Equality and Affirmative Action: A Human Rights Perspective on Tertiary Education in New Zealand Through the Lens of Affirmative Action

by JOHN SADLER

Abstract: Affirmative action, an almost exclusively American concept, has more latterly achieved prominence, perhaps controversy, in New Zealand. The public’s interest in this concept seems particularly acute in the field of tertiary education. This paper explores human rights issues in tertiary education through the lens of affirmative action at the Auckland University Law School and Medical School. The paper asks if the practice of affirmative action is justifiable from a strictly legal perspective in the first part, and then addresses the broader more normative question, whether it is morally so justified in the second part. I have endeavoured to provide answers to both questions. The key question to be addressed in this paper is whether New Zealand desires or needs a practice that is essentially separatist as it advances into the 21 st century?

There is a plethora of academic books and articles on the subject of affirmative action, principally in the context of civil rights in the United States. By way of contrast, from the perspective of affirmative action programmes affecting tertiary education in New Zealand, there is an apparent dearth of academic literature on the topic.

The purpose of this research paper is to carry out an in-depth analysis of affirmative action programmes as they currently apply at the University of Auckland Schools of Law and Medicine. Both institutions have in place restrictive entry to courses and within these barriers is applied a further restriction through affirmative action quota for entry of Maori and Pacific Islanders. The methodology of this paper is to divide the topic into two parts: the first will be a descriptive account of the programmes that are currently in place at the Law and Medical Schools. The question will be posed from the stand point of New Zealand’s statutory regime, whether the current law justifies the practice of programmes which grant quota to Maori and Pacific Islanders under: the Human Rights Act 1993, the Education Act 1989, The New Zealand Bill of Rights Act 1990, and the Treaty of Waitangi in respect to Maori at the University of Auckland. The second part of the paper will concentrate on affirmative action from a normative and more theoretical perspective in an attempt to determine whether the practice is ultimately a good for that minority quota group. This issue will also be reviewed in the wider sense as to whether it is a good for society itself.

The overall objective is to seek an answer to the question whether there is a sound doctrinal basis for the practice of affirmative action at the University of Auckland. The outcome, however, maybe an acceptance that it is devoid of any sound principle to justify the continuation of the policy, and that the reasons for its inclusion in tertiary education lie elsewhere. Notwithstanding the apparent flood of material written on the topic of affirmative action from outside New Zealand, I suggest that it is still worthy of research, due in no small measure to the highly contentious and sensitive nature of the issue. At the time of writing, this subject is once again at the forefront of the political consciousness of the nation, especially so in terms of preferential quota for entry of Maori. In recent months the subject has been in part responsible for a significant shift in the political fortunes of the National Party Opposition following its leader Don Brash’s speech at the Orewa Rotary Club on 27 th January 2004.

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