European Journal for Education Law and Policy 5: 141–151, 2001.© 2003 Kluwer Academic Publishers. Printed in the Netherlands.

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Equality in education: The challenge of multiculturalism

Ann BlairSchool of Law, University of Leeds, Leeds, UK, LS2 9JT

1. Introduction

This paper is concerned with the challenge of achievingsubstantive equality for pupils in an education system thathas to meet the needs of pupils from diverse racial, ethnic,religious and cultural backgrounds, and where success inthis is seen as crucial to the development of cohesivecommunities. In the UK current priorities in equality ineducation relate more to racial discrimination, race relationsand separatism than to questions of unequal resourcing. Thepaper assumes that there is a need for adequate legal mecha-nisms to be in place to address the needs of multiethnicsocieties, but an initial point that requires close examinationis the question of exactly what is meant by the term multi-culturalism. While there is no single definition in the UKcontext this paper commences with an examination of itsmeaning and development.

The dominant approach to the education of pupils fromdiverse backgrounds in the UK up to the middle of the 1960swas an integrationist or assimilationist one. Racial inequalitywould be resolved as the immigrant population becamemore “British”.1 From the 1960s, a multiracial approachdeveloped which recognised cultural diversity and somedegree of structural inequality. This approach grew into aform of multiculturalism that was given the seal of approvalby the Swann report of 1985.2 However, by the mid-1980s the left was pressing for a more radical “anti-racist”approach (Brandt, 1986, Jones, 1998). Swann was criticisedfor failing to acknowledge the reality of the experiencesof racism of pupils from minority ethnic groups (Chauhan,1988, Walkling and Brannigan, 1986). However, whilegroups on the left were preoccupied with arguing the relativemerits of the different approaches, the whole movement waseclipsed by the truly radical reforms coming from the right-wing Conservative government. The Education Reform Act1988 (ERA) introduced the National Curriculum and theGrant Maintained school. By this time data comparingperformance had led to the creation of school “league tables”and “parental choice” had taken centre stage as a strategyfor raising standards. Where raised as an issue, and oftenit seems not to have been considered at all, the assump-tion seems to have been that pupils from minority ethnicgroups would be better served by improvements in teaching,as evidenced by improved school performance, than bycommitment to ideals of equality.

Taylor (1992) identified significant concerns thatchanges to the organisation of education were having adetrimental effect on the ability of Local Education Authori-

ties (LEAs) to coordinate effective programmes of supportfor multicultural and/or anti-racist education. Not everyparticipant in Taylor’s research reported only negative devel-opments, but later research suggests that from this pointmulticulturalism went into almost terminal decline (Jones,1998 and Hatcher, Tronya and Gewirtz, 1996). The chal-lenges of living in a diverse society were increasingly seenas relevant only to schools with a significant proportion ofpupils from minority ethnic groups. Schools were choosingto concentrate resources on challenges that would havea direct impact on standing in “league tables” and manyschools were sliding back into assimilationist approaches.Following the election of the first Blair administration in1997, concerns about multiculturalism have been revived.The current incarnation is not so much concerned withequality as with a concern that the “colour-blind” approachof the 1980s and 1990s failed to address the real educationalneeds of minority ethnic pupils. The aim seems to be to reas-sess the position of schools with a large population of pupilsfrom minority ethnic groups who were unable to competeeffectively on an increasingly uneven playing field. A furtheraim seems to be to explore the role that education canplay in promoting better understanding between groups fromdiverse backgrounds. On this view multiculturalism is notseen simply as a shorthand term to describe the phenomenonof communities where people from diverse ethnic, racial,cultural and religious groups inhabit the same geographicalspace. Rather, and especially in an education context, multi-culturalism is a philosophy aimed at enabling these groupsto coexist productively in a climate of mutual respect. As areflection of liberal ideology, all cultures should be valuedand peaceful coexistence is not to be achieved at the cost ofmembers of these groups being required to assimilate andabandon essential elements of their cultural heritage, butachievement on the same terms as pupils from the homecountry is also seen to depend on valuing pupils as indi-viduals and as members of respected racial, ethnic, culturalor religious traditions.

How does this version of multiculturalism fit within thesystems of race equality and education law? This rest ofthis paper seeks to explain why education has such a highprofile in issues of race relations at the present time. It willplot the development of discrimination law and try to assessits impact on education law. It will assess the contributionthat this corpus of law has on ensuring equality in the schoolsystem and addressing problems of increasing segregation ofand conflict between ethnic groups. It will seek to identifyareas where the aim of high academic achievement among

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minority ethnic pupils and good race relations is hinderedrather than helped by the law. In conclusion it will look atthe role Citizenship education might play in addressing theundoubted difficulties there are in helping multiracial andmulti-faith communities take on a truly multicultural dimen-sion. The next section highlights current issues of concernbefore turning to plot the development of race equality law.

2. Race, Education and Separatism

The issue of racial and religious tolerance has taken on a newurgency since the events of September 11th 2001. Yet theUK provided another graphic illustration of the importanceof education in addressing issues of equality in a multi-ethnic society during the summer of 2001. Following thecancelling of the concluding event of an annual festival ofSouth Asian arts in Bradford, West Yorkshire, a rumour of aFar-Right presence in the City led to outbreaks of violence.3

The next three nights saw some of the most serious rioting inBritain since the disturbances of the early 1980s. The riotsin Bradford were not the only ones that took place in townsin the North of England at around the same time,4 but purelyby coincidence that same week Lord Ouseley, formerly chairof the Commission for Racial Equality (CRE) published thereport of an inquiry into race relations in the City.5 Anysummary of the 50 pages of the report is inevitably partial;this summary concentrates on the findings with implicationsfor education. Education is a major focus of the report and itsfindings and conclusions could not be a more stark warningof the role that education must play in addressing the issuesthat gave rise to the riots.

The report was commissioned to investigate a percep-tion that in Bradford “current relationships between differentcommunities have been deteriorating for some time”. Itfound that,

“different ethnic groups are segregating themselves fromeach other and retreating into “comfort zones” made upof people like themselves. They only connect with eachother on those occasions when they cannot avoid eachother, such as in shops, on the streets, at work, whentravelling and, perversely, in Asian-owned restaurants bychoice. Education in schools is the most vivid reflectionof this state of affairs.” (p. 16)

Young people in Bradford expressed many education-relatedconcerns in the report; concerns about low levels ofacademic achievement in too many schools and curriculumcontent inadequate to enable understanding of differentcultures and religions; a “virtual apartheid” in manysecondary schools in the district and limited interactionbetween different communities and schools; racial conflictand harassment in schools and inconsistent and inadequateaction by schools and teachers to recognise and deal withracial incidents.

