A total of 167 students, 150 schools and 42 local authorities are part of the GCSE grading alliance which lodged legal papers at the High Court this week in its bid for a judicial review.
The claim is against two exam boards – AQA and Edexcel – as well as Ofqual, the exams regulator. It is being supported by the National Association for the Teaching of English, the SSAT, and a number of education unions representing teachers and school leaders.
The action surrounds this year’s English GCSE paper and changes to grade boundaries between January and June which made it harder for summer candidates to get a C grade.
And the alliance was given an early boost this week when a High Court judge ordered the case to be heard urgently. This means a decision on whether a Judicial Review will be granted could come within weeks. A spokesman for the campaigners said: “The claimants’ legal representatives have requested an expedited hearing, with a view to a decision before Christmas, but ultimately the hearing date is a matter for the High Court listing office.”
A report from exams watchdog Ofqual this week sought to blame teachers for over-generous marking of controlled assessment. Its findings are being fiercely contested by schools and education unions. Read the full story here.
The row aside, campaigners say the fact remains that around 10,000 students missed out on a C grade in June despite having achieved marks that would have got them a C grade in January.
A statement from the alliance, which is being spearheaded by Lewisham Borough Council in London, said: “The claim challenges the decision first by the exam boards to increase the C grade boundary by an unprecedented margin from the one applied in January 2012 to the one applied in June 2012 and second the decision by Ofqual to approve, or fail to reverse, that change.”
It emphasised that the 10,000 June candidates “had achieved exactly the same standard as their classmates who were awarded a C grade just a few months earlier”.
The legal papers state: “The decisions have prejudiced the life chances of thousands of children. The immediate effects of the decisions include children being unable to progress in education, losing vocational opportunities and jobs and being unable to gain employment.
“The children affected by the decisions were entitled to be treated in a fair, consistent and rational manner by the defendants. They were not.
“The decisions are incompatible with the most elementary principles of fairness, rationality and good administration. They are unlawful and should be quashed.”
Ofqual has said it will “rigorously defend” its decision not to allow candidates’ papers to be up-graded, as has happened in Wales, where 2,400 WJEC candidates received better results after intervention from the education minister Leighton Andrews.
Both AQA and Edexcel would not comment further in light of the legal action.
It comes after the alliance failed to sway Ofqual with its “pre-action” letter in which it outlined the potential legal challenge.
The claims made in the pre-action letter included that the changing of grade boundaries was “conspicuously unfair and/or an abuse of power” and “in breach of both the public sector equalities duty and the Human Rights Act 1998”.
However, even with the High Court pushing for an urgent decision on the Judicial Review, the claim will not stop more than 45,000 candidates re-sitting their English GCSE papers this month. They were offered the chance to re-sit after Ofqual’s initial investigation into the issue.
Brian Lightman, general secretary of the Association of School and College Leaders, has previously told SecEd that he has “no confidence at all” in the re-sit offer, as if the exams are to be marked on the same basis as in June, the students will get the same results.
Mayor of Lewisham Sir Steve Bullock said: “While it is plain to see to most reasonable people that what has happened is just not fair, Ofqual and the boards have refused the opportunity to clear up their own mess. We have no alternative now but to pursue this through the court to get justice for our young people.”
Michael Barry, head at St Matthew Academy in Blackheath, added: “Some of our students have missed out on the courses they wanted to do, changed their career plans completely, and may still be harshly judged in the future by colleges, universities or potential employers. This is our last chance to put this right and get the regrading we need and our students deserve.”
In a witness statement submitted with the court papers, Lewisham’s executive director of children’s services, Frankie Sulke, said: “The decisions of AQA, Edexcel and Ofqual have jeopardised the life chances of the affected children.
“I feel that it is my responsibility to do my best to ensure that they are not further disadvantaged by manifestly unfair treatment in the course of their education. The issue is particularly acute because of the critical importance of achieving a C grade in GCSE English for children’s future educational and professional opportunities.”
Of the 167 student claimants, 142 are against AQA/Ofqual while 25 are against Edexcel/Ofqual. Of the 150 schools, 135 are against AQA/Ofqual while 15 are against Edexcel/Ofqual.
Stephen Twigg, shadow education secretary: “This exam shambles has gone on far too long. It is completely unacceptable that those representing teachers, parents and pupils have to resort to the courts to get fair GCSE grades. Michael Gove looks completely out of touch. He has held back thousands of young people who just want the opportunity to carry on their studies. The education secretary has the power to sort out this mess. But while there has been justice in Wales, pupils in England are still being punished. Labour will continue to support the fight for a regrade and a full independent inquiry.”
Brian Lightman, general secretary, Association of School and College Leaders: “The alliance has reviewed the evidence carefully and we remain convinced that thousands of young people were unfairly downgraded in June in order to compensate for mistakes made earlier in the year. The only fair course of action for these students is to regrade the papers. While many of them will have moved on to college courses or other options, their grades will remain with them for years to come and that is unjust. We are not happy about issuing court proceedings, but Ofqual and the awarding bodies have left us with no other alternative. Young people only have one chance at their education and we will not give up on them.”
Russell Hobby, general secretary, National Association of Head Teachers: “It is sad that it needs to be done this way but there seems to be no recognition that the wrong decisions were made and therefore no other choice.”
Christine Blower, general secretary, National Union of Teachers: “It is a dreadful shame that it has come to this. The education secretary should have taken the lead from Wales and regraded this year’s English GCSEs. The NUT, as part of a coalition of other interested parties, has been left with no option but to try and redress through the courts the great injustice suffered this year by schools and pupils.”