Today the High Court has ruled that grade boundary changes
to English GCSEs in 2012 were not unlawful.
Grade boundaries were altered between the January and June
2012 assessments, making it more difficult to achieve higher grades in June
compared with January. The consequence was that many students who expected to receive
a C grade only received a D grade. An alliance of local authorities, school and
pupils challenged the decision to toughen the boundaries. The boundaries were
altered by the examination boards, a decision that was not challenged by the
examinations regulator, Ofqual. Those that challenged the decision, by way of judicial
review, argued that students being graded in June 2012 ought to have been
treated consistently with the students graded in January, who were treated more
leniently.
The claimants’ strongest arguments were as follows:
a) it
was ‘conspicuously unfair’ in a way amounting to an abuse of power to treat the
students being examined in June 2012 less favourably than those examined in January
2012;
b) the
exam boards and Ofqual failed to follow a ‘legitimate expectation’ that the
grading standards would remain effectively the same; and
c) it
was ‘irrational’ not to treat the January and June candidates in the same way
and instead adopt tougher standards in June. (In law ‘irrationality’ basically means
acting in a way which no other reasonable person would do.)
Dealing with argument b) first, the judges concluded that at
no point were schools and students promised that the boundaries would not
change. They could not therefore legitimately expect them not to change. That argument
therefore failed.
The judges treated arguments a) and c) as the same argument.
They said that the examination boards and Ofqual only changed the boundaries because
it was determined statistically that the January boundaries had been too
lenient. When they realised that the boundaries had to be toughened then any
action they took would cause unfairness to one group or another. If they marked
the June students according to the more lenient January standard then students
in previous years would have been treated unfairly as they had been marked more
harshly than the lenient January standard. In addition, students of the future
would be treated unfairly as they would be graded according to the more difficult
standard in the future and not the lenient January 2012 one. Moreover, to mark
the June 2012 students at the lower standard would artificially inflate their
ability. Alternatively, if they acted in the way that they did, by making the standard
tougher, then it would be unfair on the June 2012 students. Given that there
would be unfairness either way the judges said it was perfectly acceptable for
the exam boards and Ofqual to opt to protect the integrity of the examinations
by changing the boundaries when they realised that it was necessary. For those
reasons the judges said that the decisions made were not unlawful.
The judges said that the unfairness was ultimately caused by
the modular nature of the exams, which required assessment at various different
points, rather than only at the end of a course. If there was only one
assessment then there would be no issue of unfair grade boundary changes. So
while the system produced unfairness, there was no unlawful action by the exam boards
or Ofqual.
Discussion
While this decision seems right in law I cannot help but
feel uneasy about it. Sitting exams is a recent experience for me and I clearly
remember being directed on what the grade boundaries were and being told I could
rely on those directions. I suspect that the June 2012 students did the same
and expected they were being told the right information. To then discover
otherwise must truly have been devastating. While the examination boards and
Ofqual may not have acted unlawfully the reality is there will have been many students
who were told what the grade boundaries were and who then worked to them, only
to later discover everything they were told was inaccurate. To me at least that
is manifestly and conspicuously unfair.
What are your thoughts?
The judgment can be read here: http://www.bailii.org/ew/cases/EWHC/Admin/2013/211.html
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