Schools Adjudicator finds Islamia Primary School admission criterion that favours children of alumni (parents who previously attended the school) is unlawful

The Office of the Schools Adjudicator oversees the fairness of the admissions procedures of schools. They become particularly important when schools are over-subscribed (have more applications for places than are available). For most primary schools in Brent the local authority is the admissions authority and sets the criteria. Faith schools are their own admissions authority, and this is the case for Islamia Primary School.

 

The Adjudicator in a Determination published on October 21st has considered a referral by 'A parent' claiming discrimination in criteria c and d of Islamia's criteria for admission when over-subscribed.

 

The adjudicator found that Criterion c (see below) was neither directly or indirectly race discriminatory, but that Criterion d (below) was indirectly discriminatory under Section 19 of the Equality Act 2010 and thus unlawful and will have to be removed or reviewed by the school.

 

“Over-subscription Criteria 

 

1. If Islamia Primary School receives fewer applications than the Published Admission Number, then all those applying will be offered places.

2. If Islamia Primary School receives more applications than the Published Admission Number, after children with an Education, Health Care Plan in which Islamia Primary School is named have been admitted, admissions will be dealt with by applying the following criteria in the order set out below:

a. Looked after children, previously looked after Muslim children and internationally adopted previously looked after Muslim children who meet the religious practice test.

b. Children of Muslim staff where the member of staff has been employed at Islamia Primary School (IPS) for two or more years at the time at which the application for admission to Islamia Primary School (IPS) is made or the member of staff is recruited to fill a vacant post for which there is a staff shortage.

c. Muslim children of at least one parent who has reverted [converted] to Islam (not born in the Islamic faith). Up to a maximum of 25% (15 children) of the published admissions number.

d. Muslim children of parents who are former pupils of the school (alumni) since it became a Voluntary Aided school (post May 1998). Up to a maximum of 10% (6 children) of the published admissions number.

e. Muslim children who have a sibling at Islamia Primary School (IPS) or a sibling who is due to be attending this school at the proposed date of admission of the applicant.

f. Other Muslim children who meet the religious practice test who do not have a sibling at Islamia Primary School (IPS) or a sibling who is due to be attending this school at the Proposed date of admission of the applicant.

g. Any other looked after children, previously looked after children or internationally adopted previously looked after children.

h. Any other children based upon distance from the school.” 

 

It is worth reading the Determination in full for detailed discussion about what constitutes discrimination and the interplay between race and religion. LINK  Of interest is the claim that converts are a vulnerable group because of the prejudice they encounter both from non-Muslims and Muslims.  The parent ('Referrer' in legalese) argued that in listing the Criterion on converts high in the priority list it discriminated against groups where both parents were 'born' Muslim and gave Somalis as an example). 

 

The Adjudicator writes:

 

The question here is whether there is an exact correspondence between, on the one hand, the overt reason why a pupil would not fall within the criterion, namely that they do not have a Muslim convert parent, and, on the other hand, their race (taken here to be Somali). 

 

I do not consider that there is an exact correspondence of the sort required. I appreciate that the Referrer has contended that at least the great majority (if not all) of Muslim Somalis will have parents who are born Muslim, as opposed to having a parent at least one of whom is a convert. However, first, the material before me does not indicate that that is invariably the position as a matter of fact: in paragraph 13 of the original Objection, the Referrer states rather that there are “virtually” none who convert; and in paragraph 5 of the same document, it is accepted that there may be a “handful” of converts in Somalia and only “probably” none in the UK. I have not overlooked the Referrer’s contention that no Somalis in the local area will have a convert parent, but that contention needs to be seen in light of the way that the position is described elsewhere. 

 

Secondly, even on the assumption that, as a matter of fact, no Somali child who might wish to attend the school would have a convert parent, that does not mean that there is the exact correspondence required for direct discrimination to occur. It is plainly possible, however seldom it may occur, for the parent of a Somali child to be a Muslim convert. Any Somali may have a child by a person not born Muslim, which person may be a Muslim convert. The overt criterion and the claimed race-based criterion are therefore dissociable. On that basis also, there is not exact correspondence. 

 

It follows that I do not consider that criterion c is directly race discriminatory. 

 

The Adjudicator quotes the school's justification for the criteria which reveals the influence of Yusuf Islam on the voluntary-aided (receives funding from the state) school:

 

“The Yusuf Islam Foundation which is the umbrella body of Islamia Primary School was founded by Yusuf Islam formerly known as Cat Stevens who reverted to Islam at the height of his music career. Despite being a celebrated and highly respected individual he is fully aware of the vulnerability of reverts as they face hardships and challenges not just from their heritage community but also unfortunately, from the Muslim community. 

 

Many studies have been carried out which show the negative impact on reverts when they become isolated and no longer have access to a support network. 

 

Furthermore, support for reverts has always been an important aspect of the admissions process at Islamia Primary School as it was and remains an aspect that is very close to the heart of the Yusuf Islam Foundation. It is nothing new. 

 

Reverts were considered a priority group with a specific number of points awarded to the applicant in this category. It was only when the point system was extensively reviewed and eventually terminated that the revert category was ‘lost’ in the process and has now been reinstated as part of the admission policy, as opposed to a measure of practice in the supplementary information form. 

 

Just as the Admissions Code sets out to protect and positively discriminate in favour of vulnerable members of society such as for example Looked after Children, in the same vein the Admissions Authority has long been aware of the vulnerability of reverts and their children and seeks to support them. Unquestionably, the Admissions Authority aims to follow the Code to the letter but also has an obligation to the Yusuf Islam Foundation. 

The reasoning is that by attending Islamia Primary School the pupils who obtain a place through this criterion will be able, with their family to build up a strong network of friends and overall support”. 

 

 Regarding Criterion d the Adjudicator writes:

 

I sympathise with the school’s wish to engender a school community which is supportive and understanding of some of the difficulties it faces, and I am prepared to find that this aim or these aims are legitimate. However, I do not consider that they are strong enough reasons to justify the race-based disadvantage I have identified above to which Criterion d gives rise. 

 

I do not find that the children of alumni have any particular vulnerability such as that of the children of converts. If anything, the children of people settled in England for longer are more likely to have a more stable social and economic position than those of more recently settled groups. The criterion provides for a maximum of ten per cent of the PAN, six pupils, to be selected. Those 6 pupils will ‘displace’ six other pupils into a lower criterion who will tend to come from more recently settled racial groups who are more likely to be vulnerable. 

 

I find that Criterion d is indirectly discriminatory under section 19 of the EqA2010.

I note that the Referrer alleges that the school’s motivation for giving priority to the children of alumni is that such parents are more likely to make financial contributions to the school. I do not find that this is the case. I accept the school’s assurance on this point.

In light of the finding of indirect discrimination, oversubscription Criterion d is unlawful and will need to be removed or revised to become lawful. It is not necessary therefore for me to consider the other issues raised by the Referrer in relation to Criterion d. 

 

The Adjudicator discusses the relative priority of the Criteria but concludes that this is something the Admissions Authority can decide:

 

I accept that there are good reasons for giving siblings a high priority. It is difficult for parents to manage two or more primary aged children who do not go to the same school. Families move and may live further from a particular school when a sibling reaches an age to apply for a place. But that does not mean it is unlawful for the school to afford greater priority under the convert criterion than under the sibling criterion. There is no clearly “right or wrong” order in that respect. As is stated in paragraph 1.10 of the Code “It is for admission authorities to decide which criteria would be most suitable to the school according to the local circumstances”. In this case I have found that Muslim children who meet the convert condition are a vulnerable group in the school’s local area worthy of particular priority.