Education Minister Joe McHugh has admitted the State could be opening itself up to legal action from student’s and parents over the decision taken to predict their grades to avoid students having to sit down to do their exams.
Concerns have also been flagged, as grades decided on by a student’’s teachers and principal will not be re-checked under the appeals process, the Department of Education confirmed.
Yesterday’’s historic announcement brings some sense of certainty for thousands of students, who have effectively been left in limbo awaiting further details on the written exams, which had been set to begin at the end of July.
However, it is far from a perfect solution as acknowledged by both Mr McHugh and the Department of Education.
Ultimately the decision was made with a "heavy heart" in the interests of students health and wellbeing. "The Leaving Cert is important but it’’s life that matters," Mr McHugh said.
With the support of teachers paramount in now assigning grades to 61,000 students, the executive committees of both the Association of Secondary Teachers, Ireland (ASTI) and the Teachers Union of Ireland (TUI) met last night.
In a joint statement, the teaching unions said that members had supported plans to go-ahead with rescheduled exams in July but that the health of students was paramount.
Grades decided on by a student’s teachers and principal will not be rechecked under the appeals process, the Department of Education confirmed. While students will retain the right to appeal, the appeal will focus on whether their data was correctly entered, transferred and processed.
Harold Hislop, chief inspector at the Department of Education, said grades decided on by schools cannot be reopened to maintain fairness. "Simply because that would be unfair to all the candidates as well," he said. "If that score was allowed to be reopened, there would be an incredible pressure on the teacher to increase that score."
There will be several layers of extensive checks to make sure the procedures have been followed really fairly and that a balanced judgement about the student has left the school, he added.
Concerns were also quickly raised about biases among teachers and schools towards students, or whether teacher’’s could be put under pressure from parents or others to pass students, a concern that the Minister himself has also voiced in the past.
Mr McHugh also admitted that on grounds of "legitimate expectation", the state could be liable to court action. "In terms of the legal advice, there are vulnerabilities in this," Mr McHugh said. "The advice that we’’re getting is, because there is a legitimate expectation for students to sit the Leaving Cert, and a solution which is different to the expectations of the students over two years, there are legal vulnerabilities. It has been flagged, there will be an issue but there is very clear advice, there is compelling health evidence, saying that the Leaving Cert can’’t go ahead."
The Department of Education looked at a number of options in lieu of postponing the exams, including spreading the exams out or exams that potentially could just last one and a half hours. However, these options could also have presented legal liability on the same grounds, or were later deemed unsafe.
The government’’s political rivals say it is "inevitable" that the case will end up in the High Court, as parents with means to challenge the state in court will do so when their children do not receive the grades they were expecting. Labour’’s education spokesman, Aodhán Ó Ríordáin called calculated grading "problematic" and would likely ensure that those at fee paying schools would end up with better grades than children at schools from disadvantaged areas.