Expert Evidence

February 6, 2018

A Review of Deborah Gabriel and Shirley Anne Tate (eds.), Inside the Ivory Tower: Narratives of Women of Colour Surviving and Thriving in British Academia. London: IOE Press. 2017. 152 pp., £24.99 (PB). IBSN: 978-1-85856-849-2.

 

Inside the Ivory Tower is a collection of essays written by 10 academics, all women of colour, which document their experiences of race and gender discrimination within the setting of the UK public university. The narratives are drawn from across the disciplines of Arts, Humanities, Science and Social Sciences. All of the authors have spent several years within the university, and many occupy high-profile positions within academia, including that of Professor, Associate Dean, research project leader, and, in the case of two of the authors, founding Director of highly successful cross disciplinary networks of Black and minority ethnic academics. The essays are underpinned by extensive references to internationally recognised authorities on the physical, psychological and economic impact of race and gender harm. These authorities include the American scholar, Kimberle Crenshaw, who developed the theory of intersectionality, which informs several of the essays; academic and political activist, Angela Davis; author of The Alchemy of Race and Rights: Diary of a Law Professor, Patricia Williams; philosopher and psychoanalyst, Frantz Fanon, and educationalist, Paulo Freire.

 

In the conclusion to the work, the authors set out their ambitions for the collection in the following terms:

 

We hope that this book is read widely and at all levels, from students to vice chancellors and Board directors and everyone in between – as everyone has the power to make a contribution to wider change. Readership must be wider than those working in equality and diversity roles, who often bear sole responsibility within universities for promoting race and gender equality. It is everyone’s responsibility to promote and deliver race and gender equality and stand up to all forms of discrimination. We believe our book belongs on desks everywhere...(Gabriel, 148).

 

This brief summary of the background to the book’s publication paves the way for me to advance the basic proposition around which this review is structured. I would suggest that Inside the Ivory Tower meets all the requirements for the admission of expert evidence before a Tribunal, adjudicating on a case of race and/or gender discrimination, and/or before a body, such as the Law Commission, dedicated to reform of the law.

 

What the expertise of the authors would tell such a Tribunal or law reform body is that the legal concept of victimisation is an inadequate tool with which to protect employees who seek to challenge the forms of racial and gender harm prevalent within the contemporary university space.

 

The legal concept of victimisation applies when an employee is subjected to a detriment by an employer because the employee has complained of race or gender discrimination (or of any of the other protected characteristics named in the Equality Act 2010); or has made a disclosure in the public interest under the Public Interest Disclosure Act,1998.

 

In light of the purpose of the victimisation principle, evidence contained in the book of "hyper-surveillance" of black women by other employees (Mirza, 45) and by "students" (Gabriel, 27) is deeply troubling. According to Tate, the university has the Black woman academic “constantly...under surveillance for any sign of trouble, any possibility of a claim of racism to break the uneasy White conviviality of academia” (59). Surveillance, then, aims at ensuring that complaints of racism and sexism are seldom raised with senior management (see Richards, 139).

 

A Tribunal or law reform body would surely wish to receive relevant and reliable evidence of how the objectives of the legal concept of victimisation are defeated by the culture of the University. As I hope this review will demonstrate, Inside the Ivory Tower constitutes the respected body of opinion within a given profession, which the UK rules usually demand of expert evidence. However, I would note that Tribunals and Inquiries are not bound by the strict rules of evidence, and are able to be more flexible over the terms upon which they receive expert evidence. I am, therefore, subjecting this edited volume to a higher than strictly warranted standard of scrutiny.

 

A detailed analysis of the case law on victimisation is beyond the scope of this review. However, my argument that the purposes of discrimination law are defeated by universities who condone or actively promote a culture in which employees are discouraged by management and by other employees from voicing concerns about race or gender discrimination is made more compelling by the decision of the Employment Appeal Tribunal in the case of Woodhouse v West North West Homes Leeds Ltd [2013].

 

The point to be taken from the Woodhouse case is that the law offers considerable support and license to an employee who will, in Gabriel’s words,, “talk back” about racism (28).

