Are Academic Selection Tests Unlawful?

In all the talk about selective admission tests recently, with Northern Ireland quietly dropping theirs this year, one question has been floating around my head. Are the tests even lawful to begin with? They openly discriminate against children with learning disabilities (a protected characteristic since the 2010 Equalities Act), so how do they comply with this? Is there an exemption I didn't know about? This is not, it seems, a widely asked question, so I'd assumed the issue must have been dealt with a long time ago. The more I've been looking into it however, the more I feel it's just been swept under the rug in the hope that no-one will ask any difficult questions.

Some were raised last September, when the parents of a visually impaired boy, with the support of the EHRC, took their nearby grammar school to court for failing to take his impairment into consideration during the admissions tests. They won their case, on the grounds that the school in question failed to make reasonable adjustments when he sat his entrance exam. Grammar schools were “warned not to discriminate against disabled children”. Which is great. It’s not good for schools to discriminate against disabled children. Except they routinely do of course, especially when the disability is less obvious, for instance in the case of someone with a learning disability.

Alpta by Sumit Mehndiratta

The Equalities Act makes it unlawful for an organisation to have a policy that indirectly discriminates against pupils with a learning disability. It's not a small number of children. This protected category includes anyone with a 'substantive and long-term impairment that effects daily life', so includes pupils in mainstream education with autism, significant literacy difficulties, a language impairment and so on. 

Direct discrimination ('we don't accept children with disabilities') would be straight up illegal. Indirect discrimination is still not permitted. This occurs if the selection process "puts or would put pupils sharing a protected characteristic at a particular disadvantage compared to relevant pupils who do not share that characteristic." In this case, an academic admissions test evidently puts students with learning disabilities at a disadvantage compared with their peers.

However, such discrimination is allowed if the organisation can argue that what they are doing is a "proportionate means of achieving a legitimate aim". So then we have to ask, what is a legitimate aim? Luckily schools have been given some helpful examples:

• ensuring that education, benefits, facilities and services are targeted at those who most need them
• ensuring the health and safety of pupils and staff, provided that risks are clearly specified
• ensuring the wellbeing and dignity of pupils

But the most important one in the case of academic selection:

• maintaining academic standards

Now, I have a few issues with this, which I will come onto in a second.

Luna by Tanja Vetter

The last time this caveat was referred to in court, from what I can tell, was when a five year old child with a disability was refused admission to an independent junior school, on account of the fact that "the child did not demonstrate the necessary skills to pass the entrance assessment process". As with the visually impaired 10 year old last year, here the courts found in favour of the parents of the five year old on the grounds that the school failed to make reasonable adjustments during the admissions process. However, the summary of the verdict goes into some interesting detail (interesting to anyone who is curious about selective admissions), so I'm going to quote it at length.

"One of the legitimate aims suggested by the Responsible Body was the aim  of  maintaining  academic  standards  in  the  school,  the  school  being  a  selective school that requires all applicants to have reached a particular academic level. We  are  of  the  view  that  [this is]  sufficiently  important  to  justify  limiting  the  fundamental  right  not  to  be  discriminated  against.  We  heard  evidence  of  the  importance  of  maintaining  high  academic  standards within the school in attracting parents to send their children to the school and consequently funding the school. The law entitles independent schools, prima facie at least, to be selective in their intake and given the potential consequences for the  school in not maintaining academic standards we had no difficulty in reaching  this conclusion.”

I find this defence problematic.

Including students with learning disabilites would put other parents off sending their children to the school. If parents (and presumably they mean only the parents who can afford to "fund" the school) were to be put off sending their children there, what might happen? Other local schools might have these children in their schools instead. They would perhaps benefit as a result. Excluding children with learning difficulties might be beneficial for the selective school, but including these children would clearly be beneficial for all the schools. Does this make it a 'legitimate aim'? Legitimate for whom?

As an aside, there is a questionable assumption here that it is not possible to 'maintain academic standards' while also being a non-selecting school. That to include all students regardless of their starting point must come at the expense of academic standards. This disregards the hundreds of excellent schools that admit students with learning disabilities, and there are plenty around where I live, who have managed to maintain exceptionally high academic standards. It is clearly possible to maintain academic standards and admit students with learning disabilities, as has proven to be the case.

And what is even meant by "maintaining academic standards" anyway? The term is so vague and indefinable as to be meaningless. It only makes sense if you assume they mean higher academic standards and are using it as a relative term. In other words, the unspoken aim for selective schools is to maintain higher academic standards than other schools around them. But if this aim is fully realised it would, by definition, have the effect of maintaining lower academic standards in other schools.

The people deciding on whether or not this is a legitimate aim, are speaking with the voice of the victors. The legitimacy of segregating children in this way is unlikely to be questioned by those who know that their children will be at the top of the pile. It is a case of the law being used by those who already have it in order to preserve it for themselves, rather try and work towards a more level playing field. In the meantime thousands of parents across the land are seeing their children, at 10 years old, five years old, separated from their peers and neighbours because they haven't been able to pass a test. The fact that they are not all up in arms should not blind us to our responsibility to ensure that discrimination law should work for everyone, including (and especially) those who do not have the loudest voices.

The verdict I quoted earlier suggests that academic selection is justified because there has to be a two-tier education system and, despite the discriminatory nature of these admissions tests, they are necessary in order to keep the selective schools in the top tier. Schools have to be able to exclude students with learning difficulties, otherwise they would not be able to attract the kind of parents and students who guarantee the academic success of this school and, in the case of independent schools, pay their wages. Without being able to exclude children who do not pass the test, the two-tier system would crumble.

Accepting this as a legitimate part of national education policy means accepting that (a) there will inevitably be a two-tier system of schooling whereby some schools have lower academic standards built into the admissions process, and that (b) these schools are the only ones where children with learning disabilities are allowed to go.

Firstly, this is incompatible with the government's stated desire to maintain high academic standards across all schools in the country. This is a laudable desire, but when it is not backed up by structural reforms that would actually support rather than hinder this aim, then it starts to feel like these are just empty, meaningless words.

But I also cannot see how it complies with the spirit of the UN Convention of the Rights of the Child, which states:

"State parties [must] recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity... without discrimination of any kind." (Article 28)

Maintaining higher academic standards than other schools nearby might be a legitimate aim for the individual school, but surely any local authority has to consider whether this is a legitimate and justifiable aim for the area. And any national government has to look at whether the aims of a school can truly be legitimate if they come at the expense of other children who have done nothing to deserve being discriminated against in this way.