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Alternative Dispute Resolution in education: case studies in resolving complaints of Disability Discrimination (2002)

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"Alternative Dispute Resolution in education: case studies in resolving complaints of Disability Discrimination"(1)

Karen Toohey & Helen Hurwitz
Human Rights & Equal Opportunity Commission(2)

 

2002

The Disability Discrimination Act 1992 (DDA) came into effect in March 1993. The Act makes it unlawful to discriminate against people with a disability in many areas of public life. The purpose of the Act was to 'assist people with disabilities to exercise their rights as Australian citizens'(3) in recognition that 'people with disabilities are entitled to the same rights and same opportunities as all other Australian citizens'. The objects of the Act were to 'eliminate as far as possible discrimination against person with a disability in areas of public life, to ensure as far as practicable that people with disabilities have the same rights to equality before the law as other citizens, and to promote recognition and acceptance within the community of the principle that people with disabilities have the same fundamental rights as their fellow citizens'(4).

The DDA seeks to eliminate discrimination on the basis of disability in the areas of work, accommodation, education, clubs, sport provision of goods, services and facilities, access to premises, land and the administration of commonwealth laws and programs and education.

The Act makes it unlawful to treat a person less favourably, than a person without the disability, on the basis of their disability in circumstances that are the same or not materially different. Those circumstances are not materially different because the person requires additional services or facilities. The DDA also makes it unlawful to indirectly discriminate against a person with a disability. Indirect discrimination arises where a requirement or condition exist that disproportionately affects people with the disability, that is not reasonable in the circumstances, and that the person with the disability cannot comply with. For example, a requirement that a building or premise be accessed by stairs may disproportionately affect people with mobility impairments who use a wheelchair. Given the range of alternative means of access available this requirement could be considered not to be reasonable, depending on the circumstances of the building.

The Commission is obliged, where appropriate, to try and resolve matters through conciliation. The conciliation process provides an opportunity for parties to a complaint to meet and try and resolve the issues raised in the complaint in an informal setting. The conciliation process is facilitated by an Investigation Conciliation Officer(5) from the Commission's complaint handling section. Generally the same officer who has handled the investigation will also facilitate the conciliation process. This case management approach to complaint handling ensures the parties are familiar with the person who will be facilitating the conciliation process and ensures that the officer is familiar with all aspects of the complaint and the types of outcomes the parties are seeking to resolve the matter.

In relation to education, the Act makes it unlawful for an educational authority to discriminate against a person on the ground of disability by refusing or failing to accept an application for admission as a student or in the terms or conditions of admission, or by denying or limiting access to any benefit provided by the authority, or by expelling the student or subjecting the student to any other detriment. These provisions are qualified by the exception provided by the defence of unjustifiable hardship.

Obtaining an education is a formative process in the development of every child. A child's education is essential to all aspects of a child's development and sets the foundation for the child's participation in the community in general but also in relation to access to higher education and employment and their economic and social well being in later life. Participation in education also provides key socialisation experiences and introduces a student to a community that it will have daily links with, often for many years.

The DDA provides for the development of standards in the area of education(6). Both state and commonwealth governments have invested significant time in the development of a draft Disability Standards on Education. The standard will provide guidance to education providers on the obligations imposed by the DDA. The standards are currently in development and when enacted will provide guidance to education providers on their obligations under the DDA. The standard specifically addresses the areas of enrolment, participation, curriculum development, accreditation and delivery, student support services and the elimination of harassment and victimisation.

This paper will review the type and nature of complaints received by the Commission in the 1999-2000 and 2000-2001 reporting years. This will include an analysis by type of disability, the subject matter of the complaint, the outcome of each complaint and the length of time taken to finalise these complaints. It is hoped that a detailed analysis will provide some insight into the barriers faced by students with disabilities, the reasons why in some circumstances student and education providers are unable to resolve difficulties that arise in that relationship, and will illustrate the processes utilised by the Commission to try and resolve these matters.

