EQUAL STATUS ACTS
DECISION NO. DEC-S2016-040
PARTIES
A Mother on behalf of her Son
(Represented by Timothy J. Hegarty and Son Solicitors)
-v-
Department of Education & Skills/State Examinations Commission
File reference: ES/2014/0079
Date of issue: 9 June 2016
1. Background to the Claim
1.1 The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2011 on the 1 May, 2014. On the 3 November 2015, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Valerie Murtagh, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 15 December, 2015. Final documentation on the complaint was received on 22 March 2016.
1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84(3) of the Workplace Relations Act, 2015.
2. Dispute
2.1 The dispute concerns a claim by the complainant on behalf of her son that he is being discriminated against by the above named respondent on the disability ground in terms of Sections 3(1)(a) and 3(2)(g) contrary to Section 5 of the Equal Status Acts in relation to access to a service.
3. Summary of the Complainant's
3.1 The complainant is taking a case on behalf of her son who is a student undertaking his Junior Certificate in June 2016. Her son has autism. The complainant submits that language has always proved difficult for children and adults on the autism spectrum as delays in receptive or expressive language are diagnostic features of autism. The complainant’s issue relates specifically to the change in the curriculum in the teaching of maths. The complainant submits that the respondent has changed the method in which maths is taught and assessed to a language based method and by so doing have introduced a discrimination for students of the subject who have Autism Spectrum Disorder [ASD]. The complainant contends that the incidence rate of ASD is not officially available in Ireland but the UK rate is regarded as 1.1 % of the population while the USA rate is regarded as being 1.47% of the population.
3.2 The complainant states that her son and those with Autistic Spectrum Disorder are unable to perform to the best of their ability in Project Maths because they must first decode the language and place it in context before concentrating on the maths end of the subject. The complainant contends that one of the fundamental purposes underlying the implementation of Project Maths was to increase the numbers of students attempting Higher Level Maths. A principle objective of the new syllabus was for students to consolidate their knowledge of the theoretical foundations. The complainant maintains that the National Council for Curriculum and Assessment (NCCA) stressed that Project Maths provide the basis for more of an emphasis on student understanding of the concept. The complainant states that the aspirations of Project Maths are theoretically sound but the practice does not appear to be inclusive to all Irish students. In summary, the complainant lists the following reasons why the Project Maths examination can be considered to be prejudicial against students with ASD;
· The breadth of the Junior Cycle Maths course and vagueness of the written syllabus provide ill-defined boundaries lacking clarification and direction; the syllabus is specific to an extent but contains many generalisations.
· Within the curriculum guidelines there is limited acknowledgement of the range and spectrum of prospective students studying Project Maths. Reasonable accommodations do exist for certain students during state examinations however, provision has not been made for students with ASD. These students understand the underlying mathematical concepts but not necessarily the verbal/linguistic aspects of the mathematical examination.
· Project Maths questions can pose complex problems which are contrived, inane and sometimes cryptic due to ambiguous language. There is an inordinate amount of reading associated with these problems. From the point of view of a student presenting with ASD, the paper resembles a daunting test in linguistic puzzle-solving. Characteristically, students with ASD process verbal information literally and are less likely to understand abstract concepts or idiomatic expressions.
· Project Maths has an increased perspective on statistics and probability. The wording associated with these types of problem-solving questions do not particularly assist the student with ASD who fails to perceive the functionality of same in his/her own personal everyday life. Straightforward cause and effect relationships and questions that have a straightforward answer are more easily understood.
· Uncertainty over the type of questions that will be asked is one of the main causes of student anxiety/confusion and hinders even those who have repeatedly practised the sample papers provided by the State Examination Commission. The mathematical topics on the examination paper are not presented in a structured or purposeful format. This unfairly disadvantages the ASD student for whom predictability and structure are hugely beneficial in reproducing prior knowledge.
· Irrespective of the syllabus and the method of assessment, the most important ingredient for students to succeed in maths is the desire to do so. This translates into the willingness to spend more time figuring out the concepts. The frustration involved in ‘decoding’ language in Project Maths works against the student with ASD who could easily become disengaged and disinterested with examination tasks. It discourages the student from his/her right to partake in a state examination and function to the best of his/her ability.
· The inception of the Project Maths paper cannot be considered to be candidate-friendly to all students. The complexities listed above do not allow for students presenting with ASD to adequately demonstrate their levels of mathematical knowledge and skills. Therefore, the paper could not be viewed as an appropriate vehicle to provide adequate opportunities for all potential students to display their understanding of the Junior Certificate Mathematics Syllabus. The linguistic complexity incorporated in a Project Maths examination denies the student with ASD from objectively demonstrating their computational and analytical capabilities.
3.3 The complainant states that her son completed first year in secondary school and performed comparably with his peers. He has no intellectual disability. The complainant submits that the EPSEN Act was established to assist children with special educational needs to leave school with the skills necessary to participate to the level of their capacity in an inclusive way in the social and economic activities in society and to lead independent and fulfilled lives. Project Maths does not allow participation and development and assessment of the skills that the complainant’s son and others with ASD have, particularly in her son’s case as determined by the Cognitive Attainment Test (CAT) results and other psychological assessments completed over his lifetime. The complainant states that while the respondent outlines the importance of maintaining the integrity of the process of examination and certification; the examination must examine target skills and that the access skills should not be an impediment to demonstrating knowledge of these target skills. The complainant submits that the respondent in its submission refers to circular S40/94 published in 1994 and defines disability as understood within the health and education system 22 years ago. It refers only to physical and learning difficulties. The complainant submits that in 1994, there was no system of inclusive education and there were no special needs assistants. The complainant submits that persons like her son would not have been attending mainstream school but specialist schools with exceedingly high levels of intervention and support and they would not have had an opportunity to demonstrate capacity within this system, would not have had the opportunity to develop into an adult who can contribute to society and remained a dependent on the state. The complainant reiterates that the framework for reasonable accommodation was written in 2000, 16 years ago.
3.4 The complainant highlights that it is of absolute importance to understand that her son’s disability is language impairment and he does not have a learning disability. His Cognitive Attainment Test (CAT) is 30 centile, his capacity in maths is 70 centile in CAT. The complainant contends that the examination should allow demonstration of this capacity and thus achievement, the subject being examined is maths and not English. The complainant quotes a paragraph from the respondent’s submission; “However, it is now considered to be of at least equal importance to acquire and demonstrate the skills necessary to use these mathematical tools in contexts outside of pure mathematics, including to real and quasi-real contexts and to develop problem-solving skills relevant to the students’ everyday lives.” The complainant submits that the quote above is the crux of the problem. She states that it is clearly not of “at least equal importance” to acquire and demonstrate comprehension of English language that is opaque or to solve misleading “quasi-real world” problems that have been composed without support from experts in specific language impairment and business people to ensure the questions are in fact representing real-world problems and measuring problem-solving skills related to the real world. The complainant quotes another paragraph from the respondent submission where it states; “In addition, problem-solving skills which are explicitly targeted for development under the new syllabus are primarily concerned with “…an individual’s capacity to engage in cognitive processing to understand and resolve problem situations where a method of solution is not immediately obvious.” In this regard, the complainant submits that many individuals have the capacity to engage in cognitive processing to understand and resolve problem situations without the use of words. They are often not able to translate their thought processes into words. The complainant contends that there are countless examples of individuals who can repair electronics, assemble complicated furniture, design complicated lighting for films without using or being instructed to solve the challenge through any spoken language.
3.5 The complainant further references a paragraph from the respondent’s submission where it states; “That is, proper testing of this part of the target domain explicitly requires candidates to be presented with problems that are not like ones they have seen before so that they are tested on their capacity to apply their skills in new and unfamiliar contexts both mathematical and non-mathematical.” In response to said paragraph, the complainant maintains that non-mathematical does not mean solely through written English language. English is therefore an access skill issue not a task skill issue by the respondent’s own admission. The complainant quotes a paragraph from the respondent’s submission where it states “When drawing up the syllabus, the course committee took the view that the importance of these skills relative to “pure” mathematical skills would be appropriately reflected through an approximate 50-50 split between contextualised and uncontextualised tasks. The SEC has followed this directive since then. The examination papers accordingly consist of a blend of different task types. Some are intended to directly test pure mathematical concepts and basic skills while others are primarily focussed on the other key skills referred to above. The capacity to carry out the necessary mathematical calculations is not the main focus of these latter test items”. In response to said paragraph, the complainant submits that the first comment in bold above may have been the decision but because of the way the questions are written, the split becomes closer to 75 % language based to 25% calculations or operations based since the questions themselves compromise access to demonstrating competence with the calculations. The complainant contends that every year there are difficulties with interpretation of papers by neuro-typical students with no language impairment. It is not a fool proof system which is reflected in the internal adjudication of results that are clearly reported by the department and in the media. The complainant submits that Dyslexia Ireland had made a submission to the department regarding a discussion document Review of Mathematics in Post-Primary Education but had not received a response. The complainant states that difficulties with mathematics are consistently related to the manner of instruction when it is based on non-mathematical language i.e. word problems. The complainant states that it should be remembered that mathematics is also a language and should not have to be accessed through another language.
