5-minute read
Dermot Feenan
LLB MA LLM Barrister-at-Law FRSA
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It’s good to see the article by Chris Parr in TES ‘Can what you teach land you in trouble with the law?’ It deserves a wide readership.
The article sets out questions to, and answers from, the Department for Education regarding comments by Kemi Badenoch, Equalities Minister, on the lawfulness of teaching in schools certain subjects such as Critical Race Theory (CRT) and white privilege.
The article also includes a legal analysis by lawyer Smita Jamdar of the Department’s responses.
I set out here a link to the minister’s comments – which were made in the House of Commons on 20 October 2020 (Hansard, Column 1012).
I offer in this blog post several comments on the Q&A and the analysis which I hope complement the critical inquiry brought to the issue in the article, and which might encourage further inquiry and discussion in this area.
Why do so as an academic? Aside from a concern about government intervention in what is taught in schools, the minister’s comments resonate with similar troubling comments within government about higher education – a field in which I have worked for decades.
My concern is not simply sectoral. It is also with the ideological underpinnings of the government’s position, which has broader implications for the country in terms of what issues can or cannot be taught freely, what knowledge is respected or devalued, and how inquiry is supported or thwarted.
It’s notable that the Department did not answer a number of questions put by Chris Parr, some of which he identified in his article. There are other unanswered questions, including ‘what does political impartiality mean in relation to teaching?’
The Department did cite the relevant legislation, but this does not answer that question. It’s necessary to set out the relevant provisions of that legislation in full not least because it will help fully critique the statements by the minister and the Department.
EDUCATION ACT 1996 (as amended)
s. 406 Political indoctrination.
(1) The local authority, governing body and head teacher shall forbid—
[…]
(b) the promotion of partisan political views in the teaching of any subject in the school.
s. 407 Duty to secure balanced treatment of political issues.
(1) The local authority, governing body and head teacher shall take such steps as are reasonably practicable to secure that where political issues are brought to the attention of pupils while they are—
(a) in attendance at a maintained school, or
(b) taking part in extra-curricular activities which are provided or organised for registered pupils at the school by or on behalf of the school,
they are offered a balanced presentation of opposing views.
PART 2, SCHEDULE, EDUCATION (INDEPENDENT SCHOOL STANDARDS) REGULATIONS 2014
5. (c) precludes the promotion of partisan political views in the teaching of any subject in the school; and
(d) takes such steps as are reasonably practicable to ensure that where political issues are brought to the attention of pupils—
(i) while they are in attendance at the school,
(ii) while they are taking part in extra-curricular activities which are provided or organised by or on behalf of the school, or
(iii) in the promotion at the school, including through the distribution of promotional material, of extra-curricular activities taking place at the school or elsewhere,
they are offered a balanced presentation of opposing views.
While the Department cited legislation, neither piece of legislation defines what are ‘political issues’ or ‘political views’, and they certainly don’t refer to CRT or white privilege. Neither it nor Badenoch provide any basis to accept that CRT or white privilege is a ‘political view’.
By extension, they have not shown how these concepts amount to ‘partisan political view’ or that any such teaching amounts to ‘promotion’. Instead, we have a minister and government conjuring up bogeymen.
Sections 406 and 407 of the Act were the basis in the Dimmock case in 2007 for an application for judicial review of the decision of the Secretary of State for Education and Skills to distribute the Al Gore film ‘An Inconvenient Truth’ to schools.
The film was part of a pack including a guidance note. It was not contested that the film promoted a political view. The court did not, therefore, have to decide what constituted ‘political’, though it did note in passing that it was ‘plainly not limited to party political’.
The court also alluded to an earlier case in which ‘political’ had been addressed. That case, McGovern v Attorney-General [1982] Ch 321, involved a determination of whether Amnesty International engaged in ‘political’ activity such as to prevent it from seeking charitable status.
The question in the Dimmock case in relation to s. 406 was whether there had been ‘promotion’ of ‘partisan’ political views. In the court’s judgment, the best synonym for partisan was ‘one sided’. The court added:
“the issue of whether there is facilitated by the [Department for Education and Skills] what is forbidden, namely the ‘promotion’ by the school of ‘partisan political views’, depends in substantial part on the context, and in this case the guidance note.”
The court held that the guidance note was also relevant in relation to s. 407. There is nothing in CRT or the concept of white privilege per se that necessarily imply ‘promotion’ of ‘partisan political views’.