Complaints regarding education are prioritised for allocation on receipt by the Commission when they relate to a student being suspended or excluded from an educational institution, or where the student is still attending the educational institution. The Commission's focus is to quickly assess the subject matter of the complaint and in consultation with the parties form a view to whether the matter can be resoled informally and quickly through telephone negotiation or through convening a face to face meeting. This approach endeavours to minimise the amount of time a student is removed from the educational setting. In the Commission's experience where a student is temporarily removed from the educational setting the parties are generally willing to discuss the issues quickly and informally in an effort to minimise the impact of the suspension on the students educational progress.

The success of this early intervention approach appears to be one factor that contributes to the high conciliation rate of education matters.

In 1999/00(7) the Commission received 445 complaints under the DDA of which 34 complaints, or 8%, related to education. A breakdown of the issues raised in those complaints, the type of respondent and the type of disability of the student is provided below. Of those complaints 41% were resolved through the conciliation process(8), 55% were finalised within 6 months of receipt and 91% were finalised within 12 months of receipt.

In 2000/01 the Commission received 443 under the DDA, 31 (7%) complaints related to the provision of education (9). Of those matters 55% were resolved through conciliation and 78% of matters were finalised within 6 months of receipt(10).

Type of respondent

The education provisions of the DDA include coverage of a range of educational authorities including government and non-government school, universities, TAFE, community college, interest based and vocational training providers.

The approach to the investigation and conciliation of a complaint adopted by the Commission may differ according to the specific circumstances of the complaint and this may be affected by the type of respondent involved, in particular whether the respondent is a school or university.

A high proportion of complaints in the area of education relate to university education and often involve complex issues regarding the provision of reasonable adjustment, the provision of information in alternative formats, exclusion due to academic performance and issues arising from requests for adjustment that the University may see as compromising the academic integrity of the courses it provides.(11)

With respect to school based complaints, the table below suggests that complaints arise from problems encountered when parents seek to enrol a child in a primary school when issues to do with identification of disability, provision of appropriate adjustment, and the assessment by a school or department of the resources required to accommodate a student with a disability, first arise.(12) Complaints may also relate to the transition from primary to secondary school where there is a significant change in the school environment that some students may find disruptive if the transition is not appropriately planned and resourced.

Table 1 - Respondent type

Education provider

1999-2000

2000-2001
University 10 10
Govt school - primary 11 10
Govt school - secondary 1 4
Non-govt - primary 4 2
Non-govt - secondary 4 2
TAFE 5 3

Type of disability of complaints

The definition of disability provided for by the DDA(13) is comprehensive and includes 'a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction'; and a 'disorder, illness and disease that affects a person's thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour'.

From the information below it appears that disabilities that relate to learning difficulties or behaviour disturbances are more often the basis for a complaint to the Commission. The issues that arise in providing education services to students with these types of disabilities were outlined in Minns v Department of Education(14) and W v Flinders University.

In Minns the student had multiple disabilities identified as Attention Deficit Hyperactive Disorder, Conduct Disorder and mild symptoms of Aspergers Syndrome. The student had been excluded from attending school due to behavioural issues that led to disruptions to class, conduct issues and continued breaches of the discipline policy. The claims of direct and indirect discrimination were dismissed by the Federal Magistrates Court. The court found that compliance with certain behaviour policies was reasonable and that a student who behaved in the same way, who did not have the disability, would have been treated in the same way.

One of the issues raised in W was whether the reasonable adjustment the complainant requested to accommodate her disability compromised the academic integrity of the course she was enrolled in. The complainant had sought an adjustment to the schedule of a teaching practicum and the University had refused based on its belief that a minimum format of the practicum was an essential requirement of the course. The University had adapted the practicum format previously but advised it could not adapt the practicum in the way the complainant requested. The Commission found that the conferral of the degree means that the person awarded the degree is assumed to, and can claim to, have certain skills, knowledge and experience. The Commission found that the requirement the complainant comply with the practicum in a certain format was not unreasonable as it was necessary to the academic integrity of the course.

Table 2 - Type of disability of aggrieved person

Type of disability(15)

1999-2000

2000-2001
Intellectual 4 3
Physical 2 4
Psychiatric 12(16) 6
Blind/vision impaired   2
Deaf/hearing impaired 6 2
Autism/ASD(17) 5 1
ADHD/behaviour disorders 2 9
Down syndrome   1
Epilepsy/neurological 1 1
Speech   1
Medical condition 2  
Unknown   1

Note: Complainants may identify more than one disability.