3.6 At the hearing, witness for the complainant Dr H, a Speech and Language therapist who has 25 years specialising in children with autism outlined the difficulties students with ASD face when interpreting certain information and instructions that do not appear especially difficult to neuro-typical students. By way of example, she identified a number of difficulties with Question 2 on a Junior Certificate Higher Level Mathemathics paper from 2014 and proposed an alternative form of wording that she argued was more accessible to all examinees. Dr H listed five problems with the wording that would adversely impact a student with ASD;
Point (1) the narrative information for (ii) uses the same terminology for the shipping crates as for the solid cuboid boxes. Seeing the diagrams of how the crates are die-cut, a person on the spectrum might assume that the mobile phone boxes would be flat packed in the crates and want to know the thickness of the cardboard used for the mobile phone boxes.
Point (2) has the word ‘net’ been defined in coursework and does it have the exact same meaning in (i) and (v) in this question ?
Point (3) what is meant by the word ‘show’ in (ii) ?
Point (4) what is the largest number in (iii) is unnecessarily wordy
Point (5) (v) if, by ‘net’ in this part of the question, the calculations are not to include wastage the question is illogical for real world applications. This would be distracting and confusing for an individual with specific language impairment.
Dr H suggested that the following wording would be more accessible to a pupil with specific language impairment or autism;
(a) Calculate the volume of the cuboid shown below that is 6 cm by 8 cm by 13 cm.
(b) Compare the volumes of the two cardboard crates shown below whose dimensions are 32 cm by 30 cm by 78 cm and 40 cm by 48 cm by 39 cm.
(c) Calculate the maximum number of the cuboids in (i) that would fit in each crate.
(d) Calculate the surface area of each crate.
(e) At €0.67 per sq. m., calculate the cost of each crate.
(f) If 140 crates are to be shipped per month, what would the annual savings be if you purchased the cheaper crates ?
Dr H stated that much of the new syllabus of Project Maths is very good but it needs to be made neutral for all students. She contends that the questions need to be made accessible to all students and advocated a specialist in the area of Dyslexia take a look at questions in this regard. She suggested that the questions should be re-phrased for someone who has ASD and to have the availability of a reader and interpreter. Another witness for the complainant, Mr. E, an Educational Psychologist dealing with children with disabilities including children with dyslexia stated that there is a lack of meaningful engagement on behalf of the respondent with disability organisations for non-typical learners. He submitted that Project Maths has significant literacy demands which are not nuanced enough to meet the broad and diverse nature of the group trying to access this service. The complexity of the language on the papers is proving extremely difficult for non-typical learners such as persons with dyslexia and autism. Mr. E requested that (i) the examination papers be run past an expert advisors group including disability advocacy groups and (ii) the exam papers be subject to an ongoing cycle of monitoring and review.
3.7 In relation to the Upcoming Review of Junior Cycle Mathematics, the complainant states that it appears that this is an admission that the respondent is aware of significant problems in Project Maths. The complainant contends it is encouraging that the respondent plans to rethink what it has created. In this regard, the complainant outlines that it would be critical to identify and recruit qualified consultants not solely advocacy groups populated by parent volunteers, before embarking on these revisions. The complainant acknowledges that her son is in receipt of substantial resources, without which he could not access integrated schooling at the level he is accessing it. This is welcomed. The complainant submits that Project Maths is a valuable addition to the school curriculum and in particular to the high functioning academically orientated student where it allows them to integrate their knowledge from many fields of learning. This is widely recognised in the reports but the reports also recognise that Project Maths does not take cognisance of the needs of students with Special Educational Needs (SEN) or those with limited literacy. The complainant is asking for a level playing field and requests the respondent to make improvements to the curriculum and the exam papers which they set so it is inclusive to all students and to ensure adequate provision and access for pupils like her son. The complainant contends that Project Maths discriminates against students with language difficulties both in relation to the pedagogy (learning through discussion) and the assessment of Maths (non-contextualised approach and the presumed life experiences) posed by the questions and the language required to access a Maths paper.
4. Summary of the Respondent's Case.
4.1 The respondent notes, by way of a preliminary point, that the within proceedings have been brought against the Department of Education and Skills. The respondent states that pursuant to Article 6 of Statutory Instrument 373/2003, the State Examinations Commission has responsibility for the preparation of examination papers and other examination materials. The State Examinations Commission is an independent body, established under statute with the capacity to be sued and sue in its own name. The respondent maintains that in light of the nature of the claim brought by the complainant, the Department of Education and Skills reserves its position in relation to whether the claim has been properly brought against it. In relation to the substantive nature of the complaint, the respondent submits that in order to consider whether there are inappropriate barriers to accessing a service that is being made available to potential users, it is important to be clear about what precisely that service is. In the case of the Junior and Leaving Certificate examinations, the purpose of the examination is to assess, as accurately as is feasible under whatever constraints apply, the extent to which the candidate has achieved the objectives (fulfilled the learning outcomes) of the syllabus concerned, in order to provide certification of the extent of this achievement. This certification may subsequently be used as evidence of the candidate’s level of achievement of those outcomes in decision-making processes for which the skills demonstrated by achieving them are relevant (such as when being considered for employment or for a place on a subsequent educational programme).
4.2 The respondent submits that the underlying principles of the examination accommodations scheme put in place by the Department of Education and Skills and operated by the State Examinations Commission are based on widely accepted international principles and are similar to those that underpin arrangements in other jurisdictions with broadly similar disability rights legislation to that of Ireland. All such schemes focus on the need to remove barriers to accessing the assessment, while retaining the need to assess the same underlying skills and competencies as are assessed for all other candidates and to apply the same standards of achievement as apply to all other candidates. For this reason, literature and documentation related to such schemes frequently refer to the important distinction between target skills and access skills. The respondent contends that every examination of the type concerned here seeks to measure the extent to which the candidates have achieved the outcomes or objectives specified for the programme of study (the syllabus). These achievements are the target skills of the assessment. Access skills are skills that are not the target or focus of the assessment but which the candidate nonetheless needs to have in order to properly engage with the assessment process. These are fundamentally concerned with the examiner communicating the assessment task to the candidate (getting the candidate’s mind to understand what is being asked of them) and the candidate communicating his or her response to the examiner (getting the examiner to see and assess the evidence of what the candidate can do in response to that task). All schemes of examination accommodations seek to remove the impact on a candidate of a lack of those access skills that typical candidates possess while leaving intact the requirement to test the same target skills. The respondent submits that the question of whether a particular skill is a target skill or an access skill will depend on the purpose of the test, for e.g. if the purpose of a test is or includes assessment of the candidate’s ability to read, then reading is a target skill. On the other hand, if the purpose of the test is to assess the candidate’s knowledge and understanding of, for e.g. History, then the ability to read is an access skill. The respondent states that providing a recorded spoken-word version of the test (or a reader) would be an acceptable accommodation in the latter case but not the former.
4.3 The respondent submits that a scheme of special arrangements (reasonable accommodations) has formally operated within the state examinations system in Ireland since 1994. Originally administered by the Examinations Branch of the Department of Education, the scheme has developed both in nature and scope in recent years in response to a number of developments. These developments include a significant legislative framework in relation to issues of equality, equity and access to educational provision and services developments in the understanding of the concept of disability and related issues and increased awareness generally of rights and entitlements as enshrined in law. The respondent maintains that general principles for the operation of what was, at that time, termed Special Arrangements for Candidates with Disabilities were originally outlined in Circular S40/94. The Circular stated that the special arrangements were intended for candidates “who would have difficulty in communicating what they know to an Examiner because of a physical disability, including visual and hearing impairments or a specific learning difficulty.” It also stated that the arrangements were intended:
(a) to remove, as far as possible, the impact of the disability on the candidate’s performance and thus enable the candidate to demonstrate his/her level of attainment and
(b) to ensure that while giving candidates every opportunity to demonstrate their level of attainment, the special arrangements will not give the candidate an unfair advantage over other candidates in the same examination. The respondent submits that in March 2003, the State Examinations Commission was established for the purpose of administering the state examinations, including the Scheme of Reasonable Accommodations in the Certificate Examinations (RACE). The respondent submits that while the complainant has argued that her son is discriminated against because, in order to succeed in the examination, he is required to draw on skills that are more challenging for him to acquire and demonstrate than they are for neuro-typical students and that this is an unfair barrier to access; the complainant and the witnesses for her at the hearing have characterised these skills as access skills rather than target skills of the assessment. However, the respondent asserts that such a characterisation fundamentally misrepresents the nature of the curriculum and the purpose of the relevant examination questions. The respondent maintains that the current mathematics syllabus is based on a significantly different vision of what constitutes the subject domain of mathematics than the previous one.
