A draft document circulated by the director of the Leaving Cert calculated grades office referred to the “negative consequences” of excluding historical school data from a calculated grades model as including “better performing disadvantaged schools also [being] thrown under the bus”, the High Court has heard.
The reference was made in what Andrea Feeney, director of the calculated grades office, says was a “brain-storming” draft document circulated by her on August 18th last, days before the Cabinet approved exclusion of the historical school data from the process.
The confidential document was compiled following a controversy over grade standardisation models in the UK which had included historical school data.
Entitled Update; National Standardisation; Calculated Grades, the 11-page document examined UK statistical models and how those differed from a draft calculated grades model here. It said, inter alia, the Irish model, “as it stands”, was not showing any differential effects against disadvantaged schools.
Ms Feeney has said in affidavits the draft document was not intended as a briefing document for the Minister for Education, was based on an earlier grade standardisation model and the outcomes referred to could not be considered as other than indicative.
Lawyers for Freddie Sherry, a student at Dublin’s Belvedere College, have asked Mr Justice Charles Meenan to permit them to cross-examine Ms Feeney about the “profoundly relevant” document and other matters at the hearing of Mr Sherry’s case.
The cross-examination application is among several pre-trial applications being heard by the judge before the full hearing of the judicial review challenge by Mr Sherry, from Newtown, Celbridge, Co Kildare. A date for the full hearing has yet to be fixed.
Mr Sherry’s is the lead challenge of up to 30 separate actions arising from the calculated grades process, introduced in response to the Covid-19 pandemic.
Mr Sherry says he was “hugely disappointed” the CAO points total of 542 for him estimated by his teachers was reduced to 487 under the grade standardisation and he lost out on his first choice to study pharmacy at Trinity College.
On Wednesday, the judge was told Ms Feeney has provided affidavits on behalf of the Minister for Education and the State in their opposition to Mr Sherry’s case.
It is sought to cross-examine her about matters referred to, and not referred to, in her affidavit. Micheál P O’Higgins SC, with Feichín McDonagh SC and Brendan Hennessy BL, instructed by Ferrys Solicitors, also sought leave to cross-examine Dalton Tatton, assistant secretary general of the Department of Education, and Hugh McManus, deputy director of the calculated grades office, concerning their affidavits for the defence.
The cross-examination is necessary to assist the court in determining whether the grade standardisation model ultimately used was unlawful, as Mr Sherry contends, he said.
Eileen Barrington SC, for the respondents, opposed cross-examination of the three public servants. The cross-examination being sought is not targeted and appears to be sought in the context of a “roving” exercise, she said. Cross-examination is unusual in judicial review proceedings and “probing” was not the test for cross-examination on affidavit.
The case is about the Government’s grade standardisation decision of September 1st and the Minister’s August 21st decision to bring the matter to Cabinet and to move from one grade standardisation model to another, she said. It was not “an inquiry” concerning what individual civil servants thought on a given day or time unless that was related to the decisions.
The hearing continues on Thursday.
