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'Plain old discrimination' - Former deputy public defender says schools could be taken to court for creaming students

Published:Sunday | September 4, 2016 | 12:00 AMAndre Poyser
Matondo Mukulu

Former Deputy Public Defender Matondo Mukulu is arguing that the practice of recommending only some students to sit external examinations based on behaviour and previous academic performance, referred to as creaming or culling, could be considered discriminatory and challenged before the courts.

"The practice of culling is potentially discriminatory when one considers the interest of those persons with a learning disabilities," Mukulu said in responding to questions from The Gleaner. He further noted that parents with students entering fifth form should begin to consider seriously if their child has a learning disability and seek to establish the evidence in this regard so that if their child is denied an opportunity to sit external exams, the decision can be challenged on those grounds.

"It is common knowledge that some children do have learning challenges which have gone unnoticed over their five years of secondary school. Thus, if we then exclude such students, having given them the same screen tests without any adjustments made to reflect their disability, then on any reading, expecting them to perform at the same level as their colleagues who are not disabled is plain old discrimination," he said.

Mukulu, who was reacting to calls by Linton Weir, president of the Jamaica Association of Principals and Vice-Principals, and noted educator Dr Dennis Minott for the practice to be discontinued, argued that when the right to secondary education is enshrined as a constitutional right, as promised by the Government, schools that engage in culling will, if discrimination is shown, have to demonstrate that the discrimination is objectively justifiable.

"Unfortunately, if it is being done for the sole purpose of punishment or on account of ensuring that a school's results are skewed, then it would not seem to me to be a potentially legally justifiable reason," he said.


Giving his views on whether or not a legal argument could be made on the basis that the practice of culling can be economically disadvantageous to students not selected to sit the exams, the attorney said: "At first blush that is an attractive argument, but for it to be arguable in our courts, we would have to first seek to establish that, though it is a practice that is across the board, it does affect those students from the lower socio-economic class of the society and thus, potentially, amounts to class discrimination."

While he noted that seeking damages through the courts based on an argument of economic disadvantage would face serious obstacles, he said the argument should not be dismissed as success in external exams can be a predictor of economic advancement. As the Government prepares to enshrine secondary education as a constitutional right, Mukulu has said a number of policy changes would have to be made as it regards the practice of culling.

"To make this proposed right real, it is my view that the government should make it mandatory for schools to collect data on the socio-economic background of all students it enters for an examination. Additionally, it should be mandatory for all secondary schools to conduct an assessment of all its students so that those who have learning disabilities do not disappear into the system," he said.