The High Court has dismissed a judicial review challenge to the marking scheme for Leaving Certificate Mandarin Chinese, finding no requirement for the scheme to be made by ministerial regulations and no discrimination against a student whose heritage is associated with traditional Chinese characters.
The judgment was delivered by Mr Justice Garrett Simons on 29 May 2024. The principal applicant, identified as B., is a 17-year-old student represented in the proceedings by his mother as litigation friend. The judgment says he was born in Taiwan, is an Irish citizen and speaks Mandarin at home. His mother was also named as an applicant in her own right, but no specific relief relating to her circumstances was sought.
The student was due to sit the examination in June 2025 after beginning a two-year, 180-hour course in 2023/24. The scheme does not necessarily treat traditional characters as incorrect, but the court said the top band in the written component favours very few or no character substitutions, including traditional characters. Written Mandarin answers account for 15 to 20 per cent of the examination marks.
At the hearing, the student’s claim had narrowed to whether answers written in traditional characters should receive the normal marks. He was not challenging the decision to focus the course syllabus on simplified characters or seeking separate examination papers. The court held that the statutory curriculum provisions did not require the marking scheme to be made by regulations: responsibility for the scheme rests with the State Examinations Commission, and the statutory concept of a syllabus does not include an examination marking scheme.
The court also rejected the argument that the Education Act’s objective of promoting students’ language and cultural needs created an enforceable right to a particular examination or marking scheme. It found that candidates sit the same examination under the same syllabus and marking scheme, and that the proposed comparator groups were not appropriate. The student therefore had not established discrimination under the Constitution or the European Convention on Human Rights.
The judge said, in the alternative, that any difference in treatment would be justified by the course’s introductory level, the practical challenges of recruiting examiners proficient in both scripts, and the estimated €985,000 cost of changing the scheme.
The judicial review was dismissed in its entirety. The judgment did not make a final costs order: the respondents’ costs entitlement was identified as the default position, but any order would be stayed pending appeal. The parties were invited to file submissions on costs by 10 June 2024, and the matter was listed for final orders on 14 June 2024.