4.4 The capacity to carry out routine mathematical procedures isolated from context and to demonstrate understanding of pure mathematical concepts continues to play a strong role. However, it is now considered to be of at least equal importance to acquire and demonstrate the skills necessary to use these mathematical tools in contexts outside of pure mathematics, including to real and quasi-real contexts, and to develop problem-solving skills relevant to the students’ everyday lives. The process of applying mathematics in this way involves identifying and extracting relevant mathematical information from non-mathematical contexts, processing that information using relevant mathematical tools, and interpreting the results of this processing in the original context. The capacity to do this is now considered to be a critical and core part of the subject domain, and it involves the following sub-skills:
· Recognising connections between real world objects and their mathematical idealised forms (for example, understanding that a tennis ball can, in many circumstances, be treated as a realisation of the abstract mathematical concept of a sphere)
· Recognising which mathematical tools are likely to be relevant and applicable in a given situation
· Separating important from incidental information in a given scenario
· Making reasonable assumptions in the context and understanding the implications of those assumptions
· Understanding which aspects of the mathematical tools applied may not be accurate representations of what happens in the real context
· Interpreting the result of a calculation in the original context from which it was drawn
· Appreciating how the validity of this interpretation may be affected by the assumptions made in the process of abstraction
· Appreciating that there may be different ways to analyse and interpret the same data
· Justify and explain findings and conclusions
The respondent submits that in addition to the above, problem-solving skills, which are explicitly targeted for development under the new syllabus, are primarily concerned with “…an individual’s capacity to engage in cognitive processing to understand and resolve problem situations where a method of solution is not immediately obvious.” The respondent submits that is, proper testing of this part of the target domain explicitly requires candidates to be presented with problems that are not like ones they have seen before, so that they are tested on their capacity to apply their skills in new and unfamiliar contexts, both mathematical and non-mathematical. The respondent contends that once all of the above is understood, it should be immediately clear that the skills that are presenting a particular difficulty for the complainant's son and other students with ASD are not test-access skills but are core skills that are very much within the target domain. Furthermore, they are skills that all students find challenging to acquire and demonstrate, notwithstanding that they pose a particular challenge for those with ASD.
4.5 When drawing up the syllabus, the course committee took the view that the importance of these skills relative to “pure” mathematical skills would be appropriately reflected through an approximate 50-50 split between contextualised and uncontextualised tasks. The SEC has followed this directive since then. The examination papers accordingly consist of a blend of different task types. Some are intended to directly test purely mathematical concepts and basic skills, while others are primarily focussed on the other key skills referred to above. The capacity to carry out the necessary mathematical calculations is not the main focus of these latter test items. The respondent argues that while the complainant's son's disability may not be preventing him from acquiring and displaying many of the more traditional skills in this subject, it is clearly interfering with his capacity to acquire other skills that form an equally important part of the target domain. The function of the RACE scheme is to remove access barriers so as to allow all candidates to demonstrate their achievement of the target skills. It is not intended to compensate for a failure to acquire those same target skills as a result of a disability. Any accommodation that has the effect of waiving a large portion of the core skills in the target domain is not consistent with fundamental assessment principles and those of the RACE scheme, since the very purpose of the examination would be compromised by such an arrangement. The respondent states that during the oral hearing, the complainant raised the possibility that her son might be provided with assistance from a person who would carry out the interpretative process for him, or that he would be provided with a variant of the examination paper that did not require him to demonstrate the skills of interpretation and inference required in the standard form. The respondent submits that both of these arrangements would fall foul of the fundamental principles referred to above, as they would have the effect of waiving the requirement to demonstrate these important skills and would therefore clearly compromise the integrity of the assessment. It was also suggested at the hearing that the difficulties that the complainant's son and others with ASD face could be mitigated by making changes to the construction and wording of questions as they apply to all students.
4.6. The respondent highlights current arrangements in relation to linguistic accessibility. In this regard, it states that those involved in the preparation of examinations paper include the Chief Examiner for the subject, and drafters and setters appointed on contract year by year to carry out the work. The Chief Examiner is normally an Examinations and Assessment Manager (EAM) – a member of the permanent staff of the SEC. EAMs are appointed in the first instance as specialists in the subject and its teaching and assessment. They usually have had considerable experience in examination work before being appointed. Drafters and setters are normally appointed from within the ranks of experienced teachers at the subject and level concerned, and generally also have considerable experience of the marking process, usually in an advisory (i.e., team-leader) capacity. Following appointment, EAMs undergo further professional development in the area of educational assessment, including test item construction and related language matters. Drafters and setters also undergo training in this area, which is seminar-based on their first appointment and supplemented with one-to-one training from the EAM in subsequent years. The initial training programme for drafters and setters is based around the SEC’s Manual for Drafters, Setters & Assistant Setters. The respondent highlights in particular Chapter 5, which receives considerable emphasis during this training, and which gives detailed guidance on the construction of questions that are clearly targeted at the relevant skills and phrased in as clear and accessible a way as possible in the context of the test domain concerned. The respondent also states that the drafters and setters are required to attest on their sign-off forms that they have carried the accessibility review required and made all appropriate changes arising therefrom.
4.7 The respondent states that testimony for the complainant at the oral hearing suggested that this accessibility objective was not being well achieved in relation to the current mathematics papers, and that significant improvement might be possible through the involvement of additional personnel with further qualifications or expertise in the area of adapting language for students with special educational needs. The witness for the complainant at the hearing stated that he had carried out a reading level analysis (Flesch-Kincaid) on one of the Junior Certificate Mathematics papers and found it to have had a grade level associated with reading age of approximately 16 years. The SEC representative at the hearing found this information surprising, as it appeared significantly at odds with similar analyses carried out by the SEC some time previously. The respondent submits that nevertheless, since the details were not provided at or prior to the hearing, they could not be interrogated at the time. The analyses carried out previously by the SEC had focussed on both the amount of language and the readability of language on Leaving Certificate Mathematics papers introduced under Project Maths. This analysis indicated that the SEC’s strategies for achieving accessibility on these papers were very successful. The quantity of language on the papers was found to be in line with the norm for other subjects, and the technical analysis, based on a battery of three readability tests, indicated that the measured features of the text on the Leaving Certificate Higher-level paper were characteristic of texts that are easily understood by 14-15 year olds, while those of the text on the Ordinary and Foundation-level papers were characteristic of texts that are easily understood by 12-13 year olds. The respondent asserts that these are very positive findings. The respondent asserts that given the above analysis, it is clear why the testimony of the witness on behalf of the complainant at the hearing regarding the Junior Certificate papers caused considerable surprise. As a result, following the hearing, an SEC researcher was asked to carry out a further technical analysis of the 2015 Junior Certificate Mathematics papers as a supplement to the earlier work on the Leaving Certificate papers. The outcomes of this analysis are considerably at odds with the information presented verbally at the hearing. The Flesch-Kincaid grade level ranges from 3.9 to 4.2 for the Ordinary and Foundation level papers (corresponding to an age of approximately 9 to 10 years) and is 5.1 and 5.3 for the two Higher level papers (corresponding to an age of just under 11 years). The above information supports the view that the SEC’s existing strategies for maximising accessibility of language use within the constraints imposed by the syllabus are very successful.
4.8 The respondent submits that the SEC has considered the analysis given by Dr H at the hearing regarding difficulties regarding the wording of a question on a previous Higher Level mathematics paper. In this regard, the respondent submits that Dr H, lists five problems that she identified in consultation with an adult with ASD . The respondent states that the second of these five points, impacts on the first, so will be dealt with first, following which the remainder are dealt with in the order listed.
Point (2): has the word “net” been defined in coursework and does it have the exact same meaning in (i) and (v) in this question? The third learning outcome in Topic 3.4 in the Mathematics syllabus states that students should be able to “investigate the nets of rectangular solids.” Thus, in this context, “net” is being used as a technical mathematical term, and candidates would be expected to be familiar with it. It is in this context that the word “net” is used throughout this question; the meaning is unambiguous in the context and is identical in parts (ii) and (v).
