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Public Interest Law Journal of New Zealand |
Last Updated: 14 January 2021
(2019) Aotearoa, the Land of the “Long Tail” 5
51
Public Interest Law Journal of New Zealand
(2019) 6 PILJNZ 5
ARTICLE
Aotearoa, the Land of the “Long Tail”: Exploring How Pasifika Students are Underserved by the Education System through School Disciplinary Removals
ANA KATHRIN MAQUISO*
School displinary removals in New Zealand, while seemingly neutral in application, expose and perpetuate present-day racial inequities in education, particularly to the detriment of Pasifika students in favour of their Pākehā peers. This article examines the legal framework governing school disciplinary removals through a Critical Race Theory lens, revealing one of the ways the education system currently underserves Pasifika students.
I Introduction
Although New Zealand has a reputation of fairness, disparities in educational outcomes and experiences between Pasifika and Pākehā school students reveal stark racial inequities. Upon examination of established legal structures, it becomes evident that the current order serves only the privileged majority, while subordinating a forgotten minority. In particular, disciplinary removal mechanisms expose how present-day racial inequities are driven by laws and institutions that are, in fact, racist.
Applying Critical Race Theory (CRT) as the foundation of my analysis, I submit two key propositions. First, I argue that school disciplinary removals are a tool maintaining the current racial hierarchy between the Pākehā majority and the Pasifika minority, by acting as an obstruction to adequate educational opportunities for Pasifika students. Secondly, I argue that the disciplinary removal system and the laws governing it reflect the perspectives of the dominant Pākehā majority, which not only create disadvantages for
* BA(Hons), LLB student, University of Auckland, majoring in History for her BA(Hons). The author acknowledges the contributions of her whānau—from her blood relatives and partner, to her mentors and friends from Rosebank Primary, Avondale Intermediate and Avondale College— for the insights she displays is not the product of her own effort, but of a collective’s. She offers sincere thanks to Dylan Asafo for inspiring her passion for racial justice through his warm encouragement and wise mentorship.
the Pasifika minority, but aid in labelling and internalising their “subordinate” position in society, causing them to be further disempowered.
Following this introduction, Part II of this article presents the issue of inequitable educational attainment and how the educational system is currently disadvantaging Pasifika students. Part III introduces CRT, a framework that provides an explanation for the inequities embedded within New Zealand society. Part IV closely examines the legal framework governing disciplinary removals and illustrates how the tenets of CRT apply. In Part V, I conclude with some steps forward for lawmakers and policymakers.
I preface this article with a brief overview of my background. I am a Kiwi of Filipino descent, born in Davao, and moved to Avondale 13 years ago. I spent a significant portion of my “coming-of-age” years in West Auckland, where I attended two relatively underserved primary and intermediate schools. There I was welcomed into my Samoan neighbours’ family like one of their own and was awakened to many social realities of underprivilege. While this background may predispose me to particular viewpoints, I hope to apply these experiences in exposing the realities of race relations and racial privilege in Aotearoa, particularly within the education sector.
II The Issue: Pasifika Educational Outcomes
Pasifika students are one of the most underserved groups within the school classroom and have been consistently disadvantaged by the educational system. Whatever the measure used to evaluate student performance, the data starkly reveal that the educational needs of Pasifika students are not being met.1 Although the New Zealand national rate in reading, science and mathematics literacy is higher than the average rate in the OECD, Pasifika student outcomes fall well below the OECD average level; in fact, Pasifika outcomes are the lowest of all recorded averages in terms of ethnicity.2 Pasifika 18-year-olds had the second to lowest NCEA attainment rate, with only 78.7 per cent achieving at least NCEA Level 2 or equivalent.3
There are a number of potential factors contributing to this inequitable outcome, ranging from socioeconomic disadvantages to the lack of culturally responsive pedagogy or effective teaching catered for diversity.4 There is strong evidence which suggests that regular attendance is one of the most significant factors affecting student achievement, yet Pasifika students held the second-highest rate of non-enrolments in 2012—and the trend is increasing.5
I submit that this achievement gap is a result of racially charged educational policies and institutional processes that, though subtle, subjugate minority Pasifika students. Among these is the school disciplinary removal system.
