Law Schools and a presumption of unlawful discrimination
Recently, public attention has been drawn to the disproportionately high rates of withdrawal from university courses of black students (e.g. Iyabo-Osho 2017 and Grove 2017).
I am confident that disclosure of these statistics will see university Equalities Committees and Academic Boards flooded with policies designed to address perceived social and educational disadvantages of black students. I am equally confident that any attempt to explore whether black students are withdrawing as a consequence of direct or indirectly discriminatory application of university policies aimed at assisting progression (such as policies relating to mitigating circumstances, alternative assessments and breaks in studies) will be subtlety discouraged. Yet often whenever glaring disparities in access to private and public services are disclosed, discrimination of the legally unlawful kind lurks somewhere amidst other social explanations.
Of course, few public bodies will be receptive to the idea that decisions of their public servants made at particular times in relation to particular individuals may be questionable as to their legality. I suggest, however, that the University is especially sensitive to challenges of this kind. It must be remembered that it was not until 2004 and the coming into force of the Higher Education Act that the exclusive right of the University Visitor to determine contentious issues raised by student members of the university came to an end. The long shadow of the Visitor has not yet passed through the corridors and cultures of universities, with many still inclined to think of themselves as a self-governing institutions somewhat beyond the reach of the ordinary law.
The Office for Fair Access and the newly established Office for Students have already been tasked to address student progression in general and progression of black students in particular. There is a task which university Law Schools are uniquely equipped to perform. Although entirely absent from most commentary on withdrawal rates of black students, the Equality Act 2010 provides an important framework within which all members of the university are supported in working toward equal opportunities and good relations between those of its community who share the protected characteristics defined within the 2010 Act and others.
The Law School is a constituent part of the university. It can claim no independent existence or higher status from the university or its other constituent parts. No more can university Law Schools be expected to supplement the functions of the Equality and Human Rights Commission, which body is properly tasked with enforcement of Equality Act obligations. However, as long as they carry that powerful signifier of law, fairness and justice, Law Schools cannot escape expectations that they will exercise a higher degree of vigilance over the application of the various equality measures universities are bound to put in place.
An invaluable service will be provided if Law Schools are alert to the potential of decisions on progression of black students and others with protective characteristics which appear to place onerous financial burdens on those students when less burdensome alternatives seem available. Without wishing to prejudice any careful exploration of the reasons for high withdrawal of black students, it would not be in the nature of rash speculation to conclude that available funding will play a part.
On discovery of "facts" on which " in the absence of an adequate explanation" it could be concluded that "an unlawful act of discrimination" has been committed (Igen Ltd v Wong [2005]), the obligation of a Law School must surely be to put forward those facts to the proper authority and politely request an explanation.
It is through the extent to which a university enables its legal inside to test the legalities of its actions and decisions that we come to know that university's true character.
References
Chief Constable of Kent Constabulary v Bowler [2017] UKEAT/0214/16/RN
Equality Act 2010 C.15
Grove, Jack. (2017) “Black students ‘50 per cent more likely to drop out’”, Times Higher Education.
Hewage v Grampian Health Board [2012] UKSC 37
Higher Education Act 2004 C.8
Igen Ltd v Wong [2005] IRLR 258
Iyoba-Osho,, Yaz. (2017) “More than just widening participation”, Higher Education Academy.