Concerns that were common to all age groups were thepoor public image of the City and the “white flight” of themiddle classes, leaving behind an underclass of relativelypoor white people and visible ethnic minority communities.

However, even Sikhs and Hindus were identified as driftingout of the city to alternative preferred neighbourhoods.Islamophobia was seen as prevalent in schools and thecommunity and self-segregation was seen by some minori-ties as the only way to promote, retain and protect faith andcultural identity and affiliation.

In spite of this distressing picture of conflict set againsta climate of economic and industrial decline the tenor of thereport is not defeatist. Having cast an unwavering eye onthe scale of the problem, the review team set out strategiesfor rebuilding the community. At the centre of this is theembracing of the government’s programme for Citizenshipeducation in schools.6 However, the report says little aboutthe contribution the law of schools admissions has made tothe de facto segregation of schools. This might be thought acurious oversight, as this seems to have been seen as one ofthe most important contributory factors to the sad state of theCity’s race relations. Given that the UK has a long traditionof equality legislation how had this come about. To answerthis question it is necessary to look at the development ofrace relations legislation and its effect on education.

In England and Wales, there has long been a clearand fundamental commitment to the principle that in theeyes of the law all persons are equal, but this had neverreally extended beyond the doors of the courtroom. Thelaw has cherished a principle that all subjects may dofreely anything not prohibited by law. It has also had afierce attachment to freedom of contract. Together thesehave meant that at common law (exercising property rightsor entering contracts, including contracts of employment)individuals may act for good reasons, bad reasons or noreason at all.7 That this might affect others because oftheir race or religion has not been seen by the commonlaw as problematic.8 Whatever the revulsion against bias orunfounded prejudice, the common law position has meantthat such law as there has stemmed largely from positivestatutory intervention, particularly the Race Relations Acts.The political commitment to addressing race discriminationis evident in the fact that legislation to address problemsof race discrimination and race inequality pre-dates the EUDirectives 2000/43/EC (implementing the principle of equaltreatment between persons irrespective of racial or ethnicorigin) and 2000/78/EC (framework for equal treatment inemployment and occupation) by 35 years.

The first piece of race discrimination legislation in theUK was the Race Relations Act 1965, which established theRace Relations Board, the forerunner of the CRE. The Actcontained only limited substantive provisions concerningdiscrimination in access to certain public places such ashotels and leisure facilities. This was followed quite quickly,partly in response to the growing civil rights movement inthe USA, by the Race Relations Act 1968. The 1968 Actcontained the first provisions relating to discrimination inemployment and in the provision of goods and servicesgenerally. Welcome as these developments were, the Actwas criticised as ineffective because it lacked the teeth of anindividual enforcement mechanism. These provisions wereconsolidated in and added to by the Race Relations Act

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1976 (RRA). The RRA made specific provision for discrimi-nation in education in ss.17–19. In addition, s.71 of the Actcreated a duty for Local Authorities to eliminate unlawfulrace discrimination and to promote equality of opportunityand good race relations. One of the most obvious ways ofdischarging this duty is through education.

The most important innovation of the 1976 legislationwas the creation of individual rights. These are equalitybased and are virtually identical to those in the Sex Discrimi-nation Act 1975. Three basic forms of discrimination areactionable by individuals at law, direct discrimination,indirect discrimination and victimisation (s.1(1)). Directdiscrimination is less favourable treatment on racial grounds.This has been said to be incapable of being justified, but infact, there are a number of closely defined situations wheredifferential treatment is possible. For example, through“genuine occupational qualifications”9 and through someminor exceptions that, inter alia, allow training opportuni-ties to be targeted at specific groups.10

The provisions on indirect discrimination (which grewout of the U.S. doctrine of disparate impact) prevent the useof requirements, conditions or barriers that have a greateradverse impact on some groups than others. These barriersare illegal except where they are “justified”. The standard ofjustification, as for sex discrimination, is that of objectivejustification. According to the test in Bilka Kaufhaus,11 thisrequires an objective balance between the needs of the enter-prise and the discriminatory effect of the condition.12 In thecase of Mandla v Dowell Lee 13 this was held to includeunjustified school uniform requirements that affect somegroups disproportionately. A pupil of Sikh origin had beenrefused admission to a school because wearing a turban asrequired by his religion was contrary to the school uniformrequirements. This was indirect discrimination that could notbe justified.14

This issue of rules and practices that might conflict withthe mandatory requirements of some faiths and culturesraises a different and fundamental problem in ensuringsubstantive equality in the UK. The Islamic faith imposesmany requirements on its followers, but Muslims are morevulnerable than some other groups because they do notautomatically fall within the definition of ethnic origin thatwould bring them within the scope of the RRA.15 There maybe scope for protection if it can be shown that discriminationon the grounds of religion is indirect discrimination on thegrounds of race. This can happen if discrimination based onreligion affects a greater proportion of people of a particularracial group than of a comparative group. The distinctionbetween the turban and the headscarf, which is based onartificial distinctions between race, ethnicity and religion,is, however, a simply illogical outcome. Nevertheless, guid-ance on home-school agreements suggests that to refuseto waive a school uniform requirement in cases where thechild cannot comply for religious reasons would be unlawfulor unreasonable.16 When Directive 78/2000/EC comes intoeffect a teacher will definitely obtain protection from indirectreligious discrimination that cannot be justified. However,pupils will not benefit from the protection that teachers

have as the government has chosen not to go further thanthe directive requires. The importance of such issues forbuilding cohesive communities arises because many parentswill feel unable to compromise over the requirements oftheir faith and any unwillingness on the part of the schoolsto accept the requirements of religious observance has thepotential lead to more segregation. If this is the case aflexible approach on the part of the education system anda narrow interpretations of justification in respect of tradi-tional modes of dress and other cultural requirements mustbe preferable to the risks attached to segregated education.

The wave of race rioting in England in 2001 shows thatthere is little room for complacency over the effectivenessof discrimination law or health of race relations. In additionto problems of segregation, self imposed or otherwise, thepublication of the MacPherson report of the investigationinto the circumstances surrounding the police investigationof the murder of Stephen Lawrence highlighted other prob-lems and has proved to be something of a turning point inrace relations law. The MacPherson report identified a parti-cular issue in the problem of “institutional discrimination”and defined this as:

“The collective failure of an organisation to provide anappropriate and professional service to people becauseof their colour, culture or ethnic origin. It can be seenor detected in processes, attitudes or behaviour whichamount to discrimination through unwitting prejudice,ignorance thoughtlessness and racist stereotyping.

