Attorney-at-law Roger Archibald, who is registered to practise in New York, United States, has lost his legal battle in the Supreme Court to get an order to compel the Council of Legal Education to change his final failing grade at the Norman Manley Law School.

Archibald said he wished to extend his practice to the Commonwealth Caribbean so he registered as a student at the law school and pursued the six-month course. He was given a failing grade at the end of his course.

assured a pass

He appealed to the council, requesting that his final grade be changed to a passing mark on the basis that although he received failing grade D on the first two assignments, he received an A on the last of the three assignments. He claimed that a senior tutor assured him before he submitted the last assignment that if he got an A for that assignment, he would have passed the course.

However, the council refused his request to change the grade on the premise that the final grade awarded was not unreasonable and was consistent with the standard used for many years to assess the performance of students of the law school.

Archibald, who was represented by attorneys-at-law David Batts and Teri-Ann Brown, took the issue to the Supreme Court seeking several determinations, one of which was "whether the conclusion that two Ds and an A amount to a failing grade is unreasonable, wrong in law and contrary to established academic practice". The court was also asked to determine whether Archibald held a legitimate expectation based on the assertion of the senior tutor.

computation sheet

The council, which was represented by Michael Hylton, QC, and attorney-at-law Kevin Powell, produced affidavits explaining that all tutors marking examinations and assignments were to use a final-grade computation sheet issued by the council.

Justice Patrick Brooks, in refusing Archibald's application, said the grade computation sheet "sets out a computation formulated on the variables in four grades (A-D) with five questions or with three assignments". The judge said that an examination of the sheet concerning three assignments made it clear that any student who was awarded two or more Ds in such a course would be awarded a final grade of D.

"I find there was no discrimination against Mr Archibald in the award to him of a final grade of D for his attempt at the Criminal Practice and Procedure course. The grading standard, on the evidence, has been used for the 35 years of the existence of the law school.

"It is not a manifestly unfair system. Indeed, it could be said, with justification, that if a student had failed two out of three assignments, he ought to be deemed to have failed the course, despite the fact that the third grade was an A," the judge said.

The judge ruled that the senior tutor had no authority to give an assurance that there would be a deviation from the principles set out in the final-grade computation sheet. It was argued that Archibald was entitled to be offered the opportunity to write a supplementary assignment, but the judge said the regulations for the Legal Education Certificate, which allow students to do supplementary assignments, did not apply to the professionally trained student. The judge said, however, that Archibald did not apply to the court to be allowed to do a supplementary examination, but rather sought to have his grade altered.

barbara.gayle@gleanerjm.com