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The government’s decision to exclude from consideration how a school’s past performance should affect its students’ Certificate of Exit results is a target of legal challenge.
There is a widely held view that one effect of this has been that students who attended schools, including routine schools, which have a history of high achievement, have seen their results unfairly downgraded.
A case on behalf of such a student is expected in Superior Court starting this week, but many details and a strong case will have to be presented to the judge if the challenge is to cross his first hurdle.
In judicial review requests, the applicant first has to convince the court that he has standing in the matter, in other words, that he directly affects him, and that he has a moot case.
While this step can sometimes be taken unilaterally, and only the applicant’s arguments are heard, the judge may invite the Department of Education to address the court at this early stage as well.
“The courts will look for a lot of hard data,” says Brian Gill of Callan Tansey’s attorneys, who is looking into the issue because some students and their families have been in contact with him and wonder if they could take a case. “The legal proof is high.”
Apparent injustice
Among the issues that the court may have to consider would be the extent to which any injustice that may have occurred is illegal, given the conditions under which the examination outcome process was designed.
Furthermore, when examined closely, the argument that a student from a particular routine school, or a paying school or other type of school with a track record of good results, was treated unfairly because of the way it was designed. the system, it might raise questions. as to how sensitive the system had to be, for all schools and students, if it wasn’t going to create individual cases of apparent injustice.
The judge hearing the case is likely to have to consider in great detail how the algorithms used by the department affected different categories of students and different categories of schools, and review all of this with the law in mind in relation to the common good .
In judicial review decisions, the remedies available to the court are discretionary, that is, the details of the particular case and the consequences of any particular decision can feed into very particular rulings that may or may not have a more general effect.
At this stage, it is difficult to see how any ruling that would have an effect beyond the student’s instance in court could be designed without threatening the entire Leaving Cert 2020 outcome process.
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