Threat of legal challenge over International Baccalaureate results

A law firm is in discussions with parents and students about a legal challenge over the awarding of the International Baccalaureate results, Tes has learned.

The release of the IB Diploma and Career-related programme results this year sparked a wave of protest as students were left disappointed at their results, which were awarded via an algorithm following the cancellation of exams due to the coronavirus.

The organisation announced a new process to revise some grades last month, but critics pointed out that this still didn’t address unfair results received by swathes of students.

Background: IB results ‘scandal’: Students demand new grades

IB results: Anger grows over grading ‘scandal’

Explainer: IB results ‘scandal’: Why 2020 grades have sparked fury

London-based law firm Mishcon de Reya LLP is in preliminary discussions with parents and students to find what potential legal options are open for them to challenge the results. The discussions are being led by Adam Rose, a solicitor and partner at Mishcon.

A data protection adviser at the law firm, Jon Baines, spoke to Tes about what possible grounds there could be to challenge the IB results.

Student protests over International Baccalaureate results

He said that one possibility would be under GDPR, the data protection law.

Mr Baines explained: “The Norwegian data protection authority have investigated the awards and about a month ago advised the [International Baccalaureate Organisation] that it needed to redo the awards and I think that was on the grounds that the award process necessarily involves processing of students’ personal data, and that means that the process has to be in compliance with data protection law and GDPR is the applicable law.

“That means it has to be done fairly and transparently, and one understands that the IBO has used, at least as part of the award, a similar algorithm as the one that was used for the A-level awards in England, on which there was effectively a U-turn, which led to awards being made on CAGs [centre-assessed grades] and effectively the algorithm was set aside.

“We understand that the IBO has not effectively set aside the algorithmic decision and so what we are looking at really is whether there is potential for a challenge to the fairness and the transparency around the use of an algorithm to make such a significant decision for students.”

In an article on Mishcon de Reya’s website, Mr Baines explained that the UK Information Commissioner’s Office would be best placed to lead an investigation into the issue as the IBO has been arguing that its relevant controller is the Cardiff Office and therefore it would fall under its jurisdiction.

“I certainly think the ICO has a role to play,” Mr Baines told Tes.

Asked by Tes whether the watchdog will look into the issue, an ICO spokesperson said: “We understand how important exam results and other qualifications are to students. When so much is at stake, it’s especially important that their personal data is used fairly and transparently.

“We are currently engaging with both the IBO and our Norwegian colleagues on this matter to ensure any necessary steps are taken.”

Mishcon de Reya was first contacted by a parents’ group set up in the wake of the IB results scandal.

Its founder, Chris Stutz, told Tes that the group now has about 50 strong expressions of interest in pursuing a legal challenge, and more are expected to come.

He said that some parents felt their only option would be a legal route as the IB hasn’t been supportive.

Mr Stutz said: “Parents don’t feel they have had any other choice [apart from the legal route] because the IB is almost fully unresponsive. They had plenty of time to rectify the situation and they have done very little.

“It’s this intransigence on the part of the IB that has propelled these parents to come together and explore legal options.”

He added that the situation has done damage that will be “difficult to undo”.

“While some universities are holding places for students who get successful appeals, many are not,” he said.

“I have heard about a female student who lost her offer for a scholarship to one of the top 10 chemical engineering programmes in the UK” he recounted. 

And deferring is not always possible for all students.

For example, EU students would have to pay substantially higher fees next year, as they will lose their “home fee” status after Brexit.

Meanwhile, a students’ group called IB Students May 2020 has launched a petition to call on the IBO to change the grades to teachers’ predicted grades, hoping for a U-turn such as the ones that happened in England over A-levels and GCSEs.

In an email to Tes, the group said: “Out of a total 170,343 candidates, there are still about 20,000 students that are unsatisfied with their final grades.”

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