Charles (by her mother and next friend Cleopatra Charles) v Maria Jones (Permanent Secretary of the Ministry of Education) and the Minister of Education

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 25 April 2008
• Judgment citation (vLex): [2008] 4 JJC 2501
• Date: 25 April 2008
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO 2007 HCV 0351

BETWEEN

KRISTI CHARLES (By her mother and next friend Cleopatra Charles)

CLAIMANT

AND

MARIA JONES (Permanent Secretary of the Ministry of Education)

FIRST DEFENDANT

AND

THE MINISTER OF EDUCATION

SECOND DEFENDANT

Andre Earle and Anna Gracie instructed by Rattray Patterson and Rattray for the claimant

Nicole Foster Pusey and Stephany Orr instructed by the Director of State Proceedings for the first and second defendants

JUDICIAL REVIEW 舒 LEGITIMATE EXPECTATIONS 舒 FAIR HEARING 舒 MANDAMUS 舒 CERTIORARI 舒 UNREASONABLENESS 舒 PRECEDENT FACT 舒 DAMAGES IN ADMINISTRATIVE LAW 舒 EDUCATION ACT 1965 舒 EDUCATION REGULATION 1980 舒 EXAMINATION CHEATING 舒 EXERCISE OF DISCRETION

JUDICIAL REVIEW - Examination cheating - Exercise of discretion

SYKES J

1 . This is an amended application for administrative orders of mandamus and certiorari. Miss Kristi Charles (Kristi), by an amended fixed date claim form, wishes an order of mandamus requiring Maria Jones and/or the Minister of Education to advise Scotiabank Jamaica Foundation (the Foundation) that she received the highest marks for girls in the Grade Six Achievement Test (GSAT) held in March 2007. She is also asking for an order of certiorari quashing the decision of Maria Jones and/or the Minister of Education not to award her a scholarship. Finally she is seeking an order of certiorari to quash the decision of Maria Jones and/or the Minister of Education to advise the Scotiabank Jamaica Foundation that someone other than her received the highest results for girls in 2007 GSAT examination. Kristi, at the time she sat the GSAT, was a student at Saints Peter and Paul Preparatory, reputed to be a leading private school providing primary education.

2 . This application for judicial review arose because the Ministry of Education (MoE) concluded that Kristi was the beneficiary of examination fraud albeit that she, according to the MoE, was an unwitting and innocent party. The MoE confirmed her GSAT grades but declined to consider her eligible for any scholarships awarded by the Government of Jamaica. Her name was not sent to the Foundation where she might have received the Foundation's scholarship for the best performing female student.

The GSAT

3 . The GSAT is administered by the MoE. It is an examination that is used to place students from the primary education system into publicly funded or supported secondary schools. The examination was introduced in 1999 and replaced the then Common Entrance Examination which was an examination designed to ensure that only the best performing candidates entered what could be called traditional high or grammar schools. These grammar schools were perceived, rightly or wrongly, as offering a better quality of education and so, understandably, the competition to enter these schools was fierce and intense.

4 . It was felt that reform was needed. Part of this reform included the introduction of the GSAT. Another part of the reform was that all secondary schools (grammar, comprehensive, and schools known as new secondary schools) were to be regarded as high schools. There was no more distinction between grammar schools and other schools at the secondary level. A further plank of the reform was that all children from the primary education system would be placed in a high school. The students were placed, according to their performance in the GSAT and the availability of space, at the school chosen by the candidate. Thus the best ranked students went to the more sought after secondary schools.

5 . It appears that the underlying philosophy of the MoE is that all children are to receive secondary education and if all schools are high schools then all children are supposed to receive, ostensibly, the same quality of education. So much for the theory. The reality is that some schools are perceived to be more desirable than others. To misquote George Orwell, in the eyes of the MoE all secondary schools are equal but in the eyes of parents some are more equal than others. Schools such as Campion College (the school of Kristi's choice where she was eventually placed) are thought of as among the-more-equal-than-others schools. Thus even though the MoE does not publish a league table of schools, parents have developed their own. Therefore, the competition to enter these sought after schools is perhaps just as fierce and intense as under the Common Entrance Examination selection system.