 

The summary facts of the case are that after bringing 10 grievances of racial discrimination to his employer, Woodhouse was dismissed from his employment. The grievances formed the basis of Woodhouse’s dismissal; specifically, his employer decided that Woodhouse had shown by these challenges that he had "... lost all trust and confidence" (para.46) in West North West Homes Leeds as employer. Crucially, the employer concluded that Woodhouse had demonstrated that he would not be able to regain trust unless his allegations of discrimination were accepted as established, enabling him to work in "a discrimination free environment" (para.46). The dismissal letter concluded with the observation that Woodhouse's "numerous allegations of discrimination have been taken seriously, but were ultimately not upheld following thorough investigations" (para. 46).

 

The Tribunal at first instance did not uphold Woodhouse’s claim that the act of dismissal amounted to victimisation of him, because he had brought complaints about racial discrimination. Instead, the Tribunal found that West North West Homes Leeds had dismissed Woodhouse because of the multiple claims of discrimination he had made, which were all judged to be ill-founded. In the view of the Tribunal, an employee who had made multiple "non-racial” complaints would also have been dismissed (see para. 50).

 

The Tribunal’s decision was reversed on appeal. The Employment Appeal Tribunal found that the first tier Tribunal had erred in law in relation to an important matter. The Tribunal was in error in taking a "comparative approach" to the question of employee victimisation (para. 82).. There is no requirement for proof that an employee similarly situated to the employee who claims to have been victimised would have been treated in the same way. The correct approach is to establish whether the detriment – in this case the dismissal – was caused by the employee's complaint of racial discrimination. The EAT noted that even if a comparison between employees was appropriate, there was an obvious flaw in the "comparison here between somebody who has made groundless complaints of race discrimination and someone who has made groundless complaints of a different variety" (para.84).

 

The Employment Appeal Tribunal’s finding that the dismissal did amount to victimisation reveals that an employee who "talks back" (Gabriel, 28) - even groundlessly - about her/his employers’ alleged racially discriminatory practices is protected by the law. The one caveat to this proposition is that the employee must not be found to have deliberately made a false claim of, or deliberately given false evidence about, discrimination. There was no suggestion that Woodhouse's belief that his employer was acting in a racially discriminatory fashion was not a genuine one. Indeed, the letter of dismissal acknowledged that "... on occasion some of the panels have found that particular actions were not satisfactory, but that did not amount to discrimination" (para.46).

 

One might conclude that Woodhouse was an exceptional employee in not allowing himself to be silenced on the question of race, and such exceptional individuals must also inhabit the university. An area to be explored during our hypothetical Tribunal case, or hypothetical law reform investigation, would be whether the university space is uniquely endowed with mechanisms through which it can suppresses the voices of those who wish to speak of race and gender discrimination. There is sufficient to be found between the pages of Inside the Ivory Tower to indicate that such a question would initiate a fruitful line of enquiry.

 

The following statement from the opening page of Tate’s contribution to the collection is instructive:

 

Employee ‘well-being’ is on the strategic agenda of every university in the UK as part of the people management framework. Well-being relates to those feelings that can be spoken...However, ‘those feelings that can be spoken’ already implies questions of power, governmentality and affective management, because some feelings are necessarily ruled out as unvoiceable. If there is already an unvoiceability regime in place, then only some answers will be recognised as acceptable when asked the question ‘how do you feel?’ about this or that aspect of your life as a Black woman university employee. Questions about and answers that voice the daily racism and racist micro-aggressions experienced by Black women academics will not be asked or recognised...Indeed we could say that the objective of ‘well-being’ as a strategic aim is precisely not to do anything with these affects because that would be to admit that we inhabit racially toxic institutions that are inimical for everyone's psychic health (54).

 

It is noteworthy, in light of Tate’s comments, that of the 10 women who contributed to Inside the Ivory Tower, only the two who occupy senior management positions felt empowered to challenge the university over race and gender issues: 

 

I am now a scientist who gives back by focusing on my students’ academic ambitions rather than my own. A scientist who will question and challenge decisions that do not benefit my students. A scientist who gives back by mentoring women scientists, Black and White, using my experience to aid in their progress (Opara, 131).

 

Wilson also speaks of being "in a strong position to draw attention to issues of educational injustice” (117), claiming the right to “highlight to White colleagues how important it is that they hold high expectations for Black students" (117). 

 

However, the majority of the authors’ experiences are overwhelmingly ones in which “workshops in equality and diversity are never ‘safe spaces’ for people of colour who are invited to ‘tell their story’ “(Mirza, 44); where even a hint of complaint is " met with hostility" (Richards, 139). Black women academics are left in no doubt as to what bringing a formal complaint might mean: " you will never work in the education or the creative sector again" (Richards, 139).  

