Dismissal of calculated grades challenge takes heat off Minister Foley amid planning for 2021 exam

THE High Court dismissal of a student’s challenge over the Leaving Cert calculated grades process comes as a significant boost for Education Minister Norma Foley and her plans for this year’s Leaving Certificate.

Crucially, the ruling recognises a separation of powers between the courts and the education authorities on the issue of how to award ‘calculated grades’.

Mr Justice Charles Meenan also acknowledges that decisions were taken in the public interest last year to maintain public acceptance of the calculated grades system, introduced as an alternative to the June Leaving Cert exams.

Calculated grades were based on teachers’ estimated marks for more than 60,000 Leaving Cert candidates, which went through a process of national standardisation to seek to ensure they were fair and broadly in line with results from previous years.

A key conclusion in Mr Justice Meenan’s ruling was that the decision of the minister not to apply historic school data and not to apply the “mapping tool” of national historical data in the standardisation model for calculated grades was not arbitrary, unfair, unreasonable, irrational or unlawful.

Nor was it in breach of the legitimate expectations of Freddie Sherry, the Belvedere College student who took the case.

Mr Sherry was one of a number of students who initiated High Court actions claiming that a decision to exclude an individual school’s historic performance in the Leaving Cert from the calculated grades process worked to his disadvantage.

Ms Foley had taken the decision in late August to exclude an individual school’s historic performance following controversy in the UK over what was described as “school profiling”.

It was seen to be unfair to pupils from schools in disadvantaged communities.

A key conclusion in Mr Justice Meenan’s ruling was that the courts did not have jurisdiction to review the minister’s decision.

The judge found that the changes made by the minister led to significant “grade inflation”, with consequent effects on the points requirements for certain third-level courses, and clearly breached commitments that had been given to the students ahead of the exams.

However, Mr Justice Meenan found the decisions not to apply the data were an exercise of executive power under the Constitution.

In his view, the court did not have jurisdiction to review these decisions, due to the separation of powers.

The findings are significant for over 60 other cases which have been filed against the minister in connection with last year’s Leaving Certificate.

The Sherry action was selected as a lead case, with many of the other actions dependent on its outcome.

The ruling takes a load off the mind of Ms Foley and the State Exams commission (SEC) as they get into the nitty

gritty of Leaving Cert 2021.

The courts have often forced the hand of the Department of Education around the rights of students, but in this case it has recognised a separation of powers.

The timing is critical as detailed planning is under way on the use of a modified version of last year’s calculated grades for this year’s Leaving Cert.

Any direction from Mr Justice Meenan that would have tied the hands of the authorities, in terms of what measures must or must not be used in calculating grades, could have conflicted with the views of assessment experts.

The findings are hugely significant as the Department of Education has already planned to exclude historical school data from the “accredited grades” model, so the ruling does not force a rethink on that.

This year’s accredited grades will borrow from last year’s model, but the final detail of how they will be awarded will only be agreed after independent assessments experts are appointed.

The Sherry action was selected as a lead case