Earlier today Education Secretary Gavin Williamson announced that teachers' predictions, known as Centre Assessment Grades (CAGs) would be used to grade students' A-level performance instead of the algorithm which had caused such major controversy and which Leigh Day, with Foxglove digital law campaigners, had already challenged in a pre-action protocol letter on Friday, August 14.
Curtis, aged 18, who attended a west London comprehensive school and brought his action in support of fellow students who had been downgraded by the algorithm, welcomed the change.
"I'm amazed by what we've achieved in just a few days. This proves how much power we all have when we stand, together, for fairness - we can make the Government back down. This has been such a tough time for students, but I'm confident that we can move forward stronger now than ever before. Teacher assessment is crucial to education, and it's time now for a broader debate about how we build an education system that works best for everyone going into the future.
"I couldn't have done any of this without the support of Foxglove and Leigh Day, who've stood up for students just as they stand up for every member of society when the government gets tech policy wrong, and I'd encourage everyone to support them if they can as they go on to tackle other issues in the future."
Cori Crider, co-founder and Director of Foxglove, said:
"We're delighted at this belated u-turn and feel for thousands of students who've had an appalling week. This fiasco shows what happens when the government's approach is 'compute first and ask questions later'. Algorithms aren't neutral - this one threw the life chances of thousands of kids into disarray.
"Let's learn from this moment. Judicial review protects everyone. And next time, before we roll out yet another of these algorithmic systems, government should level with people about what it is doing, what it is prioritising, what it has chosen to trade off-and see whether citizens agree."
Rosa Curling from the public law team at Leigh Day, who represented Curtis, said:
"This u-turn is very welcome. However the delay has caused severe upset, stress and needless pain to thousands of students. It is only the courage and tenacity of students such as Curtis that has made the Government sit up and take notice and accept that their course of action was causing immense harm to a generation of students."
Leigh Day personal injury solicitor Tina Patel added:
"We are looking at the possibility of bringing a group claim on behalf of students who have suffered harm as a result of the course of action that Ofqual and the Government pursued and stuck by for days after the results were published.
"People have lost sponsorships to go to university and have lost places - those that have already been rejected may not get lost places reinstated."
On Curtis' behalf, Leigh Day wrote to the Office of Qualifications and Examinations Regulation (Ofqual) which regulates qualifications, examinations and assessments in England, claiming the process it had adopted to award grades this year was unlawful, and called on the Government to review and revise the scheme as a matter of absolute priority.
Rosa Curling argued that the model was unlawful on a number of levels, including the fact that, for a large number of students, it failed to take account of relevant considerations such as the teacher's predictions and takes into account irrelevant considerations such as the historical success of a school.
Supporting counsel were Ciar McAndrew, Estelle Dehon and David Wolfe QC whose arguments also included potential breach of data protection rules, including those related to profiling and algorithmic bias.
While independent schools saw an increase of 4.7 per cent in the number of students securing A/A* grades from 2019, the percentage increase of A/A* grades was considerably smaller for state schools, and static for further education colleges.
Lawyers argued that this created substantive unfairness in university admissions and in many apprenticeship schemes, with private school students more likely to be able to meet any offers and secure places than equally academically strong state school students.
Originally published 17 August 2020.
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