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Two Key Problems In Confronting Discrimination In Education
 
Two key problems make it difficult to confront discrimination in education: (i) There are two, fundamentally opposed usages of the word "discrimination," and (ii) many people are in favor of discrimination: they use militant-sounding rhetoric of being against discrimination based on race, sex, religion, and so forth, while simultaneously pressing for laws and polices based on discrimination. These two problems are so serious, and so widespread, that it makes it hard to have constructive dialogues on ending discrimination in education, or in any field.
 
This contribution will briefly discuss the first problem of the multiple meanings of “discrimination,” although the two key problems are linked: the shifting meanings of discrimination allow people to be both for and against discrimination, without ever facing the contradiction. (It is based on Bruce Abramson, Article 2: The Right of Non-Discrimination (Martinus Nijhoff, 2009), which is part of a series, A Commentary on the United Nations Convention on the Rights of the Child.)
 
1. The Two Opposing Meanings of “discrimination”
First, there is the ordinary meaning of discrimination, the definition that has been found in standard dictionaries for generations, and second, there is special, term-of-art usage.
 
A. The ordinary meaning
Webster’s Third New International Dictionary defines the verb discriminate as: “to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit.” The actor classifies individuals as members of a particular race, sex, religion, and so forth, and then treats them differently in accordance with their membership classification. Discrimination entails two variables: (a) a criterion upon which the differential treatment hinges, and (b) a sphere of life, or “interest,” to which the differential treatment pertains. For instance, a school has a policy that only males can receive scholarships to study engineering: the a-variable is sex (people are classified as male or female), and the b-variable is the interest in having a scholarship. This rule discriminates against females, while it discriminates in favor of males: the actor uses a person’s sex classification (the a-variable) to allocate a social good, a scholarship (the b-variable). Note that all acts of discrimination actually involve two acts of treatment: members of one group are discriminated against, while members of another group are discriminate in favor of. In other words, the race (etc.)-based treatment causes differential enjoyment of the interest in question: in this examples, females are treated adversely to males, on account of their sex, with respect to getting scholarships; males are treated more favorably. International law recognizes a right of non-discrimination (e.g., Articles 2 of the UDHR, ICCPR, ICESCR, and the CRC). The right identifies the prohibited grounds of differentiation (race, sex, etc.), and the protected interests are the spheres of life that come under the sectoral rights contained in the agreement. In other words, the right to be free from discrimination protects individuals from adverse treatment based on their race (sex, etc.) in the enjoyment of their human rights. So, the males-only rule on scholarships violates the right to non-discrimination, in conjunction with the right to education, under the ICESCR and the CRC (and it also violates the CEDAW.) Note also that the dictionary definition of discrimination does not contain any qualification like “reasonable,” “fair,” or “proportionate.” Whether an action is race, etc. discrimination is a “cut-and-dried,” or “objective, factual matter; whether the discrimination is fair (reasonable, proportionate) is a subjective matter; and whether it is lawful is a legal question. Similarly under international law: the UN human rights treaties absolutely prohibit conditioning a person’s enjoyment of human rights on the basis of their race, sex, or other named criteria (unless the state made a valid reservation): the right of non-discrimination does not contain any subjective qualification. And finally, while Articles 2 of the four main UN human rights agreements use all-encompassing terms like “any forms” and “or other status,” these phrases cannot be interpreted literally, or in isolation of the rest of the provision. Under the ejusdem generis principle of interpretation (“general words following or perhaps preceding special words are limited to the genus indicated by the special words []; and express mention excludes other items []” ), the right of non-discrimination is not limited to the named grounds, but also, it cannot stretched to include every possible classification. A literal reading of the phrases leads to absurdity, since it is the nature of laws to make distinctions.
 
B. The special meaning
Oftentimes when people speak of “discrimination,” they don’t mean treatment based on race, etc.; they mean unfair treatment (or unreasonable, or disproportionate treatment). In other words, they introduce a subjective element. The subjective qualification can come into the meaning in two ways. First, the speaker can shift from the right of non-discrimination to a principle of non-discrimination. The right of non-discrimination in Articles 2 of the Covenants and the CRC are rules -- concrete don’ts --, and they are absolute rules (absent a valid reservation). By contrast, a principle is a generalization: a principle must always be balanced against other principles when applied to real-life situations; a principle is subject to some kind of a reasonableness (or proportionality) qualification in its application. Second, the speaker can shift from the traditional definition of discrimination to an special usage: instead of meaning, “to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit,” they use discrimination to denote “unfair treatment.” Under either technique, a person can speak militantly against discrimination, while pressing for state-imposed discrimination. The underlying thinking will go something like this: “I feel that it is really important to achieve such-and-such objective, and I think that using race (sex. etc.) classifications is a reasonable way to go about it: I believe that it is reasonable to deprive people of this particular race (sex, etc.) of valuable social goods, on the basis of that membership, is a reasonable way to achieve this important objective.” That was how South Africa defended apartheid before the International Court of Justice, and that, in essence, is how any proponent of race, etc. discrimination defends discrimination (with discrimination being used in its ordinary meaning).
 
2. Other sources of confusion
There are a number of other terms that cause confusion in discussions of discrimination, such as: indirect discrimination; structural (systemic, institutional) discrimination; positive discrimination; positive action; and affirmative action. All of these terms have multiple meanings, and, very often, proponents of race, etc. discrimination uses these terms to push for discriminatory laws and policies. For instance, many people use “positive discrimination” and “affirmative action” as euphemisms for race, etc. discrimination. And in the large majority of “indirect discrimination” cases, the actor has not engaged in discrimination (in the ordinary sense of the word).
 
Conclusion
Because of the shifting in meanings, it is often hard to have a good discussion about discrimination. Very often, the language problem is linked to politics. As Orwell observed: “[P]olitical speech and writing are largely the defense of the indefensible. … Thus, political language has come to consist largely of euphemism, question-begging and sheer cloudy vagueness. … [I]f Thought corrupts language, language can also corrupt thought” (from, "Politics and the English Language.")