III The Role of Law: CRT
A CRT
Far from such educational inequities being an accidental occurrence, CRT would deem them to be by design, precipitated by laws and institutions that govern and oppress the minority. CRT is a school of thought, the proponents of which (“racecrits”) see the present order of society as defined by an ongoing racial struggle between the dominant racial majority and the weaker minority, as institutions continue to subordinate the minority groups in the interests of the majority.
(1) Nature of CRT
Some emphasise CRT’s theoretical nature. Derrick Bell, who supposedly coined the theory’s name, defines CRT as a “body of legal scholarship ... a majority of whose members are both existentially people of color and ideologically committed to the struggle against racism, particularly as institutionalized in and by law”.6 Paula Groves-Price adds to this, viewing CRT as a “framework” and “a race-conscious approach” for policymakers as they create solutions for justice.7
Others, especially racecrits within the education sector, see it as a practical tool for change—a “movement” by a collection of activists and scholars.8 CRT can be a “weapon in struggle”, an “educational protest”, and an epistemology utilised to address issues of racism in education.9 CRT does not simply suggest new methods for educational research, but provides a “race-based” framework “based on social justice” for interpreting and understanding data and research findings that could ultimately shape educational law and policy.10 It can also be viewed as “a set of basic perspectives, methods, and pedagogy” that seeks to understand and transform structural, cultural and interpersonal aspects of education that maintain subordination of minority groups.11
(2) Tenets of CRT
CRT boldly attacks liberalism, the age-old ideology forming the basis of most Western societies. It mocks the liberal claim defending the neutrality of the law: far from being neutral and “colour-blind”, racecrits argue that the law reflects the perspectives and ideologies of the dominant majority. In turn, this subordinates the minority, whose perspectives are marginalised and interests are pushed aside.12 Thus, rather than as a tool
12 At 149–156.
for justice and freedom for all, racecrits see legal and institutional forces as tools for furthering the interests of the dominant majority.
Although the era of overt “classical racism” has more or less passed in many progressive societies, racecrits insist that racism continues to rise in the form of “everyday racism”.13 Rather than viewing racism as acts of individual prejudice, it should be regarded as an “endemic part of everyday life, deeply ingrained through historical conscious and ideological choices about race”.14 It is embedded within legal and political institutions and drives subtle or unconscious micro-aggressions like racial stereotyping and cultural deficit thinking.15 Laws and political institutions also play a part in crafting the socially constructed labels of race in order to create a stratified social order that defines the supposedly inherent dominance and superiority of the racial majority over the marginalised minority.16 As such, the “irony and ... contradiction” of liberalism is that its seemingly neutral and anti-discrimination rhetoric that purportedly eliminates racism is the very tool that sustains racism in subtle and more insidious forms, by failing to dismantle the pervading exclusionary relations of power.17
In order to achieve true justice and equality then, CRT advocates for the inclusion of minority perspectives. It criticises liberalism’s tendency to resort to formal equality and “neutrality”, which fails to acknowledge the historical subjugation and disenfranchisement of minority people. Rather, it seeks to include their perspectives and experiences into research and methodology through narratives and storytelling. This would be a step towards accounting for minority race interests, as well as redefine the common perception of racial inferiority that is continually reinforced by the racist institutions.
B Is CRT relevant to the New Zealand context?
Although CRT originated with African American scholars in the United States of America, it is applicable in the New Zealand context as well, with specific regard to the Pasifika minority.
There are obvious parallels between the historical and present-day experiences of African Americans and Pasifika people in New Zealand. Historically, Pasifika peoples have consistently faced marginalisation and ostracisation through legal structures that subordinated them. The policies that authorised the Dawn Raids not only allowed the law to significantly disrupt many Pasifika households, but also labelled Pasifika people as undesired aliens and the root cause of national crises such as unemployment and recession.18 While today the law no longer encourages the explicit marginalisation of Pasifika peoples, disadvantage continues as a fact of life for many communities and has not yet reached equitable standards. Pasifika people continue to be overly represented in many negative indicators, such as economic deprivation and poor health, including
obesity, diabetes and smoking.19 The “special relationship” between Pasifika people and New Zealand is, in reality, an association of neo-colonialism and disempowerment.