Unwitting racism can arise because of lack of under-standing, ignorance or mistaken beliefs. It can arise fromwell-intentioned but patronising words or action. It canarise from unfamiliarity with the behaviour or culturaltraditions of people from minority ethnic communities.It can arise from racist stereotyping of black people aspotential criminals or troublemakers.” (Cm 4262)

The report found such institutional discrimination in theconduct of the Metropolitan Police.

Against the background of the report, the law has beenamended to apply the non-employment provisions of theRRA to most public authorities, but particularly the police.This makes it “unlawful for a public authority in carryingout any functions of the authority to do any act which consti-tutes discrimination” (new s.19B RRA inserted by s.2 RaceRelations (Amendment) Act 2000 (RR(A)A)). This duty ismade more specific by the Secretary of State by Order (news.71(2)) and is supplemented by Codes of Practice issued bythe CRE. The Commission has powers to enforce the generalduty through the issuing of compliance notices, which canbe enforced through the courts if well founded (new s.71D).LEAs (para. 12 schedule 1A) and school Governing Bodies(para. 46 schedule 1A) are subject to the general duty). TheAct also extends the duty in s.71, which formerly appliedonly to Local Authorities, to any public authority as definedin the new schedule 1A. Such an authority shall “in carryingout its functions have due regard to the need- (a) to eliminateunlawful race discrimination; and (b) to promote equality ofopportunity and good relations between persons of differentracial groups”.

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However, this law may appear to be in better shape totackle discrimination through the duties of public authori-ties than the reality justifies. An attempt to use the dutyas it applied to local authorities in s.71 in a proactive wayin Wheeler v Leicester CC 17 was struck down because theauthority had directed their action at behaviour that waslawful, and because the action “punished” a third party.18

3. Race equality and schools

The new legislative forms of s.19 and s.71 do not alterthe position in education very significantly, in substancethese duties have applied, directly or indirectly to most stateschools since 1976. What do alter are the some of the moredetailed specific duties, which fill out the manner in whichthe general duty is to be satisfied. These are emerging inthe prescriptions of new regulations, the Race Relations Act1976 (General Statutory Duty) Order 200119 and the RaceRelations Act 1976 (Statutory Duties) Order 200120 andin the new CRE Codes of Practice. The specific duty thatapplies to schools is in paragraphs 3(1), (2) and 3(3) of theStatutory Duties Order.21 This requires schools to: preparea written statement of policy for promoting race equality;maintain a copy of the statement; assess the impact of itspolicies, including its race equality policy, on pupils, staffand parents of different racial groups including, in parti-cular, the impact on the attainment levels of such pupils;and monitor, by reference to their impact on such pupils,staff and parents, the operation of such policies including,in particular, their impact on the attainment levels of suchpupils. The specific duties are seen as ways in which theschool should meet the general duties to eliminate unlawfulrace discrimination, to promote equality of opportunity andto promote good relations between persons of different racialgroups. The Codes of Practice22 requires public authoritiesto examine all of their policies and functions against thestandard imposed by s.71 RRA.

It remains to be seen whether the detailed examinationthat schools will now have to submit their policies andpractices to will make the necessary difference. Certainlythe changes are to be welcomed and as they apply to allschools multiculturalism and race relations will no longer besomething that schools without a significant minority ethnicintake can ignore. Nevertheless, given that the general dutieshave applied to LEAs for the last 25 years, one would expectthat discrimination in education, institutional or otherwise,would be rare. The same might be concluded from the facethat education rights have always been defined without refer-ence to race, nationality and ethnic origin. Sadly, this has notproved to be the case. Further, the performance of the courtsto date in addressing these issues does not give much causefor optimism that the new approaches needed followingthe introduction of the RR(A)A will bring about significantchange. As we shall see, in the cases that have come beforethe UK courts a mixed picture emerges. This section willdevelop these themes in the context of three areas wherethe law might be seen to have failed to defend equality ormulticulturalism sufficiently robustly. These are admissions,

attainment and exclusions. Shades of the Ouseley report canbe found in all of these areas, but if the picture that emergesfrom this is rather gloomy, the way forward identified inthe next section tries to identify cause for some cautiousoptimism.

(a) Admissions

The bodies that allocate school places are subject to theprovisions of the RRA, including the duty in s.71. The inter-pretation of the relationship between principles of parentalchoice and the duty to promote good race relations hasgenerated an interesting, and worrying, body of case law.In marked in contrast to the landmark cases of Mandla vDowell Lee and R v Birmingham CC ex parte EOC 23 thiscase law gives no great grounds for delight in the effect-iveness of the courts in guaranteeing the education rights ofminority groups. In R v Bishop’s Challoner School ex parteChoudhary 24 it was held that an oversubscribed schoolcould adopt any reasonable criteria for determining whichpupils to accept. In this case, the criteria were based onreligious affiliation and white parents were given preferenceover the applicants’ children who were Asian and of theHindu and Muslim faith. In R v Bradford MBC ex parteSikander Ali 25 the drawing of catchment areas by referenceto traditional links between geographical areas was chal-lenged. This meant that parents from predominately Asianpopulated areas could not gain places for their children ata number of preferred schools. It was held that this wasnot discrimination on grounds of race, as it was where theparent lived rather than the parent’s race that that preventedthe child obtaining a place. A possibility that there mightbe unjustifiable indirect discrimination was rejected on thebasis that the numbers of parents failing to obtain a placeat the school of their choice were roughly comparable forAsians and non-Asians.

In R v Cleveland CC ex parte Commission for RacialEquality the Court of Appeal26 refused the CRE’s appli-cation for a declaration that the LEA decision to complywith a parent’s application for transfer to another school wascontrary to the RRA. The motives of the parent were allegedto be racist. She was unhappy about the child learningnursery rhymes in “Pakistan[i]” and requested transfer froma school with a large number of Asian pupils to one wherethe school population was predominantly white. The LEAhad a duty not to discriminate on grounds of race (s.18RRA). However, both the High Court and the Court ofAppeal held that this could not qualify the duty under s.6of the Education Act 1980 (now s.86 School Standards andFramework Act 1998 (SSFA)) to comply with the parent’spreference. The LEA could not be imputed with the parent’sallegedly racist motive and the court was not prepared toinsist that LEAs must assess parents’ subjective motives fortheir preferences.27

It is clear from this brief excursion into the law onschool admissions that the problems of segregation, high-lighted so dramatically by the events in Bradford, cannotbe reversed through administrative action within the scopeof the current law. The primacy of parental choice has

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meant that those with effective choices have been able toabandon Inner City schools with their social problems andracial tensions. Equally parents from minority ethnic groupsare able, so long as a school has places, to seek a schoolplace where the majority of the pupils will come from asimilar background to their own. This segregation can leadto pupils from the most disadvantaged socio-economic back-grounds, including those for whom English is an additionallanguage, being concentrated in schools where attainment islow.28 A proposal which emerged in the Clarke and Ritchiereports into the disturbances in Oldham and Burnley andthe Cantle Report29 is to review allocations policies, and toinsist that faith schools reserve a proportion of the places forpupils who are not of that faith. This was seized by FrankDobson, who laid an amendment to the Education Bill 2002to this effect. After a long debate the proposals were defeatedemphatically.

