The barrier to justice that silences victims of racism in English schools

With institutional racism in the police rightly under fierce scrutiny at this moment, we must also stop to get to grips with race discrimination in other sections of society. In British schools there are distressing truths about the disadvantage students from black backgrounds face that we are yet to treat with the seriousness they deserve. Children from black backgrounds are dramatically more likely to be excluded from school than their peers,[1] are poorly represented amongst education staff[2] and are more likely to have their grades underestimated.[3] I’m sure it will be lost on no one, that this last example has taken on a new, grim significance in 2020.

There is an unsettling kind of irony in the idea that we would prioritise forms of discrimination over one another. Yet, through an innocuous-sounding quirk of the British legal system, we do just that.

To demonstrate this, take the case of Nate, a young boy who was permanently excluded from school. He is of Black Caribbean background and believes his exclusion has been influenced by his ethnicity. Whilst he accepts he was a part of a group who were misbehaving outside of school, he was the only one who was permanently excluded, and all the other students in the group were from white backgrounds and were allowed to return to school. No one has been able to provide a reason that his behaviour has been considered worse than anyone else’s, or why only he has been excluded. He does some research and finds out that, indeed, children who share his ethnicity are much more likely to be permanently excluded than their classmates.

He won’t simply accept this without a fight, and he finds out about a court called the First Tier Tribunal (FTT) which will review exclusions in cases of discrimination. However, after searching for information about how to bring a case, he realises that the FTT only deals with cases of discrimination against people on the basis of disability. It’s full name is the FTT for Special Educational Needs and Disabilities and has no authority to consider discrimination on the basis of race.

If Nate wants to see a judge, he’ll need to bring a case in the County Court. Unlike at the FTT, all cases started in the County Court incur a fee to start a case and if he loses, he may be liable to pay the school’s legal costs.

Nate cannot afford to take the risk. The only option he is realistically left with is to appeal to a body called an “independent review panel” (IRP). But unlike a judge at the FTT, the IRP is made up of people with no legal training who cannot bind a school to their decision. This means that the IRP can find in Nate’s favour, but the school could uphold his exclusion anyway.

Nate’s story represents the many people our team of education lawyers have advised, who find themselves not only victims of race discrimination, but denied access to justice as a result, because it’s not the ‘right kind’ of discrimination. I have advised families who had good reason to suspect discrimination at school, who simply could not risk the costs of going to Court, so they are forced to just walk away. This is in stark contrast to those who had suffered disability discrimination, who have effective access to a judge and the remedies that can result.

This is bad not only for the families involved, but for all of us. All young people have the absolute right to enjoy equality in school as in any other area of life. This is enshrined in the Equality Act and the UN Convention on the Rights of the Child. But if we continue to systematically deny families the right to access justice it simply will not mean anything. We enable race discrimination by denying families the right to recourse. If we are serious as a society about tackling this endemic problem, we should jump at the opportunity to put young people’s voices front and centre.

The potential power of this kind of action can be seen in the existing regime for taking disability discrimination claims in the FTT. They give families the power and tools to hold schools accountable because families can ask a judge to declare that a given action was discriminatory and offer directions on how schools must remedy the situation. This can include making amendments to school policy and behaviours. Yet by systematically denying them access to justice, we fail to protect future generations from racial discrimination.

The Government should urgently allow claims of race discrimination to be heard in the FTT jurisdiction as it does for disability discrimination. To achieve this, the Government should change the name of the FTT for Special Educational Needs and Disabilities, to the FTT for Schools and give it jurisdiction over all discrimination and school appeals.

This would not be a dramatic departure from current practice. For adults, all cases of discrimination in employment can be heard by the tribunal, and the Supreme Court declared fees to access the employment tribunal are unlawful. Why should discrimination against children in school be any different?

And in the meantime, we must all recognise the part we have to play in supporting young people who experience discrimination in school. Governors, school leaders, teachers, parents and students feed into a system that is perpetuating this disadvantage. Governors and head teachers particularly must take complaints seriously, support victims and incorporate anti-racism into everyday practice and policies in schools.