Thus, the factors in relation to African Americans in the United States which gave rise to CRT are present also in the context of Pasifika people in New Zealand, clearly displayed in inequitable educational outcomes between Pasifika and Pākehā.
IV Applying CRT to School Disciplinary Removals
A The applicability of CRT to disciplinary removals
Disciplinary removals are a tool used in schools to manage their students’ behaviour. They range depending on the severity of the conduct they are intended to address—from temporary stand-downs and suspensions, to exclusions and expulsions for the gravest conduct. Applying the lens of CRT, they may be identified as mechanisms that, along with other legal and institutional structures in society, maintain the current racial hierarchy that disempowers Pasifika students and furthers the interests of the Pākehā majority.
As with all institutional and administrative structures, disciplinary measures are not neutral or “colour-blind”; rather, they disproportionately target and affect Pasifika students. Because these institutions are created by the dominant Pākehā majority and reflect their perspectives, they further the interests of the majority at the expense of the Pasifika minority. Although the overall trend is decreasing, data show that Pasifika students are the second-most likely ethnic group to face disciplinary consequences.20 Some CRT scholars in other jurisdictions have argued that the disproportionate effect of school discipline on minority students is likely because of factors such as racial stereotypes, lack of minority representation in governance, and poorly drafted laws and policies.21
As well as being more likely than their Pākehā peers to be stood down, Pasifika students are already more likely not to attend school regularly, with only 52.5 per cent of Pasifika students in Term 2 2018 regular attendees.22 There is strong evidence suggesting that regular attendance is one of the most significant factors affecting student achievement, as chronic and non-regular absence hampers absentees’ educational opportunities and risks alienation from the education system.23 Taking together the effects of irregular school attendance and disproportionate disciplinary measures, Pasifika students are more likely to miss learning opportunities in school and thus are more likely to be underserved academically.
(Education Counts, July 2018).
A policy or law that uniformly applies to all people groups, claiming to be “colour-blind” and free from racial discrimination, but gives no regard to historical subjugation of minority groups and ongoing circumstances that sustain the racist societal order is only “blind” to the context that marginalises and unfairly prejudices minorities like Pasifika peoples.
In addition, disciplinary measures label Pasifika students as “inferior”. As mentioned, one of the key functions of legal and societal structures is to define racial categories that sustain hierarchical race relations by labelling minority groups as racially and politically inferior. This is one of the key consequences of inequitable disciplinary measures: Pasifika students, who are consistently targeted by school disciplinary action, are informally labelled by the law and educational institutions as truant and misbehaving. This then leads to an internalisation of this position, which not only disadvantages them in the eyes of society but also disempowers them as they begin to accept this label as part of their identity.
B Critiquing the legal framework
One way to illustrate how CRT operates in disciplinary removals is to closely examine the specific legal framework that governs its processes. School disciplinary removals are primarily governed by ss 13–19 of the Education Act 1989 and the Education (Stand-Down, Suspension, Exclusion, and Expulsion) Rules 1999.
(1) Purpose
The purpose of school disciplinary measures is laid out in s 13 of the Education Act. The measures are to “provide a range of responses for cases of varying degrees of seriousness”.24 In doing so, they should “minimise the disruption to a student’s attendance at school and facilitate the return of the student to school when that is appropriate”.25 The measures are also there to ensure that cases are dealt with in accordance with the principles of natural justice.26 Thus, decision-makers, namely the school principal and Board of Trustees, are instructed to balance measures for managing student behaviour with the effects that such measures may have on the student’s education.
(2) Grounds for discipline
At face value, the purpose of disciplinary removals focuses on ensuring the safety of others and the student themselves, as well as managing the behaviour of the disciplined student. The Education Act sets out three grounds justifying a stand-down or suspension.