A new factor that needs to be considered is the recentgranting of Maintained status to a number of Muslim andother minority-faith schools, bringing such schools intothe state system of education for the first time. Therehave been significant numbers of Church schools withinthe state system since the Education Act 1944 created themodern education system. In light of this, the fairness of thebelated acceptance of Muslim schools into the state systemis unarguable. However, the Government’s current policy, ofpromoting the establishment of more schools with a faith-based ethos seems to add to the likelihood of segregationrather than to diminish it (DfEE 2000). If the growth ofminority-faith schools in some areas becomes significantthe position might also be exacerbated by the effect of thedecision in R v Lancashire CC ex parte Foster.30 Here theparent who was Roman Catholic had expressed a preferencefor their child to attend a non-denominational secondaryschool. The policy of the LEA was that, given the largenumber of Roman Catholic schools in the area, pupils of theRoman Catholic faith would only be considered for placesat non-denominational schools after other applications hadbeen met. As with the Bishop’s Challoner case, the authorityhad to comply with the parent’s preference except where thiswould prejudice the provision of efficient education or theefficient use of resources. However, as the school had moreapplications than places the LEA could adopt any reason-able criteria to determine the allocation of places. The courtheld that religious affiliation could be relevant even wherethe school was not a church school. Although this policymight seem unreasonable at first sight, given the availabilityof places in the area as a whole it was said to be acceptable.

Clearly, this principle could be applied directly inthe case of an authority with a significant proportion ofMuslim schools and affect Muslim parents choosing non-denominational schools. While it is accepted that the risk ofthis happening is not high at the present time, there are otherproblems inherent in this policy. The RRA forbids forcedsegregation yet is powerless to prevent self-segregation, andmoves to increase minority faith schools can only increasethis trend towards self-segregation. The CRE point out thatseparate schools will never educate more than a minority

of black pupils, the system will still have to provide forthe needs of most black pupils in mixed schools. The CREalso believe increased segregation means, “all ethnic groupslose out because they are denied the chance to mix andshare experiences naturally” (CRE, 2001). There seems tobe a difficult balance to be drawn between the advantagesof a secure ethos in raising standards and the disadvantagesof separate schools creating distrust. A policy of “twin-ning” schools to overcome divisions and distrust has thesupport of some members of the educational community inBradford.31 However this proposed solution is not unprob-lematic, Chauhan (1988) describes the dangers of suchpractices creating a zoo effect with white pupils coming in tomarvel at the oddness of Inner City schools and their ethnicmix.

If the outcome of applying discrimination law principlesto the interpretation of domestic education law has beenuneven, the record of compliance with international obliga-tions is also mixed. This perspective is one that has oftenbeen neglected. Art 12 of Regulation 68/1612 grants thechildren of EU migrant workers the right to access to theeducation system of the host state under the same conditionsas nationals. As this as never been tested in the courts andseems not to have caused problems in practice, neglect of theissue is probably more a formal problem than a substantiveone. However, if it did come to litigation in the UK theright might prove useless because the rights to education inEngland and Wales are not themselves particularly secure.In R v Inner London Education Authority ex parte Ali 32

children had been left without Primary school places fora considerable period because local schools were full. Itwas found that there was no breach of the LEA duty toprovide education for the children in its area. The duty ins.8 of the Education Act 1944 (now s.14 EA) to providesufficient school places was seen by the court as a dutyowed to the community rather than a duty owed individu-ally to the parents or children. This duty was not breachedautomatically when the LEA found itself temporarily unableto find places for all children through no fault of its own.The important right in Art. 2 of Protocol 1 of the ECHRhas only been incorporated into the law of England andWales since October 2000 via the bringing into force of theHuman Rights Act 1998 (HRA). It will be interesting to seewhether the interpretation in Ali can withstand the introduc-tion of the HRA.33 However, Art. 2 Protocol 1 is subject tothe important reservation that such rights are subject to theproviso that they are compatible with efficient education andthe efficient use of resources. This is a qualification foundscattered liberally through legislation enacted from the 1944Act to the present day.34 In view of the reservation, anysignificant change to the current position seems unlikely.

(b) Attainment

The attainment of pupils from minority ethnic backgroundshas been recognised as a problem for a considerable time(and is still recognised to be a problem, Pathak, 2000).As long ago as 1985 the Swann report signalled the

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need for a commitment to multiculturalism in educationin order to ensure, in the words of the title of the report,“Education for All”.35 However, the reforms of successiveConservative governments reduced the role of the LEAsand teacher-training institutions where much of the workdeveloping strategies for multicultural education had beensituated. This has left a framework that seems to havebeen incapable of ensuring that good practice for raisingthe attainment of minority ethnic pupils could be dissem-inated widely (Hatcher, Tronya and Gewirtz, 1996 andJones, 1998). In 1996, the Office of Standards in Educa-tion (OFSTED) sponsored a thorough survey of publishedresearch (Gillborn and Gipps, 1996), which identified awide gap in the effectiveness of practice between differentschools and LEAs. OFSTED’s follow up report “Raisingthe Attainment of Minority Ethnic Pupils” (1999)36 foundthat the majority of schools included in the research wereengaged in a wide variety of initiatives to improve provisionand raise attainment of all pupils. However, few schoolshad monitored these activities systematically and initia-tives rarely had a specific ethnic focus. Very few schoolsreviewed their curricular and pastoral strategies to ensuresensitivity to ethnic groups in the student population andthe wider community. In the cases where schools had donethis because of concerns about a particular minority ethnicgroup there had been positive outcomes. The use of initi-atives designed to get extra staff into schools to meet theneeds of such pupils37 was patchy and dependent on thecommitment of the senior management of the school. Thereport concluded that schools where minority ethnic pupilsflourished understood the hostility that these pupils oftenfaced and had countered stereotyping. This had been to thebenefit of pupils’ self-esteem and improved the attitudes ofthe majority. The research concluded that success in schoolsrequires an ethos that is open and vigilant.

