The proportionality and legality of racial eligibility criteria on student schemes in higher education
DDU supporter Amber Muhinyi’s open letter to ministers explains why racial eligibility in Higher Education student schemes is not just morally wrong, but contravenes the Equality Act itself. Read the letter below, which we have sent to relevant ministers.
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We the undersigned are contacting you regarding the advertising of student placement and study schemes with racial eligibility criteria.[,] We have serious concerns about the legality of such schemes.
Section 158 of the Equality Act 2010 states that positive action (general) applies if “a person reasonably thinks that: persons who share a protected characteristic suffer a disadvantage connected to the characteristic; persons who share a protected characteristic have needs that are different from the needs of persons who do not share it; or participation in an activity by persons who share a protected characteristic is disproportionately low”.[,]
The section provides that a person may take “any action which is a proportionate [italics ours] means of achieving the aim of: enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage; meeting those needs; or enabling or encouraging persons who share the protected characteristic to participate in that activity”.
On proportionality, our primary concern in this letter, UK Government Equalities Office guidance on ‘positive action’ in recruitment and promotion states (italics ours): “‘Proportionate’ refers to the balancing of all the relevant factors. In considering using the positive action provisions, an employer will need to balance the seriousness of the disadvantage suffered or the extent to which people with a protected characteristic are under-represented against the impact that the proposed action may have on other people. When thinking about proportionality, an employer may find it helpful to consider if the proposed action is the only way to address the under-representation or disadvantage effectively, or if it would it be possible to achieve the same effect by other actions that are less likely to result in the less favourable treatment of other people.” [,]
International human rights standards allow ‘positive action’ measures only if they are necessary, proportionate, and time limited.[] Similarly, in EU law, to be proportionate, action must be “appropriate, necessary, and not impose an excessive burden on those affected by it”.[]
As outlined below, we do not believe that the use of racial eligibility criteria on student schemes is a proportionate form of positive action, as such schemes: (1) impose an excessive burden on those affected by their exclusion from the schemes; (2) must be reasonably presumed to impose an excessive burden on some of those targeted by them; and (3) are not necessary or appropriate, as there are more proportionate ways to achieve the aim of enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage; meeting those needs; or enabling or encouraging persons who share the protected characteristic to participate in that activity.
(1) Such schemes impose an excessive burden on those affected by their exclusion from them. Such schemes necessarily discriminate against those students from racial backgrounds excluded by the eligibility criteria. For example, opportunities open only to students of “Black Heritage” automatically exclude, and thus discriminate against, students of all other racial and ethnic backgrounds (e.g., White British, White Gypsy, Other White, Pakistani, Bangladeshi, and Chinese).[] Furthermore, some groups are excluded from certain schemes despite evidence of low attainment and under-representation. For example, census data show that children from Bangladeshi and Pakistani households are the most likely to experience low income and material deprivation out of all ethnic groups.[] Similarly, White working-class boys on average perform poorly at school and are under-represented in higher education.[]
(2) Such schemes must be reasonably presumed to impose an excessive burden on some of those targeted by them. While some students may welcome such schemes, others may see racial eligibility criteria as patronising, stigmatising, or perpetuating of negative stereotypes. Such schemes can also be seen as undermining the right to be treated equally and without regard to race as well as removing the opportunity to be in fair competition with peers from all racial backgrounds. Students do not have to apply for schemes with racial eligibility criteria, but whether they apply or not, the use of such criteria may undermine their sense of human dignity and self-respect by asserting that they want or need preferential treatment based on race. Mixed-race families, where, for example, one sibling is eligible and another ineligible on the basis of having partially or wholly different racial backgrounds, may also view these schemes as inappropriate.
In the absence of qualitative research (such as case studies) exploring the views of those from targeted groups who do not feel comfortable about racial eligibility criteria, it must be presumed that this form of ‘positive action’ imposes an excessive burden on those individuals and families. Government guidance addressing these important issues is urgently needed, as so far they seem to have been overlooked. Such issues should be considered by those seeking to apply positive action to achieve the legitimate aims outlined in Section 158, as well as by public authorities seeking to achieve their own predefined outcomes in line with ‘Equality, Diversity, and Inclusion’.
(3) Such schemes are not necessary or appropriate, as there are more proportionate ways to achieve the aim of enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage; meeting those needs; or enabling or encouraging persons who share the protected characteristic to participate in that activity. More proportionate ways to achieve these aims include: i) identifying and removing any existing discriminatory practices that might discourage applicants of particular racial backgrounds from applying; and ii) using facially neutral policies and practices that focus on providing opportunities to students who are disadvantaged because of socioeconomic factors. Such approaches achieve the legitimate aims in Section 158, but avoid the aforementioned excessive burdens. They may also disproportionately benefit groups from under-represented racial backgrounds.
