PULTENEY GRAMMAR SCHOOL - [2006] SAEOT 1

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
PULTENEY GRAMMAR SCHOOL
[2006] SAEOT 1
Judgment of His Honour Judge Clayton, Member Yapp and Member Worley
30 November 2006
DISCRIMINATION LAW - STATE PROVISIONS - SOUTH AUSTRALIA
Pulteney Grammar School applied for exemption from the provisions of s 37 of the Equal Opportunity Act 1984 to allow it to offer places to girls in preference to boys in order to address a gender imbalance.
The objective of the Act is to prevent discrimination against individual persons rather than achieving a gender balance.
HELD: Application dismissed.
Equal Opportunity Act 1984 s 92, s 37, s 24(3)(b), s 29, s 103 & s 47 , referred to.
Scotch College Adelaide Unreported judgment delivered 2/8/06; Pembroke School Incorporated Unreported judgment delivered 14/6/06, not followed.

PULTENEY GRAMMAR SCHOOL
[2006] SAEOT 1
Judge Clayton; Member Yapp and Member Worley AO:

Pulteney Grammar School (“Pulteney”) has made an application under s 92 of the Equal Opportunity Act 1984 for exemption from the provisions of s 37 of the Act for the purpose of favouring female applicants for enrolment.
The grounds in the application state that Pulteney was established in 1847 and until 1999 was a boys only school. Since 1999 the school has been co-educational at all year levels. The application asserts that the school is committed to the philosophical and educational view that co-education is a natural and optimal environment in which children learn. Reasons for that view are set out in the application.
The application states that co-education and its benefits are the basis upon which students and parents choose Pulteney and that parental expectation is that the school will have true gender balance and be co-educational.
At the present time the school has an imbalance of favour of boys overall. The expected enrolments at 2007 are 62.8% boys in year 3, 66.7% boys in year 5, 61.2% boys in year 7 and 68.2% boys in year 8. The imbalances are expected to continue in later years and will continue to do so unless addressed.
The exemption is sought to enable the establishment of an equal gender ratio with a view to establishing a student gender balance in the Early Learning Centre to year 8. The specific order sought is that the applicant be exempted from s 37 of the Act, to allow the school to favour female applicants, including advertising to prospective students, in respect of applications for enrolment in its Early Learning Centre to year 8 inclusive for a period of three years.
On 25 July 2006 the Tribunal granted a similar exemption to Pembroke School Inc. and on 2 August 2006 the Tribunal granted a similar exemption to Scotch College, Adelaide.
At a preliminary hearing on 20 September 2006, counsel advised that the Commissioner did not wish to be heard upon the application by Pulteney. There was an expectation that when the application came on for hearing before the Full Tribunal, an exemption would be granted as a matter of course.
When the application came on for hearing on 4 October 2006, counsel for Walford Anglican School for Girls Inc (“Walford”) and Annesley College (“Annesley”) applied for leave to intervene. On 5 October we made an order, pursuant to s 24(3)(b), that Walford and Annesley be given leave. Reasons for that decision were published.
The preamble to the Equal Opportunity Act 1984 states that it is:
An Act to promote equality of opportunity between the citizens of this State; to prevent certain kinds of discrimination based on sex, sexuality, marital status, pregnancy, race, physical or intellectual impairment or age; to facilitate the participation of citizens in the economic and social life of the community; and to deal with other related matters.
Part 3, Division IV of the Act deals with discrimination in education.
The term “discriminate” is defined in s 29 to include discrimination on the grounds of sex. Sub-section 29(2) declares that for the purposes of the Act, a person discriminates on the ground of sex if he or she treats another person unfavourably because of the other’s sex.
Section 37(1) provides that it is unlawful for an educational authority to discriminate against a person by refusing or failing to accept an application for admission as a student.
Sub-section 37(3) states that the section does not apply to discrimination on the ground of sex in respect of admission to a school established wholly or mainly for students of one sex for the admission of a person to a school, college or institution where the level of education or training sought by the person is provided only for students of one sex. Annesley and Walford are schools wholly for girls and they therefore fall within the exemption in ss (3).
The power to grant exemptions is set out in s 92 of the Equal Opportunity Act 1984 which provides:
92    The Tribunal may grant exemptions
(1)     The Tribunal may, upon application under this section, grant exemptions from any of the provisions of this Act in relation to—
(a)     a person, or class of persons; or
(b)     an activity, or class of activity; or
(c)     any circumstances of a specified nature.
