Al-Hijrah School: Far-reaching implications

Written by: Andrea Squires | Published:

The recent ruling that the policy of segregation at Al-Hijrah School in Birmingham is unlawful might have further implications for the school system

On October 13, the Court of Appeal ruled that the Al-Hijrah School’s policy of segregating boys and girls was unlawful sex discrimination.

The decision gives the regulator considerably greater powers and could mark the beginning of the end of single sex education.

To understand the impact of the decision it helps to first look at the facts.

Al-Hijrah School was first placed into special measures and an interim executive board appointed by Birmingham City Council in 2013. In the following two years the school was visited a number of times with some improvements being noted and its grade raised to “requires improvement”. At that time it was noted, but no comment made, on the segregation of girls and boys from year 5 onwards.

A full inspection in 2016 did raise concerns about the school’s segregation policy and assessed the school as “inadequate”. The inspectors’ report said that it “does not accord with fundamental British values and amounts to unlawful discrimination ... (it) does not give due regard to the need to foster good relations between the genders, and means girls do not have equal opportunities to develop confident relations with boys and vice-versa. This is contrary to fundamental British values and the Equality Act 2010.”

No opinion was expressed that the segregation had led to a different or objectively poorer level of education for either the girls or the boys, and it was agreed that both groups had been taught the same subjects to the same standard.

The court’s decision

The question the High Court considered key was whether the denial of opportunity to mix for either group was a lost benefit which amounted to less favourable treatment for one or the other. The view of the judge was that as both groups were treated equally, he could not find that one sex was being treated less favourably than the other.

A number of grounds of appeal were lodged by Ofsted. In summary:

  1. That the policy resulted in a loss of opportunity for both girls and boys.
  2. That the loss of opportunity for females imposed a particular detriment because they hold a minority of power in society, so the policy would have a more unfavourable impact on them than boys.
  3. That it amounted to “expressive harm” for girls because the policy was based on a belief that girls are inferior.

The Court of Appeal felt that the High Court had wrongly looked at the impact on the groups as a whole.

Instead it was considered appropriate that the question of lost benefit and whether there had been unfavourable treatment as a consequence of gender was looked at for individual girls and boys.

The Court considered that the policy of segregation, while treating both groups equally, meant that individual girls were denied the opportunity to mix with individual boys, which individual boys had the benefit of, and vice-versa. While the logic is undeniable, what influenced the Court was Ofsted’s view that the restriction on the freedom to mix or socialise with the opposite sex was detrimental to their education.

In delivering the Court’s judgment, Sir Terence Etherton, Master of the Rolls, said: “There is no doubt that the restrictions on a girl pupil socialising with boy pupils, and on a boy pupil socialising with girl pupils, is by reason of their respective sex.

“There is no doubt that Ofsted could reasonably take the view that the differential treatment, as Ofsted portrays it, was detrimental to both the girl pupil and the boy pupil. As it happens, there was direct evidence from some, albeit a small number, of the pupils in the present case that they regarded the complete segregation of the sexes as detrimental to their social awareness and development, and there is equally no doubt that that view was a reasonable one to hold.”

Far-reaching implications

It would be easy to dismiss this ruling as only applying to segregation in mixed sex schools, but that would ignore the significant undertones which suggest that segregation in education is harmful, particularly for girls.

The decision is clearly a definitive win for Ofsted, perhaps going further than Ofsted may have expected in giving inspectors the power to judge a school’s overall effectiveness having regard just to its social policies.

The Court’s support for Ofsted’s interpretation of British values (and that segregation is a breach of the duty to promote British values) is concerning given the lack of guidance on this from the Department for Education and Ofsted itself (could other policy areas be affected?).

It’s hard to resist the conclusion that Ofsted is both determining policy and policing its implementation. Certainly there is a worrying lack of objectivity which needs to be addressed urgently.

Perhaps even more worrying are the comments made by both one of the judges and Ofsted that if it is accepted that the ability to mix and form working relationships with members of the opposite sex is so crucial to the educational development of all pupils, are there any circumstances where it can be justified that it is appropriate to exclude the opposite sex, beyond mere tradition? Must single sex schools now demonstrate how they overcome this “detriment”?

The judges attached little importance to the views of parents and we must ask what regard in the future will there be to parental choice?

If single sex education is considered lacking in some way, could a local authority be challenged if it is only able to offer a place in a single sex school? Are there other examples of segregation (for certain lessons or sports) which are now vulnerable to attack?

If unchallenged, this judgement may well lead to a rise in discrimination challenges and will inevitably open up a wider debate about single sex education.

  • Andrea Squires is partner and head of education law at Winckworth Sherwood. She is advising the Association of Muslim Schools in relation to the Al-Hijrah School.


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