 

Gabriel and Richards found that without the support of the academic networks they founded (Black British Academics and Shades of Noir, respectively), they would have been effectively silenced on the subject of race and gender discriminatory practices occurring in the university. Shades of Noir has now entered its ninth year of operation, and even now its director has found that, within the university, her “relationship with... directors deteriorated” (Richards, 140), evidenced by the fact that “they undermined me with my peers and students, and even tried to instigate a disciplinary case against me" (140). For Bernard, securing a "Black mentor, external to the Academy" (83), proved to be the development which enabled her to give voice to “some of the obstacles created by race and gender based discrimination” (83).

 

As valuable as are external mentoring and networking opportunities to the working lives of Black women academics, the law requires that a complaint of race or gender discrimination (or of discrimination motivated by any other of the protected characteristics identified in the Equality Act 2010) should be made directly to the employer, or, within the scope of its jurisdiction, to the Equalities and Human Rights Commission, which is the body established to enforce compliance with Equality Act provisions. Inside the Ivory Tower provides compelling evidence to the effect that formal complaint is discouraged, and, in so doing, the relevance of the law of victimisation put in question, when:

 

The very arrival of the ‘Black/Othered’ body into White normative organisations is used as evidence that spaces of Whiteness and privilege no longer exist; where just using the word ‘diversity’ is seem to ‘do’ positive things for the institution. Visual images of ‘colourful’ happy faces are used to show how the University has embraced difference (Mirza, 44).

 

“Starting the (often difficult) conversations about gender, race, class, homophobia..is the most important first step to generating change", says Wilson (119). Such conversations are also the precondition for the entry into the conversation of the law; a law which can, as in Woodhouse [2013], push against the ingrained racialised cultures of the institution.

 

If not silenced, what complaints would Black women academics make to their university senior management teams? Which of these complaints would be of interest to our hypothetical Tribunal or law reform investigation panel? As a preliminary, it must be noted that the law does not purport to offer redress in all instances in which an individual is adversely affected by acts that are motivated by race or gender bias. It is for this reason that the law speaks of ‘detrimental’ acts when alluding to a potential victimisation claim, following a complaint raised with reference to the Equality Act, or following a disclosure in the public interest. It is for this reason, too, that this review is seemingly narrowly focused on the harms that the law will recognise: not because of a failure on my part to acknowledge the injurious effects on Black women academics of:

 

...institutional indifference to the paucity of Black academics and the consequent wasted talent...minority students [paying] fees in increasing numbers to universities that promote their commitment to diversity while exposing students to European insights and understandings, delivered by all-White academic teams (Kwhali, 21).

 

However, the law does recognise what Bernard alludes to as “invisible injuries” (84); those injuries which Tate categorises more concretely as “psychic” harm (54), often caused by " over-surveillance and micro-management" of Black women academics (Douglas, 99). Although frequently criticised for its privileging of claimants who seek to remedy physical injuries or property damage, the law has long recognised that psychological injuries are capable, in principle, of founding a claim. Continuing with the theme of severe mental distress, Wilson argues that when not over-scrutinised, Black woman academics confront the reverse, but equally disconcerting, "experience of invisibility" (111), which causes heightened “feelings of low self-worth...fragile sense of dignity and compromised personal identity" (111).

 

But the overwhelming picture presented by these narratives are of the classic forms of detriment which are so-well documented in the reports of courts and tribunals. Says Kwhali:

 

Universities...are communities within themselves, privileged by tradition and framed by a historical context of elitism and social advantage. My experiences suggest that they appear to operate by their own codes; temporary or permanent contracts are not always subject to open recruitment; doctorates and teaching qualifications are required for some positions while staff in the same subject area who have neither can be on an identical job title or higher salary grade... Hourly paid lecturers are frequently recruited on the basis of who you (and they) know, with various excuses offered as to why such opportunities cannot be externally advertised against transparent criteria. These seemingly entrenched practices make the sector far less penetrable by potential staff from less traditional academic backgrounds or educational traditions, including, but not exclusively, Black people (20).

 

If empowered to speak, Black women academics would tell of Black students "angry about their enduring marginality and disadvantages, despite the overwhelming self-satisfied bureaucratic rhetoric of institutional ‘equality and diversity’…" (Mirza, 51).

