Otago University medical school (Photo: supplied)

An affirmative case for Otago medical school’s affirmative action policy

A legal challenge to the University of Otago’s diversity policy for medical student intake doesn’t deserve to succeed, write Maria Hook, Jane Calderwood Norton and Andrew Geddis

This week the Christchurch High Court is hearing a legal challenge to Otago University’s medical school ‘Mirror on Society’ policy, and associated admission scheme. Full details of the case are suppressed for the moment, but media reports suggest it is being brought by a father whose child was denied admission to that programme under its general admission criteria.

Otago’s policy was introduced in 2012 “to ensure that the student intake was diverse so that, as much as possible, it would reflect the ethnic and socioeconomic realities of the communities which students would go on to serve”. To do so, the medical school gives priority entry to qualified applicants who are Māori, Pasfika or from rural upbringings, lower decile schools or refugee families. Once these students are selected into the degree programme, the remaining places are distributed among other applicants (primarily based on their academic record).

Two facts about this admission scheme are not in dispute. First, it has been very successful in increasing the numbers of students from the targeted groups who are studying medicine. So successful, in fact, that Otago has controversially floated the possibility of capping just how many individuals can enter the degree programme through each priority entry pathway.

(We won’t address that controversy directly, but you can read the university’s take on it. We also note, however, that others dispute the university’s account of its own actions.)

Second, the policy’s operation means that some individual students enter the medical degree programme through the priority entry pathways with lower marks than those admitted under the general admission pathway. The different purposes for each selection process mean that individual students and their academic results are treated differently.

The historic Scott Building which is part of the University of Otago, Dunedin Medical School (Photo: Getty Images)

Why, then, is this approach heading to court? Without having seen the statement of claim, it seems the dispute centres on the Education and Training Act 2020, s 255. This provision governs admission into tertiary study programmes.

In particular, s 255(4) says that where a university limits the number of students who can enrol in some programme, it “may, in the selection of the students to be enrolled, give preference to [applicants] who are included in a class of persons that is under-represented among the students undertaking the programme”. So, this section expressly permits some preference to be given to Māori and Pasifika students, as well as other under-represented classes of persons such as students from refugee, low-income or rural families.

Two things then remain unresolved. First, the section doesn’t tell us what the university must do when deciding whom to admit into courses with limited entry numbers. Any argument that medical school admission has to be based on a student’s academic record – and that achieving a certain GPA entitles someone to admission – is spurious.

Second, if the act says what the university may do, this presumes that there are things it may not do when deciding whom to admit. But nothing in the act explicitly says what this might be. For example, the legislation does not expressly prohibit universities from admitting groups of applicants over and above their percentage of the general population. After all, Pākehā have been consistently over-represented in medical school admissions since the beginning of time.

Consequently, the legal issue boils down to what parliament meant by permitting universities to “give preference to [applicants] who are included in a class of persons that is under-represented among the students undertaking the programme”. Does this mean that, in relation to such classes of persons, universities have wide discretion to decide how best to balance the programme’s overall composition? Or, are universities limited in how they may do so to only ensuring that the makeup of the programme reflects the population of society generally?

The difference in the two interpretations is that under the former, Otago University may have a selection process that preferentially accepts any number it chooses of Māori, Pasifika, rural or other underrepresented group into the medical school. Under the latter reading, however, the university’s preferential pathways could only operate to create a class made up of at most around 18% Māori, 8% Pasifika, 13% rural, and so on.

Deciding which interpretation is correct requires looking beyond the section itself. One obvious argument might be that a selection process that deliberately seeks to admit more Māori or Pasifika than their share of the general population inevitably discriminates against other ethnic groups. Is it then permissible to “positively discriminate” in this way?

Well, assuming that a mostly publicly funded university created by legislative action that is selecting individuals into a mostly publicly funded course under statutory controls is carrying out a “public function”, part 2 of the Human Rights Act 1993 (where most of our discrimination law comes from) will not apply to the process. Instead, the right to freedom from discrimination under New Zealand Bill of Rights Act 1990, s 19 will.

And this bit of law is clear that certain measures taken to address discrimination are not in themselves “discrimination”. In particular, section 19(2) expressly states that “measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination …do not constitute discrimination.”

We presume no one is arguing that the medical school is not acting in good faith. So, what is the purpose of the Mirror in Society measures? They are wide-ranging. They aim to address discrimination in admissions to medical school (both past and present), as well as discrimination in access to the profession.

Māori doctors, for example, are only 3.4% of the medical workforce; yet Māori  make up over 17% of the total population. Pacific people are 1.8% of the medical workforce, but over 8% of the total population. Doctors from refugee, low-income and rural communities likewise are markedly underrepresented in the medical profession as a whole.

(Incidentally, these low figures also show how important it might be for a medical school to go beyond population-based equity when determining priority admissions, lest it take decades to close the gap).

2016’s University of Otago Māori medical school graduates. (Image: supplied)

Equally, these measures seek to address the discrimination each identified group faces in the health care system more generally. Research demonstrates that patients from minority groups have better health outcomes if they are treated by health professionals from those same groups. Just recently, Māori and Pasifika health professionals have been crucial in building up trust among these communities to ensure the effectiveness of our response to Covid-19.

Rural and poorer communities also face real inequities in treatment due to the difficulties of getting doctors to practise in those areas. Insofar as students from such backgrounds are more likely to return to practice in communities they already know – as evidence demonstrates actually happens – then measures to promote their participation help to reduce such unequal outcomes.

In addition to these justifications, Otago’s obligations to Māori under te Tiriti require consideration. The Education and Training Act 2020, s 4 states that the legislation’s purpose “is to establish and regulate an education system that … honours Te Tiriti o Waitangi and supports Māori-Crown relationships.” Insofar as obtaining a medical degree is a prerequisite to practising medicine in New Zealand, honouring te Tiriti arguably includes the Crown actively protecting Māori interests not just in the university classroom but in the wider health system.

These good faith measures, therefore, are not about giving individual applicants an advantage over applicants from other backgrounds in the game of life. It is more fundamental than that. Universities are public institutions. This means that they have obligations to deliver outcomes to the community. One of these outcomes is a health workforce that represents and meets the needs of the community it serves. If selecting students on a basis other than “who gets the highest marks” can best achieve this, then they actually are obligated to do so.

A common argument by parents whose children have “missed out” is that the admission process must nevertheless give due regard to academic merit, to recognise the achievements of those students who have excelled in their exams. We think that this argument rests on two fundamental misunderstandings of “merit”.

The first is that it assumes academic achievement ultimately comes down to our efforts as individuals. Toby Morris has literally illustrated the basic problem with such claims and how they ignore deep-rooted systemic advantages and disadvantages across society. Priority entry helps to correct for this pervasive discrimination (explained much better here and here): such students have had to operate – and are still operating – in systems that are not designed for them, so their GPA is unlikely to be reflective of their true abilities.

The second, and perhaps the more important in this context, is that a student’s academic record simply is not the only valid measure of their potential to succeed at university (and in the workforce thereafter). Equating greater merit with better grades ignores that students who enter through priority pathways possess unique strengths and qualities that are relevant to the practice of medicine.

The Mirror on Society Policy recognises this. Ultimately, its goal is to capture the “best” students for the sort of future medical profession that Aotearoa New Zealand will need. So, no, it’s not unfair that the plaintiff’s child missed out. What is unfair is that, instead of being celebrated, the brilliant medical students who have entered through priority pathways are still facing the stigma of success.



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