Furthermore, we believe that such schemes breach two public authority requirements to have due regard, as framed in Section 149 of the Equality Act (see 4-5 below).
(4) Such schemes breach the requirement that “a public authority must, in the exercise of its functions, have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”. Student opportunities with racial eligibility criteria necessarily discriminate against those students who are excluded and thus do not advance equality of opportunity between students of different races.
(5) Such schemes breach the requirement that public authorities must “have due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it”. Schemes that target one racial group and exclude others are unlikely to foster good relations among students of different races and may in fact do the opposite, both in the student body and more widely. Preferential treatment is likely to engender resentment and division between persons, especially when a person perceives that he/she has experienced disadvantage compared to other peers, and yet is barred from applying to schemes because of his/her racial background.
Research is lacking on how students, families, and the wider public regard such schemes and how they believe such schemes might affect race relations in the UK. However, in having due regard, it would seem reasonable to conclude that schemes using racial eligibility criteria might cause resentment and division. We might also consider Supreme Court rulings, polls, and media reports from the US, where race-based policies have been used for many decades and remain controversial and deeply polarising.[, , ]
Crucially, the requirement of due regard by public authorities is intended as a process of considering relevant factors and their potential impact – thus whilst a procedural facet of policy development, it is not an obligation to meet a predefined outcome through policy.[] In the case of racial eligibility criteria on student schemes, there has clearly been a lack of due regard to the relevant factors and potential impacts, such as those described above (1-5). Furthermore, it seems that the requirement of public authorities to have due regard to the need to advance equality of opportunity is being misinterpreted as an obligation or means to achieve predefined outcomes (e.g., increased representation), which are often embedded in organisational strategic frameworks, such as ‘Equality, Diversity, and Inclusion’.
Related to the above point, there also seems to be some confusion about what is allowed under positive action in Section 158. Although disproportionately low participation of persons with a protected characteristic is a condition of positive action, the clause does not allow action to be taken with the aim of addressing the issue of under-representation. Rather, proportionate action may be taken to achieve the aim of: enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage; meeting those needs; or enabling or encouraging persons who share the protected characteristic to participate in that activity. This differs, for example, from Section 104 on the selection of political candidates, which refers to selection arrangements, “the purpose of which is to reduce inequality in the party’s representation in the body concerned.”
As summarised, there are serious concerns about the legality of student schemes using racial eligibility criteria. We do not believe that this is a proportionate form of positive action or that there has been due consideration to its potential impacts. On these grounds, such schemes should be removed or re-calibrated to be open to students of all racial backgrounds. We urge the government to issue guidance to universities and research councils on legal and proportionate ways of addressing the legitimate aims outlined in Section 158, and clarification about public authority duties involving due regard in Section 149.
We are happy to provide further information or clarification as needed on any of the issues raised.
Amber Muhinyi (DDU supporter and letter author; Postdoctoral Researcher)
Alka Sehgal Cuthbert (educator and Director of DDU)
Ceri Reid (Researcher)
Peter Hayes (University of Durham)
Roy Palmer (Lecturer)
Saul Jacka (Professor, University of Warwick)
Dr Sonia Heintz (University of Plymouth)
Derek Bryce (Senior Lecturer)
Abhishek Saha (Professor, Queen Mary University)
Jay Jina (Associate Lecturer, Open University)
Timothy Whitton (Postdoctoral Researcher)
Carlton Brick (Lecturer)
Dr Stuart Waiton (Senior Lecturer)
Michelle Shipworth (Associate Professor)
Corinna Harvery (Lecturer)
Robert Tombs (Professor)
James Orr (Associate Professor)
Neil Thin (Lecturer)
Olga Gillies (PhD candidate)
Dr Prakash Shah (Reader)
Gabriel Egan (Professor)
Elizabeth James (Associate Lecturer)
Eric Kaufmann (Professor)
Douglas Stokes (Professor)
Dr Alex Standish (Associate Professor)
Ellie Lee (Professor)
Dr Ruth Mieschbhuehler
Dr Kirsty Miller
[] Study and work placement schemes with racial eligibility criteria are currently being advertised at various universities and by research councils across the UK. A few examples are provided as follows. The UK Research and Innovation (UKRI) student research placement scheme has the following eligibility criteria: “These awards are open solely to Black British students (Black or Black British African, Black or Black British Caribbean, Black or Black British other or Mixed Black or Black British). Applicants will self-identify and sign a disclaimer to the effect that the information they provide is correct” (https://wrdtp.ac.uk/esrc-summer-research-experience-placements-pilot-scheme/). Birkbeck University has 100 PhD scholarships available to “Black, Asian, and other racialised communities” (https://www.bbk.ac.uk/student-services/financial-support/phd-funding/diversity100-studentships). York University has PhD funding opportunities for “UK candidates who self-identify as being from a Black, Asian or Minority Ethnic (BAME) background” (https://www.york.ac.uk/study/postgraduate-research/funding/uk/ygrs-scholarships/). Southampton University has similar eligibility criteria for its PhD scholarships targeting “Black or mixed-Black heritage students” (https://www.southampton.ac.uk/doctoral-college/presidential-scholarships.page#black_futures_scholarships. All accessed on 28/02/2023.
