High Court judge dismisses lead challenge over Leaving Cert calculated grades process

A High Court judge has dismissed the lead challenge over the final calculated grades model adopted for the Leaving Certificate 2020 exam in response to the Covid-19 pandemic.

The rejection of the case brought by Belvedere College Leaving Cert student Freddie Sherry has implications for more than 60 other challenges to the calculated grades.

Liability for the substantial costs of the case, which ran for some five weeks and was subject to several pre-trial applications, will be decided later.

Mr Justice Charles Meenan said, in relation to submissions on costs, he would ask the sides to consider this was the lead case for the purpose of determining a central issue “common to numerous other applications”.

The core issue was whether the Minister for Education’s August 2020 direction, endorsed by the Government on September 1st 2020, to remove school historical data (SHD) – based on the school’s Leaving Cert performance across three prior years – was unlawful.

In his judgment on Tuesday, Mr Justice Meenan ruled the Minister and State respondents were fully entitled, despite earlier commitments, to make changes to the standardisation model they considered to be in the public interest.

The decision not to apply SHD, and not to apply a “mapping tool” to National Historical Data (NHD), was not arbitrary, unfair, unreasonable irrational or unlawful and did not breach Mr Sherry’s legitimate expectation, he ruled.

The decision was an exercise of executive power under Article 42 of the Constitution concerning an area of policy which the court has neither the competence, nor jurisdiction, to review, he said. The court did not have the competence to make a finding as to which was the appropriate course for the respondents to take when faced in August 2020 with public controversy over use of SHD, he held.

Mr Sherry had not shown he, or Belvedere, were subject of an unfairness arising from the final model adopted and had “certainly not” established an unfairness that would lead the court to conclude the system was unlawful.

Even if Mr Sherry had shown an unfairness, the State was still entitled to argue its decisions on the final model were in the public interest, he held.

Mr Sherry, of Newtown, Celbridge, Co Kildare, claimed the removal of SHD resulted in him being unfairly downgraded by 55 points in his Leaving Cert. His teachers' estimated CAO points total of 542 for him was reduced to 487 under the process.

The judge said it was “not at all surprising” Mr Sherry’s marks were downgraded from the “significantly inflated” estimated marks provided by Belvedere.

Inflated school estimates were common amongst other schools, particularly at the higher levels, he added.

He noted historic Leaving Cert results for 2017-2019 concerning Belvedere showed the 2020 estimated grades from the school for H1s and H2s in respect of the subjects taken by Mr Sherry were “well ahead” of what was achieved by its students in the previous three years.

Overestimation by teachers in schools was anticipated “but probably not on this scale”, he said, adding he was not being critical of teachers or the school as awarding estimated marks placed teachers in an “difficult and invidious” position.

It had become apparent during the case that SHD was “questionable” on two grounds; statistically, and as a matter of policy, he said. It was “not at all surprising” the Minister was not a supporter of SHD. Her view, according to the secretary general of her department, was, “when a candidate goes into an exam hall, whatever they do, or don’t do, it is their effort on the exam paper and nobody else’s”.

The judge said the task facing the Minister in 2020 in devising a system to get a student a grade they would have obtained had the exam been sat in the normal way “cannot be underestimated”.

That task had to be completed to the satisfaction of pupils, teachers and the wider public in a narrow timeframe and the system devised was calculated grades.

The basis used to award calculated grades raised fundamental issues, not all of which are legal, he said. It would not, for example, be acceptable to factor inequality into the awarding of calculated grades.

A model was designed to be applied to the estimated marks coming from schools which it was correctly anticipated would be over-estimated, he said.

That model initially envisaged using SHD. In order to avoid “grade inflation”, NHD (data based on a subject by subject basis based on historical Leaving Cert exam performance) and a “mapping tool”, to map the scores from the entire cohort for the exam to the historical national distribution, were also to be used.

Following controversy in Ireland in August 2020 reacting to a controversy in the UK surrounding the awarding of calculated grades there, which focussed on “school profiling” and a “post code lottery”, the judge said the Minister and State respondents faced a number of options to maintain public acceptance here of the calculated grades system.

The Minister, well before the UK controversy, had serious misgivings about use of SHD in the model, he noted. Having considered a number of iterations of the model on the use of SHD to varying degrees, the Minister and Government ultimately decided to remove it from the model.

Given the potential number of downgrades from teacher/school estimated marks, it was also decided to minimise the effects of NHD by not applying the “mapping tool”, with the effect the impact of this data would be minimal.