Dyslexic woman loses Leaving Cert bias case

A WOMAN with dyslexia has lost her High Court claim that she was discriminated against by the attachment of special annotation to her Leaving Certificate indicating she was not assessed on spelling and certain grammatical elements in language subjects.

Before sitting the Leaving in 2001, Kim Cahill secured a waiver in relation to the examiner’s assessment of spelling and grammar in language subjects. She claimed the annotations or explanatory note on her certificate effectively labelled her as disabled, and she was greatly distressed by this.

The Equality Tribunal had upheld her complaint and directed the Minister for Education to pay compensation of €6,000 to her and to another student, Marian Hollingsworth, who made a similar complaint. It also directed the Minister to issue both students with new Leaving Certificates without the notations.

The Minister for Education appealed the decision to the Circuit Civil Court, which in 2007 upheld the appeal. Ms Cahill then appealed the Circuit Court decision to the High Court but, in a reserved judgment yesterday, Mr Justice Éamon de Valera dismissed her appeal.

He ruled that the Department of Education had acted at all times in accordance with international best standards in annotating the certificate to reflect the fact Ms Cahill had secured exemptions from assessment on certain elements.

Failure to record the “reasonable accommodation” made to Ms Cahill would “adversely affect the integrity of the testing process”, and “essentially defeat the purpose of the exam in the first place”, he said.

The Leaving Cert occupied “an important place in the Irish educational system and abroad, and “must stand for something”. It was a record of the level of achievement of a person at the end of their secondary education, and if a person was not assessed in spelling and grammar elements of subjects, that “should and must be reflected” in the resulting certificate.

It was also necessary for the reputation of the exam to be preserved, and the Department of Education, in supervising the exam system, acted as “a guarantor of fairness and equality to all candidates”.

He accepted the Minister’s argument that the deletion of the notation from Ms Cahill’s certificate would constitute a misrepresentation to employers or other persons invited to consider or rely on that document, and would also call the integrity of the exam into question.

Mr Justice de Valera also rejected Ms Cahill’s claim that the Leaving Cert exam itself was inherently discriminatory in applying a standardised testing to a student with dyslexia. She had claimed such standardised testing effectively tested a student’s disability rather than their ability in the subject being examined.

While the Leaving may be a standardised exam, “which in fact is its purpose”, it had not been shown to be an inflexible or unreasonably standardised exam, the judge said. The evidence was that there were several accommodations provided for persons who needed them, thus providing flexibility in the administration of the various tests, he added.

There was no reasonable alternative approach to the testing of spelling which would permit a non-standardised spelling test.

The judge rejected claims that Judge Anthony Hunt in the Circuit Court had erred in his interpretation of the relevant provisions of the Equal Status Act 2000.

He said the issue was whether the system of providing exemption from elements of various Leaving Certificate subjects, accompanied by an indication that such elements had not been assessed, amounted to unfavourable treatment to those students who sought and obtained such exemptions, or whether it amounted to a failure to provide “reasonable accommodation” for such students.

It would be “unacceptable” to allow exemptions of the type obtained by Ms Cahill without some indication such exemptions had been given, he found.

No legal system in the world, according to the evidence, considered some form of accommodation without some indication it had been made.

The fact the assessment of a fundamental skill was affected by the granting of the accommodation here was significant, the judge added. The accommodation granted to Ms Cahill was reasonable, as was the annotation to reflect it.

Mr Justice de Valera also noted a wide range of accommodations may be given to someone with dyslexia, including additional time and the use of a word processor. The nature of an accommodation was important in terms of whether or not it would lead to annotation on the subsequent certificate. Some accommodations would require annotation, others would not.

This was not discriminatory but “a matter of common sense”, and a reasonable approach to take to the issue of accommodations generally. Ms Cahill was asking for “an unreasonable definition” of “reasonable accommodation” which tipped the balance too far in her favour, to the detriment of others with a legitimate interest in the fair and equitable administration of the Leaving Certificate.

Associations express disappointment with ruling

CAROL COULTER

THE EQUALITY Authority and the Dyslexia Association have expressed their disappointment with the decision of the High Court to uphold the practice of annotating the Leaving certificates of students with dyslexia.

In 2001, Kim Cahill obtained accommodation for her dyslexia in her Leaving Certificate. The certificate she received stated certain parts of the exam had not been assessed in English, Irish and French. Her father appealed the notation issue to the Department of Education but was unsuccessful. She then took the matter to the Equality Authority.

The authority entered into lengthy correspondence with the Department of Education from 2002 onwards and commissioned research on the subject. The department maintained its position.

Supported by the Equality Authority, Ms Cahill took a complaint to the Equality Tribunal where it was upheld but the Circuit Court overturned it on appeal. The authority then appealed this decision tothe High Court, which upheld the practice yesterday.

“The Equality Authority regrets that Leaving certificates for students with dyslexia can still be annotated for students who, despite their disability, successfully sit the Leaving Certificate examinations,” it said yesterday. “The authority urges the Tánaiste to take this opportunity to review the practices in the department to improve the accommodation of people with disabilities,” its chief executive, Renee Dempsey said.

Rosie Bissette of the Dyslexia Association said there was no annotation of degrees or diplomas at third level or higher. “So why is it deemed appropriate at one level . . . to annotate the certificate, but when a person is doing a degree there is nothing there?”