GCSE grade boundary controversy CSE

Posted by Tim Williamson on
It has been a matter of significant public exposure that this year's GCSE results, particularly those in English Language and English Literature, have proved extremely controversial.

Parents, teachers, governors and pupils themselves will be very concerned by the events of the last month and for various reasons will be contemplating what, if any, action can be taken. Many pupils facing examinations this year will be left feeling uncertain about whether a similar situation could unfold over the coming academic year.

This article seeks to consider the legal issues that follow on from what has happened in the last month and to consider some of the legal options that might be available to aggrieved parties.

Background

This issue is arguably the most politically sensitive education issue at the present time.

In August 2012 the GCSE results were published for this year. There was considerable concern amongst staff and pupils because the grades awarded for certain subjects, most notably English, were markedly lower than had been expected. It was noticed that grades awarded had dropped from January to July. It transpired that the grade boundaries had been changed between January this year and July. These concerns were escalated to Ofqual, which is responsible for regulating examinations boards. However Ofqual refused to order the examinations boards for which it was responsible to carry out a re-mark. This decision was supported by the Secretary of State for Education, Mr Michael Gove.

However the Minister for Education in the Welsh Assembly, Mr Leighton Andrews ordered a full re-mark of papers submitted by pupils in Wales. When giving evidence before the Education Select Committee on 12 September, Mr Gove was highly critical of his Welsh counterpart for ordering the exam board WJEC to carry out a review of GCSE English Language papers. That review has led, as announced on 19 September, to a number of the GCSE candidates being awarded higher grades.

Many candidates taking the WJEC papers undertook those examinations in England. The concern which Mr Gove raised was that if WJEC were to re-grade scripts for pupils from Welsh schools and colleges then, potentially, the same mark for the same script could lead to different grades being awarded to candidates depending on whether they live in England or Wales. Given the re-grades which have been awarded that inconsistency is much closer to being realised.

A total of 1,202 students had grades increased from a D to a C and 598 from a C to a B grade. Mr Andrews said after the announcement that "Candidates can now rest assured that the process used to determine their final grades was fair and just."

It is common ground that between January and June 2012 more than one examination board varied the grade boundaries for English Language / Literature papers. Mr Andrews commissioned a report by the Qualifications and Learning Division of the Welsh Government. The report authors concluded that significant changes were made to grade boundaries for some units between January and June by some awarding organisations.

The headline figures are that in June 2011 61.3% of candidates in Wales scored Grade A* to C in GCSE English Language. This followed on from 61.6% of candidates in June 2010, 60.4% of candidates in June 2009 and 62.4% of candidates in June 2008.

This year staff and schools were faced with results markedly lower - 57.4% of candidates scored Grades A* to C in the GCSE English Language module.

The underlying concern relates to not only that grade boundaries were changed but that they were changed unilaterally in close proximity to the examinations which left schools and colleges with little if any time to adjust. This issue of transparency is now compounded by the inconsistency which appears to have been created given the re-grade of examination scripts by WJEC. Both of these factors have undermined confidence in the rigour and fairness of the examinations system to such an extent that a number of individuals and organisations are considering whether it is necessary to seek to resolution through the Courts.

The Association of School and College Leaders has today (12 October) published a letter sent from General Secretary Brian Lightman to the chair of the Education Select Committee of the House of Commons Graham Stuart MP in anticipation of the Ofqual report due to be presented to the Committee shortly.

The ASCL expresses its view that "there needs to be a full independent investigation" into what happened this year and that the situation has led to a "profound crisis of confidence" amongst schools and college leaders, parents and pupils in the examinations and regulatory process.

Possible legal remedies

A number of legal remedies may be available to schools, and potentially individuals, affected by the decision to have varied the grade boundaries.

Firstly, schools and colleges might consider bringing an action against the individual examination boards for breach of contract. Clearly it will be important for schools to consider the precise provisions of the relevant contract(s).

Secondly, schools may contemplate applying for formal Judicial Review of an individual examination boards' decision to alter grade boundaries for particular subjects and / or the timing any such changes were communicated to schools and colleges.

The High Court would expect any applicant for Judicial Review to have pursued all "local" avenues first in an attempt to remedy the alleged wrong. For example, this would include the submission of scripts for re-marking as part of the usual appeals process. Schools will be well aware of the tight timescales that apply in that situation.

Breaking news

The ASCL has said a Judicial Review pre-action protocol letter had been issued and the full claim could be commenced as soon as next week. The letter, which was sent to the AQA and Edexcel exam boards as well as Ofqual, set out plans for legal action over the decision by the boards to increase the boundary for a grade C in GCSE English between January and June this year.

It is understood that more than 20 local authorities, including Manchester, Salford, Leeds, Brighton, Hackney LBC and Lewisham LBC, are considering whether to join the proceedings, which is being led by ASCL.

The action is expected to go ahead despite another announcement that more than 45,000 pupils will be allowed to re-sit the exam next month. Figures from four exam boards, AQA, Edexcel, OCR and WJEC, show that more than 45,000 candidates have opted to take part in the November re-sit. Of these, the majority, around 32,000, are candidates with the AQA board. This is because AQA has a high number of GCSE English students, with 380,000 sitting the qualification in the summer. Both OCR and Edexcel each have around 4,300 candidates taking part in the re-sit, and WJEC, the Welsh exam board, has around 4,700.

Conclusion

The issue surrounding the re-grade of GCSE examinations is unravelling by the day and it is difficult to categorically predict the political and legal developments that lie ahead. The Government's announcement of an English Baccalaureate designed to replace core GCSEs may grab the headlines, but does not resolve the issues or concerns which have affected a number of pupils this year. However, irrespective of what action, if any, schools choose to take then it will be important to seek legal advice so that the most effective decisions can be made in order to protect the school's interests as well as to act in their pupils' best interests.

About the Author

Tim is a leading Criminal and Regulatory lawyer, who defends businesses and individuals under investigation by the police and regulatory bodies and when accused of criminal offences.

Tim Williamson
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