Discuss whether the law goes sufficiently far in attempting to provide guarantees of equal access to education for all.

        I will now be addressing the criticisms of the respective anti-discrimination legislation in different sub-sections.

Sex Discrimination Act 1975

This Act was a big change to women because it marked a departure from the gender ideology that lingered until the mid 20th century (see Jex Blake v Senatus of the University of Edinburgh). However, despite all the positive change the Act brought, there still appears to be some criticism in arguing that it doesn’t go sufficiently far in attempting to provide guarantees for equal access to education for the underrepresented sex.

The aim of the SDA within education was to abolish a “hidden curriculum of differentiation”  by making it unlawful for anyone to be excluded from studying any subject because of their gender. However, evidence suggests the SDA only offers equal access (the ability to choose any subject) rather than equal entitlement (the ability to make such choices without prejudice from any source). In my opinion, the failure to centralise decisions relating to the curriculum, which results in gender division and the undermining of girls’ rights to opt for subjects such as Economics and Science, is an inherent flaw of the SDA. Milma and de Gama elaborate further in their article, that “equal access policies have paved the way for examination success for girls, but have had limited impact on curricular choice for girls”.

A curriculum should correspondingly reflect the fact that girls are beginning to do better than boys in public examinations and should aim to promote the position of women in subjects they are not as likely to participate in, like Physics or Information Technology. It is clear that there needs to be a change to ensure that girls are no longer victims of curricular assumptions as it can lead to their decline, because of the unconscious discrimination as to their capabilities in a subject that is more commonly male dominated. Personally, the fact that the curricula comes across to be more male biased and asymmetrical seems to act as a barrier to the notion of equal access to education for all (rather than remove it).

Race Relations Act 1976

        Lord Swann in his report admitted that racial prejudice and discrimination add an extra dimension of deprivation to the prospects of those already adversely affected by poor socio-economic status. This just reinstates the fact that the law should try and remedy this inequality. However, nothing is without its flaws and the arguments that follow will aim to show the weaknesses of the RRA 1976. Despite the surprising lack of cases on race discrimination, there are still a number of criticisms of the Act.

The case of Mandla v Dowell Lee is the leading case on what is meant by “ethnic origins” for the purpose of RRA 1976. The House of Lords were faced with the question of whether or not Sikhs constituted a distinct racial group (and therefore could be protected the RRA). The Lords overturned the Court of Appeal judgement and found in favour of the Commission for Racial Equality who were claiming that the headmaster was unlawfully discriminating against the prospective pupil by making it a condition for his admission, that he remove his turban and cut his hair in line with the uniform regulation of the school. It has been argued that the RRA was passed at a time where “race discrimination was regarded as a significant social problem, but discrimination associated with religious identity or affiliation had received little attention in Britain”. Despite Mandla extending its protection to ethnic groups, it can be disputed that it does not go sufficiently far to cover “world religions” such as Islam.

I believe this to be another weakness in the Act, especially post 9/11 where Muslims are more susceptible to abuse and discrimination. The RRA doesn’t go sufficiently far enough to ensure that they are are able to rely on the direct discrimination provisions of the RRA (s.1(1)(a)). Hypothetically, if a Muslim girl was being discriminated in the process of her admission on the basis of her religion, she would not be able to rely on the protection of RRA – unless she can show that she is of a race that is covered by the Act (e.g. Bangladeshi). This is evidence that the law doesn’t go far enough in this sense to guarantee an equal access to education for the girl. However, there has since been reform on the matter through the implementation of Part 2 of the Equality Act 2006 - although the effect of this new piece of legislation has yet to be seen. It should also be noted that the case of Malik v Bertam Personell Group seems to suggest that Muslims may be able to get protection by proving indirect discrimination.

The RRA is especially complex and inconsistent. Section 1(1)(a) states that in order to find discrimination, there needs to be less favourable treatment compared to another person. Realistically, finding a comparator that would be treated better in the circumstance is difficult. The case of Pearce v Governing Body of Mayfield Secondary School is a clear example of this. Even where explicit racial hostility is alleged, and a claim is brought under the act, the requirement for a comparator is still there. It is clear to me, that this seems to go against what the RRA is supposed to stand for, i.e. provide guarantees for equal access to education. One has to ask, how can guarantees be provided when there are unrealistic barriers such as this to overcome? It has also been argued that the definition of “race” in British law is “defined as it would be by a racist on the street”.