[] Note that Cambridge University recently withdrew one such scheme, as reported by the Telegraph (https://www.telegraph.co.uk/news/2023/02/25/cambridge-blocked-white-students-applying-one-postgraduate-courses/. Accessed on 28/02/2023).
[] https://www.legislation.gov.uk/ukpga/2010/15/contents. Accessed on 28/02/2023.
[] Race is one of these protected characteristic (Section 4), and is defined as including colour, nationality, and ethnic or national origins (Section 9).
[] Equality Act 2010: What do I need to know? A quick start guide to using ‘positive action’ in recruitment and promotion. Accessed on 27/02/2023 from https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/85014/positive-action-recruitment.pdf
[] Note that there is some incongruity between government guidance on positive action and the legislation itself (Sections 158 and 159). Government guidance on Section 159 (see previous footnote) refers to “address[ing] the under-representation or disadvantage”. However, this is not a legitimate aim of positive action as outlined in Section 158 or 159. This differs, for example, from Section 104 on the selection of political candidates, which refers to the aim of selection arrangements, “the purpose of which is to reduce inequality in the party’s representation in the body concerned”.
[] UN Human Rights Committee, General Comment 18: Non-Discrimination, 1994, U.N. Doc. HRI/GEN/1/Rev.1 at 26, Para 13; Article 4(1) of the UN Convention on the Elimination of All Forms of Discrimination Against Women; Article 1(4) of the UN Convention on the Elimination of All Forms of Racial Discrimination; Belgian Linguistics case (1979-80) 1 EHRR 252 (Article 14 of European Convention on Human Rights).
[] A Dictionary of Law. Oxford University Press.
[] It is also unclear why several different racial and ethnic backgrounds (e.g., Caribbean origin, African origin, and mixed white and black) are collapsed into the category of “Black Heritage” in some schemes (see footnote 1), given the Act’s nuanced definition of race as including colour, nationality, and ethnic or national origins. This reductionism is especially questionable given that these different groups have differing levels of representation and outcomes in different domains. For example, in terms of average GCSE attainment, Black African pupils score higher than Black Caribbean pupils, and higher than White British pupils (source: https://www.ethnicity-facts-figures.service.gov.uk/education-skills-and-training/11-to-16-years-old/gcse-results-attainment-8-for-children-aged-14-to-16-key-stage-4/latest. Accessed on 28/02/2023).
[] https://www.ons.gov.uk/economy/nationalaccounts/uksectoraccounts/compendium/economicreview/february2020/childpovertyandeducationoutcomesbyethnicity. Accessed on 28/02/2023.
[] https://committees.parliament.uk/committee/203/education-committee/news/156024/forgotten-white-workingclass-pupils-let-down-by-decades-of-neglect-mps-say/. Accessed on 28/02/023.
[] De Vos, M. (2007). Beyond formal equality: Positive action under Directives 2000/43/EC and 2000/78/EC. Office for Official Publications of the European Communities.
[] https://www.oyez.org/issues/155. Accessed on 28/02/2023.
[] https://www.theguardian.com/law/2022/oct/31/us-supreme-court-affirmative-action-universities. Accessed on 28/02/2023.
[] https://www.insidehighered.com/admissions/article/2022/05/02/poll-finds-public-doesnt-favor-affirmative-action. Accessed on 28/02/2023.
[] For a summary of cases on public authorities having due regard see paragraphs 5-078-5-080 including footnotes in De Smith’s Judicial Review (2018; Ch. 5; published by Sweet & Maxwell).