PEMBROKE SCHOOL INC - [2009] SAEOT 7

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
In the Matter of AN APPLICATION FOR EXEMPTION UNDER THE EQUAL OPPORTUNITY ACT 1984
PEMBROKE SCHOOL INC
[2009] SAEOT 7
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Ms H Jasinski
19 August 2009
DISCRIMINATION LAW
Application for exemption from s 37 of the Equal Opportunity Act 1984 - school's objective is to achieve gender balance - application granted for period of three years.
Equal Opportunity Act 1984, referred to.
Pulteney Grammar School v Equal Opportunity Tribunal, Walford Anglican School for Girls Inc & Annesley College [2007] SASC 308, considered.

PEMBROKE SCHOOL INC
[2009] SAEOT 7

Pembroke School Inc has applied, pursuant to s 92 of the Equal Opportunity Act 1984, for an exemption from s 37 of the Act.
The effect of s 37 of the Act is to provide, among other things, that it is unlawful for an educational authority to discriminate against a person on the ground of that person’s sex in relation to accepting an application from that person for admission as a student.
The Act provides, in s 92, that this Tribunal may grant exemptions from the provisions of the Act.
Pembroke School (“Pembroke”) has applied for an exemption from s 37 in respect of its decisions in relation to applications for admission as a student to year levels from the Early Learning Centre to Year 7. In the hearing in respect of the application, Mr Short, counsel for Pembroke, relied upon the facts set out in the application, together with an article written by Professor Judith Gill, which was tendered in evidence.
Pembroke was established in 1974 as a co-educational school by the merger of two single sex schools. It is a day and boarding school with an enrolment of approximately 1,560 students from the Early Learning Centre to Year 12.
Pembroke has always sought to establish, as far as practical, an equal number of students of each sex at each year level. To put it very generally, the educational philosophy which underpins the running of Pembroke holds that optimal learning outcomes in a co-educational setting are more readily achieved when classes contain as close as possible to even numbers of girls and boys.
Gender balance has been achieved at Pembroke, to a satisfactory extent, from Years 8 to 12 inclusive. However, the proposed enrolments for 2010 have given rise to concern. As matters stand, Year 1 will be 39% girls (61% boys), Year 6 will be 39% girls (61% boys) and Year 4 will be 40% boys (60% girls). There is concern that these imbalances will become entrenched in those years unless they are addressed at an early stage. There is also concern that an imbalance in any year will mean that the optimal educational experience (according to the school’s philosophy) is not provided to all of the children in those years. The school seeks an exemption so that it can address an imbalance of 55/45 or greater.
Pembroke was previously granted an exemption from s 37 of the Act for three years from June 2006. That exemption has now expired.
The decision of the full Supreme Court in relation to an application for a similar exemption by Pulteney Grammar School is relevant to our consideration of this application by Pembroke. In the matter of Pulteney Grammar School v Equal Opportunity Tribunal, Walford Anglican School for Girls Inc & Annesley College [2007] SASC 308, White J, with whom Nyland J and Kelly J agreed, identified three objects of the Equal Opportunity Act 1984 from the long title of the Act:
1.to promote equality of opportunity between citizens of this State,
2.to prevent discrimination on certain grounds (including sex),
3.to facilitate the participation of citizens in the economic and social life of the community.
White J said, in his judgement, at p.9:
In my opinion, it is also natural to construe the EOA as intending to achieve some larger purpose than the mere elimination of discrimination for its own sake. The elimination of discrimination is a means of achieving the wider purpose of equality of opportunity amongst all citizens of the State.
White J said that it was for Pulteney to establish that the exemption sought was appropriate. White J said, at p.9:
Amongst other things, this requires Pulteney, in my opinion, to demonstrate that the present levels of female enrolment detract from equality of opportunity in a significant way and that it is unlikely that approximate gender equality will be achieved in the ELC to Year 8 levels within a reasonable time without an exemption.
The application by Pulteney which gave rise to the Supreme Court decision was different from the application by Pembroke which is now before us in a number of significant ways. Pulteney’s difficulties related to an overrepresentation of boys at all levels. Pembroke wishes to address an overrepresentation of boys at Years 1 and 6 and an overrepresentation of girls at Year 4 for 2010. Imbalances either way could arise at other junior school levels, in the same way and of a similar order. Pulteney became co-educational in 1999 at all year levels, though it had accepted girls in the Early Learning Centre since 1997. Pulteney’s application for exemption was made in 2006. White J, in the Pulteney matter, contrasted the situation of Pulteney with Pembroke, noting that Pembroke had been striving for a much longer time to achieve a gender balance. This, of course, remains true.
