Court rejects legal challenge to Leaving Cert Chinese exam

Judge criticises quality of evidence, saying ‘far too frequently’ expert witnesses wrongly regard themselves as advocates

The High Court has dismissed a secondary school student’s challenge to the marking scheme for the Leaving Certificate Mandarin Chinese exam.

Mr Justice Garrett Simons rejected claims that the system discriminated against those using traditional Mandarin characters over simplified characters.

The student, who cannot be named for legal reasons, claimed exam markers would refuse to accept written answers given in traditional Chinese characters, which are used in Taiwan, Hong Kong and Macau.

The Taiwanese-born student alleged the curriculum required written answers to be given in simplified Mandarin characters, which are predominantly used in Singapore, Malaysia and the People’s Republic of China.

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Suing through his mother, the student claimed the requirement to use simplified characters discriminated against those from places using traditional characters. He also alleged the Minister for Education unlawfully consulted with the Chinese Ministry for Education, and that the Chinese embassy is drawing up the curriculum.

The claims were denied by the respondents – the Minister for Education, the National Council for Curriculum and Assessment, the State Examinations Commission, Ireland and the Attorney General.

Dismissing the case, the judge said the student failed to establish the marking scheme is in breach of requirements of the 1998 Education Act, as had been alleged.

The fact that a subset of candidates for a language exam might, due to their heritage, have an initial advantage over other candidates did not amount to discrimination, he ruled.

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, he said.

The judge was critical of how certain linguistic experts gave their evidence to the court. He said several wrongly “assumed the role of advocate and purported to express views on legal issues”, when their role is to provide an objective unbiased opinion on matters within their expertise.

“Far too frequently, expert witnesses appear to fundamentally misunderstand their role and wrongly regard themselves as advocates for the cause of the party by whom they have been retained.”

In the present case, “the extent of evidence led by the applicant, in particular, went far beyond that permitted by the rules in relation to expert evidence”, he said.

One expert witness stated on a number of occasions that the terms of the marking scheme were discriminatory and exclusionary, he said.

It was apparent from the “tendentiousness of her evidence that one of the applicant’s witnesses has very strong political views on the choice of script system”, he said.

The fact the expert “espouses such strong political views undermines her independence as an expert witness on linguistics, and the court can attach little weight to her evidence”, the judge said.