An alliance of headteachers, students, local authorities and teachers’ unions has lost its High Court battle to get the English GCSE results of 10,000 students re-graded.
Almost two months after the hearing into the case, which left many pupils without the necessary grades to take up college courses or apprenticeships, the court ruled that exams watchdog Ofqual had done the best it could with a qualification that had been structured unfairly.
Lord Justice Elias said it was "the structure of the qualification itself which is the source of such unfairness as has been demonstrated in this case, and not any unlawful action" by the exam regulator or exam boards.
But he accepted that the summer's results had been a "matter of widespread and genuine concern".
The case was brought after a shift in grade boundaries last summer meant that the summer cohort of GCSE English candidates needed to score higher marks than their peers who sat the examination in January in order to get a C.
Speaking today, Glenys Stacey, chief executive of Ofqual, said that the discrepancy in grade boundaries arose because January’s results were too generous.
“Faced with a difficult situation, Ofqual did the right and fairest thing for the right reasons,” she said.
She added said that if Ofqual had followed the course of action demanded by the alliance “the value (of the qualification) would have been debased, and some young people would have got grades they did not deserve”.
“I am sorry for all pupils who took this qualification. It was a poorly designed qualification. We now have a great opportunity to design a better qualification for the future.”
The verdict comes despite ministers in Wales having ordered a re-grade last year for all WJEC’s English candidates – which led to 2,400 teenagers having their grades increased.
In England, today’s verdict has been met with frustration and disbelief by those who had brought the challenge against Ofqual and the examination boards.
Kenny Frederick, principal of George Green’s School in east London, one of the heads at the forefront of the campaign, told SecEd: “I am sad that thousands of young people have had to suffer from this GCSE fiasco through no fault of their own.
“But what makes me feel worse is that our young people are not surprised. They are vulnerable young people who are used to getting knocked back. They didn't expect anybody to stand up for them. I am glad as a school, and as teachers and headteachers, that we did stand up for them and have fought their corner even though we did not get their results re-graded.
“Their trust and confidence in the system is at an all-time low, as is mine.”
Geoff Barton, head of King Edward VI School in Bury St Edmunds, who has blogged extensively on the issue, said: “It seems to me extraordinary that the judges have agreed that some students were unfairly graded, but have not agreed that something should have been done about a woeful situation.
“English teachers are going to find it hard to advise current students on what to do to get a C – it's a decision, it seems, that resides in the back offices of faceless bureaucrats fiddling with their spreadsheets. Our students deserve better. English teachers and school leaders have fought a superb campaign to keep this issue alive, and their leadership and integrity have been an inspiration. I'm just sorry that justice hasn't been seen to be done.”
Russell Hobby, general secretary of the National Association of Head Teachers, added: “We still believe an injustice has been perpetrated against a group of students who were apparently penalised for taking their exam at a different time to their peers.
“However, we are grateful to Lord Justice Elias for highlighting the deep flaws within the system. His thoughtful ruling made it plain that he believed it was fragility of the examination system itself which left Ofqual with nowhere to go other than to choose which group of students’ marks to sacrifice over another.”
Malcolm Trobe, deputy general secretary of the Association of School and College Leaders, said the legal challenge had been taken to achieve “a fair outcome for the thousands of young people whose futures have been compromised by errors made by others”.
Christine Blower, leader of the National Union of Teachers, blamed the “state of turmoil” in the education system in England “due to the ill-thought out and rushed changes the education secretary is pushing through”.
She added: “We need a time of serious reflection and consultation on the best way forward for the future teaching of millions of children. We cannot have an education system which is perceived by many to be manifestly unfair.”
Meanwhile, Sir Steve Bullock, the Mayor of Lewisham Council, the local authority that had spearheaded the legal challenge on behalf of the alliance, said the Judge’s acknowledgement of the unfairness of the grading situation was “no consolation for the thousands of students who will have to continue to live with the consequences”.
Among the Lewisham students affected, Jonathan Clarke, a student at St Matthew Academy in Blackheath, achieved 12 GCSEs – two A*s, four As, two Bs, three Cs and a D in English.
He told SecEd last year: “I worked hard for a C grade in English and it has been taken away from me right at the end. That is just not fair. I am now having to redo the course with a different exam board over the next year at the same time as doing four A levels.”
A spokeswoman for the AQA exam board said the ruling "confirmed that we set the right grade boundaries for GCSE English last summer".
“The judges found that the boundaries reflected the standard required to achieve those grades, based on academic judgement. In the judges' view, the main reason schools did not get the results they expected was the modular structure of the qualification.”
Rod Bristow, president of Pearson UK, which owns the Edexcel exam board, said there was "much to be learned from the events of this summer", but said he was pleased that the courts had "found that our awarding processes were rigorous and fair".
The Department for Education said the dispute showed that the GCSE system was in need of the reforms that are now taking place and which will see new-look qualifications ready for first teaching in 2015.
"We are now making further reforms to GCSEs, including overhauling league tables so they are fair to schools and pupils, and still give parents and the public the information they need,” a spokesman said.
Further news and commentary • More reaction and fall-out from headteachers.
• What next? Teachers now fear what will happen with the grading of this year's GCSE English exams.
• Something went badly wrong: A commentary from Nick Weller, vice-chair of the Independent Academies Association.
• The NAHT’s Russell Hobby argues why the GCSE ruling proves that our accountability regime has to change.