Point (1): The narrative information for (ii) uses the same terminology for the shipping crates as for the solid cuboid boxes. Seeing the diagrams of how the crates are die-cut, a person on the spectrum might assume that the mobile phone boxes would be flat packed in the crates and want to know the thickness of the cardboard used for the mobile phone boxes.
There are two separate points raised here. One relates to differentiating adequately for candidates between the two types of box (small and large) throughout the question. The writer suggests using “box” and “crate” for the small and large box, respectively. The respondent states that unfortunately, this would have meant that it would have been unrealistic to ask part (ii) in the way it was asked (bearing in mind that bringing in both the concept of the net and the term itself was regarded as important in this question). Unlike cardboard boxes, crates are not generally made by folding, but by attaching separate panels. The importance of differentiating between the two types of box was discussed during the setting process – to this end, the small box is referred to as the “individual mobile phone box” consistently throughout the question. The large box is called a “large rectangular box” the first time it is introduced, in order to use the language of the syllabus quoted above, while in the subsequent sentence and all subsequent parts of the question it is referred to simple as the “large box”. The respondent asserts that while the word “box” is indeed a constituent word in both phrases, the full terms used consistently throughout the question provide an adequate distinction between the boxes. The second point raised here relates specifically to part (iii), and how a candidate is expected to know whether the individual mobile phone boxes would be flat packed in the larger box or put in ‘fully assembled’, as it were. Dr H states: “Seeing the diagrams of how the crates are die cut, a person on the spectrum might assume that the mobile phone boxes would be flat packed in the crates”. However, referring back to the response to point (2) above, candidates are expected to know the difference between the net of a rectangular box (a two-dimensional object, being the “unfolded” surface of the box) and the rectangular box itself (a three-dimensional object). In this question, candidates were told in the pre-amble to part (ii): “Below are diagrams of the nets of two large boxes”, i.e. two-dimensional objects. In part (iii), candidates were asked: “What is the largest number of individual mobile phone boxes that will fit in each large box?” i.e. three-dimensional objects. The respondent states that if candidates understand, as required by the syllabus, what the net of a rectangular box is, as distinct from the box itself, then there is no ambiguity here as to whether the question is referring to a flat packed or ‘fully assembled’ box.
4.9Point (3): What is meant by the word “show” in (ii)? The respondent contends thaton mathematics papers, a number of command words are used that candidates are expected to be familiar with. This is part of the domain knowledge of the subject and is also based on the established use of these command words in mathematics papers in the past. The word “show” is one such command word. It is of course a word that can have different meanings in different contexts. Understanding its meaning in particular mathematical contexts is a legitimate part of the test domain. In this context, it is taken to mean “prove”, although a slightly lower standard of rigour might be expected when asked to “show” rather than “prove”. The respondent states that when asked to prove something, candidates often expect to need to prove a geometric theorem or similarly general result. In this case, candidates were being asked to prove a specific result (that two particular boxes have the same volume) rather than a general one (e.g. that two triangles with the same length base and perpendicular height will always have the same area). Thus, while a mathematician would be equally satisfied with the word “prove” here, the word “show” in this case is regarded as more appropriate, as the word “prove” might incorrectly suggest to candidates that they would need to prove a general result, and experience has shown that candidates are much more likely to engage appropriately with the question when “show” is used in these circumstances. The respondent submits that the fact that understanding the meaning of this command in this context is part of the content domain is well evidenced by the fact that it is used in this way throughout the section “Geometry for Post-Primary School Mathematics” in the syllabus (nine times in total) – for example, on page 51: “Let D be the midpoint of [BC], and use SAS to show that the triangles ABD and ACD are congruent”.
The respondent referring to(Point (4): where the witness for the complainant states“What is the largest number” in (iii) is unnecessarily wordy) argues that it is difficult to accept that “What is the largest number” is substantially wordier than the suggested alternative: “calculate the maximum number”. The respondent states that while this latter phrase has one word fewer, it is nevertheless two syllables longer. During the setting process, the team seeks consciously to use terminology with which candidates are more familiar (provided that this can be done in a way that does not compromise the clarity of the question being asked) unless the knowledge of specific mathematical terminology is being explicitly assessed in a question. The respondent asserts that here, the use of the term “maximum” was indeed considered during the setting process, but it was ultimately agreed that “largest” is a more accessible term to most if not all candidates.
4.10 The respondent referring to (Point (5): (v) If, by “net” in this part of the question, the calculations are not to include wastage, the question is illogical for real world applications. This would be distracting and confusing for an individual with specific language impairment) submits that a fundamental part of applying mathematics to real-world problems is recognising that this process of mathematical modelling will involve simplifying, in some way, the real-life problem. Rectangular boxes made of cardboard are not cuboids, and will not have a volume exactly equal to breadth times length times height; (that is, the same objection made against part (v) could be levelled against part (i)). The respondent states that in fact, actual rectangular cardboard boxes don’t have a constant breadth, nor a constant length, nor a constant height. The respondent submits that when it comes to creating a mathematical model of a problem, it is important for candidates to realise that this abstracting and simplifying process takes place. This understanding is an intended part of the test domain. When asking questions about real-life problems, the level of simplification depends on what exactly is being assessed, and on the expected level of the candidates. In part (v) of this question, the setting team considered asking the candidates to find the cost of the box that uses the least amount of cardboard, allowing for 10% wastage of cardboard in the making of each box. This question would have addressed the issue raised in this point by the witness for the complainant. However, the team decided to focus in this part of the question on simply calculating the cost of the cardboard, without the additional step of working out the amount of cardboard needed to account for wastage. Such decisions are taken in the context of the overall difficulty level of the question, its position in the examination paper, (as generally, efforts are made to make questions near the start more approachable) the skills and content being assessed in the paper as a whole, and the overall difficulty of the paper. The respondent asserts that engaging with such aspects of problem simplification in the course of mathematical modelling is again an important and intended part of the domain of target skills. Furthermore, it states that in this case, candidates were explicitly directed that the cardboard concerned was only what was needed to exactly cover the net (therefore not including wastage).
4.11 Regarding the point made by Dr H relating to an expert in the area of autism/ASD giving their assistance and guidance in relation to re-wording of the questions when examinations are being set; the respondent concedes that involving any number of additional personnel with particular areas of expertise has the potential to cause improvements of various kinds in the examination questions. However, this potential needs to be balanced against both the resources required to involve each additional input and the real and substantial risks associated with so doing. These include the security risks involved in widening the pool of people with knowledge of examination content, and the risks created by imposing additional pressure on already pressurised timelines. Furthermore, the final decision as to what appears on the examination paper would need to continue to reside with the Chief Examiner, as the person with ultimate responsibility for the quality of the paper, which includes ensuring that the questions, and the paper as a whole, appropriately examine the spectrum of content and skills set out in the syllabus document for the level concerned (Higher, Ordinary or Foundation). The respondent asserts that for such additional input to be justified, it would need to be established that the improvements realised outweigh these risks and the costs involved. The respondent does not consider this to be the case, as evidenced by the observations, on the amendments proposed by Dr H. It states that one of the fundamental aims of the current mathematics syllabus is to develop in students the ability to “apply mathematical concepts learned in a real life situation.” This is referred to specifically in the Description of Topic in Topic 3.4 of the mathematics syllabus, i.e. the topic being assessed for most of this question, where it is written that students learn about “modelling and real-world situations and solve a variety of problems.” It is also stated in the section in the syllabus on Assessment for certification that learners’ understanding of mathematics “will be assessed through a focus on concepts and skills and contexts and applications”.
4.12 The respondent submits that learners will be asked to engage with real life problems. This aspect is central to this particular question; the ability to connect the cardboard boxes given with the mathematical idea of a cuboid (if indeed that terminology is known to the candidate) in order to find the volume of the boxes and deal with their nets, and to furthermore connect the concept of the net to the area of cardboard needed to make the box. Much of the accessible wording of the question proposed by Dr H involves stripping out this context and presenting the questions in abstract mathematical language. The respondent states that to do this consistently throughout an examination paper would have the effect of failing to adequately assess a fundamental set of the skills now envisaged to be part of mathematics, as outlined in the syllabus. The respondent argues that this would be neither appropriate nor acceptable. Regarding the suggested rewording by the complainant’s witness, Dr. H: the respondent submits that the questions as reworded here avoid candidates having to do much of the mathematical modelling work of connecting real-life objects and processes to mathematical objects and processes. The respondent argues that this is the most fundamental problem with the proposed changes. It states that the proposals suggest a lack of appreciation for the fact that the capacity to carry out the requisite mathematical calculations is not the main focus of this question. Those skills are tested elsewhere through other (non-contextualised) question types.