Moreover, Badenoch and the Department have not provided any basis for believing that teaching CRT or white privilege necessarily involves ‘promotion’ of ‘partisan political views’ other than the risible claim by Badenoch that CRT is ‘an ideology’.
Furthermore, no evidence was provided by either Badenoch or the Department that provided any ‘context’ by which to make an assessment of what would be lawful or unlawful, consistent with the judgment in the Dimmock case.
The judge in the Dimmock case found that there were in the film nine ‘errors’, or ‘departures from the mainstream’ which ‘arise in the context of alarmism and exaggeration in support of [Gore’s] political thesis’.
The judge viewed the film, considering it against, amongst other things, the report of the Intergovernmental Panel on Climate Change. No order was made on the application because of changes made and agreed by the Secretary of State in respect of the film at the hearing.
These changes included a new guidance note to address all of the nine ‘errors’ with the film that the judge identified. It was a case that ultimately rested on a fact-sensitive inquiry regarding specific teaching material.
It is wrong for Badenoch to assert in the terms she did that teaching CRT or white privilege is ‘breaking the law’. It is perhaps helpful that the Department stated that the minister’s words do not mean that teachers cannot teach white privilege or inherited white guilt.
The Department’s response is also confusing. The initial salvo and thrust of the minister’s speech was that ‘the Government stand unequivocally against critical race theory.’
Badenoch went on to say that white privilege and inherited white guilt are ‘elements of critical race theory’. She said that teaching these ‘as fact’ is ‘breaking the law’. This is wrong.
(1) CRT is as much a fact as any other theory. Teaching it is not in itself unlawful.
(2) White privilege is an established concept. It is established like, say, patriarchy. Badenoch has simply not made out that CRT or what she describes as its elements, including white privilege, are political views or political issues, still less partisan political views or issues.
Another reason to question the ‘political’ label here is that the government has provided no indication (if any could in fact be given) of what ‘balanced presentation of political views would be’. Absent clear evidence of one-sidedness, it’s wrong to insist on opposing views.
The Department’s confusing response is simply one of a number of its unhelpful responses. In response to the question whether there are clear guidelines for teachers for staying within the legal requirements, the Department’s answer is a fudge.
It also dodges a response to the question: what happens if a pupil expresses a one-sided view in the classroom – are teachers legally obligated to give the other side of the argument? In fact, there is no legal obligation on a teacher to correct a student’s one-sided view.
This combination of confusion, fudge and dodge combines with incoherent and legally baseless claims by the minister. I agree with Smita Jamdar that the minister’s statement against teaching white privilege and inherited racial guilt seems to be overreach.
I disagree with her conclusion, though, that these issues can be taught provided teachers do so in a balanced way. She has already stated that they are not ‘partisan political issues’ – which would trigger s. 406(1)(b). This would require, as noted in Dimmock, assessment of ‘context’ for balance.
But what ‘context’? What would be ‘balance’ here? There is no need to insist on context and balance in matters where the concept speaks for itself and needs no counterpoint. So, what’s really going on with the statement by Badenoch and the Department?
Often missing from some formal analyses of law is an understanding of how law itself is used politically. The concepts of CRT or white privilege pose profound anxieties for a government that is increasingly seeking to change the narrative around race.
The government is increasingly avoiding concepts such as racial injustice, inequality, structural racism and institutional racism. Instead, it deploys the weaker language of race disparities.
As I argued in a recent blog post ‘Ideological Shifts on Race among UK Conservatives: Implications for Law and Policy?’, this change in language represents an ideological shift further right.
In the same speech in which she referred to what schools could lawfully teach, Badenoch referred to CRT as ‘ideology’. This smear seeks to discredit attempts to fully understand concepts such as white privilege.
The government’s denial of associated concepts such as structural racism and institutional racism seeks to prevent mobilisation of the resources of the state; anathema to this government, committed to a de-regulated, free-trade marketplace.
The government’s view that it stands against CRT does not justify treating the teaching of the elements of CRT as unlawful. We live in a parliamentary democracy which rightly distinguishes law (and what is lawful/ unlawful) from arbitrary exercise of executive fiat.
The government’s view is itself a political, ideological position; reflecting a clear strategy to delegitimise, dilute or chill the circulation and power of concepts that pose a challenge to its own ideology.
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©Dermot Feenan 2020