In addition, in the Pulteney matter, White J said, at p.12:
Professor Gill’s evidence did not suggest that there was a material difference in equality of opportunity if the gender split was (as is presently the case at Pulteney in the relevant years) 60-40 and not approximately 50-50.
In relation to the application by Pembroke now before us, we have been provided with an article of Professor Gill in which she says:
The concept of critical mass is frequently referred to in the research literature which looks at gender balance in educational experiences. Critical mass refers to the need to have sufficient numbers of students in any category in order to avoid them being seen as a non-typical inappropriate learning minority. The category of gender is clearly implicated in such studies. Thus is has been shown that when the numbers of male or female students fall below a certain level those remaining feel uncomfortable in that class and are likely to either become further alienated from the group or to withdraw from the class entirely. While there is some debate about how many are required to form the critical mass – estimates go from a minimum of 20% but always working towards a notional 50% - it is clear that equal numbers are the best option. (our emphasis)
…
Some cognitive researchers have argued that differences in early learning experiences are largely responsible for some of the ongoing differences in students’ cognitive development and curriculum choices in senior school.
Hence it is very important for early learning teachers and classrooms to maintain gender equitable practices and to work for equal balance of male and female in their student groups.
It seems to us that Professor Gill is indicating that the optimal environment for the provision of equal opportunity in education is an environment which, among other things, has equal numbers of boys and girls within each class. Professor Gill goes on to say, in her article:
Of course the project of achieving gender equity and the fulfilment of student potential goes beyond having equal numbers of boys and girls in the classroom. Other issues involved include
·       teachers who are aware of gender issues, trained in practices that support equal treatment and sensitive to student needs in this regard
·       staffing structures that reflect a gender balance of positional power within the school to provide meaningful and effective role models
·       curriculum materials that represent both male and female characters in a range of roles; and so on
However it is surely a sensible first step in the pursuit of gender equity in schooling experiences and outcomes to begin with a determination to achieve a good gender balance in classrooms and to avoid situations which cluster large numbers of one gender group beside small numbers of the other group.
The granting of the exemption will permit discrimination on the basis of gender in relation to the decision as to whether a small number of applications for admission as a student will be accepted. However, the exemption will also advance the purpose of the Act by improving equality of opportunity within the schooling experience in those year levels in which there would otherwise be a gender imbalance, in the sense outlined by Professor Gill.
On the basis of Professor Gill’s evidence, we determine that it would be in the interests of equality of opportunity to grant the exemption sought, in that it would enable Pembroke, year by year, to offer, as far as possible in this regard, the same educational experience to girls and boys, in that both girls and boys would have a cohort of roughly equal numbers.
We note that in the Pulteney case, both Walford Anglican School for Girls Inc and Annesley College objected to the exemption sought. The application by Pembroke was the subject of a notice in the Adelaide Advertiser on Friday 7 August 2009. No representations have been received in response to that notice. We note, however, that the objections in the Pulteney case were not a significant factor in the Supreme Court’s decision. The absence of objections, therefore, is not a significant factor in this matter.
There will be an order exempting Pembroke School Incorporated from s 37 of the Equal Opportunity Act, to permit the school to favour girls or boys in respect of applications for enrolment at all year levels from its Early Learning Centre to Year 7, inclusive, for the purpose of obtaining gender balance in each year, for a period of three years from the date of gazettal of this order. We note the undertaking by Pembroke that the exemption will be used only where a gender balance of 55/45 or worse would otherwise result.