4.13 The respondent submits that the proposed reformulations also present other difficulties, in some cases giving inappropriate cues or contradicting best practice guidelines for clarity and accessibility in assessment language. The respondent contends that the proposed parts (i) and (ii) conflate the task at hand with the relevant information, rather than presenting the necessary information first and following it with the task command. They both also use the form “A by B by C” when presenting the dimensions of the objects, thereby teeing up the use of multiplication in a manner not intended by the question writer. It states that Part (i) also refers to a “cuboid”, which is a term that would be unfamiliar to many candidates, unlike the term “rectangular box”. The respondent states that the reworded part (ii), apart from the fact that it introduces a needlessly complex sentence structure and presents six pieces of data pertaining to two different objects in a dense and difficult manner, is asking a different (in fact, more difficult) question from that in the actual examination paper – in the examination paper, the candidates are told that the volumes are the same; in the reworded question, they are not. Furthermore, the use of the word “compare” is more likely to cause confusion here as it has multiple meanings even in an examination context; it is only rarely (and then carefully) used on mathematics papers. The respondent asserts that the proposed part (iii) again uses the potentially problematic term “cuboid” and, due to the dropping of the reference to mobile phone boxes, now requires a cross-reference to part (i), which, while sometimes unavoidable, certainly does not help. The respondent states that furthermore, the use of “calculate” is not appropriate here, since there are multiple approaches to this question, not all of which involve calculation. The respondent asserts that the proposed part (v) strips out important elements of the context, and also changes the question from a contextualised one that can be approached in two different ways to the more closed (overly directed) task consisting solely of a pair of abstract calculations. The respondent states that the proposed part (vi) replaces two simple sentences in straightforward grammatical cases with a single long and complex sentence involving both a gerundive (future passive participle) and a question posed as a hypothetical conditional, both of which features should be avoided where practicable.
4.14 The respondent maintains that the conclusion to be drawn from the analysis above is that, even if the observations and suggestions made by Dr H on this question had been available to the setting team in advance of finalisation of the paper, none of the suggested amendments would have been made to the standard form of the paper, nor would they have been regarded as acceptable alternatives on any modified version that might have been made available for candidates with specific language impairment, whether due to ASD or other causes. Furthermore, it states that given the requirement of the syllabus to present approximately 50% of the examination tasks in contextualised forms, the analyses referred to above at 4.7 illustrates that a very good level of readability is being achieved on these examination papers. The respondent highlights that the setting teams, in addition to the training they receive in language and accessibility, are also in a position to draw on a high level of subject domain knowledge, a wealth of pedagogical expertise arising from their experience of teaching students with all manner of individual needs and abilities, and long experience of dealing with vast numbers of candidate responses to examination questions of varying types over many years. The respondent argues that there is, therefore, no evidence to suggest that the involvement of additional staff of the type proposed by the complainant would lead to any significant improvement in the accessibility of either the standard form of the examination or any modified form. The respondent states that it should similarly be clear why the provision of interpretative assistance on the day of the examination would be inappropriate. The respondent submits that given all of the pitfalls illustrated earlier regarding Dr H’s proposed amendments to the paper; it is not tenable to suggest that task interpreters provided across the country to all candidates with ASD could adequately navigate these difficulties on the fly on the day of the examination in such a way as to leave the integrity of all of the examination tasks intact.
4.15 The respondent states that the National Council for Curriculum and Assessment (NCCA) has responsibility for advising the Minister on matters of curriculum and assessment. This responsibility includes the preparation of proposed courses of study (syllabuses) to be approved by the Minister for implementation. The NCCA has a range of structures and practices to ensure appropriate consultation with relevant stakeholders in the course of preparing such advice and courses. One of the issues highlighted during the 2005 review of mathematics, was that the prevailing conception of mathematics in Ireland was as an isolated body of facts and procedures that are generally unrelated to real-life contexts but just needed to be ‘covered’ in class. With this conception, students were given little opportunity to develop other components of mathematical proficiency such as strategic competence, adaptive reasoning and conceptual understanding which are necessary for life in the 21st century. Mathematical proficiency has always been regarded as being important but, at that point, this importance was primarily seen as applicable to those headed for scientific or mathematical professions. The respondent submits that findings from the Programme for International Student Assessment (PISA) and other reports had consistently highlighted Ireland’s poor performance in the application of mathematical skills to real-world contexts and problem solving. The respondent states that in order to be globally competitive, it is necessary to provide students with these skills which are seen as critical for 21st century students. The Project Maths initiative recognised the fact that times had changed. The respondent submits that broad agreement exists now in mathematics education internationally that mathematical proficiency on a wide scale matters. It states that it is a matter of access and equity, therefore that all students in Ireland are given the opportunity to develop mathematical proficiency in school since as adults they will require substantial mathematical proficiency to participate fully and productively in society and the economy of the 21st century. The respondent submits that to this end, the revised syllabuses attend to both access and equity and were developed to cater for the needs of students with a broad range of abilities to ensure that all studentshave access to a high-quality mathematics education, effective teaching and learning, high expectations, and the support and resources needed to maximise their learning potential. The respondent argues that in doing so, they bring the syllabuses into closer alignment with international trends.
4.16 The respondent submits that in initiating the changes to mathematics, in October 2005, the NCCA published a discussion document Review of Mathematics in Post-Primary Education. A public consultation process followed the publication and 384 submissions were received. It states that no submissions were received from Autism Ireland, Dyslexia Ireland or NAMBSE. The respondent states that notwithstanding the lack of such submissions, the course committees at both Junior and Leaving Certificate levels and the Board of Studies responsible for guiding them were fully aware that the decision to increase the emphasis on problem solving, contextualisation, and application would result in an increase to the language load of the examinations, both in terms of the quantity of text and the linguistic skills involved. It submits that nevertheless, they considered that the importance of developing and testing the skills involved considerably outweighed the disadvantages associated with this change. The respondent asserts that the aim of the revised syllabuses, both Junior Certificate and Leaving Certificate, is that allstudents develop mathematical proficiency. Mathematical proficiency is more than just procedural fluency and is explicitly characterised in the syllabuses as;
· conceptual understanding - comprehension of mathematical concepts, operations, and relations
· procedural fluency - skill in carrying out procedures flexibly, accurately, efficiently, and appropriately
· strategic competence - ability to formulate, represent, and solve mathematical problems in both familiar and unfamiliar contexts
· adaptive reasoning - capacity for logical thought, reflection, explanation, justification and communication
· productive disposition - habitual inclination to see mathematics as sensible, useful, and worthwhile, coupled with a belief in diligence, perseverance and one’s own efficacy.
4.17 The respondent submits that the learning outcomes on the revised syllabuses reflect these syllabus objectives. An international comparison of the outcomes shows that mathematics expectations in Ireland are now comparable to those in the other countries that offer a broad lower secondary curriculum. Students with autism spectrum disorders (ASD) are being included more frequently in the general educational settings, and therefore increasingly access learning experiences based on these learning outcomes. However, mathematics often presents challenges to students with ASD. Some students with ASD have difficulty comprehending abstract concepts such as place value, and many have difficulty with organising information, comprehending the language in instructions or word problems, and remembering operations throughout an equation. These students require additional support, including adjustments to the teaching and learning activities that they experience during mathematics lessons. The respondent maintains that despite the fact that many of the skills beyond procedural fluency pose particular challenges for students with ASD, it would seem quite inappropriate to provide such students with an alternative curriculum that would leave aside the development of these skills. The respondent makes the argument that, since these skills are now recognised as being so critical for effective functioning in the modern world, all the more effort needs to be put into developing them in students who find them especially challenging (as indeed do all students to some extent).
4.18 The respondent submits that a key feature of the Project Maths initiative was closer alignment between the syllabuses, the teaching and learning, and the assessment. A reconceptualisation was required of mathematics itself, as well as teaching and learning in the field. A conception of mathematics as an interconnected body of ideas, and reasoning processes negotiated in collaborations between teachers and students and between students and their peers was the basis of Project Maths. This presented a challenge for all those involved in mathematics education. The respondent states that a comprehensive programme of professional development was initially provided for teachers to support them in providing appropriate learning experiences for the diverse range of students in their classrooms and further CPD programmes were subsequently provided to meet the identified needs of teachers. To this end, emphasis is now being placed on supporting teachers in adopting approaches which are reflective and focused on learning, assessing the extent to which learning has been achieved, and refining their teaching to reflect this. The respondent maintains that progress is being made and teachers themselves have developed a broader view of achievement and are now beginning to question whether the new examinations have moved far enough in realigning with the new forms of teaching and learning in their classrooms.
