UK gov's "unfair" A-Level algorithm faces several legal challenges

Students, law firms and politicians are challenging the exams' algorithm on several fronts, including potential GDPR violations

At least three legal challenges are expected to be made against the UK government and its exams regulator Ofqual regarding the use of an algorithm to determine this summer’s A-Level and GCSE results.

Fury over the government’s handling of A-Level results has continued to mount after students received their grades on Thursday, especially with regards to the reliance on a standardisation algorithm that ended up downgrading approximately 40% of results. 

Following fundraising efforts and a petition signed by approximately 250,000 people, students Curtis Parfitt-Ford and Martha Dark have written to the regulator with the intent to seek a judicial review against the use of the algorithm. 

Backed by the legal campaigning group Foxglove, which has described the algorithm as “unfair and unlawful”, and law firm Leigh Day, the challenge argues that the use of the algorithm violates GDPR by profiling individuals based on personal information.

Profiling would be based either wholly or partly on automated decision making, which may lead to discrimination and socioeconomic disadvantage, according to the data protection laws. 

The challenge is also being made on the grounds that the algorithm goes against Ofqual’s objectives, that its decisions were irrational, and that it unlawfully discriminates based on the Equalities Act 2010.

The statistical model has determined students’ A-Level results based on historical performance data their schools over the last three years. Some weighting has been afforded to predicted grades determined by teachers, but only to classes of under 15. 

As a result, approximately 40% of students receiving results that were one or two grades lower than their centre-assessed grades, according to a letter drafted by Leigh Day. This is said to have favoured students who attended independent fee-paying schools, given class sizes tend to be smaller.

There are fears the government may encounter a similar fiasco this week with GCSE results, which are also set to be determined by Ofqual’s algorithm unless a major policy u-turn is announced. Significantly, Northern Ireland’s administration announced today that it would abandon the algorithm for GCSE grades, and instead rely on teacher predictions, according to BBC News.

The appeals system will also be subject to a separate legal challenge from the director of the Good Law Project, Jo Maugham QC, who will focus on the unfairness of the system and the limited and flawed appeals process. 

This system has come under fire because individual students aren’t allowed to appeal their personal grades, rather, schools and colleges must appeal in bulk, and only in extenuating circumstances. These criteria include administrative errors, where there is proof that grades are much lower than historical results, and where students have attained a mock result higher than the grade projected by the model.

The Equality and Human Rights Commission has also announced that it had concerns about the potential negative effect of the use of the algorithm on ethnic minority and disabled children, as well as those from deprived backgrounds. 

A third challenge may also come from the Greater Manchester Mayor Andy Burnham, who warned today that he will be taking legal advice, and will write to Ofqual later today to initiate action.

IT Pro approached the mayor’s office for a statement and was advised to wait until later today for an update.

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