A Student
(Represented by KMB Solicitors)
V
City of Dublin Vocational Education Committee
1. Delegation under the Equal Status Act 2000
1.1. A student referred a claim to the Director of the Equality Tribunal under the Equal Status Act, 2000. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Act.
2. Dispute
2.1. The dispute concerns a complaint by the Student that he was discriminated against on the grounds of race and age contrary to the Equal Status Act 2000 by the City of Dublin Vocational Educational Committee (CDVEC) when one of its Colleges of Further Education held a separate ceremony for a Back to Education Initiative (BTEI) class and thus excluded him from the college's main graduation ceremony on 26 May 2004.
3. Summary of the Complainant's case
3.1. The Student, a Somali national, enrolled with a College of Further Education in the autumn of 2003. The college offered a targeted Back to Education Initiative (BTEI) programme for unaccompanied minors . The Student was thus a participant of a class exclusively designed and targeted for asylum-seekers who were aged 16 to 18 years of age.
3.2. The Student enjoyed his time in the college and found both the academic and social life in the college very rewarding. He was looking forward to the graduation ceremony for two reasons. One, it was a formal way of marking the achievements of the previous year and, two, he wanted to celebrate with the wide number of friends he had made across the college during his year there.
3.3. The Student was very surprised and disappointed when his teacher told him late in the academic year that his class would not be graduating with the rest of the student body. He was upset when he did not get an invitation to attend the ceremony on 26 May 2004 like some of his friends who were Post Leaving Certificate (PLC) students. The Student states that he had presumed that he would be treated in the same manner as everybody else and had taken it for granted that he, a person who had studied very hard, would be able to participate in and have his attainment recognised at the graduation ceremony on 26 May 2004. Instead his class received invitations to attend a ceremony exclusive to the BTEI class on 4 June 2004.
3.4. When the Student learned that he would not be invited to what he viewed as the college's graduation ceremony in May 2004, he approached his teacher to discuss his disappointment and disbelief that only his class (consisting of exclusively non-EU citizens) would not be invited to the main graduation ceremony with the rest of the school. The coordinator of the BTEI class, who gave evidence at the hearing, approached the then Principal on behalf of his student and voiced his and his student's concern over such a non-inclusive approach.
3.5. The coordinator said that the issue of the college hosting two graduation ceremonies was only brought to the staff's attention late in the academic year and that the college had not consulted with the teachers about the issue. The coordinator maintains that most teachers had assumed that the whole student body would be graduating at a single ceremony.
3.6. A number of suggestions were made by members of staff to the college as to how to include the BTEI students in a single ceremony but none were found to be appropriate. These included a suggestion that the BTEI students be invited to the award ceremony only and then bussed home before the bar extension.
3.7. To express his disapproval of the college having two graduation ceremonies - one for the BTEI class only and the other for every other student of the school - the coordinator felt unable to attend the ceremony on 26 May 2004.
3.8. The Student refutes the contention that his class consisted of only under-18s. He himself turned 18 in January 2004. He acknowledges that he was only 17 at the time of enrolment but maintains that so were some of the PLC students. The only difference between the student and the enrolled PLC students was that they were not associated with his class and were not asylum-seekers.
3.9. The Student also pointed out that the college had invited other students to bring their friends to the graduation ceremony and that the college had no control over or knowledge of their ages.
3.10 In addition, the Student points out that the bar extension was after the actual graduation ceremony and that under-18s could have attended the first part of the evening. He argues that it is the venue's responsibility to ensure that people entering their licensed premises are over 18 years of age.
3.11 The student states that he enjoyed his time in the college and, prior to this incident, had felt an integral part of it. Most of his fellow students were of a similar age, studying similar things. The college's reason for not inviting him to the ceremony on the 26 May 2004 made no sense to him as he was over 18 years of age and knew most of classmates to be over 18 as well. As there were other foreign nationals in this college the Student had not been aware that his class was seen as such a separate entity. This experience highlighted the fact that his class was the only class in the college that was exclusively non-EU and, specifically, consisted of asylum-seekers. While he did complete his studies, he did not attend the in-house graduation ceremony on 4 June 2004.
