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Article Excerpt
Explanations for poor educational experiences and results for Australian Indigenous school students have, to a great extent, focused on intended or conscious acts or omissions. This paper adopts an analysis based on the legislation prohibiting indirect racial discrimination. Using the elements of the legislation and case law it argues that apparently benign and race-neutral policies and practices may unwittingly be having an adverse impact on Indigenous students' education. These practices or policies include the building blocks of learning, a Eurocentric school culture, Standard English as the language of assessment, legislation to limit schools' legal liability, and teachers' promotions.
Introduction
It is well documented that educational experiences and outcomes for Indigenous school students in this country are poor (Department of Education, Science & Training [DEST], 2002; New South Wales Aboriginal Education Consultative Group, 2004; Royal Commission into Aboriginal Deaths in Custody, 1991). Indigenous writers have attributed these failures to educators' conscious or intentional acts or omissions such as insufficient recognition of Indigenous culture (Patten & Ryan, 2001), lack of managerial rigour in holding principals and teachers accountable for poor results (Queensland Ministerial Advisory Committee, 2004), or failing to consult the community (New South Wales Aboriginal Education Consultative Group, 2004). On the other side, teachers have presumed lack of parental commitment (Zeegers, Muir & Lin, 2003), researchers have identified factors such as absenteeism (New South Wales Aboriginal Education Consultative Group, 2004), and legislators have thought it just takes money (Indigenous Education (Supplementary Assistance) Amendment Act 1996 (Cth)).
All or any of these elements may have contributed to poor educational outcomes; however, instead of blaming the victim for not responding to opportunities or attributing racist motives to government or educational authorities, this paper adopts a different perspective. It applies a legal analysis drawn from antidiscrimination legislation to argue that other, less obvious, causes may partially explain poor educational performance by Indigenous students. It suggests that some apparently race-neutral educational policies and practices are based on underlying assumptions that are not in accordance with Indigenous experience or culture, and which therefore disadvantage the Indigenous students who struggle to comply with them.
Anti-discrimination law
To understand the law relating to systemic discrimination, which provides the underpinning of this paper, it is first necessary to look at the legislative provisions and the case law that illuminates their meaning. While genetically there is no such thing as the Aboriginal or Torres Strait Islander 'race' (de Plevitz & Croft, 2003), shared culture, language, customs, religion, or geographical origin can distinguish one ethnic group from another. Indigenous people consider themselves and are considered by others to be culturally different from non-Indigenous people. Therefore they are covered by the definitions of 'race' in the legislation.
Merely being of a particular group that is discriminated against, however, does not necessarily make a person the victim of discrimination. The unlawful conduct must take place within a specified area of public life. Education and training, provision of goods and services, and administration of government laws and programs are areas that are relevant to education and are covered in all Australian jurisdictions. For the conduct to be found unlawful, no exemptions or defences must apply.
Legislation that prohibits unlawful conduct on the basis of race, colour or ethnic or national origin has been passed in all Australian state, federal and territory jurisdictions. While it covers harassment, vilification, and victimisation, its main thrust is discrimination, which is of two types: direct and indirect.
Direct racial discrimination occurs where one person is treated differently to another in the same or similar circumstances, and the different treatment can be accounted for by race. Until the 1950s and even later, for example, Indigenous children were largely excluded from schools, either by law, or by the opposition of non-Aboriginal parents (Royal Commission into Aboriginal Deaths in Custody, 1991).
The indirect discrimination provisions specifically aim to address systemic discrimination, the inequality caused where everyone is apparently treated the same but the negative impact of the treatment fails particularly on members of society distinguishable by their racial or ethnic origin. It is this effect that will be analysed in this paper.
In most jurisdictions, indirect discrimination requires proof of four elements. First, the person aggrieved must prove a term or condition has been or will be imposed. The person is required to comply with the condition in order to gain some benefit, for example, a job or an education. The term will appear to be neutral in that it applies equally to everyone without distinction. It might be express; for example, that in order to get a job you must have finished high school. In Griggs v Duke Power Company (US Supreme Court, 1971), this requirement was found to proportionally affect more African-Americans than other Americans. In 1971 few of them had completed high school, for many of the same reasons that affect Indigenous students' results--poverty, poor health, racism in and out of the classroom, and inappropriate programs. Alternatively it might be implied. To take an example from disability discrimination, the principal access to the new Brisbane Convention Centre was a steep set of twenty-seven stairs. The effect was that persons with physical disabilities or age-associated mobility problems, and parents with strollers or prams were denied the opportunity 'as members of the community with equal dignity and worth' to access a publicly-funded building through the main entrance (Cocks v State of Queensland, 1994, p. 77,284). The Anti-Discrimination Tribunal ordered the Queensland government to install lifts.
The second element is that the complainant must prove he or she is unable to comply with the requirement. This is not necessarily confined to complying in a physical sense. In Mandla v Dowell Lee (1983), a Sikh schoolboy was denied enrolment in an English school because he could not wear the school uniform. The House of Lords held that while he could physically take off his turban in order to wear the schoolboy's cap, he was not required to do so to prove this element. It was sufficient that being obliged to wear the prescribed cap would be contrary to his religious and cultural beliefs.
The third element tests whether inequality is revealed by comparing the differing proportions of people with or without the attribute of in this case 'race' who are able to comply with the requirement. The words in the provisions are 'a higher proportion of', not 'higher raw numbers of' the group. A comparison based simply on raw numbers would not truly reveal the discriminatory effect of a policy, especially as Indigenous people form only about 2.4 per cent of the population. While the courts seem to prefer precise statistics for proof of indirect gender discrimination, especially in employment, they are not so demanding for the other attributes; nevertheless, to show an adverse impact there must be some evidence of disadvantage.
The last requirement is that the condition itself must not be reasonable. Whether this is so depends on all the circumstances including whether there are viable alternatives and their cost and social benefit. In the case of the Sikh schoolboy, the school's requirement that students wear caps bad no health or safety aspect but had merely been adopted for the aesthetic.
An Australian example of systemic racism demonstrates the unfortunate consequence of an organisation not thinking its policies through. In order to be employed on a permanent basis in the Australian Postal Commission, applicants had to pass a medical examination that included assessment against a height-to-weight ratio determined on Australian norms. The norms, constructed in the time of the White Australia policy, were based on a population of people of predominantly Anglo-Celtic origin who were comparatively tall and of solid build. Two women of Vietnamese origin failed the medical solely because they were short and...
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