Many of the cases lodged with the Commission by students with disabilities such as Autism, ADHD and other disabilities that affect behaviour, are resolved through conciliation. It may be that cases such as Purvis v State of NSW(18) and Minns are examples of students with a high degree of disability and so the issues raised are so complex they are unable to be resolved through informal processes.

Case study - Andrew(19)

Mrs T lodged the complaint on behalf of Andrew who has multiple disabilities including an intellectual disability, Autism and epilepsy. Andrew could not communicate and had frequent incidents of poor behaviour including biting, kicking hitting teachers and other students. Andrew was expelled following a violent incident with another child. The school had adopted a range of strategies to accommodate Andrew and respond to his behaviour, including isolation in a classroom on his own which sometimes extended to a number of weeks. Mrs T complained that Andrew had made no academic progress, had no individual education program and she had not been advised of his progress. A conciliation conference was convened and the respondents noted strategies had been adopted to ensure Andrew stayed at the school but did not have a detrimental effect on other students and had the opportunity to learn according to his individual needs. The complaint was resolved through the provision of an apology, provision of training for staff, an agreement for the development of IEP's for each student(20).

Type of issue raised in complaints

The summary table below outlines at a general level the issues raised in education complaints lodged with the Commission. The issues have been categorised for ease of reference and refer to the major issue raised in the complaint. Often complaints are more complex and reflect the long term nature of the relationship between an education provider and a parent and student. A complaint about suspension or exclusion may also raise issues that have been problematic for some time but resulted in a suspension or exclusion that prompted a complaint. In Purvis the parents of the student lodged a complaint about a history of grievances including disputes about levels of accommodation provided, multiple suspensions and eventual exclusion.

Table 3 - Issue raised in complaint

Issue in complaint

1999-2000

2000-2001
Enrolment refused 6 5
Suspension/exclusion 2 3
Harassment 2 5
Reasonable adjustment for disability not provided    
- exams 1 4
- materials/information 1 2
- assistance in classroom 15(21) 4
- other 7 4
Victimisation   1
Breach of privacy   1
Transport services   1
Parent's aggrieved(22)   2

Case study - Kelly

Kelly is deaf and has been taught Auslan in a pre-school program. Kelly was to commence school in a small regional school but there was no teacher with Auslan qualifications at the school. The department had offered part-time assistance through an aide that understood Auslan but Kelly's parents were concerned that part-time access would disadvantage Kelly. After the Commission contacted the department it reviewed its policies and offered an incentive to Auslan qualified teachers to move to regional and remote areas. A teacher with Auslan qualifications was appointed prior to Kelly commencing school.

Complaints lodged with the Commission reflect a broad range of issues that arise in the provision of education services to students with disabilities. The larger proportion of complaints relate to student with disabilities that may affect the way they learn and their behaviour. As was seen in Minns, students with these types of disabilities may require a high level of attention and staff resources. The difference between the resources the school is able to provide and the expectations of parents can lead to a breakdown in relations and result in a formal complaint. Some complaints of this type have been resolved through conciliation with the negotiation of alternative disciplinary procedures, behaviour contracts and other processes designed to assist the school and student accommodate difficult behaviour.

Case study - Joshua

Joshua has ADHD and has just started attending the local high school. He has good academic potential but he is bullied by other children and can react aggressively. He has been suspended because he got into a fight with another student who he claims provoked him. Joshua's parents claimed the school had failed to address the bullying and had failed to provide any advice to Joshua about how to react appropriately to the bullying, did not provide any alternatives other than suspension and did not provide him with schoolwork while suspended which affected his academic progress. The complaint was resolved with the respondent agreeing implement a behaviour management program to assist Joshua to respond differently to conflict with other students, and by introducing alternative responses to suspension.

Complaint handling processes

As noted above the Commission's practice is to prioritise the allocation of education matters where a student is attending a school, University etc or where a student is prevented from attending because of a suspension or other constraint on attendance, such as transport problems. These complaints, where possible, will be allocated on or soon after receipt. Both parties will be contacted to discuss the allegations raised in the complaint and an assessment of what process should be out in place is undertaken. Where possible an informal process of resolution will be undertaken to try and resolve the issues as quickly and informally as possible.

