Diversity, affirmative action and higher education

Increasing participation in higher education by under-represented groups from remote areas, Indigenous background and low socio-economic backgrounds has been a focus of Australian higher education policy at federal and State level for more than 20 years, based on the premise that failure to realise the full potential of all capable people is 'a significant economic issue for the nation'.1 Australian State and Territory anti-discrimination legislation that set parameters for non-discriminatory behaviour also allows for affirmative action, referred to as special measures,2 to address factors perceived to disadvantage participation. This chapter examines diversity and special measures for entry to Australian higher education, and case law that has challenged such measures in general. The conclusion is that while Australian courts would most likely endorse special entry measures as meeting special measure conditions, or concerning internal university policy, Australian universities may be establishing potential liability for ensuring the success of students enrolled under these. The issue addressed in this chapter is the application of law to solve a perceived education inequality. In order to examine Australian law and higher education on this issue, US case law in the area is first briefly discussed. Educators and lawyers gave their attention to a recent seminal case on affirmative action and university admission which prompted examination of the Australian legal context for such actions.