Educators as Judges: Applying Judicial Decision-Making Principles to High-Stakes Education Assessment Decisions

Figures & data

Table 1. The architecture of an argument in law and assessment.

	Judiciary	Assessment
Facts	Provided by eyewitnesses, forensic evidence	Provided by assessors’ reports
Rules	Laws, regulations	Standards, policy
Decisions/outcome	Innocence or guilt	Progression or interruption to study

Table 2. Differences in discipline specific terms.

Term	Law perspective	Educational assessment perspective
Objective/subjective	Objective refers to what a “reasonable person” might do or to broad standards that are widely accepted. Subjective refers to actions that are idiosyncratic, apply only in a particular case, unique, peculiar to that person.	Objective was previously synonymous with reliable and valid; subjective with unreliable. Current understandings posit that reliability and validity are better determined by collective judgements based on a range of evidence, rather than over-standardisation of procedures and reliance on a few, or one, assessment tool.
Argument	Is a neutral proposition presenting a particular reasoning or framing of the issue to inform the decision-maker	In lay terms, can be interpreted as meaning confrontational, hostile or critical.
Case	Conceptualised as the theory or set of arguments explaining how the relevant evidence and law combine to produce a particular outcome or position.	Can be interpreted as depersonalized and dehumanizing, for example an anonymous patient case. Alternatively as a legal challenge or courtroom case.
Appeal	Can be seen as part of due process and a procedural safeguard against legal error and arbitrary or unreasonable decision-making.	Can be seen as implying wrongdoing or error and thus induce defensiveness.

Table 3. Principles for robust decision-making in assessment and progression.

Principle 1 The person whose interests are affected has a right to know the case against them, and for their perspective to be heard by an impartial decision-maker. Principle 2 Reasons for the decision should be given, including why one perspective is preferred over another. Principle 3 Rules should be transparent, consistently applied and cannot be changed retrospectively. Principle 4 Like cases should be treated alike and unlike cases treated differently from each other.

Table 4. Comparison of judicial and assessment components for a fair process.

	Necessary components for a fair judicial process^7	Necessary components for a fair assessment process^14
Facts	Fact finding from both sides Corroboration of evidence. Credibility of witnesses. Fallibility of witnesses. Deliberate seeking of necessary facts	Credibility or “truthfulness” of the findings Multiple assessors Multiple opportunities Fitness for purpose or making judgements on observations that are deemed to be relevant to the work of a health care professional
Rules	Transparency regarding which rules are applicable	Transparency
Decisions/outcome	Transparent consideration and documentation of the reasons Explanation of how conflicting evidence was resolved. Exclusion of irrelevant evidence	Transparency Documentation Defensibility or a judgment made with good reason Validity evidence for judgements

Dillon H. Judicial technique: giving proper and sufficient reasons for decision. Judicial Rev. 2008;8:107–114.

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Valentine N, Durning S, Shanahan EM, Schuwirth L. Fairness in human judgement in assessment: a hermeneutic literature review and conceptual framework. Adv Health Sci Educ Theory Pract. 2021;26(2):713–738. doi:10.1007/s10459-020-10002-1.

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