3.12 While the Student is justifiably proud of his achievements in the college, he states that his exclusion from the graduation ceremony on 26 May 2004 has marred what otherwise would have been a very positive experience. He maintains that the college excluded him the graduation ceremony because of his age and race and thus treated him less favourably than other students in the college.
4. Summary of the respondent's case
4.1. City of Dublin Vocational Education Committee (CDVEC) provides accessible education to residents of the greater Dublin region. It has 22 schools and colleges offering Second Level, Further Education and Adult Education Programmes and Services across the city. Also, additional services including youth services, are offered from over 100 locations.
4.2. The incident took place in a college that is under the authority of the CDVEC and is an educational establishment within the meaning of section 7(1) of the Act. The college has traditionally offered PLC courses that provide appropriate vocational training for young people to bridge the gap between school and work. These courses also offer educational training for individuals who wish to enhance their prospects of employment or progression to other studies.
4.3. In the last ten years the college has also offered English as a foreign language programme in response to the changing needs of students living in the area. Since 2002, the college has also offered a BTEI programme designed to accommodate the needs and entitlements of unaccompanied minors.
4.4. Asylum-seekers are not entitled to avail of full-time PLC educational services due to their status as asylum seekers. However, the fact that the targeted asylum-seekers for this programme were also children offered the college, in conjunction with the development of the flexible BTEI programme within the education sector, an incentive to develop a programme for unaccompanied minors.
4.5. Funding for the BTEI programmes is managed by the Department of Education and Science and is provided by the European Social Fund and the National Development Plan. Funding is awarded according to the programme's set guidelines. These broad principles include, among others, equality and the recognition and accommodation of diversity.
4.6. The first BTEI group was established in 2002/2003. It was designed specifically for unaccompanied minors. In the spring of 2003 some concerns arose about whether the college's graduation ceremony would be suitable for the BTEI group. This was because the group was seen as unique within the college due to its age profile. All of the other students were PLC students and thus seen as over 18 years of age. This group was by design for people who had not reached 18 years of age.
4.7. The graduation ceremony in 2003 was to take place in a licensed hotel and was followed by a college subsidised bar extension. After discussion it was agreed with the college staff that a local graduation ceremony would be more appropriate for the course participants. It was felt that an unlicensed in-house ceremony, where the relevant social workers, etc could be invited, would be more appropriate for a group of under-18s.
4.8. The BTEI programme for unaccompanied minors was repeated again in 2003/2004 and the college intended to repeat the graduation process of the previous year. The college had received no complaints in relation to the separate arrangements in 2003 and viewed the arrangements as having been successful and appropriate.
4.9. The college viewed both graduation ceremonies as being similar in format; speeches were made at both ceremonies, awards were handed out, the graduates had invited guests of their own. The only difference in the ceremonies was that one was held in licensed premises with a subsidised bar extension (suitable for adults), while the other, was held in the college (suitable for young people).
4.10 Plans were put in place for the college to host two graduation ceremonies in 2004:
A) Graduation for full-time PLC students. This was to take place in a local hotel with full bar facilities (evening event).
B) Graduation for BTEI students. This was to take place in-house during the day.
4.11 In late May 2004, a number of teaching staff approached the then Principal to ask if the BTEI students could be included with the PLC students in a single graduation ceremony as they did not agree with the separate actions being planned for the BTEI class. In reply, the college held a number of meetings, including a full staff meeting, to discuss the issue fully. Despite a number of suggestions, which the college found to be unsuitable, the Principal decided to go ahead with the two ceremonies. This was because the Principal firmly believed that a separate event would be more suitable for under-18s and that he would have made a similar decision if he had a class of Irish under-18s. In addition, the college had made commitments in relation to the PLC students and did not have the required time to make alternative arrangements.
4.12 The CDVEC denies that any discrimination took place in relation to the scheduling of the BTEI graduation ceremony. The college maintains that the decision to hold a separate ceremony for the BTEI students (as it had done the previous year) was based entirely on the students' under-18 status. As the graduation ceremony on the 26 May 2004 was held on licensed premises, the Principal felt that it would be prudent to organise a separate ceremony more suitable for the group's needs as under-18s. The Principal categorically denies taking any account of the Student's nationality in making its decision to hold a separate ceremony. The particular course was designed specifically for unaccompanied minors who, by definition, are non-EU and under 18 years of age. The age profile of the class was what made it unique to the college, not the Student's nationality or skin colour.