The only guide as to the circumstances in which an exemption should be granted is ss (6) which provides:
(6)     In determining an application under this section, the Tribunal may-
(a)     have regard (where relevant) to the desirability of certain discriminatory actions being permitted for the purpose of redressing the effect of past discrimination; and
(b)     have regard to any other factors that the Tribunal considers relevant.
For the sake of completeness, we mention ss 103(1) which provides that a person must not publish, or cause to be published, an advertisement that indicates an intention to do an act that is unlawful by virtue of the Equal Opportunity Act 1984. Counsel advised that Pulteney does not seek an exemption from the provisions of s 103 because it takes the view that if the exemption sought is granted, the conduct of Pulteney would not be unlawful by virtue of the Act.
Evidence in support of the application was given by Mr G P Lange, who has been an employee of Pulteney since July 1997 and the Principal since April 1999 and by Associate Professor Judith Gill.
Ms M Gaertner-Jones, the Principal of Annesley, and Ms H Trebilcock, the Principal of Walford, gave evidence in opposition to the application. We will refer in more detail to the evidence of the interveners later. The dispute before the Tribunal was put into perspective by the following statement of counsel for the interveners at the time of the application to intervene:
What the concern of my clients is is that the application for exemption in this matter is in fact a commercial tool. It is not an application to meet the needs of the legislation that is to right some past discriminatory practice or to correct some other problem or imbalance within the equal opportunity legislation notions. But it is instead basically a marketing tool and we note already that Pulteney is obviously seeking girls to go to its school.
We also note that if it was only to confine itself to its waiting list then that may not been an issue because all that would be doing is giving some level of priority in the waiting list that they already have. But what we see as an open application seeking to encourage or entice, and I don’t mean that in any pejorative sense, but to encourage or entice girls away from the schools that are all girl schools and we see that on one side as a commercial tool not as dealing with the Equal Opportunity Act requirements. But on the other side it also raises the issue as to whether that in fact affects the viability of my clients to continue to offer a service which is recognised under the legislation as being something which is beneficial and appropriate. So that is the nature of my clients’ interest.
Annesley and Walford claimed to have a legitimate interest in the proceedings because the schools are “both geographically and from a market point of view closely related to Pulteney”.
The evidence of Mr Lange was that Pulteney believes that gender mix enhances students’ individual learning styles and that co-education and its benefits are a strong basis upon which students and parents choose Pulteney. He said parental expectation is that the school will have true gender balance and be co-educational.
In considering enrolment applications, the school has a tiered approach. First preference is given to siblings of current students, the second preference is to children of staff and old scholars, the third preference is children of persons having a connection with the school, and the final tier is applications by persons with no particular connection with the school.
It is relevant that Pulteney does not intend to apply the exemption across the board. In practice it is likely that the exemption would only have application to the fourth tier, or perhaps the third and fourth tiers. Students who come within the first three tiers are likely to be accepted without regard to gender balance. Because of that the interveners suggested that the retention of the tier system makes a lie of the stated basis for the application, that is, the desire to obtain equal numbers of boys and girls throughout the school.
Mr Lange gave evidence that the school has sought to achieve gender equality as its preferred and optimal enrolment situation. He said it is the school’s genuine belief that provides an optimal co-educational experience and reflects the desire of parents who have chosen a co-educational schooling. Gender balance in the school is a matter of interest to parents of prospective students.
Mr Lange said that the school has had regard to s 47 of the Equal Opportunity Act 1984 in trying to achieve gender balance. In the early days of the school being co-educational, financial incentives were offered to girls in order to promote a better gender balance. That practice ceased in 2002.
Mr Lange also said that the school had delayed confirming the enrolment of a boy for the following year to see if enquiries from girls came to fruition. He said he believed that the school could operate under s 47 of the Act.
For s 47 to apply, there would need to be a scheme to ensure that persons of one sex had equal opportunities with persons of the other sex. Discriminating against boys in favour of girls in the way that was described is not such a scheme. If there was such a scheme, it did not give boys an equal opportunity with girls. If Pulteney believed that they could operate under s 47, that belief was erroneous.
Mr Lange acknowledged that the application for an exemption was consequential upon Pulteney becoming aware of the exemptions granted to Pembroke School and Scotch College. Pulteney also became aware that similar exemptions had been granted to a number of Victorian schools. Mr Lange said that the application was brought for the purpose of obtaining certainty and clarity.
Mr Lange denied that the application was motivated by commercial factors. He said the application was motivated by genuine desire to promote gender balance and to optimise the benefits of a truly co-educational schooling. Pulteney relies upon the views expressed in a report of Associate Professor Gill. Mr Lange supports those views.
Mr Lange said it is not part of the application to seek the ability to offer financial incentives and that the application is not aimed at Walford or Annesley. He expressed dismay at their intervention.