 

Perhaps the most striking testimony from these women would be of a kind which resembles Jackson’s contribution to the collection. Jackson’s position is unique among the authors in that she is employed at an institution which employs few Black academics and has equally low recruitment statistics of Black students. For Jackson, it is her experience as research lead of a funded research project involving refugees living within the community that has exposed her to the ways in which the university projects its discomfort with, and disapproval of, racialised subjects.

 

I write these words with a kind of wary irony, since I know how privileged I am; because I am proud of the innovative work we accomplished together, and because I remain a grateful friend with some of the refugees I worked to support. But – and here I feel a sharp conflict between my different identities – while those refugees would support me in whatever way they could, they could not help me in my career. In fact, they probably held me back, since my professional association with the new migrants... also became an association with powerful

racist tropes, including the ‘impoverished African’, the ‘fake refugee’, ‘illegals’ and ‘welfare scroungers’. Such ideas were as embedded in the institution as they were more widely...As I listened to professional voices discuss the othering of the migrants, it was impossible not to speculate about what equivalent thinking or speaking might be going on about me. Although patches of colour might be appearing on campus, it seems that the White hegemony of the Ivory Tower would remain untouched. I too was kept outside. (75/76). 

 

In short, given the opportunities which the legal framework assumes to exist in the workplace, Black women academics would speak of justiceable matters. The legal framework in which Woodhouse’s claim was decided operates as a warning to employers who expose employees to detriment because the employee has made her/his voice heard.

 

The “educational injustice” issues of which Wilson speaks, which sees "73.2 per cent of White British students attaining a ‘good’ degree compared with 57.1 per cent of Black and minority ethnic students" (117), are, on the face of it, inconsistent with the public sector equality duty, which binds universities. Section 149(b) requires public bodies to “advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”. The objective is entirely undermined if the very staff who would be able to report discriminatory practices, which contribute to the gap in attainment between Black and White students, feel unable to speak out. Further, to the extent that the refugees of Jackson’s account are engaged in a university project, supported by public funds, it is doubtful, based on her testimony, that the university is giving appropriate regard to the requirement under section 149 (c) to “foster good relations between persons who share a relevant protected characteristic and persons who do not share it”.

 

Thus, the law is not side-lined because alleged discriminatory acts have resulted in harms which fall beyond those it recognises. The law is being made impotent because those who can bear witness to potentially discriminatory practices are forced, as Kwhali was, to conclude that “the cost of speaking out against unfair employment practices” (19) or “on behalf of students” (19) would lead to “painful” consequences, including “criticism and isolation”, and, worse still, “accusations of bullying” (19).

 

Expert evidence must be reliable. It must be relevant to the matter under enquiry. It must come from a source which can be accepted as constituting a respectable, but not necessarily majority, body of opinion in the field of claimed expertise. In the opening paragraphs of this review, I advanced reasons why the narratives contained in the book meet these requirements. Those paragraphs focused on the positions of influence which the women hold within the university, and the quality of the research underpinning each chapter.

 

Within the limited space afforded to me for this review, I believe I have extracted sufficient from the collection to convince the reader that these chapters could only have been written by academics who have devoted significant periods of their careers to a meticulous examination of the causes and consequences of race and gender oppression.

 

It remains for me to address the issue of how representative are the experiences the authors relate. Notwithstanding Gabriel’s sensible advice to the reader to avoid using the “narratives as ‘proof of evidence’ of some standard mode of raced or gendered discrimination” (2), my task here is greatly assisted by the fact that each author reflected deeply on the extent to which they were identifying experiences which could be said to characterise the condition of Black women academics generally. Douglas saw herself immersed in a world in which the experiences of Black women academics:

 

...could not be individualised and had to be understood as the expression of a phenomenon that shapes the working lives of Black intellectuals within the academy (100).

 

Kwhali saw herself as offering a “story” which captured “the stories of sisters and brothers of different skin shades, age and genders...in its content if not in its detail” (22). In similar terms, Mirza spoke of experiences which were “symbolic of the systemic nature of gendered racialisation as revealed by a Black woman's narrative through time and space in higher education" (40).  

 

I conclude this review on the sobering thought that the one set of desks on which copies of Inside the Ivory Tower are unlikely to land belong to the senior judiciary.

 

 

References

Equality Act 2010 c.15.

Patricia Williams, Alchemy of Race and Rights: Diary of a Law Professor, Harvard University Press, 1992.

Public Interest Disclosure Act 1998 C.23.

Woodhouse v West North West Homes Leeds Ltd [2013] UKEAT/0007/12/0506.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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