4.19 The respondent submits that in post-primary school, mathematics by its nature becomes more abstract and applied than at primary level, requiring students to use higher level thinking, reasoning, and problem-solving skills in order to apply these abstract notions to the real-world. This may pose particular difficulties for students with ASD, who often have difficulty with complex verbal reasoning skills. These difficulties may have minimal impact at primary level, where the emphasis in mathematics learning is often on the acquisition of basic routine mathematical procedures and developing procedural fluency though practice, and manifest much more robustly at more advanced levels, when procedural fluency needs to be combined with reasoning, inference, application, and interpretation in order to progress. The respondent asserts that some students with ASD may exhibit impaired visual spatial abilities. It states that this skill helps children in understanding relationships and recognising underlying concepts. The respondent contends that visual spatial capability is closely related to the problem solving and conceptual skills required for post-primary mathematics, therefore, the inability to perceive objects correctly can lead to difficulties in mathematical skill achievement as they progress from primary to post-primary school. The respondent submits that these difficulties arise from the nature of the mathematics being studied, rather than the mode of its representation as words or numbers. The respondent submits that while this presents challenges for students with ASD in developing the skills that have received additional emphasis in the revised syllabuses, it would nonetheless be a disservice to those students to ignore the importance of developing these skills to the greatest extent possible in all learners. The respondent asserts that these skills should not be regarded as an optional extra; they are core to the modern understanding of the discipline and are critical to the learner’s capacity to bring their mathematical learning to bear in the relevant contexts that will arise in their later lives.
4.20 The respondent states that the NCCA is embarking on a review of the Mathematics syllabuses in 2016 and will, inter alia, pay careful attention to how students with specific learning difficulties are coping with the new approaches in the classroom and the interventions that are being used to support these students’ learning. Organisations and advocates for students with ASD, as well as students themselves, will be consulted as the development group works on developing Classroom-Based Assessments and other opportunities for young people to display evidence of their learning. It is intended that such opportunities will broaden the view of achievement in mathematics beyond those skills that can be readily measured in a terminal written examination to embrace ones that sit more comfortably with the aims and objectives outlined in the mathematics courses. The respondent submits that the State provides supports for children with Special Educational Needs either through the Resource Teacher scheme managed by the National Council for Special Education or through the General Allocation Model of additional Teaching Supports provided to all primary schools and the scheme of learning support and high incidence support provided to post primary schools. These significant resources are intended to address the additional difficulties experienced by children with special educational needs. In addition, it is expected that teachers would employ a differentiated approach in teaching children with SEN recognising the individual learning capacities of each child. The respondent states that it is confident that, through the very significant supports provided, schools are well positioned to ensure that all children, including those with special educational needs, are assisted in accessing the curriculum. It is noted that the complainant’s son has been allocated additional learning support resources commensurate with his needs.
4.21 The respondent submits that no claim has been made out on behalf of the complainant in respect of establishing that the complainant’s son has been subject to less favourable treatment. In accordance with the Equal Status Act, as amended, the burden of proof rests on the complainant to prove sufficient facts to establish a prima facie case of discrimination (see in particular Stokes v. Christian Brothers High School Clonmel and the Equality Authority [2015] IESC 13). In the submission of the Department of Education and Skills section 4 does not constitute a separate prohibition that is distinct to that which arises under section 5(1) of the 2000 Act. Rather, it can be considered to be an elaboration of what is meant by discrimination on the disability ground. The respondent submits that in light of the failure of the complainant to identify the nature of the alleged discrimination suffered by reference to the Equal Status Act beyond identifying an alleged failure to provide reasonable accommodation, it is submitted that there has been a failure to establish a prima facie case of discrimination. The respondent states that while not made clear on the complaint form, it would appear from evidence given at the hearing of the complaint that the alleged failure to provide reasonable accommodation arises by reason of the use of certain language on the Project Maths examination paper and the failure to provide either a variant of the examination paper for students with ASD or to provide a person to carry out an interpretative function for the student during the examination. The respondent submits that there is no discrimination between students in respect of the content of the Project Maths examination and all students are treated in the same manner. It is of particular importance in this context that the integrity of the examination system be maintained and that students be properly assessed in respect of the target skills that form part of the examination, as already outlined in these submissions. The respondent maintains that to interfere with the testing of target skills would interfere with the integrity of the examination system. It submits that the reasonable accommodations contended for by the complainant would amount to such interference.
4.22 The respondent submits that there is no legal requirement to provide an alternative examination paper or to provide a person to give assistance with interpretation. It states that the claim by the complainant does not relate to access to examinations but rather relates to the content of the examination paper itself. The respondent submits that there is no principle in equality law, whether arising under the Equal Status Act, or otherwise, that requires particular content to be included or excluded from an examination paper. The respondent states that the accommodations sought are not reasonable accommodations within the meaning of section 4(1) of the Equal Status Act 2000 but rather seek an alternative form of examination for certain students. The respondent submits that the concepts of differing treatment and reasonable accommodation was considered by Hunt J in the Circuit Court decision in The Minister for Education and Science v. Marian Hollingsworth and Kim Cahill (Circuit Court, 19 October 2007), wherein the complainants sought to challenge the policy of the Department to make an annotation to the Leaving Certificate issued to those persons in receipt of reasonable accommodations. On the issue of reasonable accommodation, Hunt J stated:
“The concept of reasonableness in providing accommodation does not command the Minister to reach a standard of perfection, but rather leaves a measure of discretion or appreciation in deciding how these obligations are to be discharged. That measure of discretion or appreciation also has an echo in the language of the Education Act, 1998. I believe that reasonableness implies that whatever decision is reached by the Minister, it must be based on the application of reason to the evidence and information available to those charged with devising a reasonable scheme of accommodations. Such a decision must not be at variance with reason and common sense. It should not be based on irrelevant considerations nor should it be directed to an improper purpose.
4.23 That decision was appealed to the High Court and the decision of Hunt J was upheld by de Valera J in proceedings entitled Kim Cahill v. Minister for Education and Science (unreported, High Court, 11 June 2010). In the High Court, de Valera J expressed the following views in relation to the concept of reasonable accommodation:
“I have no doubt that the inclusion of the annotation on the plaintiff’s Leaving Certificate can be a difficulty for her but it is a necessary consequence of the accommodation she received. I am also of the view that the annotation was reasonable, particularly in light of the internationally recognised practice in this area. In reaching that conclusion, I have regard to the extensive case law relied upon by the appellant on the constitutional protection of equality rights. Nowhere in that case law is there any suggestion to the effect that equality rights must be absolutely guaranteed without limitation in the name of reasonableness even in cases where the requirements of reason and common sense require the taking of some action which may not be to the complete satisfaction of the person asserting them, in this matter the plaintiff. It appears to me to be a question of balance and that the contention advanced on the part of the appellant invites the Court to embrace an unreasonable definition of “reasonable accommodation” which tips the balance too far in favour of the appellant to the detriment of other parties with a legitimate interest in the fair and equitable administration of the Leaving Certificate examination.”
The respondent submits that the Department providing the reasonable accommodations sought by the complainant would be contrary to the concept as outlined by Hunt J and de Valera J. In particular, it states that the provision of the reasonable accommodations sought, namely a variant of the examination paper and/or the assistance of an interpreter, would be for an improper purpose as they would not be provided in order to assist access to the examination but rather would be provided to assist with the assessment of target skills, which would undermine the integrity of the examination system.
4.24 The respondent further submits that the provision of such reasonable accommodation would be detrimental to the interests of other students who have a legitimate interest in the fair and equitable administration of the Junior Certificate Project Maths examination. The respondent states that it should be noted that the factual scenario that arose in the Cahill case is different to that which arises in the within claim. Whereas in Cahill, it was contended that the provision of an annotation was discriminatory, no issue was raised with the actual accommodations sought. The respondent submits that in the instant case, the complainant makes the novel claim that her son is entitled to a particular type of examination paper or for specific assistance with elements of the examination paper that fall within the target skills that are the subject of the assessment. The respondent contends that no basis in law has been established to justify such provision being made. The respondent submits that it relies upon section 4(5) of the Equal Status Act, which states:
“This section is without prejudice to the provisions of sections 7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998 in so far as they relate to functions of the Minister of Education and Science, recognised schools and boards of management in regard to students with a disability.