The first ground for a stand-down or suspension is where the student’s conduct constitutes either “gross misconduct or continual disobedience” and the conduct is a “harmful or dangerous example to other students at the school”.27 Gross misconduct is a
high threshold; it is conduct that is “striking and reprehensible to a high degree” dependent on all the circumstances.28 Continual disobedience has been defined as “entrenched misbehaviour”.29 The principal must be satisfied on reasonable grounds, meaning there must be objectively sound evidence that disciplinary removal is necessary to protect others from the student’s conduct; in Battison v Melloy, where the conduct was inappropriate hair length, the fact that one teacher was adversely affected and other students observed the disciplined student did not satisfy the necessary criteria.30
The second ground for a stand-down or suspension arises where because of the student’s behaviour the student or other students are likely to be seriously harmed if they were not stood down or suspended. Again, the principal must be satisfied of this on reasonable grounds.31 Thirdly, a principal may preclude a student for health reasons, where he or she believes on reasonable grounds that the student “is not clean enough to keep attending the school”, or may have a “communicable disease”.32 The Board has discretion to either cancel the preclusion or confirm that the students stays precluded.33 No principal or Board is liable not liable for any act done in good faith, with reasonable care, and in pursuance of a power or duty.34
Where a principal has decided to stand down or suspend a student, the school’s Board of Trustees has discretion to decide whether a student will be excluded from the school (if under 16 years old) or expelled (if over 16).35 This is only justified in the most serious response.
However, although nothing in the statute explicitly targets Pasifika students, and though “reasonable” evidence is required to justify a suspension or stand-down, the broad language of the statute allows room for discrimination based on negative subjective judgements of student behaviour to arise. In the American context, scholars have written about the existence of negative stereotypes against students of colour, where such students were often deemed as violent, truant, or unclean.36 They argue that these stereotypes affect how administrators of discipline interpret student behaviour when assessing whether their conduct justifies disciplinary removal, often misconstruing them as aggressive.37
Acts of “everyday racism” in the form of “microaggressions”, negative stereotypes, and cultural deficit thinking was also found within New Zealand educational settings in a 2014 study.38 Though it focused on the experiences of students from higher education, it nevertheless demonstrated that educators and peers held low expectations of Pasifika students. Further, the Office of the Children’s Commissioner collated the experiences of students of colour in order to examine the prevalence of racism in New Zealand schools.
33 Section 19(3)–19(4).
The resulting report suggests the risk of teachers to assume the worst behaviour of their Māori and Pasifika students. As one student noted:39
Im real good at maths but my teacher just thinks im stupid so never gave me any time cept to get me n trouble. But if you’re Pākehā its all good.
Negative stereotyping of Pasifika students furthers a cycle of bad behaviour. Stereotyping and racist insinuations cause anger within students, causing them to lash out more. Two students from the Children’s Commissioner Report shared their experiences in dealing with racist encounters from their teachers and peers:40
I used to have goals but not now because my teachers were [!@*!] and then I got angry and then in trouble at school and with the law ...
Since I am Māori, and have an anger problem, I would get into fights easy because people would say racist things to me.
Because Pasifika students are more likely to experience racist encounters, they are more likely to experience persistent stressors from racial battle fatigue, a bruised morale and anger, and are thus more likely to display hostile behaviours that appear to justify disciplinary action.41
(3) Decision-makers
The powers of decision-makers to remove students for disciplinary purposes are regulated by statute. Such powers must adhere to the purposes of disciplinary removals and ensure that the requisite conduct justifying removal is present.42 When a student is suspended, the principal has a duty to ensure that the suspended student’s educational disadvantages are minimised.43 The Board has the power to lift or extend the suspension of a student but, as with principals, the exercise of their powers must comply with the purposes set out in s 13 and the principles of natural justice.
