Affirmative action in public universities (II)

National University of Ireland, Maynooth

Continued from last week

It simply is not enough to show that an individual belongs to a particular group which lacks an opportunity, a benefit or an advantage and to use this fact alone, as a basis for extending the opportunity, benefit or advantage while denying others the same. Secondly, an affirmative action policy must show that the remedy chosen must have a ‘real and relevant’ link to the objective of the policy in question.

For instance, a government is justified in giving women maternity leave and denying men the same because there is a real and relevant difference between women and men that justifies the different treatment. Women are biologically different from men; women do fall pregnant and men do not. The objective of the maternity policy is to allow women to have babies, and also, to ensure that women maintain their employment when they temporarily withdraw from their employment during their maternity leave.

Thirdly, the University Quota System (UQS) is also required that it does not unnecessarily limit the existing rights of others. The method chosen for implementing the UQS must be one that impairs existing entitlements the least. Fourthly, the benefits that the UQS seeks to attain must be proportional to the adverse effects that it imposes on affected non-beneficiary groups. The question here is whether the UQS is using a hammer in order to crack a nut. Inevitably, an affirmative action measure imposes ‘burdens, obligations, or disadvantages’ on a non-benefiting or non-targeted individual or a group’, and therefore, failure to establish the tests mentioned above will be fatal to it. What follows next is an evaluation of the implementation of the UQS, particularly its failures, on the basis of considerations required under Sections 20(2) and 44 of the Constitution.

Applying Section 20(2) to the implementation of the University Quota System Policy

(i) The Requirement of Legislation

Section 20 (2) expressly grants a government authority to institute measures, where ever it sees fit, and subject to the Constitution, that address past disadvantage caused by discrimination. A government is not obliged to do so and it retains discretion whether to create instruments that address inequalities. However, should a government decide to undertake affirmative action, Section 20 (2) insists that such a measure be implemented through a law passed by the Malawi Parliament. This, in my opinion, excludes the introduction of affirmative action measures on the basis of administrative instruments such as a Cabinet directive. To my knowledge, legislation was not passed giving the previous Government authority to implement the UQS. This, in my opinion, means that the UQS is unconstitutional.

Applying Section 20(2) to the implementation of the University Quota System Policy

(ii) The Substantive Constitutional Issues raised by the UQS Policy

The UQS does not appear to have established unjustifiable discrimination. It has no past ‘inequality’ feature that distinguishes a member of a group other than the beneficiary group targeted by the UQS, and who has similar characteristics as a member from the beneficiary group. What exactly is the inequality suffered in the particular situation the UQS seeks to address? The UQS does not appear to objectively establish that the prospective students from Thyolo District, on account of belonging to the ethnic groups of Thyolo, have systematically been discriminated against, and that as result, access difficulties and under representation have come about. It is also not clear how the UQS deals with the ethnic groups in regional and district borders including the Tonga who live on either side of the line dividing the Districts of Nkhata Bay and Nkhotakota. In the absence of the relevant distinction and discriminatory conduct, the UQS is engaging in unjustifiable discrimination.

The UQS uses a flawed merit distinction as criteria for affirmative action. A distinction based on natural merits or capacities will not suffice. For example, in choosing athletes to compete in the 800 metre race at the Rio de Janiero 2016 Olympics, it cannot seriously be suggested that fast athletes begin the qualifying race 40 seconds late in order to allow the slower athletes to compete fairly. It would be absurd. There is a real chance that a prospective student or student group that meets the merit criteria created by the UQS in the first and subsequent rounds of place allocation will be denied access to third level education simply because of the way the policy was designed. It is not clear how this is justified. 

An affirmative action measure must be designed in such a way that it can be explained rationally; explain the link between the objective of the policy (access by specified groups) and the remedy given to the beneficiary (establishment of quotas). The allocation of university places on the basis of districts or regions and also the limiting of allocation of places to those from a neighbouring district have, in my view, no rational connection to the specified objective of the UQS. While its objective is clear, the UQS ends up limiting the access of non-targeted groups and to ignore members of non-targeted groups who qualify as beneficiaries.

The UQS Policy impairs the rights of others much more than is necessary to accomplish the desired objective of making third level education accessible. What it ends up doing is to potentially impede others from enjoying the same access that it wants to attain. All students want to improve their life chances through education and they also have a reasonable expectation that their effort will be recognised on the basis of a clear and fair merit principle. This is a constitutionally protected right and it flows from the constitutionally guaranteed right to education. However, the UQS potentially impairs this reasonable expectation to a constitutionally unnecessary extent. For example, the operation of the guaranteed 10 places principle, the ‘remaining places’ principle and the neighbouring places principle, individually and collectively, have the real potential effect to withhold third level education from students who otherwise would be perfect candidates for such education. Put differently, have other ways of addressing the perceived lack of access without resorting to such severe withholding or limiting access to opportunities, benefits, and advantages of others been exhausted?

Serious doubt also has to be raised whether there is proportionality between the adverse effects and the benefits of the policy measure; the limiting of the right of access of non-targeted groups on the one hand and the objective of the policy to facilitate access of targeted groups on the other hand. Is the price to be paid by those from whom opportunities, benefits, and advantages of third level education are withheld or limited, or on whom the burdens, obligations or disadvantages of losing third level education are imposed, too high a price to pay for the sake of benefiting the targeted groups in the manner suggested by the policy measure? In this respect, the UQS potentially limits entrenched constitutional entitlements, including the right to education. There is a generally recognised constitutional rule which dictates that entrenched constitutional entitlements ought not to be interfered unless there are compelling reasons. In my view, the UQS does a very poor job of enlightening and explaining to Malawians what the compelling reasons for sustaining the UQS in its current form are.

The author is a lecturer in the Department of Law at the National University of Ireland Maynooth