Section 7(2)(a) of the Education Act, 1998, provides:
(2) Without prejudice to the generality of subsection (1), each of the following shall be a function of the Minister:
(a) to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students, including students who have a disability or who have other special educational needs, and their parents, as the Minister considers appropriate and in accordance with this Act…
Section 2 of the Education Act, 1998 defines “support services” to include assessment of students and conduct of examinations including the Junior Certificate. Therefore any obligation that arises by reason of section 4(1) of the Equal Status Act is expressly without prejudice to the function of the Minister to provide support services including assessment of students and examinations including the Junior Certificate to students including students with a disability as the Minister considers appropriate.
4.25 The respondent maintains that the Minister has considered it appropriate to establish the Project Maths curriculum. It states that in so doing, the Minister is acting in according with the functions conferred by Section 7(2)(a) of the Education Act, 1998 therefore the operation of section 4(1) of the Equal Status Act, 2000 must not prejudice the Minister in so acting. The respondent asserts that any finding that the Minister was required to provide certain supports to students or to operate examinations in a particular way by reason of section 4 of the ESA would operate to prejudice the manner in which those functions under section 7(2) of the 1998 Act are carried out and would therefore be contrary to the express words of section 4(5) of the ESA. The respondent submits that in the Circuit Court decision in Cahill, Hunt J expressed the view that section 4(5) “serves to exempt the Minister in relation to the exercise of her discretion in providing for students with a disability or other special educational needs from the operation of section 4(1) of the Act.” The respondent states that in light of the manner in which that case had developed, Hunt J went on to consider whether section 4(1) had been breached in that case and found that it had not been. The respondent submits that in the High Court, de Valera J made no specific reference to section 4(5) or its applicability. The respondent states that having regard to the accommodations sought in the instant case (namely an alternative examination paper and/or a person to provide interpretation of the examination paper) and the specific wording of section 4(5) of the Equal Status Act, it submits that any obligations that arise by virtue of section 4(1) of the ESA must not prejudice the operation of ministerial functions under section 7(2)(a) of the Education Act, 1998. The respondent contends that the accommodations sought by the complainant cannot properly be considered to be reasonable accommodations within the meaning of section 4(1) of the Equal Status Act and, further, may prejudice the Minister in the manner in which those functions are carried out under the Education Act. The respondent submits that in the circumstances, there is no legal basis for the claim made by the complainant to succeed.
4.26 The respondent maintains that the complainant’s son is not being discriminated against as regards educational provision. It states that as is the case for all other learners, he has access to a curriculum consisting of appropriate syllabuses in a wide range of subjects, including mathematics. The respondent submits that the needs of all learners, including those with special educational needs, were considered appropriately during the syllabus development process. The fact that different students, whether as a result of a disability or otherwise, have different capacities to develop the skills specified in the syllabus does not constitute discrimination against the students for whom such capacity is lower in relation to some of those skills. The respondent states that a syllabus that envisages and facilitates the development of those skills to the best of each student’s potential is still appropriate. The respondent submits that the complainant’s son has been provided with an appropriate range of learning supports to assist him in engaging with the curriculum and developing his skills and potential. The respondent contends that the complainant’s son is not being discriminated against with regard to access to the examinations service. It highlights that the purpose of the examination is to assess the extent to which each candidate has achieved the objectives (fulfilled the learning outcomes) of the syllabus concerned, in order to provide certification of the extent of this achievement. The resulting certificate constitutes state certification that the candidate has demonstrated the specified target skills to the specified common standard. The respondent states that reasonable accommodation in accessing this service involves providing all reasonable means for candidates with disabilities to overcome access barriers and thereby display those same target skills by alternative mechanisms. It contends that such arrangements cannot involve waiving substantial and core elements of the syllabus. The respondent submits that permitting this would undermine the integrity of the whole enterprise, as it would result in the state certifying that such candidates have demonstrated skills that they have not, in fact, demonstrated (or indeed acquired). It states that such false certification would present a serious threat to the integrity and reputation of the examinations system.
4.27 The respondent submits that the skills that the complainant has characterised as access skills are demonstrably not access skills but core target skills of the test domain. It contends that they are challenging for all candidates to acquire and demonstrate (although more so for students with ASD) and to waive the requirement to demonstrate them would therefore constitute an attack on the fundamental purpose of the examination. The respondent submits that the RACE scheme is designed and implemented with care and consideration to achieve its twin purposes of providing maximal access to the examinations while retaining their integrity. The respondent states that it is satisfied that this scheme fully meets all obligations with regard to provision of access to the service concerned. The respondent maintains that, while the complainant has argued that substantially greater levels of accessibility for all could be achieved with suitable adjustments to the SEC’s examination paper preparation procedures, it does not accept that this is the case. The respondent submits that it does not consider that such amendments to SEC procedures are warranted or appropriate and has supported this position with detailed analyses. The respondent submits that in the circumstances, there is no breach of section 4(1) of the Equal Status Acts. It further submits that the Minister must not be prejudiced in the manner in which he/she can carry out his/her functions under section 7 of the Education Act, 1998 by the application of section 4(1) by reason of section 4(5) of the Equal Status Act, 2000.
5. Conclusions of the Equality Officer
5.1 The Equality Officer/Adjudication Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her. 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. The matter referred for investigation relates to whether or not the complainant’s son was discriminated against on the disability ground contrary to the Equal Status Acts and if the respondent failed to provide the complainant’s son with reasonable accommodation in accordance with Section 4 of the Acts. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
5.2 The first issue I must examine is the preliminary point made by the respondent that the within proceedings have been brought against the incorrect respondent i.e. the Department of Education and Skills as opposed to the State Examinations Commission which is an independent body, established under statute with the capacity to be sued and sue in its own name. The respondent maintains that in light of the nature of the claim brought by the complainant, the Department of Education and Skills reserves its position in relation to whether the claim has been properly brought against it. However, I note from an examination of the ES 1 form that the complainant, who at that time was a lay litigant, named the Minister for Education but also named the Chief Advisor of the State Exams Commission in the form. I also note from the documentation on file that correspondence from the complainant prior to and subsequent to the lodgement of the claim was addressed to Chief Advisor of the State Exams Commission Therefore, I find that the complainant’s claim is properly before the Tribunal and I have jurisdiction to investigate the complaint.
In relation to the substantive nature of the complaint, the following sections of the Equal Status legislation are relevant. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
“on any of the grounds specified... (in this case the disability ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that:as between any two persons, the discriminatory grounds ...are ... that one is a person with a disability and the other either is not or is a person with a different disability,”
Under Section 2, ‘disability’ is defined as;
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.
Section 7 provides that: “In this section ‘‘educational establishment’’ means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.
(2) An educational establishment shall not discriminate in relation to—
(a) the admission or the terms or conditions of admission of a person as a student to the establishment,
(b) the access of a student to any course, facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student, or
(d) the expulsion of a student from the establishment or any other sanction against the student.”
Section 4 provides:—(1) “For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.”
5.3 I am satisfied that the complainant’s son has autism and therefore is a person with a disability within the meaning of section 2(1) of the Equal Status Acts. As the relevant ground in the present complaint is the disability ground, I must consider whether the complainant's son has been discriminated against because of his disability. Having carefully examined all the evidence, I consider that there is no prima facie case of direct discrimination on the disability ground as no evidence was demonstrated by the complainant to show that her son was treated less favourably on the grounds of his disability in relation to access to the revised syllabus Project Maths.
Indirect Discrimination
Given the evidence presented, I consider that I must examine the complaint in the context of indirect discrimination. This approach is consistent with the High Court judgement in Siobhan Long v The Labour Court, Mairead Blackhall, and Powers Supermarkets Ltd t/a Quinnsworth [1990] 58 Judicial Review, High Court, ex tempore, May 25, 1990. According to the Equal Status Acts, indirect discrimination occurs “where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The complainant claims that the new secondary level maths syllabuses “Project Maths” discriminates against her son who has a language comprehension difficulty due to having autism and that it will negatively affect his ability to perform in the Junior Certificate 2016 and Leaving Certificate 2019. In considering this issue, I am satisfied that the relevant comparator for the purpose of this element of the complaint is a student without a disability or a student with a different disability. I consider that the complainant has presented an arguable case of indirect discrimination in the context that (i) her son is covered by the discriminatory ground and (ii) the particular provision (Project Maths) puts her son at a particular disadvantage compared with other pupils.