Decision-makers must also follow the principles guiding the process of disciplinary removals as set out in the Education (Stand-Down, Suspension, Exclusion, and Expulsion) Rules, in particular for our purposes “the need for every participant to treat every other participant with respect, which includes recognising and respecting New Zealand’s cultural diversity”.44 The Ministry of Education has also published non-binding guidelines and good practice manuals to direct principals and Boards on the removal processes and how to manage student behaviours that could lead to such disciplinary measures.45 The Board is
40 At 20.
provided with similar guidelines on effective school governance, including information on avoiding racist assumptions about Pasifika students.46
However, disciplinary powers are largely discretionary. Where conduct justifies a suspension, the principal has discretion as to whether the stand-down or suspension is followed through. They must pause and consider whether disciplinary action is still justified when weighing all the circumstances of a particular case.47 They may also consider that a student’s attendance in school is appropriate in fulfilling their duties of minimising educational disadvantages for the student.48 Similarly, the Board must also consider whether the specific circumstances of a particular case warrant lifting the suspension or subject the suspension to any reasonable condition that it wants to make.49
In exercising discretion and decisions, administrators are largely unchecked by the Ministry, as the Ministry expects the schools to manage their students’ behaviour with little intervention to encourage the school to take ownership for the decision-making process.50 Boards can thus make decisions without a lot of oversight.51
One may ask who occupies these positions of power. Perhaps to no surprise among racecrits, there is an underrepresentation of Pasifika people in governance roles; 61 per cent of schools reportedly do not have enough Pasifika Board members to adequately represent the proportion of Pasifika students at the school.52 Without adequate Pasifika representation, where decisions are made that could impact a Pasifika student’s educational outcomes due to unfavourable disciplinary action, Pasifika voices are unheard. Indeed, previous research has reflected the deficit views held by authoritative figures such as police towards students of colour. Thus, consistent with CRT’s thesis, the Pasifika minority is excluded from places of power and face disadvantages as a result.
(4) Challenging disciplinary measures
After a disciplinary decision is made, there is no right to appeal.53 If the student wishes to challenge the decisions, they must resort to formal legal avenues (such as the Ombudsman or the Human Rights Commission), but these are often financially inaccessible or non-binding.54
This inability to appeal is contrary to the principles of natural justice, which prevents any effective challenge to a decision that could potentially have far-reaching effects on the student. In addition, this silencing reinforces the subjugated position of many Pasifika students, who are the prime victims of removals but are unable to challenge the decision. It labels their points of view as unimportant, causing an internalised helplessness and subordination at the hands of the dominant majority.
(Ministry of Education, November 2018) at 44.
52 At 43.
53 At 44.
54 At 44.
V Conclusion: Where to Now?
There are no silver bullets to ending racism, but there are some available positive steps forward. One is the establishment of Education Hubs.55 It is evident that the self-governing system of schools harm Pasifika students due to its lack of accountability. The proposed new Education Hubs would be responsible for managing disciplinary removals to ensure that Pasifika students’ rights are upheld and to ensure that an effective and accessible complaints process is provided.
Schools also need greater Pasifika representation in governance roles. Having more Pasifika representatives would inject Pasifika perspectives in deciding to discipline a student as well as in the education sector more generally. Such perspectives are valuable to ensure that minority voices are not silenced in educational institutions and decisions that could direly impact Pasifika youth.
There is a pressing need for more research. Reliable information on encouraging positive outcomes for Pasifika students is scarce. There is also limited information on behavioural reasons for disciplinary removals and the experiences of Pasifika students experiencing such suspensions. CRT may be a valuable tool in providing frameworks and research methods that include Pasifika perspectives, narratives and realities in understanding the issue of educational attainment.
As for my fellow reader, who also yearns to understand the dynamics that shape our society, the next step is to recognise the racial hierarchies that still persist in the present. But more than acknowledgement, it is necessary step to embrace the often-complicated and subtle explanations behind these inequities, rather than resort to simplistic conclusions about a marginalised people group. An acceptance and deeper exploration of these systemic factors, though cumbersome at times, allows space for true understanding of our Pasifika brothers and sisters, in the face of negative stereotyping and racism. Thus, the next step forward is empathy.
55 Tomorrow’s Schools Independent Taskforce, above n 51.
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