4.13 The issue of under-18s had not arisen in the context of the college until the BTEI class was established. The college caters in the main for PLC students who tend to be over-18. However, the college accepts that it is possible that a person who is under-18 could enrol in such a course. The respondent admitted that if such a person existed they would have been invited to the ceremony on 26 May 2004.
4.14 In relation to the complainant's argument about PLC students bringing friends of indeterminate age to the ceremony, the Principal felt that the college had more responsibility in relation to the BTEI class who, as unaccompanied minors, were in the care of the then health boards. The college had worked closely with social workers and others in relation to this course.
4.15 The CDVEC also points out that the Student did not, at any stage, make any approach to the Principal with his concerns. Such an approach, the Principal suggested, may have given him an opportunity to explain his position to the Student and, while it would not have changed the Principal's mind about his decision to have two separate ceremonies, it may have helped to alleviate the Student's upset.
4.16 The CDVEC submits that in many of its schools and colleges, there are many different formats of graduation. In individual schools there can be different formats for groups within the same school. Ceremonies are designed to best suit the groups participating in them.
4.17 The college also has a Student Council to which each class has been asked to elect a class representative. The complainant's class would have been invited to elect a representative to it and could have approached the College's decision-makers through it.
4.18 Since the separate ceremonies caused so much distress to staff and students in 2004, the college now hosts a single ceremony for its entire student body.
5. Conclusions of the Equality Officer
5.1 In cases like this, the burden of proof rests with the complainant. In order for the Student to establish a prima facie case of discrimination he must satisfy the following criteria:
1. He must establish that he is covered by the relevant discriminatory grounds i.e. the race and age ground;
2. It must be established that the actions complained of actually occurred; and
3. He must show that the treatment was less favourable than the treatment offered to another person of a different nationality (race ground) or of a different age in similar circumstances.
5.2 In making my decision I have taken account of both oral and written submissions made on behalf of both the complainant and respondent. The last correspondence relating to this matter was submitted on 6 November 2007. Copies of all correspondence received have been made available for both parties in line with natural justice.
5.3 The facts of this case, in the main, are not in dispute. The Student had enrolled in a College of Further Education in 2003 to participate on a BTEI course. At the time of his enrolment he was 17 years of age and an asylum-seeker from Somalia. He celebrated his birthday in January 2004 when he turned 18. His attendance record was good and he completed his studies in the spring of 2004. The Student did not receive an invitation to the graduation ceremony on 26 May 2004. Instead, he and his classmates, all of whom were asylum-seekers, were invited to a separate ceremony in June 2004.
5.4 While the CDVEC submitted that many of its schools and colleges arrange different formats of graduation in order to accommodate the different needs of their participants, it is clear to me that this particular college only established separate graduation ceremonies with the introduction of this BTEI class for unaccompanied minors. The justification given for this decision is based on the unique age profile of the BTEI class. The class, the respondent contends, consisted exclusively of asylum-seekers who were aged between 16 and 18.
5.5 The college maintains that it would be inappropriate to invite a class consisting of under-18s to an event where alcohol was available. The CDVEC's response to the Student's O.D.E.I 5 form reads as follows:
"The second ceremony was arranged for the BTEI students and was held in the College on the 4th June 2004. These students were all under 18 years of age and the college was considered a more appropriate venue for the ceremony."
5.6 The CDVEC submitted a copy of the enrolment sheet for the 2003/2004 BTEI class to the hearing. From it I see that a date of birth has been included for 25 of 30 listed names. 68% (17 out of 25) of them were 18 or over at the time of the ceremony and 44% (11 out of 25) were over-18 at the beginning of the academic year. One person listed was 23 years old at the time of enrolment. The respondent could not explain these anomalies at the hearing but insisted that the BTEI class was only supposed to be available for under-18s.
5.7 Consequently, it is clear to me that the BTEI course was not only open to under-18s and that the college was not meeting its own criteria when enrolling individuals on this course. The college cannot use age as a defence when clearly all students were not under-18. Therefore, I find that age cannot be given as a reason for the differential treatment nor used to justify the need for a separate graduation ceremony.
