Mr Tony Geoghegan Acting Chief Commissioner, Irish Human Rights and Equality Commission, 16-22 Green Street, Dublin 7 D07 CR20 [email protected]

15th May 2020

The Substitute Leaving Certificate

Dear Mr Geoghegan,

I am writing to you in relation to the Government’s plans for the grading of this year’s Leaving Certificate examination, which are a source of considerable concern to me and to many others. I believe that the issues which arise fall within your Commission’s mandate.

I am of course aware that we are living in extraordinary times and that measures have been introduced across society which would in normal times be unthinkable. I have no doubt but that the Minister for Education and his Department, together with teachers and schools, are doing their best to implement a fair grading system in unprecedented circumstances.

Nonetheless, what has been announced seems to me to fall well short of an acceptable alternative to the ordinary examination process.

You may know that, in response to the UK Government’s proposals for teacher-assessed grades in GCSE exams, your counterpart the Equality and Human Rights Commission called on the Education Secretary to guide schools through the process of awarding teacher-assessed grades and rankings, in order to prevent ‘conscious or unconscious bias’ towards black and minority-ethnic students. It said that published proposals for mitigating bias, as well as that for appeals, did not go far enough in ensuring some groups of students would not be disadvantaged.

The Commission stressed that predicted grades could have a lasting effect on young people from certain minority-ethnic backgrounds and disabled pupils and those with special educational needs, who are already disproportionately disadvantaged. It said that the information published for schools about predicted grades ‘will not address the risk of unconscious or conscious bias by exam centres predicting grades for students’. Further, on the 5th April (https://www.runnymedetrust.org/blog/predicted-grades-bme- students-letter-to-ed-sec) and on the 29th April (https://www.runnymedetrust.org/blog/follow- up-letter-predicted-grades-and-bme-students) the Runymede Trust and other members of a coalition of race equality organisations wrote to the Education Secretary expressing their concerns.

They urged the Department to publish specific guidance to ensure accurate assessments of exam grades in order to minimise inconsistencies between groups of pupils and schools. They cited research and evidence showing that students from lower socio-economic backgrounds (specifically higher attaining students from such backgrounds), and black and Gypsy, Roma and Irish Traveller students were more at risk of having their grades under-predicted, compared to peers from privileged and other ethnic backgrounds.

By way of background, the Leaving Certificate process is grounded in law, dating back to the Intermediate Education (Ireland) Act 1878, still in force. That Act created the function, now performed by the Minister, of promoting intermediate secular education by instituting and carrying on a system of public examination of students, funding prizes and exhibitions and giving certificates.

The Education Act 1998 for the first time identified the Leaving Certificate by name as one of those public examinations of students. The Act creates a series of offences in relation to these exams, which can be committed only in the context of a body of students physically sitting an examination conducted by reference to pre-prepared papers.

The Act enables the Minister to make regulations for the effective conduct of the examinations, relating to preparing examination papers and other materials, procedures at examination centres, supervision, marking, issuing results, charging and collecting fees, appeals, and so on.

And section 54 of the Act enables the Minister to establish by order a body to perform functions in relation to the provision of the ‘support services’ which the Minister provides to schools and students, which includes the statutory examinations.

The State Examinations Commission was established by order under this section in 2003. Its functions are to organise the holding of the examinations; ensure the preparation of examination papers; determine procedures in places where examinations are conducted; make arrangements for the marking of work; issue the results; and so on.

It seems to be clear, taking the legislation as a whole, that the Leaving Certificate is a certificate awarded by the Minister, under statutory authority, to those who have sat an examination organised and held under statutory authority for the award of that certificate.

It seems to follow that anything else is a substitute – maybe the best available substitute in the circumstances – but it is not the Leaving Certificate.

2 I believe that this analysis is shared by the State Examination Commission itself, according to what Minister Joe McHugh told me in the Dáil on Wednesday the 13th May. The Minister said that: ‘This new system will require a special unit to be established within the Department of Education and Skills to carry out this work, as the State Examinations Commission does not have the authority to do it ... ’.

It seems to me that the only reason the SEC would have no authority to carry out the work is because its statutory function is to organise the Leaving Certificate and, legally speaking, this is not the Leaving Certificate.

The Minister also said in reply to me that he received advice from the State Examinations Commission that it could not stand over the legality and validity of a Leaving Certificate that was not comparable to one of any other year. This was, apparently, why he had dropped plans to run the exams from July to September, under special public health and social distancing protocols.

The substitute system is outlined in https://www.education.ie/en/Learners/Information/State- Examinations/a-guide-to-calculated-grades-for-leaving-certificate-students-2020.pdf.

Briefly, each school will provide the Department with both a list of estimated marks for each candidate and with a class rank order – a list of all students in the Leaving Cert year, in the order of their predicted level of achievement.

Both lists will go into the Department but, before they arrive, the Department will already have calculated a preliminary ‘expected distribution of marks’ for each school.

This will be based on analysis, subject-by-subject, as to how each school has performed in each subject in recent years.

The Department will then apply its expected distribution to the data received from the schools.

‘The rank order within the class group is preserved in the statistical process. However, the teachers’ estimated marks from each school will be adjusted to bring them into line with the expected distribution for the school. Each school’s expected distributions will be arrived at from the statistical analysis of all the historic SEC datasets. These data sets allow the production of good calculations of the distributions of marks to be expected for each school and nationally.’

So, it seems to me, the rank order of students will be in many ways more important than the estimated marks they are given. It is envisaged that each school will get its ‘usual’ set of grades and the rank order will then be used to decide which student is awarded which of the grades available to that school.

3 This is a two-stage process and each stage of it is problematic. The first stage involves teachers assessing their own students, in what will inevitably be a subjective manner, and it runs the risk identified in the UK research of unconscious bias.

The second stage is entirely objective, but it is also arbitrary and inflexible. It will in particular impose significant disadvantages on higher attaining students from lower socio- economic backgrounds who attend a school with a profile that may not accommodate their attainment.

It is particularly noteworthy that predicted results will be awarded using school profiles (i.e., league tables) which the Department – with the support of all education partners – has traditionally refused to publish, and which it has had exempted from FOI, on the precise ground that such comparisons boost the most privileged schools and students and exacerbate social inequality.

In conclusion, as an ‘organ of the State’, the Minister for Education is required by section 3 of the European Convention on Human Rights Act to perform his functions in a manner compatible with the State’s obligations under that Convention – which includes Article 14’s prohibition of discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The procedure now underway involves the temporary setting aside of a process governed by law and the substitution of a non-statutory, administrative scheme. While there is no legislative proposal for you to engage with directly, you have I believe more than enough powers to enable you to examine this issue and to make appropriate recommendations.

As your Commission itself announced on the 27th April: ‘in line with its mandate to keep law and practice as they relate to human rights and equality under review, the Commission will keep the exercise of emergency legislation and other State responses to the COVID 19 crisis under active review’.

The substitute Leaving Cert is precisely such a State response to COVID-19, and I believe that it deserves your active consideration.

Yours sincerely,

4 ______Aodhán Ó Ríordáin TD Labour Party Spokesman on Education

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