Steps are taken to accommodate the needs of parents through arranging conferences around work and childcare commitments, referral to advocates or legal services where appropriate and available, and arranging conciliation meetings as close as possible to the where the complainant resides. Note must also be taken of school holiday periods which can mean periods where relevant school staff are not available to respond to Commission inquiries or to attend conciliation meetings.

Identification of matters for conciliation

When assessing whether to proceed to a conciliation conference early in the investigation process, or prior to formal investigation, the Commission considers a number of factors. In the area of education these factors include whether the student is attending school, whether there is a prospect of early re-introduction to the school, whether the child is in school but is prevented from fully accessing education services for some reason such as disciplinary practices, inadequate aide or integration support. The Commission may also consider whether the dispute is recent or the subject of long standing disagreement between the parties and whether it relates to a single issue or incident or a history of concerns. Where the dispute has recently risen or where it relates to a single issue such as adjustment for exams or attendance at an excursion, the parties may be more willing to attend a quickly convened conference or negotiate some agreement through telephone conference or shuttle conciliation.

A long standing dispute may already have been the subject of extensive negotiation between the parties and so it may be more appropriate for the Commission to initiate formal inquiry and have a clear understanding of the history and subject matter of the complaint before trying to assist with resolution.

In some instances the Commission has assisted the parties in clarifying the issues in the relationship. For example where communication breaks down between the parents and the school the Commission may assist by refocusing on the issues related to the student's access to education services rather than the details of the relationship breakdown.

Factors that effect education matters

Complaints in the area of education have unique characteristics that can contribute to quick resolution. In most anti-discrimination complaints, the complaint is lodged by the person who is aggrieved because they have been discriminated against. In school related complaints the complainant is generally a parent rather than the student and so the 'evidence' or information about alleged discrimination may be second hand, that is the parents are rarely a witness to alleged acts of discrimination unlike most complaints where the person lodging the complaint has a direct and personal involvement with the incidents complained about.

Parties to education complaints are often very willing to try and resolve complaints because both parties want to see the student continue at the school or with their course. It is a common characteristic of education complaints that the parties have a genuine interest in the best interest of the child or young person or student and so have a desire to resolve the issues that led to the complaint.

Complainants often identify the issues of socialisation and belonging to a community as reasons why they pursue a complaint where a child has been excluded or not enrolled because of their disability. When a student is not enrolled or is excluded they loose access to a community and this often motivates a strong willingness to try and resolve the complaint. This can be of particular concern to parents of a particular religious denomination whose child has been refused enrolment in a school of a particular denomination. It can also be of concern where the students' siblings attend the school or there is a family history of attendance at the school that creates a strong sense of disappointment when that link can not be maintained.

Specific to school related complaints is the fact that schooling is compulsory and so the parents and the state must find some way of providing the child with an education to meet their statutory obligations.

Case study - Mr J

Mr J does not have a disability but is, he says, a bit eccentric. Mr J attends a vocation institute and is completing a business related course. He has been attending part-time for a number of years. He lodged a complaint because he claimed he had been harassed by staff on the grounds of an imputed disability. He claims that staff made comments to each other in corridors about him and talked to each other about him within hearing of himself and other students, implying that he had a psychiatric illness. He claims when he had walked through the car park after class on some occasions teachers ran for their cars and drove quickly away without speaking to him. The respondent was contacted and confirmed that teachers believed Mr J had a psychiatric illness and were fearful even though, it agreed, he had never done anything to arouse those fears. The institute issued an apology and agreed to counsel staff about discussing students in public.

Factors that contribute to successful conciliation

Complaints about education lodged with the Commission are often resolved through conciliation. There are a number of factors and strategies that contribute to the successful conciliation of education matters. Factors that can influence whether a matter can be successfully conciliated include how current the events are, where a complaint relates to events that are quite old it is often more difficult to resolve a complaint. Education complaints tend to be lodged at the time the events occur as parents and students are anxious to address any issues that arise with accessing education at the time. This assists with the investigation of matters as information is current, relevant staff are often still involved in the students' education and it focuses the parties on resolving the issues for the future rather than only seeking redress for a past wrong. The allocation process outlined above means that early intervention can prevent what could be a simple matter become complex and involved.