5.4 As background to the complaint, I consider it is important to look at the genesis of the introduction of the new syllabus Project Maths relation to both Junior Certificate and Leaving Certificate examinations. In an examination of the documentation, it was stated that there were serious concerns at the low level of mathematical knowledge and skills shown by some students proceeding to further and higher education and their inability to cope with basic concepts and skill requirements in the mathematical aspects of their courses. University lecturers observed a lack of fluency in fundamental arithmetic and algebraic skills, gaps in basic knowledge in important areas such as trigonometry and complex numbers and an inability to use or apply mathematics except in the simplest or more practised way. It was also stated that the standard of maths was below par when contrasted with international and global standards. The respondent referenced reports by PISA which highlighted Ireland’s poor performance in the application of mathematical skills to real-world contexts and problem solving. It was submitted that one of the most significant changes under Project Maths was a move towards having greater emphasis on problem solving and on students being able to apply their mathematical knowledge and skills in a variety of contexts, both familiar and unfamiliar. The examination now has contextualised problems and scenarios which test whether the candidates are capable of extracting the relevant mathematical information from these situations, applying their knowledge and skills, and interpreting their results in the context in which the task was presented. The new syllabus has questions on the examination paper which involve significantly more text than was the case in the past.
5.5 I note that Project Maths was designed to encourage better understanding of mathematics and to reinforce its practical relevance to everyday life. I also note that a key objective was to improve attainment levels in Maths and to encourage more students to take the subject at higher level. I am satisfied that the main goal of the change was to emphasise understanding and the development of problem-solving skills rather than rote-learned and practiced routines which applied previously. The complainant emphasises that her son’s disability is language impairment and he does not have a learning disability. The complainant highlights the difficulties involved for her son in acquiring and demonstrating comprehension of English language that is opaque and trying to solve misleading “quasi-real world” problems that have been composed without support from experts in specific language impairment and business people to ensure the questions are in fact representing real world problems and measuring problem-solving skills related to the real world. There were comprehensive arguments put forward by both sides at the hearing and in the submissions in relation to what constitutes an access skill and what is a target skill. The complainant submitted that the fact her son has to decode and decipher the inordinate amount of opaque language as a result, he cannot access the question as to be able to do the mathematical side and therefore she states that English is an access skill not a task skill as asserted by the respondent. The respondent argued that a core part of the task is to deal with the contextualised problems and scenarios and involves the pupil extracting the relevant information, applying their knowledge and skills and interpreting their results. Having carefully examined all the testimony and written submissions at length, I find the arguments put forward by the respondent more compelling and what the complainant argues is an access skill is in fact a core element of the target skills being examined i.e. to test problem-solving skills rather than rote-learned and practiced routines that applied in former examination papers.
5.6 While the complainant’s son together with the majority of students find the examination papers more difficult due to the increase in the language used in the contextualised tasks, I note that the paper also consists of a blend of uncontextualised tasks which directly test pure mathematical concepts and basic skills. The complainant has stated that statistics regarding the incidence rate of ASD is not officially available in Ireland, however the UK rate is regarded as 1.1 % of the population which would be comparable to the rates in this country. In this regard, she made strong arguments on behalf of her son stating that the new syllabus Project Maths discriminates against a substantial cohort of students including her son on the basis of language impairment. Under indirect discrimination, where a respondent can demonstrate that the “provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”, it can rebut the inference of discrimination. In order to satisfy the first limb of the defence of objective justification, a service provider must show that the provision in question pursues a legitimate aim. I am satisfied having reviewed the evidence at length that the change to the Maths syllabus was a legitimate aim as outlined above at 5.4 and 5.5. The second limb of the test of objective justification is that the respondent must show that the provision was both an appropriate and necessary means of pursuing the legitimate aim. Having evaluated all the evidence, I consider that the respondent’s strategy in relation to the new syllabus namely Project Maths was both an appropriate and necessary means of pursuing the legitimate aim. Having carefully examined all the arguments, I find that there was no other way of applying the new system (Project Maths) to take account of students with ASD without compromising the core aims of Project Maths and the integrity of the examination process. I note from testimony at the hearing that at the time the respondent was initiating changes to the Maths syllabus, the NCCA published a discussion document and a wide public consultation process followed whereby 384 submissions were received but no submissions were received from Autism Ireland, Dyslexia Ireland or NAMBSE. Having carefully examined the totality of the documentary evidence and testimony taken, I find the arguments of the respondent more cogent and convincing. While I am sympathetic to the complainant’s cause and the issues she has raised on behalf of her son, I consider that the Department must take cognisance of best practice in the area and national and international standards to ensure Ireland maintains high standards and that the value of the qualification for the totality of students undertaking such examinations is maintained. Therefore, having evaluated all the evidence at length, while I find that the complainant has demonstrated a prima facie case of indirect discrimination on behalf of her son on grounds of disability, I am satisfied that the provision is objectively justified on the basis that it is a legitimate aim and the means of achieving the aim are appropriate and necessary.
Reasonable Accommodation
5.7 The next issue I must consider is reasonable accommodation. The current position regarding a pupil with autism or dyslexia who requests appropriate measures/reasonable accommodation is that there are a wide range of accommodations available including the use of a tape recorder, the use of a word processor, access to a reader, access to a scribe access to a separate examination centre and the granting of additional time to complete the exam paper. I note that the complainant’s son has access to a Special Needs Assistant during the course curriculum in his school and finds this service very good. In relation to the examination paper itself, the witnesses on behalf of the complainant had put forward two proposals aimed at resolving the issue in order to grant reasonable accommodation for the complainant’s son, namely (i) to provide an alternative examination paper (for pupils with ASD, autism etc.) or (ii) to provide a person to give assistance with interpretation.
In considering reasonable accommodation, I note that section 4 of the Act requires the respondent to do “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”. In this regard, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Deans v Dublin City Council, Judge Hunt considered the concept of reasonableness in the context Section 4 of the Act. Hunt J. stated: “ …reasonableness must be judged according to the context of the individual case…….. The City Council is entitled to bear in mind all the extensive and considerable social, legal and policy considerations …… and they are indeed relevant to the decision as to what is reasonable in the particular case…. The Housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities..... All that it is commanded to do by the equality legislation is to devise a “reasonable” solution to a problem, not to achieve perfection and not to give in to every demand that is made of it,”
5.8 I was also referred to the High Court Judgment of Cahill and the Minister for Education and Science [2010] IEHC 227. This was a case under the Equal Status Acts concerning the annotation of the Leaving Certificate for students who were given special accommodation to do their examination. Mr. Justice de Valera stated:
“Nowhere in that case law is there any suggestion to the effect that equality rights must be absolutely guaranteed without limitation in the name of reasonableness even in cases where the requirements of reason and common sense require the taking of some action which may not be to the complete satisfaction of the person asserting them, in this matter the plaintiff. It appears to me to be a question of balance and that the contention advanced on the part of the appellant invites the court to embrace an unreasonable definition of “reasonable accommodation” which tips the balance too far in favour of the appellant to the detriment of other parties with a legitimate interest in the fair and equitable administration of the Leaving Certificate examination.”
Having carefully examined the arguments from both sides on this issue and precedent case law, I find the arguments made by the respondent more compelling. I find that, by having a separate examination paper for pupils like the complainant’s son, this measure would severely compromise the integrity of the examination process. Regarding the second proposal, I consider it would be untenable to suggest that task interpreters provided across the country to all candidates with ASD could adequately deal with the difficulties that possibly could emerge on the day of the examination in such a way as to leave the integrity of all of the examination tasks intact.
5.9 While I am very sympathetic to the complainant and her son and the fact he loves maths and the difficulties he has experienced following the introduction of the new syllabus, I find the arguments of the respondent more convincing and I would highlight Justice De Valera’s reasoning in the above case; “It appears to me to be a question of balance and that the contention advanced on the part of the appellant invites the court to embrace an unreasonable definition of “reasonable accommodation” which tips the balance too far in favour of the appellant to the detriment of other parties with a legitimate interest in the fair and equitable administration of the Leaving Certificate examination.” Therefore, having evaluated all the evidence before me, I find that the respondent is already providing reasonable accommodation as highlighted above at 5.7. However, having said that, I do consider it would be worthwhile in the context of the Upcoming Review of Junior Cycle Mathematics for the respondent to have a specialist (in the area of language assessment for pupils with autism/ASD/dyslexia) providing their knowledge and expertise in relation to any proposed revisions to the Maths syllabus.
6. Decision
6.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision;
(i) the complainant’s son was not subjected to direct discrimination by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts,
(ii) while the complainant on behalf of her son demonstrated a prima facie case of indirect discrimination on grounds of disability, I find that the provision in question is objectively justified,
(iii) the complainant was not discriminated against by the respondent on grounds of disability pursuant to section 4 of the Equal Status Acts, in respect of a refusal or failure to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. Therefore, the complainant’s case fails.
____________________
Valerie Murtagh
Adjudication Officer/Equality Officer
9 June 2016