Home > News > Exam grades in the time of Coronavirus – Potential legal challenges to calculated GCSE and A-Level grades

In the last few days, the Government has announced general guidance on how exam grades will be awarded to those whose GCSE and A-Level exams have been cancelled. This can be found here. It is caveated with the proviso that the final approach has not yet been agreed:

“Ofqual is working urgently with the exam boards to set out proposals for how this process will work and will be talking to teachers’ representatives before finalising an approach, to ensure that the approach taken is as fair as possible.”

The following is a summary of the process that is expected to be taken:

  • Regulators will develop and set out a process that will provide a calculated grade to each student which ensures consistency and reflects their performance as fairly as possible.
  • Exam boards will be asking teachers to submit their judgement about the grade that they believe the student would have received if exams had gone ahead.
  • To produce this, teachers will be asked to take into account a range of evidence and data including performance on mock exams and non-exam assessment. Clear guidance on how to do this fairly and robustly will be provided to schools and colleges soon.
  • Exam boards will then combine this information with other relevant data, including prior attainment, and use this information to produce a calculated grade for each student, which will be a best assessment of the work they have put in.
  • The aim is to provide these calculated grades to students before the end of July.
  • The aim will be to ensure that the distribution of grades follows a similar pattern to that in other years, so that this year’s students aren’t disadvantaged.
  • Students will be able to appeal their grades if they don’t believe the right process has been followed.
  • There will also be an option to sit exams early in the next academic year for any students who wish to – and students can also choose to sit exams next summer.

There are two broad sets of legal challenges that could arise.

The first set is macro challenges to the overall approach. The stakes are high and the process could negatively affect job prospects and university entry, at least for some. Although the Government is emphasising that its overall approach will be fair, serious questions will inevitably be raised. In particular:

  • Studies show that teachers are poor (worse than tossing a coin!) at forecasting grades. See this from exam board OCR. Worryingly, non-grammar state schools are worse at predicting grades;
  • Mock grades and predicted grades are problematic in that they may be deliberately inaccurate, e.g. for motivation, to impress a university, parent-pressure, performance-related pay, etc.;
  • Mock grades may have been undertaken in different settings, e.g. at home, open-book, in class or in formal exam settings. Moreover, students undertook mock exams with the express understanding that they would not be used for final grades;
  • There is evidence that poorer students and those from minority ethnic background tend to receive proportionately lower A-level predictions. Although the Government is apparently alive to this, it is unclear how the disparity could meaningfully be made up for; and,
  • A fall-back option to sit an exam once things go back to normal could have detrimental timing implications, e.g. missing a university offer/ having to reapply for university in any event/putting back university for a year.

The second set is micro challenges to individual grade awards. At present, a re-mark is requested by a school (and not the individual candidate) from the exam board and the result can be appealed, ultimately to a hearing before an independent appeals committee which focuses on procedural issues.  A final appeal to Ofqual’s Exams Procedures Review Service is also possible. In light of the potential issues with the calculated grade system, as well as the huge numbers that are likely to appeal, there is going to have to be a significant reform of the current system, both as to its scope and scale. This will likely enable individuals to challenge grades on the merits of the calculated grade followed by the possibility of challenges to legal errors in the decision-making process. Whether hearings are going to be feasible remains to be seen.

Fiona Scolding QC, Leon Glenister and Yaaser Vanderman

icon-accordion-chevron icon-arrow-left icon-arrow-right icon-chevron-down icon-chevron-left icon-cross icon-download icon-letter icon-linked-in icon-phone-outline icon-phone icon-search icon-search icon-select-chevron icon-top-right-corner icon-twitter