So the judgement is out. You can read the whole thing here
On a quick read a few things strike me about it.
First is the suggestion (para 114) that “even if performance standards have improved, Ofqual was entitled to give priority to the comparable outcome approach.” My translation of that is Ofsted can down grade student outcomes to prevent even the whiff of grade inflation, even when it is not grade inflation.
Secondly, there is (IMHO) a circular argument about how improvement can be shown. Para 78 is clear that the setting of grade boundaries using statistical models based on KS2 outcomes is fine and there ” may be a departure from that where there is a good explanation why the standard may have improved, but not otherwise.” The rest of the argument seems to suggest that the only acceptable way that such improvement could be should is if attainment is shown to increase, which according to the previous sentence, cannot occur. One improvement to come out of this will need to be a very clear statement by OFQUAL on what it would consider to be a “good explanation”. Without such a statement we are all labouring in the dark.
The other over-riding point is covered from para 71 onwards, where it is fairly clear that the sequence of events was that Edexcel first of all had confidence in their initial contention that the marking was fair and that the January grade boundaries should apply. This was then questioned by OFQUAL who were concerned to impose comparable outcomes.
The final thing of course is that the judgement goes into great detail about the meaning of “fairness” and “conspicuous unfairness”. The legal meaning, as derived from case history is perhaps a little different from that understood in common usage. This isn’t criticism or complaint, just an observation. The judgement holds that the way the awarding bodies and OFQUAL dealt with this issue wasn’t unfair or conspicuously unfair. That was the legal bar that was set.
Whether there was unfairness to individual students is a different matter, which the judgement does accept. It does this explicitly in para 124 where it states;
In my judgment, maintaining the currency of the qualification was a powerful and legitimate justification, in the public interest, even though that involved accepting as a necessary, albeit highly undesirable, consequence that the June students were to some extent subject to tougher assessments than their January (and indeed earlier) counterparts.
To me, as a layman, that’s unfair.