Segregation in faith schools does not offend Equality Act: High Court

10 November 2016 by Rosalind English

The Interim Executive Board of X School v Chief Inspector of Education, Children’s Services and Skills  [2016] EWHC 2813 (Admin) – read judgment

The principal issue in this  application for judicial review was whether a mixed school unlawfully discriminated against its male and/or female pupils by making “parallel arrangements” for their education in the same building or by applying a regime of “complete segregation” for all lessons, breaks, school clubs and trips. There was no evidence that either girls or boys were treated unequally in terms of the quality of the education they received (in the sense of one sex receiving a lower quality of education than the other).

This case raises a point of general public importance as to the true construction and application of key provisions in the 2010 Equality Act. As the judge observed, it was a point which had not arisen before, and so should be answered on “a first principles basis, applying standard interpretative tools to the language, policy and objects of the statute.”

Background Facts

X School is a voluntary aided faith school for boys and girls aged between 4 and 16. It has an Islamic ethos and, specifically for religious reasons, believes that the separation of boys and girls at a certain point in their development is mandated (i.e. when children have reached 9 years of age). In 2014 the School went into special measures and an Interim Executive Board (the Claimant) was appointed.

The Claimant was the “responsible body” for the purposes of the relevant anti-discrimination provisions of the Equality Act 2010. For all practical purposes in this judgment the Claimant and the School were interchangeable.

The school was not unique in its segregation methods. As the judge observed

Of the three great Abrahamic religions, Islam is not alone in this respect because judicial notice may be taken of the fact that a number of Jewish schools with a particular Orthodox ethos do exactly the same (the majority of Orthodox schools do not). Indeed, there is evidence before me of a particular Jewish school, operating on what is described as two campuses, which at its last Ofsted inspection in 2012 was rated “outstanding” across the board. From brief internet research I have gathered that a number of Christian faith schools have similar practices.

However the question remained, whether segregation in the instant case fell foul of the Equality Act.

In June 2016 a report on the School was issued by the Defendant. It assessed the School as “inadequate” in three respects, namely (i) “effectiveness of leadership and management”, (ii) “personal development, behaviour and welfare”, and (iii) “early years’ provision”.
This judgement of inadequacy in relation to leadership and management had a number of aspects:

First, reference was made to the discovery in the school library of a number of books which “included derogatory comments about, and the incitement of violence towards, women”. … The books concerned were published between 1993 and 2009, and contain views which are completely inimical to fundamental British values, however precisely defined. For example, one of the books states that a wife is not allowed to refuse sex to her husband. Another opines that women are commanded to obey their husbands and fulfil their domestic duties. Two books made clear that a husband may in certain circumstances beat his wife, provided that this is not done “harshly”.

The inadequacy judgement was also made in respect of a list of other failings in the school’s management.

Arguments before the Court

The Claimant challenged the 2016 report on a number of grounds, most importantly, that it was irrational and/or based on no evidence. They alleged that the inspectors wrongly assumed that separation of pupils on the basis of sex meant or implied unequal treatment.  As Jay J observed, the real point being made was that the inspector’s approach to the Equality Act 2010 was wrong in law because segregation, without more, is not discriminatory.

Under the Equality Act, the court should start from the proposition that ordinarily segregation by sex in a mixed school will constitute direct discrimination unless a section 158 or section 195 reason applies. That is, an educational justification means a rationale falling within section 158 or section 195 of the EqA 2010.

The Defendant contended that

the very fact of segregation constitutes less favourable treatment of girls because it cannot be separated from deep-seated cultural and historical perspectives as to the inferiority of the female sex and therefore serves to perpetuate a clear message of that status (see the US line of authority beginning with Brown v Board of Education [1954] 347 US 483).

The Claimant countered that denial of the opportunity to intermingle was “too subjective and elusive a concept” to be capable of falling within section 85(2) of the Equality Act (the part of the Act which deals specifically with schools). Given that many would say that single-sex streaming is advantageous in educational terms, and may reflect the religious preferences of parents, it would be wrong in principle to hold that either sex has been subjected to a relevant “detriment”.

