Amber Muhinyi has written a letter raising some concerns about the proportionality and legality of racial eligibility criteria on student schemes in higher education. Don’t Divide Us will be sending the letter to Government ministers once signatures have been gathered. If you are a U.K.-based academic or work in a university and would like to add your signature, please let DDU know your name and affiliation by Friday March 10th.
Daily Sceptic – Amber Muhinyi –
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”. Race is one of these protected characteristic (Section 4), and is defined as including colour, nationality, and ethnic or national origins (Section 9).
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 – U.K. 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.”