As far as the LEAs included in the research wereconcerned, of those inspected only a 25% had strategiesfor raising attainment. Many were found to have “uncer-tainty which verges on helplessness about what are effectivestrategies to improve attainment for some groups”. Mostwere conscious of their responsibility for promoting goodrace relations and most had written policies, with someproducing further guidance, but few monitored implement-ation. Those that did, and had good quality support, had ameasurable impact on race relations in the schools involved.

It is clear that schools have failed to guarantee appro-priate levels of attainment for many pupils from minorityethnic backgrounds (CRE, 1992). The CRE see the answernot in separate schools, but in “getting every school to takeaction on racial equality and genuinely meeting the needsof pupils from every background” (CRE, 2001). In theirview OFSTED have a role to play in this and to date theyhave been failing in this role (CRE, 2000, see also Tayloret al., 1992). Notwithstanding the research that OFSTEDhave carried out, the perception is that problems of racismand racial equality have not been taken as seriously as otherfailings in schools. These issues have generally had a lowprofile in the inspections process. The quasi-legal nature of

the obligations in the new Code of Practice may be sufficientto ensure that the need for change is taken to heart, andthe new specific legal duties in the RRA (Statutory Duties)Order may provide the bite that is necessary to engage themore reluctant actors in this process. The keenness of thebite will depend on whether the CRE are given the resourcesnecessary to engage in the enforcement role energetically.It might also depend on whether OFSTED see compliancewith these duties as a significant factor in deciding whethera school can be said to be providing a satisfactory educationfor all of its pupils or not.

An aspect of attainment that requires special mentionis the role of language. Although assimilation has beenrejected as a solution to problems of race relations, theability to communicate in the language of the host state isa prerequisite of effective equality with the native speaker.There are no specific rights in domestic law to extra tuitionin the English language,38 but there are relevant EU provi-sions. However, if there are problems with the effectivenessof Regulation 68/1612, these are minor compared with thoseof Directive 77/486. This directive includes provisions thatchildren of migrant workers are entitled to teaching in theirmother tongue and extra tuition in the language of thehost nation.39 Neither of the requirements in the Directivehas been met in full. The UK is not the only MemberState to have disregarded its obligations in this way andthe EU seems to have abandoned any intention of enfor-cing the directive (Cullen, 1996). Migration patterns in thecommunity are very different from those anticipated whenthe directive was formulated. In light of the potential numberof languages involved, it may be simply that this recog-nises the difficulty of providing an open-ended commitmentto resources.40 The possibility of individual enforcementthrough the doctrine of direct effect has not been tested,though it is thought that the provisions in Art. 3 of theDirective on teaching in the mother tongue are, in any event,too vague to be enforceable (Cullen, 1996, De Witte, 1989).

It seems that informal solutions such as the availabilityof school places funded by the migrant’s home state, and therelative prosperity of migrants within the EU, make languageprovision a less pressing problem for migrants within the EUthan for migrants from third countries (Stalford, 2001).41

The possibility that the provisions may also apply to thirdcountry migrants as a legal right is apparently open toquestion (De Witte, 1989). Does equality require specialprovision? De Witte (1989) points out that these provisionssimply recognise the fact that equality is not incompatiblewith the need for special measures to ensure that childrencan take advantage of education and training on an equalfooting. If equality requires not only that similar casesbe treated the same, but that different cases are treateddifferently, such resources are in fact an absolute precon-dition of substantive equality. Exactly which policies arecapable of creating the best conditions will always be opento debate. However, the proposition that the need for supportof learning in the home language (at least until the childacquires proficiency in the language of the host state) seemsfairly self-evident, as does the need for extra tuition in the

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language of the host state. In the UK sources as diverseas the teaching unions (AMMA, 1983),42 the CRE, theDfES (and its forerunners) have supported this for a consid-erable period.43 Indeed the Home Office in the shape offunding for language support under s.11 Local Govern-ment Act 1966 have been at the forefront of this almostsince the birth of multiculturalism in the UK. Section 11funding via the Home Office has now been replaced with twoseparate funding streams. First, Ethnic Minority Achieve-ment Grants which are administered by the DfES and aretargeted at educational disadvantage, second, Race EqualityGrants which are administered by the Home Office and aretargeted at community development (but which can be usedby schools for example for programmes of personal develop-ment for girls from ethnic minority groups). The challenge isto support and encourage schools to turn the new consensuson the need for multicultural approaches, and the availabilityof resources for language support and personal development,into practical and effective action. As the OFSTED researchshows this is not yet a reality in all schools with minorityethnic pupils.

(c) Exclusions

One area where there has been consistent evidence of racediscrimination in the education system is in the exclusionrates of Afro-Caribbean pupils, particularly boys (Gillbornand Gipps, 1996, CRE, 1996 and 1997, Social ExclusionUnit, 1998, Harris and Eden with Blair, 2000). In 1999/2000the exclusions rate of black pupils was running at 3.0 timesthat of other pupils. It is encouraging that this is down from3.5 times that for other pupils in 1996/7. However, within theglobal figure there is variation from 1 in 10,000 for Chinesepupils and 46 in 10,000 for Black Caribbean pupils (theaverage is 12 in 10,000).44 It is difficult to quantify the extentto which racism is the direct result of conscious or uncon-scious discriminatory practices by teachers, and the extentto which this discrimination is the result of structural factors.Some sense of the complexity of the interaction of possiblefactors can be found in Gillborn and Gipps (1996). What isclear is that the existence of the duties and the remedies inthe RRA has not been sufficient to address the problem ofwhat must now be termed institutional discrimination.

A good illustration of the nature of the problems someBlack pupils have faced can be seen in a report of events at aschool in Gloucestershire which was criticised for excludingBlack pupils for suspected drug dealing. The exclusionswere overturned because there was no evidence to groundthese suspicions other than hearsay; the exclusions had beenthe result of institutional racism and stereotyping (Chil-dRight, 2000).45 Few cases seem to have reached the courts.Most cases, if challenged at all, are challenged through theexclusions appeals process rather than the courts. However,recent research has shown problems arise here too (Harrisand Eden with Blair 2000). A case that did come beforethe courts is R v Secretary of State for the Home Depart-ment ex parte Mbandaka.46 The parents’ applied for JudicialReview to challenge the use of detention and temporaryexclusion from school because in their view there was race

discrimination in the imposition of disproportionate discip-linary action. The application was unsuccessful. It wasaccepted obiter that there was evidence of disproportionateaction against black pupils, but the judge decided that thetemporary nature of the exclusions had to be considered indeciding if there was any basis for judicial intervention. Thiswould only be appropriate if there was evidence of a likeli-hood of recurrence. It was felt that Judicial Review wouldnot benefit the children and would be excessively costly tothe public purse and the school. The only shred of comfortfor the parents in the decision was the view that the pastconduct of the school could be taken into account if therewas victimisation in the future. This hardly bodes well forparents hoping for effective action to stamp out institutionalracism from a judiciary given new powers by the HRA anda role enforcing the new duties in the RRA.47

