A woman with dyslexia has lost her High Court claim she was discriminated against by the attachment of special explanatory notes 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 had requested and secured a waiver in relation to the examiner’s assessment of spelling and grammar in language subjects. She claimed the annotations on her Certificate effectively labelled her as disabled and she was greatly distressed by this.
The Equality Tribunal upheld her complaint and directed the Minister for Education to pay compensation of €6,000 to her and another student, Marian Holingsworth, 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 Tribunal’s 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 today, Mr Justice Eamon de Valera dismissed her appeal.
He ruled the Department of Education 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.
He accepted the Minister’s argument 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.
The judge also rejected Ms Cahill’s claim the Leaving Certificate exam itself is 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 under examination.
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 there were several accommodations provided for persons who needed them, thus providing flexibility in the administration of the various tests, he added.
The evidence was there was no reasonable alternative approach to the testing of spelling which would permit a non-standardised spelling test, he said.
The judge rejected claims Circuit Court Judge Anthony Hunt 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 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 failute to provide “reasonable accommodation” for such students.
It would be “unacceptable” to allow exemptions of the type sought and 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 that accommodation 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, he ruled.
He also noted a wide range of accommodations may be given to a perosn 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 while others would not.
This was not discriminatory but “a matter of common sense” and a reasonable approach to take to the issue of accomodations generally”. Ms Cahill was asking for “an unreasonable definition” of “reasonable accommodation” which tipped the balance too far in her favour to the detrimnent of others with a legitimate interest in the fair and equitable administration of the Leaving Certificate.
