Co-education without discrimination: How can co-ed schools achieve a gender balance and avoid discrimination claims when enrolling students?

February 24, 2017
FCB Workplace Law

Industry Focus

Education

Schools with a history of single-sex education can struggle to attract students of the opposite gender after moving to a co-educational offering. In Victoria, obtaining an exemption under anti-discrimination legislation is the only way schools can lawfully introduce affirmative action policies to attract students of a particular gender.

In Victoria, the Equal Opportunity Act 2010 (Vic) (‘EEO Act’) prohibits discrimination on the basis of various personal attributes, one of which includes gender in the area of education.  It is illegal to manipulate student enrolments to benefit a particular gender of student, without an exemption from the Victorian Civil and Administrative Tribunal (‘VCAT’).

In August last year, VCAT granted an exemption to Ivanhoe Grammar School to permit gender based discrimination to enable the school to achieve gender balance in its enrolments. The school had been a single-sex institution for 77 years before becoming a co-educational school in 1992. Since that time, the school had taken a range of steps to try to increase the number of female students, including:

  • replacing the conventional cricket/football oval with a multi-sport facility, which can be used for various sports including hockey, netball, softball and volleyball; and
  • encouraging girls to hold leadership positions including school captains, prefects, house leaders and cadets.

Despite these efforts, the school would not reach its target of having 45% female students until 2029. The school requested the exemption so it could advertise for female students and offer those students financial assistance.

In deciding to grant the exemption to Ivanhoe Grammar School, VCAT held that the exemption was necessary because the proposed activities of the school (advertising for female students and offering those students financial assistance) would otherwise amount to prohibited discrimination and if the school continued with a skewed number of male or female students it could not offer a true coeducational environment and would fail to meet the expectations of its students and parents.  VCAT also noted the efforts of the school over the past decade to increase its female cohort had failed. The exemption was granted for a maximum period of 5 years.

In October last year, another school, Woodleigh School in Melbourne, was also granted an exemption by VCAT for similar reasons. In that case, the school was permitted to discriminate to achieve gender balance for either male or female students by

  • Structuring waiting and enrolment lists to target prospective students of either gender;
  • Advertising for prospective students in year levels where future waiting lists show a gender imbalance;
  • Allocating student placements,other bursaries andenrolments targeted at prospective students and
  • Granting  scholarships to promote gender balance.

It is essential that co-ed schools considering strategies to achieve gender balance get legal advice to ensure anti-discrimination laws are not breached.

For information on more exemptions for other independent schools in VCAT please contact Paul O’Halloran, Partner and Head of the education industry at FCB Workplace Law. Email: pjo@fcbgroup.com.au Phone: (03) 9098 9400