The current government attaches great importance toproblems of social exclusion and to the role they believeeducation has to play in addressing this. Guidance forschools on school exclusions48 refers explicitly to the excessuse of exclusion for Black Caribbean pupils, especially boysand asks Governing bodies and head teachers to monitor theuse of sanctions against ethnic minority pupils. However,the guidance is very brief, suggesting that care should betaken to ensure that the behaviour was not provoked by racialharassment and to avoid stereotyping. A single paragraph onstrategies to address under-achievement, although it usefullycounsels against “colour-blindness”, seems hardly adequateto address a problem of this seriousness and magnitude.Equally, it seems unlikely to change the hearts and mindsof a school management that has failed to meet the needs ofits ethnic minority pupils.49

To conclude this section; if pupils from minority ethnicgroups enjoyed success in education on equal terms withother pupils and were guaranteed an educational environ-ment that was free of racism would this lead to less segreg-ation? It would not address the segregation that was foundin Cleveland or Sikander Ali. The law of school admissionswould need to be reformed quite radically if it were to ensurethat the policies of admissions authorities did not contributeto segregation. However, it might address some part of theself-segregation identified in Bradford. The contribution thatother recent initiatives might make is addressed in the nextsection.

4. A reincarnation?

Mahoney and Frith (1996) have observed that the obses-sion with the three “E’s” – Efficiency, Effectiveness andEconomy – had been at the expense of a 4th E – Equality.Equality in their view is a significant omission because ofits potential as a determinant of Quality.50 Has equalityfinally been brought into the fold and will multiculturalismfind a new place in the pantheon of measures designed tobring about school improvement? There may be room forcautious optimism that the new duty of all public authori-ties to tackle institutional discrimination may lead to arebirth of the importance placed on multiculturalism. As

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new approaches seem to recognise the need to addressracism as well as to respect cultural differences perhapsthis manifestation will be less fractured than before.51 Since1988, all schools have been required to follow the NationalCurriculum (s.352 Education Act 1996 (EA)), but untilrecently the content of the compulsory curriculum has beendominated by an emphasis on subject based knowledge.From September 2002, “Citizenship” will form part of theNational Curriculum for secondary schools. Might the newNational Curriculum Orders on Citizenship be the catalystthat gives impetus to a rebirth of multiculturalism and a newemphasis on equality? The placing of these issues in theNational Curriculum certainly means that the issues can nowbe “mainstreamed”, as the content of the Orders is legallybinding on all schools. For the first time schools withoutsignificant proportion of pupils from minority ethnic groupswill have to address the relevance of these issues for thewhite majority.

Qualifications and Curriculum Authority (QCA) andDfES joint guidance on Citizenship emphasises spiritual,moral, social and cultural development and the skills ofworking with others. The importance of citizenship educa-tion is stated explicitly to include encouraging respect fordifferent national, religious and ethnic identities. At KeyStage (KS) 352 pupils should be taught about the diversityof national, regional, religious and ethnic identities and theneed for mutual respect and understanding and the impor-tance of resolving conflict fairly. At KS453 pupils should betaught about the origins and implications of diverse national,regional, religious and ethnic identities in the UK and theneed for mutual respect and understanding. Also at KS4pupils should be taught to use their imagination to considerother people’s experiences, to think about, express, explainand critically evaluate views that are not their own in orderto develop skills of participation and responsible action.

Guidance on inclusion associated with the CitizenshipOrders highlights the importance of responding to pupil’sdiverse learning needs;

“When planning, teachers should set high expectationsand provide opportunities for all pupils to achieve,including boys and girls, pupils with special educationalneeds, pupils with disabilities, pupils from all social andcultural backgrounds, and those from diverse linguisticbackgrounds. Teachers need to be aware that pupils bringto school different experiences, interests and strengthsthat influence the way in which they learn. Teachersshould plan their approaches to teaching and learningso that all pupils can take part in lessons fully andeffectively.”54

The guidance goes on to give examples of specific actionthat teachers can take. This includes; creating a learningenvironment where stereotypical views are challenged andpupils learn to view positively differences in others and;where all forms of bullying and harassment are challengedincluding; securing motivation and concentration by plan-ning work which builds on pupils’ interests and culturalexperiences; and using materials which reflect social andcultural diversity and provide positive images of race . . . ;

providing equality of opportunity by taking account ofpupils’ specific religious or cultural beliefs. Teachers arealso counselled to take account of individual barriers tolearning including those who are learning English as an addi-tional language for whom teachers are advised to providesupport using translators, readers etc. and using the homeor first language where appropriate. Added to this are therecommendations of the DfEE’s Policy Action Team 11 finalreport (School Plus: raising attainment and expectations).55

If all of these developments are implemented effectivelyat school level, this adds up to a significant drive for therecognition of the needs of pupils from minority ethnicbackgrounds.

5. Conclusion

It is obvious that substantive equality cannot be achievedwithout the deployment of additional resources to meet theadditional needs of those from minority ethnic groups. Asfar as resources for and rights to additional language tuition,both in the mother tongue and in the language of the hoststate is concerned, the EU probably had this right in 1977.As the OFSTED sponsored research of 1996 and 1999shows, the need is to translate this into firm commitmentand effective action at the level of the LEA and the indi-vidual school for all pupils for whom English is an additionallanguage. Although it is acknowledged that resource limit-ations may legitimately limit the extent of this.56 Beyondthis, substantive equality, finding the right balance betweentreating different cases differently as well as treating similarcases the same, is always going to be an art not a science.Answers will only be found in the difficult judgments thatneed to be made on questions of justification. However thesejudgments need to be sensitive to the wider needs of society.A narrow view of justification may be required to accom-modate changes necessary to reverse the trend towardsself-segregation. Given the danger that increased separatismmight lead to the kinds of problems seen in the Ouseleyreport, the need of pupils and teachers to wear clothingand carry out the other requirements of their faiths must beapproached flexibly enough to allow continued dialogue andparticipation wherever possible. If the perception of somecitizens of Bradford is that self-segregation is seen by someminorities as the only way to promote, retain and protectfaith and cultural identity and affiliation, it may be necessaryto go further to accommodate difference than might other-wise be ideal. Finding the balance is an important challengefor policymakers and judges.