5.8 It is clear to me from the evidence given by both the coordinator and the Principal that the college's decision to hold a separate graduation ceremony made some of the teaching staff feel very uncomfortable and that attempts had been made to find an alternative way out. The college had hosted a separate ceremony the year before and no complaints had been made. Thus the college had not felt the need to re-examine its decision to host separate ceremonies and decided to continue with the 'norm' of the previous year. When the furore over the ceremonies began, the college had not left itself enough time to come up with an alternative arrangement. It is apparent to me that the college was incorrect in stating that all students were under-18 as paragraph 5.6 indicates. The college ensured that all participants were asylum-seekers but did not ensure that the students were aged 16 to 18.
5.9 I do not accept the time factor as a valid defence for the reason why the college could not hold a ceremony for all of the students. When the college became aware that there was an issue with the concept of two ceremonies it could have cancelled the in-house ceremony and invited the handful of BTEI students to the graduation on 26 May 2004. It would not have taken much time to check the enrolment book to see whether the BTEI students were genuinely under-18. The actual ceremony took place in a hotel and was followed by a subsidised bar extension. I do believe that the BTEI class could have been invited to the first part of the evening where alcohol was not available should the college have wanted to do so. While I am not advocating that educational establishments should evade their responsibilities in relation to the welfare of under-18s, I am saying that - especially when considering that a majority of the class were over the age of 18 - the reason given as to why the class was excluded from the award ceremony does not make much sense at all.
5.10 While the presence of alcohol has been used as a reason why a group of under-18s could not be invited to the ceremony on 26 May 2004, it is important to note that there was no alcohol at the ceremony per se. The bar extension was held in a separate area and started several hours after the official ceremony. The irony here is that the complainant could have attended this ceremony as one of his friend's invitees. What he could not do on the day, however, was to graduate and receive his certificate like all the other students not enrolled in the BTEI class.
5.11 The respondent admitted at the hearing that it was possible that some of the general student body may have been under-18. It was also acknowledged that students were invited to bring their family and friends along to the ceremony and that the college did not restrict their participation with an age limit. The Principal stated at the hearing that he felt that he had a moral duty to protect under-18s who did not have family to look after them. As stated above, I accept that the college has a duty of care towards all of its students. However, this duty applies to every student who is under 18 years of age. A college must protect all of the student body in a similar manner. The need to protect under-18s should not become more pronounced because the person belongs to any other social category. An under-18's ethnic origin, family status or gender does not mean that the duty of care is any more or less than that afforded to another person belonging to a different social category. All students who are under-18 are entitled to the same level of care and protection precisely because they are under-18 and not for any other reason. Should any additional protection be afforded to any person because of specific circumstances then it must be justified by naming the appropriate reason.
5.12 I do agree with the college that they had a duty of care in relation to all (regardless of nationality) under-18s attending such an event. The Student is also correct in stating that the venue in question has a responsibility to ensure that the provisions of licensing laws are adhered to. It is important to note, however, that the Student was aged over 18 in May 2004. The college and the venue would have had a responsibility to an under-aged person and if the class had genuinely consisted of under-18s this would have been a valid defence. As the age a criterion was not applied consistently the above debate is futile.
5.13 While it is clear that non-Irish students attended the 'main' graduation ceremony (outside location with a bar extension), it seems at odds with the college's stated commitment to equality of treatment for it to choose to hold a separate ceremony for the college's only exclusively asylum-seeker class. I accept that the Principal was genuinely concerned for the welfare of the BTEI class and that he believed the class to consist of under-18s. While I accept the Principal's statement that he firmly believed that the nationality of the participants of the BTEI class played no role in the college's decision to host a separate ceremony for them, it is important to note that one of the conditions that the CDVEC received the funding for this course in the first place was because it had undertaken to recognise and accommodate diversity. I appreciate the challenge that such ambition brings with it. However, it is clear that educational institutions aspiring towards equality of treatment and outcome must confront the challenge of specific group identities. It should have been clear that the students' nationality would always play a role in any decision affecting them in that such a decision could potentially be directly or indirectly discriminatory on the race ground. The class, after all, consisted exclusively and by design, of asylum-seekers.