Disability Discrimination Act 1995

        In spite of its noble aim of outlawing discrimination against a disabled person, the DDA has been faced with a myriad of criticisms saying it does not go far enough to represent the needs of the disabled. Harris has argued that the Act has led to “serious limitations in terms of the conditionality of the rights conferred” and thus leading to the lack of a non-discrimination duty laid upon students themselves.

The Act causes uncertainty because it states that only reasonable steps are needed to be taken to remove the disadvantage faced by the disabled pupil. It leads to the tricky question of defining what is “reasonable”. Case laws have not been helpful either in extending this definition very far. It was decided in K v SENDIST and Governing Body of Slough Grammar School that schools are under no obligation to provide auxiliary aids and services. In addition, if a school could show that the additional support for the pupil was unreasonable on the grounds of cost, they could rely on the protection of the proviso of the Act.

It has been put forth that the DDA 1995 may not be able to “counter-act any pre-existing educational disadvantage”, particularly due to s. 28(6) and 28S(5) and (6). These sections state the proviso, that less favourable treatment can be justified if it is necessary in order to maintain academic standards, or standards of any prescribed kind. One could argue that institutions could use this loop-hole in the law to unfairly discriminate against an individual if it can proportionately show that the only reason admission was denied to the disabled pupil was because it wanted to maintain their high academic standards. I think that this goes against what the Act stands for – and in essence, limits the protection.

        Although I have argued that these laws do not adequately extend to promote equal access to education, it would be wrong to deny the good intentions of the anti-discrimination legislation. One has to keep in mind that there is only so much the law can do. I recognise that it is difficult for legislators to imagine all the problems that might occur when the law goes into practice; and LEAs involved are given a tough task of balancing the rights of the minority against the majority, as well as consider the broader public interest and the allocation of public expenditure – but surely, more can be done?

Despite its fall-backs, the law has brought some degree of change in guaranteeing equal access. Firstly, Section 23(1) of SDA 1975 has quite a strong impact on securing equal access to education for everyone as it outlaws sexual discrimination generally in the provision of education by LEAs. As Milman and de Gama rightly stated in their article,

“(this section would seemingly) prohibit sex discrimination by an LEA in the provision of recreational facilities under the Education Act or when awarding grants… and may also render unlawful a policy of deliberate underfunding for schools catering for one particular sex”.

They go on to argue how the section could also be stretched to outlaw schools from giving priority on certain courses or priority treatment to boys, compared to girls. It seems to me, that the broad scope of this section of the SDA is one of its upsides. It demonstrates how it can be stretched to provide guarantees for equal access rights as anyone who is discriminated against has this wide ranging piece of legislation (the SDA 1975) to rely upon.

        Secondly, there have been significant changes have been made through the introduction of the Disability Discrimination Act 2005 which sought to clarify and extend the old law. Particularly by omitting the government guidelines which states that a person can only be granted protection if their symptoms begin to affect their ability – ad the mere diagnosis of a symptom would not be sufficient. However, the new change has eliminated the unnecessary hurdles that the individual has to overcome and now covers illnesses such as HIV and cancer.

Conclusion

Support for access to education needs to be guaranteed to ensure that the right to education is not meaningless. Notwithstanding the advantages of the anti-discrimination law that I have just mentioned, my view still remains that the law does not in essence do all it possibly can to secure this right. Even though the British education system prides itself on the fact that access to education is based upon merit and not by characteristics, such as race, disability or gender, the statutory structure of the law still remains too rigid. The Office of Fair Access (OFFA) was set up with the role of approving access agreements that universities will be required to draw up and to which financial strings would be attached. Besides the example of OFFA, I feel that there should be more reforms to strengthen the protection of domestic anti-discrimination because it will undoubtedly continue to be extremely important in protecting an individual against discrimination that affects their access to education. Some have even argued, that we should draw guidance from the US decision of Grutter v Bollinger et al where it was held that “positively discrimination” by allowing applicants from ethnic minorities into a law school despite having lower grades, was lawful due to a proportionate justification of governmental interest. This would however be very unlikely to be implemented in the UK as it would be clearly and wrongfully discriminating against the majority.

On the whole, it is clear to me that all the previous observations support my argument; that the law does not go sufficiently far enough in attempting to provide guarantees for equal access to education for all. Keeping in mind that “the institution of education has been and continues to be a crucial element in the absorption of minority young people into the socio-economic structures in British society”, there surely has to be something more that can be done to provide better guarantees. One has to wonder why the legislative have not smoothen out the kinks in the law, when the benefits of giving everyone equal access to education are so vast.

                                                                        (2745 words)

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