6 . The GSAT is held over two days. The candidates are examined in five subject areas: mathematics, language arts, social studies, science and communication task.

7 . In this case, no issue has arisen regarding whether the MoE has the power to investigate any alleged examination fraud and to take appropriate action in light of the facts uncovered during any investigation that may take place. It is common ground that the Minister of Education acting under the 1980 Education Regulations made under the Education Act has the power to develop and administer the GSAT examination. What Kristi is saying is that the MoE did not have enough evidence to warrant the conclusion that she was the beneficiary of prior exposure to the examination papers. She is also saying that the MoE acted in breach of natural justice by not informing her that it had decided that she benefited from prior exposure and had decided not to consider her eligible for any scholarships awarded by the Government. She also contends that the decision to prevent her from being considered by private scholarship donors such as the Foundation amounted to the imposition of a penalty without a hearing.

8 . It is agreed that the MoE may enter into arrangements with private individuals (real or corporate) for the award of scholarships to suitable candidates. The Foundation is one such private entity. It awards two scholarships each year: one each to the top performing male and female candidate in the GSAT. Whereas the MoE has other criteria for awarding the scholarships administered by the Government of Jamaica, the Foundation has a pure objective system - top marks.

9 . Over time, the Foundation's scholarships have grown in prestige. This application proves the importance that some parents attach to them. The Foundation also benefits; it receives favourable publicity and its image is enhanced. The scholarship winners are immortalized in photograph and prose by the leading daily newspapers. The proud teachers are photographed beside the beaming students. Ecstatic parents are interviewed and of course the more of these scholarships any particular school can secure the greater its visibility in the education kingdom. All round then, it is good for all: the Foundation, the scholarship winner, the parent, the teacher and the school which produced the recipient.

The candidate and her mother

10 . Kristi prepared for these examinations with a rigour and intensity not commonly seen. Since grade four she began attending extra lesson classes. In grade five she enrolled at the GSAT Centre operated by Mrs. Stephanie Corcho. This was for mathematics. One Miss Percy tutored Kristi in communication task. A Mr. Speed tutored her in science and social science. Apparently no extra lessons were needed for language arts.

11 . When Kristi entered grade six, her mother was of the view that the preparation should be stepped up. For the Christmas term in grade six, Kristi attended the GSAT Centre, Mondays, Tuesdays and Sundays. Then she went to Mr. Speed on Wednesdays, Thursdays and Fridays. Miss Percy had Kristi on Saturdays. During the Christmas break Kristi attended the GSAT Centre every day except public holidays.

12 . In addition to this, Mrs. Charles took time off from work in the month preceding the GSAT examinations which were held on March 29 and 30, 2007 to reinforce what was taught to Kristi by her numerous teachers.

13 . Kristi was an honour roll student for the academic year 2005/06 at Saints Peter and Paul. To be an honour student, Kristi had to have a minimum of 95% average in all subject areas.

14 . In the internal GSAT mocks set by Saints Peter and Paul it is undisputed that Kristi scored the following: mathematics 99%; language arts 98%; social studies 99%, science 100% and communication task 94%. These grades were certified to be true by Mr. Anthony Ashley who was Kristi's class teacher and not challenged by the defendants.

15 . With all this preparation one should not be surprised to read in Mrs. Charles' affidavit of December 19, 2007, at paragraph 11: "Based on our regimen, I was confident that Kristi would not only excel in the GSAT examinations but be the recipient of a Scholarship (sic)."

16 . Mrs. Charles' confidence in her daughter's abilities was well placed. In the GSAT, Kristi scored the following: mathematics 100%; language arts 98%; social studies 99%; science 98% and communication task 12/12.

17 . In summarizing Kristi's academic profile, it is clear that before the examination she was a high performer. Her performance on the GSAT was very very consistent with her profile leading up to the examination. Even in the post examination season she did not falter. Her end of year examinations produced these results: mathematics 97%; language arts 96%; social studies 94.5%; science 94%. There was no examination for communication task. Her summer term average in grade six for the various subjects were as follows: English language 91%; reading comprehension 90%; spelling 99%; communication task 86%; mathematics 93%, social studies 94% and science 94%. Her term average was 92.428% and her examination average was 95.37%.

18 . Kristi's...