The Department of Education and Skills has published detailed guidance for schools in order to calculate grades for students who were due to sit the Leaving Certificate this year. In addition to the detailed guidance the Department of Education has also proposed a legal indemnity. The indemnity which is referenced in the Department of Education’s circular number 0037/2020 entitled a “Guide for Schools on Providing Estimated Percentage Marks and Class Rank Orderings” currently states that teachers who are implementing the calculated grades process in schools will be indemnified by the state. The Department’s guide states that the indemnity can “be invoked where someone is sued in their own capacity (i.e. named in civil proceedings as an individual teacher, principal or board of management”. The Department’s guide further states that this indemnity is subject to conditions and that it will only “be capable of being invoked where a person has acted bona fide, i.e. has made every reasonable effort to carry of their role in accordance with the guidance”
What are calculated grades?
To summarise, a grade will be calculated by combining two sets of data. This will include “a school-based estimation of an overall percentage” and “data available to the State Examinations Commission”. The department’s guidance further states that the principles which underpin calculated grades include factors such as a teacher’s professionalism, objectivity and fairness. The guidance states “teachers know their students and can balance a variety of factors in arriving at a professional judgment”. It is further stated that “teachers will work collaboratively to ensure that no bias, conscious or unconscious, influences the decisions made in relation to a student”.
The Department’s guidance states that a teacher’s estimated mark should only consider a student’s performance. A teacher may consider each student’s classwork, homework and performance in any house examinations. The guidance reiterates the principles upon which the calculated grades are based by stating “teachers should do their best to remain alert to possible sources of unconscious bias that might affect estimates. For instance……. the teacher’s experience and perceptions of the student’s classroom behaviour, or their knowledge about a student’s socio-economic or family background”.
Prior to finalisation, the estimated grades will be submitted to the Department of Education of Skills. The estimated grade will then be combined with historical data available from the State Examinations Commission to bring the grades into line with the “expected distribution of the school”. In the event that a student wishes to appeal their grade they will be required to follow the procedures set out by the Department of Education and Skills which involves a three stage process. The appeals process will involve a series of checks to ensure that the data was correctly entered and also an option to have a grade verified by “independent appeal scrutineers”.
If I am unhappy with my grade what legal remedies are available?
If a student is unhappy with their estimated grade or the outcome of their appeal, they may consider the option of issuing legal proceedings. In this regard, the recent case of Carter v Minister for Education and Skills & Ors  is of assistance in that a student successfully challenged the results of her leaving certificate before the High Court in front of Mr. Justice Richard Humphreys. The legal challenge was brought by a student by way of Judicial Review proceedings who had a “life-long dream of being a veterinary surgeon”. Ms. Carter had completed her Leaving Certificate and had fallen just 6 points short of her desired course in veterinary medicine. When the second round offers were made, veterinary medicine dropped by 5 points leaving her just 1 point short.
Ms. Carter made an application to view her examination script and it became clear to her that the examiner had made a computation error. In Ms. Carter’s business examination paper, question 2 was divided into three parts. The examiner had awarded Ms. Carter 17 marks, 19 marks and 30 marks respectively. However, when the examiner added these three figures together, they incorrectly awarded a total award of 56 marks instead of 66 marks. It was clear that had the examiner added the figures together correctly that Ms. Carter would have qualified for her chosen place in veterinary medicine. Ms. Carter had been “deprived of her chosen place” due to a computational error.
Ms. Carter initiated the appeals process through the State Examinations Commission (SEC) whose functions prior to the current pandemic included “determining procedures to enable the review and appeal of results of examinations”. Interestingly the Department of Education in its recently published guidance has stated that “calculated grades are not results from a state examination (as defined in the Education Act 1998) the administration of calculated grades system falls outside the statutory remit of the State Examinations Commission”. Therefore the State Examinations Commission’s appeals process which Ms. Carter challenged will not be engaged for those who are in receipt of calculated grades. Although the appeals process for those in receipt of calculated grades may have been temporarily set aside, the legal arguments which were presented by Ms. Carter remain valid. Ms. Carter pointed to the computation error and argued that she was entitled to her chosen course in veterinary medicine. However, the States Examinations Commission informed Ms. Carter that she would have to follow a formal appeals process in order to amend her grade. The difficulty with the formal appeals process was that a decision would not issue from the States Examinations Commission until after the commencement of the academic year. This would have resulted in a loss of her “chosen place” in veterinary medicine. Ms. Carter argued that the States Examinations Commission’s process was in breach of fair procedures and of her right to natural and constitutional justice. Following lengthy legal submissions, the High Court agreed and made an order compelling the States Examinations Commission to determine her appeal prior to the commencement of the academic year and ultimately secured her a place to commence studying veterinary medicine.
A Constitutional Right to Higher Education and Vocational Training?
In the course of Ms. Carter’s High Court case, Mr. Justice Richard Humphreys considered in detail whether there exists a constitutional right of access to higher and vocational training. Justice Humphreys stated “the right to earn a livelihood is well established in Irish Constitutional law….Likewise, the process of grading the Leaving Certificate and the consequent process of access to higher education or vocational training is fundamental to the future life paths of students. It goes to the fundamentals of human personality just as the right to work itself”. It was canvassed by the court that the right to access higher education flows from the right to earn a livelihood and that there is a “connection between the two rights”. These comments made by Mr. Justice Humphreys were set aside before the Court of Appeal solely on the basis that they were never formally argued by Ms. Carter and that in such circumstances the High Court judge should not have expressed a view. Insofar as the current system of calculated grades is concerned, it remains to be seen whether such an argument will again be raised in the context of a calculated grade which has been attributed to a student.
Students will continue to have the option to sit the Leaving Certificate written examination when the holding of the exams become possible. Anyone wishing to read the above judgment of High Court may do so by accessing https://beta.courts.ie/judgments. The Department of Education and Skill’s guidance may be accessed by visiting https://www.gov.ie/en/. Should you wish to discuss any of the above matters, please get in touch by contacting us at (01) 833 8147 or alternatively you can email us at [email protected]. Telephone, Video Call and Skype consultations are available by appointment.