Mr Lange said the application is not about the respective merits of single sex schooling and co-educational schooling and that parents who send their children to Pulteney have chosen a co-educational schooling which is something that Walford and Annesley do not offer. He acknowledged that Pulteney likewise does not offer single-sex schooling. He regards the children registered at Pulteney as being unlikely candidates for a single-sex school and does not see girls at Annesley or Walford or any other girls school as specific targets for marketing by Pulteney.
Mr Lange said that the purpose of the application is to redress the gender imbalance to which we have referred. The application is not directed at years 9 to 12 inclusive.
Mr Lange said that where girls had been given favoured treatment, in the past that had involved a “tweaking”. He said Pulteney does not want any uncertainty about the appropriateness of the school’s practices and wants to be open and transparent in order to reduce the prospect of parents being aggrieved by Pulteney’s enrolment practices. His written statement concluded with the words:
The school very much wants the certainty that comes from the grant of an exemption. That enables us to publicly proclaim our enrolment practices with complete honesty, transparency, and lack of risk of litigation.
Counsel for Pulteney advised that because a parent had lodged a complaint about the school’s enrolment practices the school sought certainty for the future.
Mr Lange gave evidence of the way in which the “tweaking” to which he referred might operate in practice. The enrolment model of Pulteney is built around a class size of 24. Mr Lange said that if a position became available and an opportunity to address the gender imbalance arose by enrolling a female, Pulteney would like to choose the female, even though that person may be further down the Date Received List than boys he would normally be given priority.
In response to one of the grounds of objection, Mr Lange said that he did not see that granting an exemption to Pulteney would cause any girls’ school to collapse. A fact which was in the background of the evidence and submissions put to the Tribunal was that Woodlands School had collapsed a few years previously. Mr Lange said “If another girls’ school was to collapse as a result of the demographic pattern in Adelaide, there would still be others”, and:
If the decline in the interveners’ enrolments was all directed to Pulteney, I think we would be considerably larger than we are now. I suspect that the key reason here is that there are fewer and fewer school age children in South Australia and that we could anticipate declining enrolments right through the high fee sector and right through schools into the future in Adelaide.
When asked what would happen if a girls’ school were to go Mr Lange replied “That leaves four, there is still plenty of choice”. While that may be of comfort to some, it is of little comfort to the intervenors or any girls’ school which might have to close.
Associate Professor Gill is an Associate Professor in education at the School of Education, University of South Australia. She is very highly qualified. She had prepared a report in support of the application by Pembroke School and prepared a similar report for Pulteney.
Professor Gill gave evidence that research has shown the need to avoid either gender category being seen as a minority group within the classroom. One basic strategy to achieve that is to aim for equal numbers of males and females.
We accept that there is a legitimate school of thought that it is desirable to achieve a 50/50 ratio between males and females. In the view of Professor Gill, the ideal is as close to 50/50 as possible. She said that having fewer girls or fewer boys in a classroom can be disastrous and the closer to 50/50 the better.
The objection of Annesley was supported by evidence from Ms Gaertner-Jones who also has extensive qualifications and a broad teaching experience. In a written statement, she said that as an educator for more than twenty-five years she does not agree that a 50/50 gender mix ratio will provide the benefits suggested by Pulteney.
Ms Gaertner-Jones said that the current educational trend is for students to be provided with individualised learning and teaching and that the ratio of male/female students is irrelevant to the curriculum of an individual. She referred to collaboration with other schools as a means of providing the benefits of co-education in a single sex school. She disagreed that the gender-mix ratio enhances in any significant way a student’s individual learning style. She said that good teaching was about providing learning styles which develop the student’s potential and that providing a gender ratio will not achieve that. She said that future directions in education across the world are about individualising the curricula and tailoring the classroom to each and every child’s learning style. She said that evidence that girls demonstrate higher academic achievement in a single-sex school has remained consistent for over the last 15 years.
Ms Gaertner-Jones was aware from her discussions with parents that scholarships were being offered to students at Pulteney who would not qualify for a scholarship at Annesley. As we have mentioned, Mr Lange denied that Pulteney offered scholarships based upon the gender of the offeree. That is an issue which we do not have to determine.
The keen interest of Annesley in the application is explained by Ms Gaertner-Jones’ statement that there has been a direct relationship between declining numbers at Annesley and Walford from the time that Pulteney, seven years ago, became co-educational. She pointed out that the decision of Pulteney to become co-educational was made when Pulteney had demonstrated declining numbers for several years. Ms Gaertner-Jones said:
The fact that Pulteney have not been able to attract enough girls into particular classes since the decision was approved simply means that Pulteney have been unable to deliver the services required by the parents to encourage that to occur. This is not a proper basis for an exemption under the Equal Opportunity Act.
