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Ask the jury

Having failed to convince Gillian Shephard of the error of her league table ways, the National Association of Headteachers is now appealing to governing bodies to act as juries in the court of public opinion to block the publication of schools' key stage 2 test results. The news that the goal posts for the benchmark level 4 boundary have not yet been fixed (page l) may prove to be the crucial element in the NAHT's case that the tests have not yet "bedded down".

School performance is to be compared in the tables on the percentage of pupils reaching level 4 in English, maths and science. And yet the levels of achievement these represent have yet to be set, giving little grounds for confidence that they provide an objective or clearly established standard that is fair, open and beyond political interference.

The headteachers do not dispute that governing bodies have a duty to pass on these results. Nevertheless, governors in up to 14,000 schools are likely to be asked by their heads to decide whether, given the uncertainty over the standards represented by the tests, they will refuse to do so this summer. They will be asked instead to exert their de facto powers of possession of these results to obstruct publication. Heads could, of course, bring about the same result unilaterally by declining to hand over the disputed data themselves. But the NAHT advises its members against this since it would not only breach statutory obligations, but also put their jobs on the line by breaking contractual ones.

Governors, the NAHT's David Hart argues, have no jobs to lose, are unlikely to be sued and in many cases are anyway approaching the end of their period of office. Faced with such an importunate request, governors are likely to ask two kinds of question: practical and principled. Can they block transmission of the results to the relevant government agency? And if they can, should they so flaunt the rule of law? This may prove to be a short, hot summer for many governing bodies. Their decision has to be made before the end of term.

Since the tests are marked externally, theoretically it must be possible for the Government to collect results without the cooperation of schools. In fact it was relying upon heads to do much of the clerical work necessary to convert marks into levels and to reconcile test and teacher assessments. The Department for Education and Employment was remarkably reluctant to say this week whether it could or would proceed with the tables regardless of a governors' revolt. No doubt it is anxious to avoid provoking the people who seemed to side so readily with the teachers in their tests boycott, against John Patten's counterblasts. But such reticence may also encourage doubts that the Government is able at this late stage to change its plans and still publish performance tables next spring without schools' assistance.

League tables based on unchecked test results and without teacher assessments might seem a bit of an own-goal for the heads. But if tables are to be rammed through willy-nilly, their public rejection by governors on any scale would blight the tables with an aura of public opprobrium, particularly since the Government has invested so much in governing bodies. It would certainly fall short of the ringing endorsement for primary league tables the Government was clearly hoping for in the run-up to the election.

Even if governors are able to block the tables, whether they should or not poses a dilemma. Governors tend to take seriously their obligation to act in "good faith" and in the interests of their school. They worry about the example breaking the law would set, though most crossed that Rubicon when they failed to ensure the tests were sat during the teachers' boycott. But there is a difference between then and now.

Then they were effectively presented with a fait accompli. To pursue what many saw as dubious tests in the teeth of widespread opposition required governors to instigate disciplinary action against those they regard as colleagues. That would not just have been unpalatable. It would also have involved legal and technical expertise beyond most governing bodies and few local authorities urged such a path.

Now, however, they are being asked to take action on their own account; to decide between conflicting demands rather than to acquiesce in the face of force majeure.

This time the governors will have to determine the best interests of parents and pupils. On the one hand there is their legal obligation, parents' right and wish to know and the benefits of improved performance attributed in some secondary schools to the spur of league tables.

On the other side are doubts about the reliability and readiness of the tests, the unfairness of raw results, the party-political motives ascribed to Gillian Shephard's sudden U-turn on publication and new concerns that, since the mark boundary for the crucial level 4 performance indicator has yet to be fixed, that too is susceptible to political influence.

Well-briefed headteachers will be appearing at these hearings for the prosecution; local authorities and governor associations are bound to advise governors of their duty. It remains to be seen what defence, if any, Gillian Shephard can mount for her league tables with so little time left. The jury is out.

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