5.14 I am also aware that the CDVEC pointed out in its submission that the Student had not raised his concerns with the Principal. However, the coordinator stated in evidence that he had brought the student's dismay to the Principal's attention. This approach would seem to be in line with the College's policies. The Student Handbook 2003-2004/The Interim Admission Policy Statement reads:
"Each person is entitled to equal courtesy and respect irrespective of gender, age, religion, nationality, race, sexual orientation or family background. Any student who feels unfairly treated should make this known to the Class Teacher, Deputy Principal or Principal as appropriate."
The Student denies ever having any knowledge of a Student Council or of any election involving his class. While I note that the Student Council is explained in the Handbook, which according to the college is given to each student on registration I have seen no evidence to suggest that the college has been particularly proactive in ensuring that students - especially those who do not have a background in the Irish educational system or who have been out of it for some time - are informed of their rights within the college.
5.15 Failure to follow one's own policies, procedures and practices creates an inference of discrimination. On the one hand, the respondent seems to expect that the complainant be mature and informed of the college's decision-making process without the college fulfilling its own commitments in relation to taking positive steps to ensure that he is so informed. On the other, the college maintains a 'duty of care' attitude towards the complainant because he was a foreign national living in Ireland without his family. I conclude that this paternalistic approach to the members of this particular BTEI class led the college to a situation where it segregated a group of asylum-seekers from the main student body by categorising them as children. Similar concern was not shown to other students, who the Principal himself acknowledges, may have been under-18.
5.16 The college was proactive in designing a programme that addresses the needs of its target audience and is to be commended for it. It is unfortunate that it did not apply its proactive approach consistently by ensuring that all students enrolled in the college had equality of access to all facilities and benefits provided by it. The CDVEC tried to justify this treatment by imputing an age to the Student that could have been used to validate his exclusion from the graduation ceremony on 26 May 2004 had he been under the age of 18.
5.17 Moreover, the Student was in a class designated for asylum-seekers who were supposed to be under-18. Evidence submitted by the respondent itself has shown that this was not the case. The only unifying social category that applied to this class was the group's asylum-seeker status. By excluding the Student from the ceremony on 26 May 2004 the college imposed a condition of age that the BTEI class, consisting exclusively of asylum-seekers who were perceived to be minors, were unable to comply with. As this condition was only applied to the BTEI class (non-Irish) it is clear that a substantially larger number of people enrolled in other classes (Irish) were able to comply with the condition. Thus, I find that the failure to invite the Student to the graduation ceremony on 26 May 2000 constituted indirect discrimination as defined in section (3)(c)(iii) of the Equal Status Act, 2000. Incidentally, it might be worth noting that should the Student's complaint have been specifically about having to attend the ceremony in June 2004, and the college's reason for doing so the same, I would have found that the segregation of a class of asylum-seekers (non-Irish) to a separate graduation ceremony would have constituted direct discrimination on the grounds of race contrary to section 3(a) of the Act.
5.18 The Student maintains that he was also discriminated against contrary to the legislation on the grounds of age. Had the Student been under-18, the Equal Status Act 2000 would not have applied. As he was over 18 years of age and thus a similar age than most of the Student body I cannot find a comparator to establish a prima facie case for age discrimination. From the evidence presented to me I do not find that the differential treatment he experienced was because of his age. Therefore the complaint on the age ground fails.
6. Decision
6.1. The complainant has established a prima facie case of discrimination on the race ground and the case has not been rebutted. The complaint on the age ground fails.
6.2. I order the respondent to pay the complainant €3000 as redress for the distress caused by the discriminatory treatment.
___________
Tara Coogan
Equality Officer
December 2007
1 Unaccompanied minor refers to individuals who are under 18 years of age, are in Ireland without their parents or legal guardians and have asylum-seeker status.
2 A copy of the invitation was presented at the hearing. It reads: "you are welcome to bring two guests with you to this presentation." The ceremony started at 7.30 pm and the doors to the nightclub opened at 10.00 pm.
3 The Child Care Act 1991 defines a person under 18 other than a person who is or has been married as a child.
4 Department of Education and Science website.
5 Italics mine.
6 The Student falls into this category.
7 This person's date of birth is given as 02/06/1981
8 The Intoxicating Liquor Act 2003 allows for persons under the age of 18 to be present on licensed premises up to 9 pm.
9 A College of Further Education Student Handbook 2003/2004, Student Code of Practice p.6
10 Page 9 of Student Handbook.