She also said:
I suggest that the decision seven years ago for Pulteney to become a co-educational school was a business decision and that the grounds for this application are also purely based on business decision, since the previous decision has not delivered a preferred outcome, which is impacting on future enrolments. It is apparent that unless Pulteney limit the number of boys that they accept in their intake, gender ratios will still not be achieved. This has not been proposed by Pulteney.
Ms Gaertner-Jones said that Annesley and Pulteney schools are less than one kilometre away from each other, that they compete for the same income from the same potential students and that there are similarities between the schools in terms of ethos and education that may lead parents to differentiate only upon the basis of cost.
She said that the need to accommodate different learning styles can be addressed by staff training, so that gender balance is irrelevant. Her written statement concluded with the observation that should Annesley student numbers decline because of the exemption, then the curriculum may need to be cut.
The suggestion that it was motivated by financial or commercial considerations has been denied by Pulteney. There is no evidence to suggest that Pulteney is not genuine in its desire to achieve equality of numbers of boys and girls in its classes. Whatever the basis for that objective, what this Tribunal must determine is whether the end result would justify the exemption which is sought.
Evidence was also provided by Ms H Trebilcock, the Principal of Walford. She also is a well qualified and experienced educator.
Walford was established in 1893. Ms Trebilcock said that the school currently operates within the values of the Anglican Church of Australia as a day and boarding school for approximately 600 girls from Preparatory to year 12, including boarders. She extolled the virtues of Walford and single-sex schools like it. She said that such schools provided a challenging education and environment that allowed girls to develop confidence in their abilities, which made them more determined to follow their interests in an adult environment that had limited expectations of their talent and stereotypes them and their roles. She said “single-sex schooling provided the best opportunities for girls in a prejudiced and unfair world”.

Prior to 1999 Walford and Pulteney enjoyed a close relationship and Pulteney was referred to as Walford’s “brother school”.
Ms Trebilcock observed that Pulteney’s enrolments had not increased significantly over the last seven years, despite the decision to become co-educational. She also observed that Pulteney had not suggested that the enrolments of boys would be limited to attempt to reach gender ratios, but that Pulteney only sought to give preference to girls. She said:
In the absence of an undertaking from Pulteney to limit male enrolments to reach equal gender ratios, the application for an exemption will not be effective, and can only be viewed as a business decision to increase enrolments, by attempting to market the school in an area where its enrolments are not forthcoming. This marketing strategy can only impact on the nearby single-sex schools, and the market from which girls are drawn to attend schools.
Annesley and Walford were not as coy about acknowledging the competition for girl students as Pulteney, which has based its application on an attempt to reach an equal gender ratio.
Ms Trebilcock said that the impact of Pulteney being provided with an exemption could be that if Pulteney actively sought to attract girls through offering them financial advantages, Walford may lose students to Pulteney. She noted that Pulteney said it would not offer financial advantages to girls but commented that such an undertaking would be impossible to police. She spoke of the possibility of the loss of fee income or Government funding. Ms Trebilcock pointed out that all schools are competing for the same income from the same marketplace and that geographically Pulteney is less than three kilometres away from Walford and Annesley is less than a kilometre away from Walford. She pointed out that there are similarities between the schools.
There is a general observation which should be made in order to put the application into perspective. The application raises the question of class sizes. At Pulteney Grammar School there is a general cap of 24 students per class. If in a class there were 11 girls and 13 boys, the percentages would be 46/54. If there were 10 girls and 14 boys, the percentages would be approximately 42/58. It can be seen that a minor change in numbers of boys or girls in a class can have a significant effect on the percentages. In a class of 24, each child represents about 4% of the class. Having regard to the normal movement of students, the achievement of a perfect ratio of 50/50 in a class for the duration of a year would appear to be most unlikely. When viewed in that light, the exemption would appear to be directed at an objective which is unlikely to be achieved in actuality.
The objections of Annesley and Walford question the validity of the objective of a 50/50 mix and dispute the bona fides of Pulteney in putting forward the 50/50 mix as the basis for an exemption. They have suggested that Pulteney is motivated by commercial considerations.
The application and the objections raise interesting issues about the theory of education. As enticing as a discussion of the issues may be, we have concluded that the application can be determined without descending to an analysis of the bona fides of Pulteney or the merits of different types of education.
