Explanations for poor educational experiences and results for Australian Indigenous school students have, to a great extent, focused on intended or conscious acts or omissions. This paper adopts an analysis based on the legislation prohibiting indirect racial discrimination. Using the elements of the legislation and case law it argues that apparently benign and race-neutral policies and practices may unwittingly be having an adverse impact on Indigenous students' education. These practices or policies include the building blocks of learning, a Eurocentric school culture, Standard English as the language of assessment, legislation to limit schools' legal liability, and teachers' promotions.
Recent reports on Indigenous education have revealed that high proportions of students have been placed in special classes for intellectual disability or behaviour disorders. This is not an isolated phenomenon. Indigenous students in Canada and Romani children in Europe are also disproportionately represented in special schooling. This paper asks whether systemic racism, which fails to perceive cultural differences between the ethos of Australian educational systems and the experiences and abilities of Indigenous students, is the catalyst for placing many Indigenous students in special schooling, away from the mainstream. The paper applies an analysis based on anti-discrimination law to argue that while allocation on the basis of intellectual disability or behaviour disorders may not be deliberate racism, the criteria developed for the allocation may be measuring conformity to the dominant culture. If the policies underlying this segregation are unreasonable in the circumstances, they could constitute indirect racial discrimination against Indigenous students. Educational authorities could be liable in law, even though the effect on Indigenous students is unintentional and said to be for the students’ “own good”.
In order to access statutory rights and privileges designed for the exclusive benefit of indigenous people, Aboriginal people must prove their Aboriginal descent. Descent is judicially interpreted to mean genetic difference. Analyses of the human genome demonstrate that all humans are closely related and that race as a single definable genetic characteristic does not exist. Australian Aboriginal populations are among the most ancient and genetically diverse in the world, therefore there is no way of identifying a distinctly Aboriginal genotype. This paper argues that the present legal test is both unprovable and infringes international human rights.
Policy documents on Indigenous education include statements such as equitable access to education, participation and outcomes that can be broadly described as social justice goals. However, there has been little academic analysis of how these goals are to be achieved. This paper proposes that the indirect discrimination provisions in Australian anti-discrimination law can provide a framework in which the goals can be evaluated against the endemic effects of dominant power on mainstream education. The legal provisions are designed to assess whether a policy or practice might adversely affect certain groups in our society distinguished by, for example, their “race”. If a higher proportion of persons who do not have that particular attribute can comply with the policy or practice, and the demand is unreasonable in the circumstances, then this will constitute unlawful indirect discrimination. This paper analyses three social justice strategies which appear to be race-neutral and to apply equally to all students, Indigenous and non-Indigenous: Indigenous studies in the curriculum, using Standard English in the classroom, and instilling Australian values. The outcome suggests that these approaches may have an adverse impact on Indigenous students, and may even be undermining the social justice goals they set out to deliver.
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