and the prospects of legal challenges are about to become clearer with this week’s results.  We wish all our students well. Grades – no matter how they are arrived at – are one thing. It is however – as it always has been – all about getting that coveted college place. Plus ca change…………….

Listen in also to an interview with Brian Gill on The Last Word with Matt Cooper on Today FM:

If you have any concerns or queries about any of the issues mentioned here, please contact Brian Gill, Partner: