The GCSE grading scandal: the legal challenge begins


9:45 am - August 26th 2012

by Paul Cotterill    


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It’s encouraging that several bodies, including the Association of School and College Leaders (ASCL), are considering legal action over the GCSE grading scandal.

The ASCL has already set out what aspect of the scandal such action may target

We’re examining whether this is hitting any particular groups of young people that are covered by the equal opportunities legislation.

This is because it is looking increasingly likely that the effects of the late grade boundary changes have been felt most by pupils getting D rather than the Cs they should/would have had, and disproportionate number of these pupils will come from poorer backgrounds and from ethnic minorities.

If this does turn out the be case, the question of precisely what ‘equal opportunities legislation’ has been breached by the government.

Fortunately, and with what now looks like remarkable foresight, legislation passed in the dying days of the last Labour government would seem – at least to this lay observer – to fit the bill pretty well.

Section 96 para 1 of the Equality Act (2010) covers ‘qualification bodies’, and states:

A qualifications body (A) must not discriminate against a person (B)—

(a) in the arrangements A makes for deciding upon whom to confer a relevant qualification;

(b) as to the terms on which it is prepared to confer a relevant qualification on B;

(c) by not conferring a relevant qualification on B.

Which is nice.

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About the author
Paul Cotterill is a regular contributor, and blogs more regularly at Though Cowards Flinch, an established leftwing blog and emergent think-tank. He currently has fingers in more pies than he has fingers, including disability caselaw, childcare social enterprise, and cricket.
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Reader comments


It is more than ‘naughty’ that the size of goal posts have been changed during the game.

This has been happening to ESA claimants since 2008. A change of wording here and there and trimming a few points. The bar gets higher. The quangocracy have the survival instinct in their genes. Professional ? More like do our masters bidding.

Get them to court.

2. Chaise Guevara

You’ve got to be kidding. This isn’t a serious challenge, it’s an excuse. You could provide facts and figures showing that almost any policy change had more impact on one demographic or another. General change to education policy sees black childrens’ grade dropping by 0.5% more than white childrens? Discrimination! Fixing said policy makes black children’s grades rise by 0.5% while white childrens’ stay the same? Discrimination again!

See what I mean?

Oh, and incidentally, that law you cite is quite clearly meant to mean “you can’t refuse to give someone a qualification or refuse to let them seek said qualification based on race, gender, sexuality etc.” Totally different thing.

Good grief that’s a lovely argument.

Those who get bad grades are disproportionately from poorer backgrounds and ethnic minorities. Yes, this is true. Sadly true but true it is.

Therefore their getting bad grades is illegal discrimination against them?

Haven’t we therefore just outlawed exams where people can even possibly get different grades then?

I’m not aware of the legalities of changing the goalposts, however, for those who are affected by the change e.g. if they had taken the same GCSEs last year, they would have had a better grade, in their position I would feel that it was unjust.

And, of course it is discrimination, those who would have received a C have now got a D, which will affect their choices for further education, whatever their race, sex or religion.

5. Chaise Guevara

@ 4 jojo

“I’m not aware of the legalities of changing the goalposts, however, for those who are affected by the change e.g. if they had taken the same GCSEs last year, they would have had a better grade, in their position I would feel that it was unjust.”

So would I. But this is basically an argument against any change ever: “If things were different, things would be different, and that would be bad.”

“And, of course it is discrimination, those who would have received a C have now got a D, which will affect their choices for further education, whatever their race, sex or religion.”

How is that discrimination? It’s still based on their personal performance, it’s just that the method of denoting said performance has changed. I think “discrimination” sometimes gets used to mean “anything bad”.

We’re moving back towards the position that, because girls tend to outperform boys in most subjects, the exams are actively prejudiced against males, rather than the idea that these exams test useful skills that girls just happen to be better at.

5
Chaise

Although GCSEs are all based on individual performance, the criteria for a pass grade is externally applied, and it’s this action which has discriminated against those students who have now got a D rather than a C. I am not suggesting that it was a deliberate act based on prejudice, by a person or persons.

Most students who receive A-C can go on to study for A Levels but generally not D, if the marking range was considered good enough last year, why not this year? And clearly, students who were getting the previous marking range for C have been going on to sucessfully study A Levels. It isn’t really about a label it is about the constraints now being placed on those children who have received a D.

We are constantly being told that children need to study and gain qualifications in order to compete in a global market, and yet many children are now going to be set back. For me, it was a poor policy move and has the effect of reducing competition.

7. Chaise Guevara

@ 6 Jojo

“Although GCSEs are all based on individual performance, the criteria for a pass grade is externally applied, and it’s this action which has discriminated against those students who have now got a D rather than a C. I am not suggesting that it was a deliberate act based on prejudice, by a person or persons.”

Well, ok, but you’re using “discrimination” in a very different way from the ridiculous implications of the OP, which very clearly is trying to find prejudice where none exists.

“Most students who receive A-C can go on to study for A Levels but generally not D, if the marking range was considered good enough last year, why not this year?”

Presumably, the line is that the marking wasn’t good enough last year. Again, this sounds like an argument for never changing anything.

“And clearly, students who were getting the previous marking range for C have been going on to sucessfully study A Levels. It isn’t really about a label it is about the constraints now being placed on those children who have received a D.”

Agreed. I strongly suspect that this is being done for political reasons and that the government doesn’t care about the lives it’s damaging in the process.

8. Northern Worker

Girls traditionally do better than boys. By the reasoning of the ACSL, that’s sex discrimination. Something must be done about it! The ACSL is clearly clutching at straws.

So what this years results were a bit down on last year. On paper these kids still look like they did better than my generation, after years of fiddling and fakery to show constant improvement.

Its a risk to make a legal fuss over these results. What if someone compares these papers to those from ten, twenty, thirty, etc, years ago, or to the level of abilitty expected of 16 year olds elsewhere in the world? That would be embarassing.

The problem isnt that this generation has been cheated out of good exam grades, its that theyve been cheated out of an education. Theyve been forced to go to school five days a week for most of the year for eleven plus years of their lives, but they’ve received nothing that could meaningfully be described as an education. If they had any real skills it wouldnt matter what the exams demanded, they’d be up to the challenge.

Handing grades out because people demand them as a human right is not going to solve the problem of a shitty education and a lack of ability. May as well scribble an A-Tripleplusgoodstar on a blank bit of paper, it would be as real.

Schoolsux @ 9

It would appear that you have missed the fact that the orders were given out somwhere during the year to change the way that examiners marked the papers. Any changes in the way that the examiners marked the papers should have been given well inadvance of this year so that teachers and children knew what they had to work towards.

Both the teachers and children have been cheated !

If you are going to change something there should be consultation and good time given to prepare for such changes. Not unfairly spring it upon people.

I received poor grades at GCSE level, yet that didn’t stop me from getting A levels, a National Diploma, a Degree and other vocational qualifications.

It is more important that children don’t give up hope, and continue striving to the best of their ability to continue learning, througout their lives.

The fact that continued learning has been made prohibitively expensive without good reason is more pernicious to me, and would ultimately harm this country’s future, as that is purely short term thinking.

The problem successive governments find themselves with regarding education, is that if you foster an atmosphere of aspiration, you end up with generations of children who aspire to well-paid entertaining and challenging jobs. This is a problem because those jobs have always been in the minority – every Architect will require several labourers to see his visions become reality, for example. Add to this a rather desperate desire by the middle/upper classes to ensure the negative untalked of component of social mobility never occurs – ie their children based on their own abilities not being able to do better than a shop-floor job at Primark – then you can see the many problems inherant with letting the lower orders achieve more.
It’s these cumulative factors for why ‘a decent education’ – required as a very basic entry to the ‘better jobs’ – is becoming increasingly priced out of the range of proles. Because, at the end of the day, someone has to do the shitty jobs that no one likes doing, and it sure as shit ain’t gonna be Christopher Porthos Brigglesworth the Third.

‘It sure as shit ain’t gonna be Christopher Porthos Brigglesworth the Third’

Why not? I agree with you about the attitude of that sort of family, but one noticable thing is true intellectual abilities are rarely inherited in anything like the extent such a family would have you beleive. I do not remember it precisely, but Isaac Asimov, in his ‘Foundation’ series put it succinctly when said civilisation was in danger of being taken over by a character called ‘the Mule’ and was under the thumb of a dictotarial plutocratic family.

It goes something like this ‘the first was capable and cruel, the second merely cruel, the third was just an accountant born wrong’ So what if your blah blah the third is only capable of a shitty job in the first place, would it be right for that person to get the good job, or good education, and end up screwing it up?

Oh wait…

14. Chaise Guevara

@ 13 Dissident

That’s the point Cylux’s making – keep the proles down, because if they competed on merit your overprivileged son would be on the scrapheap.

I don’t agree with his implication that it’s some vast conspiracy. I think it’s just how the world works: wealth begets wealth, connections count as well as skills, if you’re rich you can get your kids the best opportunities and then they’ll probably be rich too.

Why not?

Because they have the means and connections to ensure that that doesn’t happen.

I don’t agree with his implication that it’s some vast conspiracy.

It’s not even a conspiracy, it’s just the natural consequences of a societal belief in the idea of meritocracy wedded to ideals of social mobility that view it as merely being a ladder that only leads upward. Which pretty much functions in society as you said.

Meritocracy also has more pernicious influences in society that I won’t go into too much detail except to note that a true meritocracy, implemented wholeheartedly, would leave those of inferior physical and intellectual endowments to perish. – Tony Blair’s constant talk about ‘aspiration’, the former Labour government’s welfare reforms and the inclusion of ATOS in ‘disability assessment’ – not unconnected.

@Cylux & Chaise

I was actually thinking about members of the cabinet, born to rich families, who just so happen to be at best incompetent.

A chancellor that is barely capable of remedial maths, pushing the economy into another recession, an education secretary who chooses ignorance peddlers, an environment sectretary who gives planet rapers carte blanche…

It makes you wonder who precisely voted for them in the first place, because I know nobody that did!

@16 My manager at work voted Tory for the express purpose of, in his words, ‘getting rid of that one-eyed scotch cunt’, course once he had his child benefits scrapped he was somewhat less than pleased with his well thought out, weighty decision.

Gawd cylux, does your manager allways make such high quality decisions? Do the rest of you have to make do and cover up the consequences?

19. Charlieman

@12. Cylux: “This is a problem because those jobs have always been in the minority…”

Those creative jobs *can* only be for a minority — there is limited demand for great engineers, artists, even for great artisans. We can never know everyone who might be great because few people get a chance to show it.

The middle classes are scared about their children “descending” because differences have increased — differences in income and opportunity. If kids lapse in teenage years, there isn’t much of an alternative way forward.

The middle classes are victims of their own success at over promoting formal education, early university admission and at denying the value of continuing education.

They can’t let go of the things that they think that they control (pushy parenthood, post code secondary school admissions, playing the system etc) but are unable to understand things that they cannot control (differing academic development for different young people, different aspirations, teenage contrariness).

Pushy parents will not change their behaviour unless their kids fail. Just fall a bit rather than plummet. I don’t think any government would try it but I mention it for the sake of argument.

20. Chaise Guevara

@ 17 Cylux

“My manager at work voted Tory for the express purpose of, in his words, ‘getting rid of that one-eyed scotch cunt’, course once he had his child benefits scrapped he was somewhat less than pleased with his well thought out, weighty decision.”

Seems terribly unfair, given that he correctly identified accent and disability as the most important aspects in a leader…

21. Chaise Guevara

@ Cylux

As for your other post: agreed.

@ Charlieman

What is it you don’t think governments would try? If it involves stopping pandering to “parent power” I’m probably all for it.

@18 Usually yeah. Fortunately (for us) he’s also prone to laziness and has thus delegated most of his responsibilities to an ever growing cadre of supervisors who tend to have the following priorities:
1 – Get Shit Done.
2 – Go Home on Time.
Which makes my life easier. I’m not sure what the MD thinks of the extra expense in supervisor wages this undoubtedly causes, but then that’s what he gets for giving his drinking buddy a managers job.

23. Chaise Guevara

“1 – Get Shit Done.
2 – Go Home on Time.”

Pretty much my motto.

24. Charlieman

@21. Chaise Guevara: “What is it you don’t think governments would try? If it involves stopping pandering to “parent power” I’m probably all for it.”

Not much change, Chaise, just a revolution…

We need to look at post 16 years education on a wider scale. Youngsters need to be able to sidestep from vocational qualifications into academic ones. There needs to be less emphasis on full time post 18 years education, which only suits a few. Oldsters need opportunities to re-enter education — not as a hobby but as a lifestyle or career change.

In between those age groups, we have to help the smart people who understand that they fucked up as a teenager but are prepared to work and learn.

In order to fund continuing education, fewer 18 year olds can go straight into higher education (on cost grounds). That will really piss off pushy parents.

Placing 45% of 18 year olds in full time higher ed is futile if the market only requires 25%. That acknowledgement of economic reality will really piss off pushy parents.


The middle classes need a parachute for their children. Unless their children are as smart or smarter than their parents, the kids are going to fall. There is a limit to pushy parenthood.

The kids will have problems, economically or by reputation, because if they fall at 16 or 18 or 21 years there is hardly any way up. If they can’t keep up with their degree course, what are the options? Who will help them? Perhaps the parents might help by admitting to themselves that Jonny wasn’t up to it.

One way to solve this problem is to reduce income difference. Another way, more equitable, is to give everyone a chance to get back on the education ladder — after they have fucked up and grown up.

cylux, Maybe the MD is still a little, er, foggy from the night before? What you describe is a shining example of meritocracy in action! Or at least what happens in the real world. Maybe that MD chooses those whose face fits, especially if they do a bit of rimming (oops, being a drinking buddy)

After all a truly competent manager would show the MD up, one way or another, and as such would be a threat to his own position. Whether the shareholders would appreciate that is another story…

Also, it is only vaguely linked to the OP.

Charlieman has some interesting suggestions there, although I am not sure an actual revolution would do it, given the history of revolutions worldwide. There is however some merit in the other suggestions.

@2 Chaise

“Oh, and incidentally, that law you cite is quite clearly meant to mean “you can’t refuse to give someone a qualification or refuse to let them seek said qualification based on race, gender, sexuality etc.” Totally different thing.”

I think you are being far too quick to dismiss this. It is quite possible to make the argument that the law would cover just what you say it does not. Even if you are a lawyer specialising in this particular area (which I suspect is not the case), just because you think your interpretation is right, doesn’t men your view would prevail in court. Even if the intent of this particular law was as narrow as you say, there is nothing inherently ridiculous in the concept that a court could find that the effect of the changes introduced was discriminatory within the meaning of the law.

I think it is highly likely the bodies involved will have taken legal advice, and would be unlikely to be pursuing the matter if they had been told it had no chance of success, or had no legal grounds at all.

27. Chaise Guevara

@ 26 Galen

“just because you think your interpretation is right, doesn’t men your view would prevail in court”

Galen, this approach could be used to quash almost any legislation. Certainly any annual budget. All you’d have to do would be produce numbers showing that SOME demographic would do better or worse under the new law than average. The fact that we still have a working parliament tells me that either a) it’s been tried and failed, or b) it hasn’t been tried, but even if it worked we wouldn’t put up with it for long.

I am not a lawyer, and I don’t even have good amateur knowledge of the subject. It does seem, however, that the world we live in is not one where a legal loophole can be used to ban any fiscal policy whatsoever. The world would look very different it that were possible. Different and worse.

And even if I’m incorrect, using the law this way is simply wrong. It’s an obvious stalking-horse, and it’s a legalistic bullying tactic, like when certain politicans accuse critics of stalking them, or certain interest groups try to silence satire by claiming that taking the piss out of them breaches their copyright.

28. Chaise Guevara

@ Charlieman

Interesting ideas. I’m too sleepy to look into them in detail, but I’ll try to pick this up in the next couple of days.

Mr Grunt –
“Schoolsux @ 9
It would appear that you have missed the fact that the orders were given out somwhere during the year to change the way that examiners marked the papers. ”

So what? The questions on the papers are straightforward and they arent difficult to answer, or shouldnt be after five years of secondary school.

The problem isnt the exam papers, or the marking schemes – its the schools, and the curriculum. Not enough in there to interest learners and stick in their heads. Very little at all teaching them useful skills. Why are they even doing exams in English? I defy any of you not to look at last years AQA GCSES papers and marking schemes (on their website) and not be astounded by the low level of ability required.

School English should cover grammar, ways of reading different pieces, analysing texts, and producing essays and creative pieces of writing. They should be assessed by project work, and it should be anything goes – choose a topic, go away and read about it, compare different texts, and write something about what youve learned. Write a creative piece in whatever style you like. Do it multiple times, every year for your five years, on as many or as few topics as you like, working on your basic techniques and defining your own style, and learning how to use and break the rules on grammar etc.

No, what we get instead is five years of boring as feck droning on about nothing inspiring and unstimulating tasks. Any kid who cant finish a gcse in english well is a kid whose interest dropped out a long time ago. They are a pointless end to a pointless curriculum. I think about the number of people I know who were put off reading and writing by school English and I feel incredibly sad.

So what if the marking scheme was different a few months later. The standard expected by the exams changes from year to year. Noone would be whining if the results were better than they had been in January, it would just be a huge love in about how much more brilliant the teachers and pupils were than any others ever, like we’ve been hearing every year for too long. If it hadnt changed now we’d hear whining that next years lot had it harder.

Look at the papers and tell me that too much (in the way of ability) was expected. These kids have been failed by schools for years, it wouldnt matter if their papers come back 100% and covered with gold stars, it wouldnt make them any more educated.

I keep seeing people moaning about schools being expected to get 40% of kids through their gcses with decent marks. I cant believe that anyone thinks that is too much to ask, or that a school that achieves less is anything less than failing as an educational establishment.

If teachers and heads want to be taken seriously they should start actually doing what theyre supposed to do, and support each other to the extent that no government would be able to force them into some rubbish curriculum.

They use this idea of ‘the occasional good one’ as an excuse for the group to not take responsibility for the educational system. You can insist that everyone gets a pass mark so that teachers look good, but it isnt going to make life any better for the kids whose childhood theyve wasted.

@ Schoolsux

The premise behind your statement is laudable. If our children really were taught in the way you advocate, instead of mostly by rote to set texts etc, there is more than an ability to use & break grammatical rules those kids would learn, they would also have a coomand of – and probably an interest in – being able to deconstruct what a newspaper or advert tells them.

Can’t have that! It has to be according to tick boxes instead, and if they lose interest in English, they never gain that ability…

32. Chaise Guevara

@ 30 schoolsux

“I keep seeing people moaning about schools being expected to get 40% of kids through their gcses with decent marks. I cant believe that anyone thinks that is too much to ask, or that a school that achieves less is anything less than failing as an educational establishment.”

You’re using far too simple a measurement, because it ignores the specific circumstances the school has to operate in. Say the school is a secondary in a low-achievement area where the local primaries are considered to be very poor. If only 20% of the kids would have been expected to get good grades, and the school pulls that up to 35%, it needs to be lauded, not condemned. And the opposite goes for schools in high-achievement areas that nonetheless only get average results.

Chaise-
I don’t accept that its something to congratulate any school for, anything less than 100% of kids leaving that school feeling educated and confident in their abilities. Lauding any ‘improvement’ to what is still less than half of kids ‘passing’ at a school is accepting that its okay for the school to completely fail the rest.
The system is a mess, its useless for most kids, but as long as a few more kids get C’s we can just go on ignoring all the ones who leave with nothing but a feeling of having wasted eleven plus years? That’s the impression I get from these sorts of articles.
If schools taught basic skills and let kids spend those years using them in whatever actually interested them, they’ll be getting practice and learning without even realising it. Even putting together a one direction fanzine would show what they’re capable of more than the gcse English language papers I looked through.
Let them learn what they need to by doing it in a way that suits them and you’ll have less kids turned off and more leaving fulfilled.
Or we can beg for 0.4% of this june cohort to get their grade bumped up to what their teachers told them they should have. Will that make it all better for Guardian and Liberal Conspiracy writers, probably, for the rest of us, fuck no.

34. Darren Murphy

It seems to me that this is discrimination It adversely affects those from poorer or disadvantaged backgrounds as they are the areas that achieve the highest proportion of C/D grades. If OfQual had wanted to “toughen up” GCSE examinations then surely the fairest way would be to make all grades harder to achieve; set the grade boundaries 2, 3, or 4 points higher for all grades rather than the whole 10 points coming at the lower end. This would have given a much fairer representation of strength of GCSE English. The fact that this strategy was concocted after the January sitting of the exam where i suspect(but do not know for certain) very few people in that poor or disadvantaged group actually sat the exam simply compounds the problem. At least if the rules had been implemented at the beginning of the academic year, collages would have been able to make an adjustment to allow for the changeover to the tougher regime; perhaps allowing D graded examinees to pass into A level courses for that year only.


Reactions: Twitter, blogs
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  41. Alex Parsons

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  42. Andrew Old

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  43. Michael Merrick

    If you doubted that legal action over English grades was sheer opportunism, look at this: http://t.co/VjymaM7D Any law will do, it seems.





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