Without underestimating Professor Gill’s experience and expertise, it does seem to be unduly rigid to suggest that a precise ratio of 50/50 will provide a better learning environment than a ratio of say, 55/45 or 60/40. Classes for individual subjects may not be in the same proportions of boys to girls as the students’ home classes. The perfect environment for a particular student is likely to be determined by many factors. There are the considerations raised by Ms Gaertner-Jones.
While the objective of a strict ratio of 50/50, which forms the basis of the application, is unlikely to be achieved in actuality, Pulteney has determined that its objective, irrespective of the merits or likely attainment of that objective, we do not consider it to be prerogative of the Tribunal to question the way in which Pulteney wishes to conduct its school.
We must make the observation that all of the witnesses were impressive. There is no evidence, other than speculation by the heads of the competing schools, that Pulteney does not genuinely believe in the benefit of an equal distribution of boys and girls and genuinely wishes to achieve that objective. There is no reason why the Tribunal should not accept the evidence of Mr Lange as to the bona fides of Pulteney and its objectives.
We have come to the view that the application can be resolved without descending to a consideration of the competing theories of education. The Tribunal is not a proper forum for a determination of the benefits of single-sex education as opposed to co-education.
Exemptions have been granted to Kildare College, Scotch College and Pembroke School. We do not regard those decisions as binding because the applications were not contested and the Tribunal did consider the issues which have arisen in this case. We are conscious of the fact that if we do not grant an exemption there will be an anomaly. However, that is not a reason for not deciding the present application on its merits.
We have also been referred to decisions of the Equal Opportunity Board in Victoria. Whilst interesting and instructive they are not binding. No worthwhile purpose would be served by a detailed discussion of those decisions. The present application must be considered on its own merit.
The Equal Opportunity Act 1984 is concerned with the prevention of discrimination based on sex.
We reject the argument by counsel for Pulteney that favouring girls is consistent with the objects of the Act because the objective of 50/50 provides girls with an equal opportunity. The Act is concerned with discrimination against individuals, not overall balances.
Section 92 does not provide any guideline as to the circumstances in which an exemption should be granted. Most assistance is provided by the preamble to the Act which enunciates the objective of preventing discrimination on the basis of sex.
Sub-section 37(3) creates an exemption in the circumstances stated in that section, but does not provide any assistance as to the criteria to be taken into account when considering an application under s 92. In fact, the specific inclusion of single-sex schools in ss 37(3) may suggest that the express exclusion in the case of single-sex schools implies that schools are not to be given an exemption for other reasons. For the reasons which follow it is unnecessary to dwell on the interpretation of ss 37(3).
The likely operation of the exemption which is sought can be tested by considering a simple example. Assume a class or year with only one vacancy. If there was one tier4 boy whose name had been entered on the waiting list at birth, and a tier4 girl who had recently applied for admission, the exemption could operate to allow the offer of the place to the girl contrary to the date received rule. To offer the place to that girl on the basis of her sex alone would be clear discrimination based on sex. It is the very conduct that the Act is designed to prevent.
Should an exemption be granted to permit such discrimination? As we have already discussed, the objective of a strict ratio of 50/50 is artificial and unlikely to be achieved in actuality..
In our opinion, the unlikelihood of ever maintaining a strict 50/50 ratio and intangible benefits which may be achieved if the exemption was granted, are outweighed by the discrimination against a boy that the exemption would permit.
If exemptions are to be granted for the purpose of giving effect to theories of education, or the policy of particular schools, the provisions of s 37 of the Equal Opportunity Act 1984 and the dominant purpose of the Act would be nullified and made subservient to the wishes of schools.
We have avoided the necessity to analyse the academic arguments as to the benefits of the result that Pulteney wishes to achieve. We do not doubt that Pulteney is well motivated, and we understand why Pulteney would like to conduct its school in the manner it considers best. However, Parliament has established a regime and our role is to have regard to the purpose of the Act.
The application by Pulteney and the opposition of Annesley and Walford have spawned many peripheral issues such as whether Pulteney has offered scholarships to girls, whether the granting of an exemption to Pulteney might cause another girls’ schools to collapse in the way that Woodlands did, whether a decline in the enrolments of the interveners was a consequence of Pulteney going co-educational and whether co-education or single-sex education is the preferable option. We have referred to them only to make it clear that those issues were not overlooked. It has not been necessary to resolve those issues for the purpose of deciding the application.
We have determined that an attempt to achieve a 50/50 ratio in the classroom does not justify a departure from the requirements of the Act which would permit discrimination on the basis of sex. If exemptions could be granted to satisfy the policies of particular schools, the effectiveness of the Act would be diminished.
Accordingly, the application by Pulteney for an exemption is dismissed.