The Equality Tribunal
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2011-067
Parties
A Student
V
Dublin City University
Case ref: ES/2010/0084
Issued: 23 December 2011
DECISION NUMBER DEC-S2011- 067 CASE REFERENCE ES/2010/0084
Keywords:
Equal Status Acts 2000 to 2008- Disability- Failure to Provide Reasonable Accommodation - Provision of good and services - Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. A student (hereafter "the complainant") referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 7 April 2010. The respondent was notified of this complaint in accordance with the Acts on 26 January 2010. An extension of time in relation to the referral of the complaint was granted by the Director on the grounds of the complainant's ill health at the material time on 14 December 2010. The Director exercising his powers under the Acts then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts on 27 September 2011. An oral hearing, as part of the investigation was held in Dublin on 14 November 2011.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the disability ground. The complainant submitted that Dublin City University ("the respondent") discriminated against him on 9 October 2009 by not providing him with reasonable accommodation in the marking of his examination/continuous assessment scripts. The disputed scripts have been subsequently mislaid by the respondent.
3. Case for the complainant
3.1. The complainant is a student in the respondent university. He has a learning disability and submitted that two of his assignments were not corrected by applying agreed guidelines entitled "Guidance on the Assessment of Candidates with Specific Learning Difficulties".
3.2. The complainant submitted that the respondent refused or failed to carry out the assessment of his papers in accordance with agreed guidelines applicable to his condition. The complainant submitted that when he met with the assessor to discuss his grades he noted that the scripts were heavily marked with corrections made by a red pen. This, the complainant submitted, is directly in breach of the university's own guidelines that say, inter alia, "If you decide to mark for spelling, grammar & punctuation avoid marking every error - select and indicate about 4 types of error". The rationale for such an approach is that: "Numerous corrections can be demoralising; simply correcting spelling and grammar will not lead to improvement - helping the learner identify types of error together with models of correct usage will help." The complainant had sight of his paper when he discussed it with his assessor. He stated that he had asked her three times as to which guidelines she had used in marking his script and that the assessor replied that she was using the standard marking criteria. Furthermore, the complainant claims that a second marker had made comments on his paper such as: "X is a term that might be used on a [professional] report but not in an academic essay", "He needs to work on academically structuring his work", "There is an absence of paragraphing".
3.3. The complainant could not say whether he believed that he ought to have received a higher mark. His complaint relates to his assertion that the scripts were not corrected according to the guidelines and that the respondent has lost the disputed scripts.
3.4. The complainant submitted that he had sought to see his exam scripts on 16 October 2009. He did not receive a telephone a message as he had not set up his voicemail service.
3.5. While the complainant accepts that the Examination Board had examined the process he submitted that this process did not look at the scripts.
4. Case for the respondent
4.1. The respondent is a university and an educational establishment in accordance with section 7(1) of the Acts.
4.2. It is accepted that the complainant has a disability within the meaning of the Acts. It was further accepted that the complainant has registered with the University's Disability Services. It was denied that the guidelines for correcting the papers were not adhered to. The complainant's papers were assessed accordingly and the assessor had sought second opinion in relation to the grade. While the person providing the second opinion would have granted a slightly higher mark, overall there was agreement that the complainant's paper warranted a pass mark. It was submitted that such discussions between two markers are common university policy. It was also pointed out that an external assessor had not altered the grade.
4.3. The respondent accepts that a red pen was unfortunately used. In relation to the standard used in the assessment, it was submitted that it is a combination with the guidance on the assessment of candidates with specific learning difficulties with the standard marking matrix.
4.4 The respondent's Examination Appeal Board has found in relation to the complainant's case that: "There was no material administrative error or a material irregularity in assessment procedures which have made a real of substantial difference to your result".
4.5. All examination/continuous assessments are destroyed after a period. Students are asked to keep a copy of their papers as the university does not return scripts to them.
5. Conclusion of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. Reasonable accommodation within the meaning of section 4 of these Acts arises as an obligation on a provider of a service when it is clear that a person with a disability wishes to avail of that service and is unable to do so, or it is unduly difficult for him to do so, because of that disability. In such circumstances, there is an onus on that service provider to do all that is reasonable to accommodate such a person by providing special treatment or facilities (subject to a nominal cost exemption) to that person. I accept that the issue of provision of reasonable accommodation in relation to an examination/continuous assessment in an academic context is a challenging one. It is clear that reasonable accommodation in such circumstances extends to special treatment such as extra time, a support person, use of technology, etc and/or special facilities such as a private space, more or less lighting or smaller/larger classrooms, etc. The requirement to provide reasonable accommodation should not be confused with positive discrimination and it would appear to me that a third-level educational establishment is entitled to refuse reasonable accommodation in circumstances where in order to achieve that aim substantial changes to an essential element of a course or programme would be required.
5.3. The disputed matter here relates to whether the assessor used "Guidance on the Assessment of Candidates with Specific Learning Difficulties". These are, as the title suggests, guidelines. While I note that the complainant referred to the recommendation about red pens, it is clear to me that a holistic reading of these guidelines encourages honest feedback concerning ideas, understanding and knowledge. The assessor, who gave evidence at the hearing, submitted that it was for these very concepts that the complainant's paper was assessed. It was also pointed out that the disputed assessments were 'take home' papers, thus the complainant was free to use references, spell checking, etc.
5.4. It is not disputed that the complainant, who submitted that he has regularly scored high grades in other examinations, passed the assessments that he is referring to. While he did not want to say so, it is clear that he took exception with the grades that he received. I find that the complainant's claim therefore is that, but for the respondent's alleged failure to provide him with reasonable accommodation, he would have scored a higher mark. It is noteworthy that the complainant, who I appreciate did not have the disputed documents, did not provide any argument as to what exactly it is that the respondent was asking him to do that was impossible or unduly difficult in circumstances where he passed the papers. I therefore cannot find any evidence to support his assertion that there was a failure to provide him with reasonable accommodation.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. The complainant has not established a prima facie case of a failure to provide him with reasonable accommodation. Therefore, this complaint fails.
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Tara Coogan
Equality Officer
23 December 2011