Even if the correct balance is struck a huge responsibilityfor dealing with the problems of multi-ethnic communiteshas been given to Citizenship education. It seems not tohave been acknowledged that this latest addition to thecompulsory curriclum may have been set an impossibletask. The introduction of the Citizenship curriculum maynot change hearts and minds quickly enough to addressurgent problems of community distrust. The urgency ofthe situation suggests that a legal framework better adaptedto assuring substantive equality might be required. The

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evidence suggests that to meet the challenge of multicultur-alism any strengthened framework will need to acknowledgethe needs of minority groups more explicitly and aim toreinforce respect for cultural diversity more positively.

The evidence of the Ouseley report57 identifies the lackof a multicultural education as a cause of deterioratingcommunity relations in Bradford. Could it be that race rela-tions have become worse rather than better in recent yearsis a result of the changes to the structure of the educationsystem post ERA? Recent changes are possible answers, butif the situation was genuinely as desperate as Jones (1998)described it, one can expect that it will be some time beforemulticulturalism approaches full health. It will be interestingto see whether the courts can find more positive ways toembrace the needs of a multiracial and multi-faith societyin general and the education system in particular. RR(A)Awill make public authorities do more, but to date the courtsseem to have been content to relegate race to second place inany battle with other duties and especially with any conflictwith individual rights. If approaches based on public dutiesare to work we need to be sure that when public authori-ties try to use powers and duties in a proactive way thecourts support them rather than falling back on individualistconceptions of rights.58 And equally, where parents (as inSikander Ali) are insisting on a right for their child to attend anon-segregated school the courts need to subject the policiesof admissions authorities to more rigorous scrutiny to ensurethat segregation can be avoided.59

However, even if all fears about the reactiveness of thecourts in tackling discrimination were allayed it would stillbe necessary to voice a word of caution. The framework forinjecting new life in the ailing body of multiculturalism issuperimposed on the system that led to its demise in the firstplace. Parental choice has been the most significant driver inthe segregation of schools, as the “white flight” has drivensegregation in neighbourhoods. Equally, unless sufficientresources and status are given to this project, the weaknessof the teacher-training institutions and of LEAs may meanthat the response remains patchy. Further, much fêted devel-opments such as the establishment of minority-faith schoolsmay come to be seen to have been bought at too high a priceif the outcome is more segregation. Progress seems likely tobe slow if these factors are not compensated for and progressis likely to be superficial if multiculturalism continues to beseen by most as an issue that affects only minorities and notthe body of society as a whole.

Notes

1. The whole notion of what it means to be “British” at the turn of the21st century was examined by the influential, though not uncontrover-sial, Parekh report. The Future of Multi-ethnic Britain. RunnymeadTrust (2000). Summarised at http://www.runnymedetrust.org/meb/TheReport.htm.

2. Swann (1985a) Education for All: Report of the Committee of Inquiryinto the Education of Children from Ethnic Minority Groups. See alsoSwann (1985b), Rampton, A. (1981), Runnymede Trust (1986). Thereis a diverse literature commenting on the report see for example, Taylor(1986), Harrison (1986), Tronya (1986), Marland (1987), Jones (1986).

3. The Observer, “Far Right picks next race target”, July 1st 2001, reportedthat a violent and extremist group, Combat 18, were planning to rally inBradford irrespective of any ban.

4. They also took place in Oldham, Burnley and Leeds.5. Bradford Vision (2001) Community pride not prejudice: making

diversity work in Bradford. http://www.bradford2020.com/ride/index.html. The findings of the Ouseley report are to a large degree replicatedby the reports into the other riots that took place – the Report of theGovernment’s Community Cohesion Review Team – the Cantle report,the Ritchie report of the Oldham panel, and the Clarke report of theBurnley task force. Together these are summarised in the report ofthe Interdepartmental Ministers group on public order and communitycohesion. See below.

6. Discussed below.7. The House of Lords in Zafar v Glasgow City Council [1998] IRLR

36 endorsed this sort of approach. Although the employer had actedunreasonably this was not contrary to the RRA as the employer wassaid to treat all employees equally unreasonably!

8. The impact of doctrines of public law are refered to in the UK reportelsewhere in this issue.

9. Section 5 RRA.10. Sections 37 and 38 RRA.11. Case 170/84 [1987] ICR 110.12. The question of what the standard of justification is has not been without

controversy. In defence of the present author’s view (which is that itis best described as the same as that contained in Bilka Kaufhaus),the alternative formulation in Ojutiku v Manpower Services Commis-sion [1982] IRLR 418, (i.e. whether there were sound and tangiblereasons for the requirement that would be acceptable “to right thinkingpersons”) was said in Hampson v DES [1990] ICR 511 to be no differentto that of objective justification.

13. [1983] ICR 385.14. The concept of victimisation is assumed to be self-explanatory.15. Some religious groups satisfy the definition of ethnic origin that

gives access to the protection from discrimination found in the RRA.Muslims, because of the heterogeneous nature of their religion, arevulnerable to discrimination based solely on their religion, though someprotection may be available if this amounts to indirect discrimination ongrounds of race.

16. This means unreasonable in its technical legal sense. See the UK reportelsewhere in this issue for a discussion of what this entails.

17. [1985] A.C. 1054, see also R. v Lewisham London BC Ex p. Shell UK[1988] 1 All E.R 938.

18. The council decided not to renew the licence of a Rugby club to use asports ground when, at the height of the Anti-Apartheid movement, theclub had refused to discipline members who had taken part in a tour ofSouth Africa.

19. SI 2002/3457.20. SI 2001/3458.21. In force from 31st May 2002.22. Available in draft form only at the time of writing.23. [1989] IRLR 173.24. [1992] 2 AC 182.25. [1994] ELR 299.26. [1994] ELR 44. The first instance decision of MacPherson J. is reported

at (1992) 91 LGR 139.27. See Harris (1992), Loveland (1993) and Mead (1992) for comment on

this case.28. Of course, there are many advantages of parents being entitled to choose

schools. The current system is certainly more transparent and account-able than in the past (West and Pennel 1998). However where rightsand duties clash it might be that choice should be limited where to offerunrestricted choice has potentially disastrous consequences.

29. Oldham Independent Review Panel (2001), Burnley Task Force (2001)and Home Office (2001a).

30. [1995] 1 FCR 212.31. The Guardian 13th July 2001.32. The Times 21st February 1990.33. See Meredith (2001). In April 2001, the BBC reported that Northamp-

tonshire County Council had been unable to provide places for 21 pupilsin Wellingborough. Within a few days of the media coverage, places hadbeen found through negotiations between the LEA and three Founda-tion schools in the area. The problem was exacerbated by the fact that

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although the LEA has the duty to provide places it is not the admissionsauthority for Foundation schools and is not in a position to insist thatthey accommodate extra pupils.

