Could GDPR be basis for challenging a-level results scandal?

Students challenging their A-level results could use a provision in the General Data Protection Regulation (GDPR) to argue the Government’s marking system was unlawful.

Many A-level students, who were unable to sit their exams this year due to the coronavirus outbreak, feel their results were unjustly downgraded by an automatic system which uses an algorithm which profiles students, taking into account their geographical location and their school’s historic grades.

Specialist technology lawyer, Susan Hall from national law firm Clarke Willmott LLP, believes this flawed system could have GDPR ramifications.

“With reports coming out that almost 40% of A-level results awarded on Thursday were lower than teachers’ predictions it is expected that many students will be wanting to challenge their low grades, and rightly so,” said Susan.

“Effectively, what has been done is that students have been profiled depending on the school they go to and that profiling has led to an automatic decision which has had a profound effect on their future.

“This seemingly brings into play Article 22 of the GDPR which covers automated decision making, including profiling, which affects individuals.

“The law states that ‘the data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.’

“That is exactly what has been done to these kids and while private schools have, on average, seen their students attain higher results than before it is disadvantaged students who will feel the impact the most. The worst affected are the high achieving students in low achieving schools. The fear that AI systems tend to encode pre-existing biases was what produced the need for Article 22, and confirmation bias seems to be happening here.”

Heartbreaking stories have emerged from disappointed students and calls have been made to follow Scotland’s U-turn and instead use teacher assessments to grade pupils.

A total of 35.6% of marks were brought down by one grade, 3.3% were adjusted down by two grades, and 0.2% came down by a remarkable three grades.

Susan continued: “It is unacceptable that some students have received results up to three grades lower than expected and some have missed out on the chance to go to their chosen university as a result.

“For young people who have already missed out on so much this Summer, it is devastating and needs to be addressed.

“People challenging their grades in the days and weeks to come could and should use Article 22 of the GDPR as a tool in their armoury.”

Susan Hall is a Partner and Head of Technology at Clarke Willmott LLP, specialising in intellectual property, data protection and information and communication technology.

Clarke Willmott is a national firm with offices in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton.

For more information visit www.clarkewillmott.com