by Abby Muricho Onencan

‘All people are equal, but unequal’ is a statement I gathered on January 13th, 2022, during the Leiden University annual Diversity and Inclusion Symposium. The phrase embraces the complexity we live in, given that all universities are comprised of diverse groups of researchers and lecturers, who want to feel included as equals, acknowledged for their individual contributions, and belong. It also echoes the need for a research community whose foundations are not purely based on equal treatment. Laws and policies that promote equal treatment lump everyone together and assume that every individual has equal access to opportunities, with little or no regard to individual differences. A Harvard business review report indicates that mechanisms aimed at promoting equal treatment like mandatory hiring tests, performance ratings and grievance procedures, often fail (Bernat & Whyte, 2017). A diverse and inclusive learning community should be centered on tailored responsibilities and opportunities, to suit the circumstances, when it is certain that general application may result to disproportionate outcomes. Diversity of outcomes is just as important as the process of ensuring that everyone is “treated equally in equal circumstances[1]”.

As a researcher, constantly working with diverse groups in co-creation processes, I recognize the need to constantly update my knowledge on diversity and inclusion. This symposium was a good opportunity to enhance my understanding of the topic, from a legal perspective.

The symposium was opened by President of Leiden University’s Executive Board, Annetje Ottow. I particularly liked[2] her explanation on the importance of diversity and inclusion for higher education institutions. She stated that the “university is a community which is diverse. As an educational institution, we are open to everyone who wants to learn and develop ideas” (Leiden University, 2022). Diverse backgrounds, perspectives, and experiences in universities stimulate critical reflection, innovation, and collaboration. It is important that universities make conscious efforts to build their community so that everyone has a sense of belonging and feels valued by their respective research groups.

In this post, I mainly focus on the keynote address by Professor of Sociology of Law, Ashley Terlouw, from Radboud University, Nijmegen. Her address centered on the role of universities in combating discrimination and promoting diversity. Until then, I was not aware of the major difference between Article 1 of the Dutch Constitution and Article 1 of The Universal Declaration of Human Rights. The former talks of equal treatment while the latter speaks of equality. According to her, the Dutch provision is confusing and has made it difficult to practically eradicate discrimination and realize diversity. What is missing in the Dutch constitution is a provision that recognizes that despite all differences [in a moral sense], all people are equal – even before the law.

Professor Ashley Terlouw provided four different forms of discrimination: aversive, unconscious, risk-averse and institutional / systemic (including use of algorithms). She adds that institutional or systemic discrimination, which entails practices and procedures that systematically work to the disadvantage of certain groups, is often not seen. She proposes the acknowledgement of institutional discrimination, to holistically address the problem.

What I found new, and intriguing was her explanation of the main cause of discrimination – fear. Discrimination stems from fear of imagined and real dangers which we wrongly attribute to outsiders who deviate from the dominant norm. Fear may result in actions to prevent the threat from occurring, at the disadvantage of people from a different “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Article 2: UN General Assembly, 1948).” Professor Terlouw gave the illustration of the Dutch childcare benefits scandal where people with dual nationality were wrongly suspected of fraud. She further explained that a gap exists between the written law and law in practice, because society has become extremely complicated, and laws are drafted for a future which we do not know.

According to Professor Terlouw, there are three main problems with Article 1 of the Netherlands constitution and its subsidiary regulations on diversity and inclusion. First, the standard of proof is complex. The law allows individuals or organizations to make distinctions, but not to discriminate. Thus, there is flexibility in the interpretation of the law, which creates space for injustice and promotion of self-interest. Second, the legislation focuses on individual rights – it is up to the victim to prove and denounce discrimination. Victims must name the violation, blame the perpetrator, and claim their right through an internal or external procedure. This is not easy. Once they overcome these hurdles, they must litigate against an organization that is far more experienced than they are in court proceedings. The burden of proof is on the victim. Instead, she proposes proactively approaching universities to get them to guarantee a discrimination-free workplace. Third, the prohibition of discrimination is sometimes in conflict with other fundamental rights, for instance, freedom of expression. In her perspective, given that freedoms are conditional; “if that freedom includes the freedom to insult, exclude, discriminate, spread fake news, cause noise pollution and so on, [her] answer is: no.”

The strongest message I took from the lecture was that “it is not about becoming equal; it is being equal.” She expressed concerns about Article 1 of the constitution being misconstrued to suggest that “people who are prepared to assimilate, who do their best to be like us, we will treat them equally.” I was inspired that she advocated for the right to be different, not to conform to the dominant norm. The law does not require anyone to change and become someone else, as a precondition to acceptance. Inclusive environments accept and value everyone as they are – this is the foundation to stimulate imagination and innovation. Copycats cannot innovate nor achieve their full potential, whether as researchers or lecturers. Authenticity and self-awareness are key to learning and research innovation.

Increasingly, universities face the difficult challenge of striking a balance between uniformity (to enhance social cohesion) and diversity. We all belong to a larger whole and social cohesion ensures that individuals work collectively towards a common goal. Achieving this balance creates a working environment where employees trust one another, work towards a shared goal, while valuing who they are and using their unique abilities to achieve university objectives. Despite this challenge, it is extremely important that universities continue to value diversity. Professor Terlouw explains that “if diversity is seen as dangerous and as a potential disturbance of harmony, there is a high risk that it will lead to discrimination and exclusion.”

Professor Terlouw raises key issues that I do hope will be integrated in current policies and action plans like the sector plan of the faculties of law where they jointly committed to take steps in the area diversity and inclusion.

REFERENCES

Bernat, I., & Whyte, D. (2017). State-corporate crime and the process of capital accumulation: Mapping a global regime of permission from Galicia to Morecambe bay (17 August 2016 ed., Vol. 25). Springer. https://doi.org/https://doi.org/10.1007/s10612-016-9340-9

Leiden University. (2022, 18 January). Diversity and Inclusion Symposium 2022 – Plenary sessions (morning), Leiden University. https://video.leidenuniv.nl/media/t/1_nwm84oyg

UN General Assembly. (1948). Universal declaration of human rights. UN General Assembly, 302(2), 14-25.


[1] Article 1 of the Constitution of the Kingdom of the Netherlands 2002

[2] Notwithstanding the reality that some Universities are neither diverse nor as open, her statement portrays a goal that Universities should continue to aspire now and in the future.

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Recently, our colleague Abby Muricho Onencan attended the Leiden University annual Diversity and Inclusion Symposium. In this post, she reflects on the keynote address by Professor of Sociology of Law, Ashley Terlouw. Abby shares some new, and intriguing thoughts on the legal perspective of diversity and inclusion that she gathered from the symposium.
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