When a complaint is lodged with the Commission it is sometimes because the parties have been unable to negotiate the provision of education services in a satisfactory manner. The Commission can sometimes assist by drawing on experience of solutions and proposal raised in other complaints to encourage creative thinking about solutions to the problems raised or by acting as a catalyst to encourage a 'reasonable approach' to what is possible for both parties.

In the Finney hearing Commissioner Innes noted the importance of negotiation in ensuring students with disabilities have access to education. 'Throughout the school life of any child with a disability, whilst they are entitled to expect the provision of a reasonable level of services from an educational authority, such provision will always be the subject of a degree of negotiation. This is because the services, due to the nature of the disability, are unusual, and every educational authority must assess the services it provides in the overall context of its budget and resources.

The Commission can assist people with the negotiation process by providing a legislative framework for those negotiations and providing skilled staff to assist with the facilitation of that staff. The Commission's involvement can sometimes address concerns expressed by parents and students about the 'David and Goliath' nature of their relationship with the educational authority. Perceptions about power imbalance or retribution can dissuade people from utilising internal and external grievance processes. In some cases these concerns can be allayed by the use of a statutory framework that is impartial and standardised, which provides the opportunity for both parties to be involved in a negotiated outcome.

Complaints in the area of education make up only a small part of the overall complaint numbers received by the Commission but receive significant attention and focus by the community. Many people can sympathise with the difficulties of having children in school, or being a student in a school or university and so can understand the additional difficulties faced by students with a disability. It is hoped this paper gives some insight into the types of complaints received by the Commission in this area and the approach taken by the Commission to assist the parties to an appropriate outcome.

Endnotes

  1. Draft paper presented at the 2002 National Mediation Conference, Canberra, September 2002
  2. Karen Toohey is a Principal Investigation Conciliation Officer in the Complaint Handling Section of the Human Rights and Equal Opportunity Commission. Helen Hurwitz is an Investigation Conciliation Officer in the Complaint Handling Section of the Human Rights and Equal Opportunity Commission.
  3. Brian Howe MP, Second Reading Speech, Disability Discrimination Bill 1992, 26 May 1992
  4. IBID
  5. Complaint handling staff receive extensive training in conducting the investigation and conciliation of complaints under discrimination and human rights law within a statutory framework.
  6. The draft standard can be accessed via the Commission website at http://www.humanrights.gov.au/disability_rights/education/education.html
  7. Data from 2001/02 complaints has not been used as complaints lodged in that period had not all been finalised and so complete data was not available.
  8. Overall conciliation rate for DDA complaint in 99/00 was 25%
  9. This is the actual number of complaints received that alleged discrimination in the area of education. This number may differ from the statistics reported in the AHRC annual report due to differences in reporting, in particular the annual report detail how many grounds of complaint identified 'education' as an area and a complaint may have more than one ground.
  10. In 00/01 overall conciliation rate for DDA complaints was 36%
  11. W v Flinders University [1998] AHRCA 19
  12. Finney v Hills Grammar School [1999] AHRCA 14
  13. Section 4 of the DDA
  14. Minns v State of NSW [2002] FMCA 60 (28 June 2002)
  15. Type of disability information is provided by complainants in demographic questionnaire completed by the complaint, or will be identified by staff during the handling of the complaint. The type of disability information provided in this paper is more detailed than that generally reported on by the Commission.
  16. All except one matter lodged by a person with a psychiatric illness relate to TAFE and University attendance
  17. ASD - Autism Spectrum Disorders including Aspergers Syndrome
  18. Purvis v State of NSW [2002] FCAFC 106
  19. The complainants real names have not been used.
  20. Complaints are generally resolved through conciliation without admission of liability.
  21. For example includes complaints relating to adequacy of teachers aide time, provision of interpreters.
  22. Complaints lodged where the parent allege they are aggrieved by the treatment of student or have been treated less favourably because their child has a disability. In Murphy v NSW Department of Education the that parents can be aggrieved in their own right as recipients of a service.


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