34. Other rights incorporated by the HRA such as art. 6 have not yet had apositive effect on education rights. In it was held in R v B ex parte Headteacher and Governing Body of Alperton Community School [2001]ELR 359 that the right to education is not a civil right therefore theprovisions of Art. 6 do not come into play and neither do the associatedprovisions in Art. 14 that the convention rights must be secured withoutdiscrimination. The view of the present author is that it is too soon torejoice or despair at decisions currently being made in the lower courts.It will only be with the passage of time that cases filter through to thehigher courts in sufficient number for any clarity to emerge over theshape of the new jurisprudence of human rights.

35. The earliest publication I stumbled across in my own University libraryis Coard (1971).

36. http://www.ofsted.gov.uk/public/docs/minority/I.htm.37. In particular the use of s.11 Local Government Act 1966 to obtain

funding to support minority language needs. S.11 has now beenreplaced by Ethnic Minority Achievement Grants, discussed below.

38. Though there are funds available to support the language needs of ethnicminority pupils, see below.

39. See Commission of the European Communities Report on the Imple-mentation of Directive 77/486. COM (82) 54 final, European ParliamentResolution on the Education of the Children of Migrant Workers (1981)OJ C260 18th Sept. 1981, European Parliament Resolution on theImplementation of Directive 77/486 on the Education of the Childrenof Migrant Workers (1985) OJ C122 16th April 1985 and EuropeanParliament Resolution on the application of Directive 77/486 on theEducation of the Children of Migrant Workers (1987) OJ C125 11thMay 1987.

40. De Witte (1992 quotes the Belgian Linguistics case ((1979–80) 1 EHRR252) on this and observes;

“to interpret the right of education and the principle of non-discrimination of the Convention ‘as conferring on everyone withinthe jurisdiction of a State the right to obtain education in the languageof their own choice would lead to absurd results, for it would be opento anyone to claim any language of instruction in any of the territoriesof the Contracting parties’. Yet, this passage, it is submitted, onlyrejects a duty of differentiation pushed to its extreme but does notexclude a duty to differentiate when this can reasonably be claimed.”At p. 287.

41. I an indebted to Helen Stalford for the timely completion of her PhDthesis which this analysis is drawn from.

42. AMMA state “We stand firm on two principles, the need for an effectivecommand of the English language and the need to respect and value thepupil’s home language” at p. 25.

43. Though, interestingly the Swann report did not support the idea of whatit described as “bilingual” education. Swann saw this as a matter forsupport outside the school. Of course, it depends on whether one seesthis as support for cultural pluralism or as support for continued learningwhile language skills are acquired. If Swann was objecting to the latter,this is difficult to defend.

44. “Permanent exclusions from schools 1999/2000”. National Statis-tics – first release, DfES. SFR 32/2001 19th July 2001. As wellas reduced rates of exclusion of Black Caribbean pupils the overallrates of exclusion are reduced by one fifth on the previous year andby one third compared with 1996/7 http://www.dfes.gov.uk/statistics/DB/SFR/s0275/index.html.

45. Gloucester County council have published guidelines on howschools should deal with incidents of racial harassment http://www.lg-employers.gov.uk/documents/larrie/lawrence/racial_harassment/883.pdf.

46. [1999] Ed CR 656.47. Indeed in April 2001 the judge in the abortive trial of the Leeds United

footballers Lee Bowyer and Jonathan Woodgate criticised the attemptby the MacPherson report to introduce the concept into the law.

48. DfEE circular 10/99.49. Although this type of guidance has no binding legal character, a person

or body exercising public powers must take it into consideration. Afailure to do so can be challenged through Judicial Review and thedecision would be liable to be set aside. The question would then haveto be determined correctly. Nevertheless, the decision-maker is not

required to follow the guidance slavishly. What weight should be givento it is a matter for their own judgment.

50. A view shared by the CRE as illustrated by the title of their publica-tion Racial Equality means Quality: A Standard for Racial Equality forLocal Government. CRE (1998).

51. Taylor (1992) describes some of the tensions arising out of uncertaintyon the relative merits of multiculturalism vs. anti-racism. An exampleat page 7 shows a LEA defining both, and seeing both as havingrelevance in their local code of practice, but not explaining the relation-ship between them. Taylor’s research acknowledges the controversy butavoids the issue by leaving it to the respondents to decide for themselveswhat meaning to ascribe to the terms.

52. Pupils aged 11–14 years.53. Pupils aged 14–16 years.54. http://www.nc.uk.net/servlets/NCFrame?subject=PSHE&KeyStage=1.55. These include increased use of mentoring. Setting targets to increase the

number of ethnic minority teachers entering training and the numberof classroom assistants. Increasing the percentage of pupils fromunder-achieving groups reaching national expectations and removingundue variation in academic achievement between racial groups.Increasing the number of ethnic minority Governors and Chairsof Governors and conducting baseline research to look at rates ofattendance by ethnic minority parents at parent’s evenings and therates of ethnic minority pupils attending study support activities.http://www.dfee.gov.uk/schools-plus/fore.htm.

56. See the De Witte quotation in footnote 40.57. The evidence of the other reports discussed at footnote 5 above also

highlight the role education must play in addressing the issues that ledto the other serious breakdowns in public order.

58. footnote In light of this it is particularly interesting to see the proactiveapproach taken in Leicester cited as a model by Cantle for ensuringthat community relations are positive. Of course it was LeicesterCity Council who were chastised in the House of Lords for takinga stand against apartheid in the early 1980s. The Council havebeen awarded “beacon” status on race equality. “Leicester demon-strated a sustained and strategic commitment to promoting racialequality. They provided strong community leadership and workedwith local media to minimise possible racially motivated attacksfollowing the 11th September terrorist attacks in New York. Theyhave mainstreamed race equality into service delivery. They areworking to ensure that council employment is representative of thelocal community.” Report of the advisory panel on Beacon Councilshttp://www.leicester.gov.uk/departments/page.asp?pgid=3153.

59. This could probably have been achieved by choosing a different groupfor comparison. Instead of looking at white parents who did not gettheir first choice the court could have looked at white parents who did.This might have produced a very different outcome. See London Under-ground v Edwards [1998] IRLR 364 for a more proactive approach tochallenging factors that are indirectly discriminatory and see the newdefinitions of indirect discrimination introduced as a consequence ofEU directives.

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