Legal challenges over Leaving Cert results must clear high bar

The Government’s decision to exclude from consideration how the past performance of a school should affect its students’ Leaving Certificate results is expected to be a target of legal challenge.

There is a widespread view that an effect of this has been that students who attended schools, including grind schools, that have a track record of high achievement have had their results unfairly downgraded.

A case taken on behalf of such a student is expected in the High Court as early as this week, but a lot of detail and a strong case will have to be presented to the judge if the challenge is to cross its first hurdle.

In applications for a judicial review, the applicant has to first convince the court that they have standing in the matter – in other words, that it directly affects them – and that they have an arguable case.

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While this step can sometimes be taken on a one-side-only basis, with only the arguments from the applicant being heard, it is open to the judge to invite the Department of Education to also address the court at this early stage.

"The courts will be looking for a lot of hard data," says Brian Gill of Callan Tansey solicitors, who is examining the topic because some students and their families have been in contact with him wondering if they could take a case. "The legal test is high."

Apparent unfairness

Among the issues that may have to be considered by the court would be the extent to which any unfairness that may have occurred is unlawful, given the conditions in which the exam result process was devised.

Also, when examined closely, the argument that a student from a particular grind school, or fee-paying school, or other type of school with a history of strong outcomes, was unfairly treated because of the way the system was devised, might raise questions as to how sensitive the system had to be, to all schools and students, if it was not going to create individual instances of apparent unfairness.

The judge hearing the case is likely to have to consider in great detail how the algorithms used by the department affected different categories of students and different categories of schools, and review all this while bearing in mind the law in relation to the common good.

In judicial review decisions, the remedies that are available to the court are discretionary, meaning the details of the particular case, and the consequences of any particular decision, can feed into very particular rulings that may or may not have a more general effect.

It is difficult at this stage to see how any ruling that would have an effect beyond the instance of the student before the court could be devised without threatening the whole 2020 Leaving Cert results process.