Allow the most able to shine

Are tricky examination questions illegal? Phil Race and James Tooley debate

As higher education is increasingly for the masses, experts argue it must evolve to accommodate the new intake. Changes must be made to curriculum, pedagogy and especially to examinations, where every question should be simple so that everyone can answer everything. There are even vague threats that not doing so could lead to litigation under the Special Educational Needs and Disability Act. But isn't something central to the endeavour at risk if we have to censor examinations in the light of such legislation?

The 2001 Act makes it unlawful for universities to treat disabled students "less favourably". "Disability" is defined widely to include those with unspecified learning difficulties, and "less favourable treatment", the Disability Rights Commission's code of practice makes clear, could arise in the conduct of examinations and assessments.J While the Act specifies that a university might be justified in giving less favourable treatment in order to maintain "academic standards", nowhere in the code of practice could I find reassurance that this would rule out an individual suing because examination questions were "too clever" for him or her to answer. True, it argues that a university might be behaving lawfully if it did not admit such a student in the first place. Once admitted, though, there might be every reason to complain, and to sue, if the student deemed the examinations treated him less favourably than those with a, shall we say, deeper understanding of the subject.

But extending access to higher education is about extending access to "the most precious pearl of knowledge", as Pope Alexander IV said in granting a bull for Aberdeen University. Simplifying examination questions is insulting to precisely those students who have been given extended access.

Universities should be places that initiate people into the intellectual disciplines, part of whose core is intellectual challenge.

Of course, any sensible academic setting exam questions will want to cater for all students. Some simple questions will test basic knowledge of concepts and skills that everyone potentially can answer - indeed, such answers can be learnt by cramming. But academics also want to know how far students have gone in deep understanding of the subject. Not everyone will be able to see the subtleties of the question, for not everyone will have a deep understanding of the subject. There is nothing wrong - indeed, everything right - with higher education examinations if they discriminate in the positive sense of the word between those with deeper and lesser understanding.

An analogy with football might be worth making. Wanting to keep examination questions simple is like arguing that all free kicks must be taken at an open goal, without impediments to scoring such as skilled players in the way. This would totally preclude the possibility of discovering the genius of someone who could bend it like Beckham. We want to discover the analogous genius in intellectual life too. Let's hope that this legislation will never serve to mitigate that.

James Tooley is professor of education policy at Newcastle University.