The judge granted permission to the Claimant to apply for judicial review of the Defendant’s report. In his view, the Defendant had not established that the School (i) discriminated against its male and female pupils by denying them opportunities to interact with or learn from the opposite sex, and (ii) discriminated against its female pupils by treating them as inferior. The criticisms in the June 2016 report which were based on the proposition that the School did so discriminate, could not stand. Although he dismissed some of the Claimant’s arguments, on the essential issue he found that segregation in this School on the ground of sex did not constitute discrimination under the relevant provisions of the Equality Act.

Reasoning behind the Court’s decision

This was not a judgment on the social and educational merits of sex segregation in schools, whether effectuated for religious reasons or otherwise, and about whether Islam treats women as inferior. Jay J did consider that the denial of the choice to seek the society of and interaction with the opposite sex, and of the educational benefits which might flow from the exercise of that choice, was capable of amounting to the denial of a “benefit” or “facility” for the purposes of the Equality Act.

It is an opportunity which reasonable people would value, and there is some evidence that pupils at this school do regret its absence. The concepts of “detriment” and “facility” are, as we have seen, extremely broad, and are apt in my view to accommodate opportunities and choices which are intangible. (Imagine a situation where, in a mixed school, a small group of girls are segregated from the remainder of the pupils who are not segregated inter se: this small group will suffer a “detriment” and be treated less favourably than the majority contingent).

However, it was incorrect to view this situation as one in which one sex was discriminated against differently to the other. In this school, sexes were being denied the opportunity to interact/socialise/learn with or from the opposite sex.  It was also non-discriminatory:

it is artificial to say that the denial to the boys of the opportunity to mix with the girls (which the latter enjoy as between themselves) is somehow different from the opportunity being denied to the girls. It would only be different if there were some qualitative distinction for these purposes between male and female interaction (each looked at inter se), but in my judgment there is not. What we have here is the denial of interaction or concourse with the opposite sex which has equal value and impact, and is of the equivalent nature and character, in relation to both sexes.

It could not be said, in other words,  that one sex was being treated less favourably than the other. The 2016 report provided no evidence that segregation in a mixed school, still less segregation in an Islamic school, has a greater impact on female pupils. The question of the books in the school library was not relevant to the issues before the court.  Jay J had “little doubt” that educational experts would have much to say on this topic, but he had not heard it within the four corners of this litigation. He also remained to be persuaded that Brown and its jurisprudential progeny under the US Constitution were directly applicable to the present context. Unlike the previous US practice of race segregation, which was under attack in Brown,

segregation in mixed schools in this country is not the practice of government; it cannot be envisaged as any reflection of the mores and attitudes of wider society; it is only capable of being seen as a reflection of the mores, attitudes, cultures and practices of the faith groups who have been permitted to do it.

The judge would be “very slow to conclude that segregation in this Islamic school “generates a feeling of inferiority as to [the] status of [the female gender] in the community” (adapting the ratio of Brown to cover the present case).

Some might say that this is axiomatic, but to my mind that would be too broad and sweeping a judgment to make in a multi-cultural society, particularly in circumstances where the separation is not enforced but elected by the parents), it would follow that it could not be excused by recourse to faith-based rationales. But, if that is not established, segregation for religious reasons is not, without more, discriminatory. Put another way, the School’s rationale for this practice should be seen as neither a virtue nor a vice; it is entirely neutral.

The submission was squarely made by counsel for the Defendant that “religious conviction is not a solvent of legal obligation”, but that was not the same as saying that segregation for religious reasons was always discriminatory. If segregation is discriminatory for other reasons (or, more precisely, following R (E) v Governing Body of JFS [2010] 2 AC 728, on other grounds), it would follow that it could not be excused by recourse to faith-based rationales. But, if that is not established, segregation for religious reasons was not, without more, discriminatory. Put another way, the School’s rationale for this practice should be seen as neither a virtue nor a vice; it was, in the judge’s view, entirely neutral.

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