DDA Decline/termination decisions: Education

 

Decline/termination decisions: Education

Summaries of decisions by Disability Discrimination Commissioner or delegate to decline complaints, and of the President of HREOC or delegate reviewing such decisions; or (from 13 April 2000) decisions by the President or delegate to terminate complaints.

Last updated: April 2000. Compilation and release of these summaries beyond April 2000 has not been authorised by the Commission

Report on difficulties in learning not unlawful

An advocate complained that a report on a student with a disability constituted discrimination against the student. The delegate of the President confirmed the decision of a delegate of the Disability Discrimination Commissioner to decline the complaint. He found that the report was intended to identify difficulties that teachers had experienced in providing assistance to the student in order to overcome these difficulties and to outline possible strategies to enhance the student's learning (13 May 1998).

Suspension and conditions on return after fight not unlawful

A woman complained that her daughter, who has a disability, had been discriminated against by being suspended from school after a fight, when the other girl involved in the fight had not been suspended. She also complained regarding conditions placed on her daughter's return to school. The delegate of the President confirmed the decision of the Disability Discrimination Commissioner to decline the complaint. He found that the requirement that students refrain from violent behaviour at school was reasonable and that in view of the serious nature of the incident the student's suspension from school was not unlawful. He did not find sufficient evidence that any difference in treatment between the student who was suspended and the student who was not was based on disability. He also that a requirement that before the student could return to school she should undergo a home assessment by an education centre with a view to devising behavioural strategies to assist her return to school was reasonable and was not less favourable treatment because of disability (19 April 1998).

School had taken reasonable steps to ensure safety of student

The parent of a child with spina bifida complained that the child had been physically harmed by another student and that the school did not respond appropriately. The Acting Disability Discrimination Commissioner decided to decline the complaint.

The Commissioner noted that failure to provide a safe environment for a child who had particular susceptibility to injury because of disability could amount to indirect disability discrimination. Being able to cope with that environment could be found to be a condition or requirement with which the child could not comply and which children without the disability could comply with. Such a condition would involve unlawful discrimination if it were found to be unreasonable.

He noted evidence that

• the school was aware of the child s disability and susceptibility to injury;
• all members of the school community had been advised of this
• the school had offered additional staff supervision of the child outside classes but had accepted the parent s preference for her own supervision
• of two incidents of hitting or pushing complained of, both students involved had indicated one was purely an accident, and the other had been initiated by the child with a disability
• the school had taken appropriate measures regarding discipline and safety generally, by publishing its expectations about care, safety and related issues, by conducting teaching activities aimed at maintaining a safe environment, by conducting class discussions about appropriate problem solving, and by a system for dealing with minor matters in the playground requiring children involved to reflect and fill out a "solution sheet".

On this evidence, the Commissioner indicated that he could not find that the school did not take all reasonable steps to ensure that the child could attend school in safety (1998) .

Insufficient evidence of need for additional examination adjustments

A parent complained that insufficient adjustments had been made in examination arrangements to accommodate her daughter's Attention Deficit Disorder (ADD). The delegate of the President confirmed the decision of a delegate of the Disability Discrimination Commissioner to decline the complaint. He noted that the education provider had a policy providing for special exam conditions for students with a disability and specifically for students diagnosed as having ADD and that it had provided adjustments consistent with this policy. There was no evidence other than the complainant's assertion that these adjustments were inadequate. He noted that the student's results in the exam complained of were consistent with her results in previous exams and concluded that there was insufficient evidence that unlawful discrimination had occurred (22 January 1998).

Reasonable attendance requirements found lawful

An art student complained that she had been discriminated against because of her disability in assessment of her work. The delegate of the President confirmed a decision by the Disability Discrimination Commissioner to decline the complaint. Regarding direct discrimination he found no less favourable treatment because of disability, he noted that a negative assessment of the student's work did not in itself indicate a discriminatory attitude towards people with a disability, and that evidence indicated the same assessment criteria had been applied to other students. Regarding indirect discrimination he noted evidence that the student's inability to satisfy assessment criteria was related to her poor attendance record. He considered whether the requirement of compulsory attendance constituted indirect discrimination. In the circumstances he found that the attendance requirements of the course were reasonable, having regard to the practical emphasis of the course and the fact that assessment was progressive throughout the course (8 January 1998).

Temporary transfer to address disturbed behaviour not unlawful

A parent complained that her son had been discriminated against on the basis of his autism when an education authority decided to transfer him from the local primary school to an special school for one school term. The boy had been attending the school successfully for four years with the assistance of a trained aide. This assistance had been lost when the family moved interstate and then back again. A new aide had been appointed but did not yet have sufficient training to manage the boy's behaviour. The transfer decision was prompted by the boy running from school onto a busy road. Confirming a decision by the Disability Discrimination Commissioner to decline the complaint, the delegate of the President decided that there had not been unlawful discrimination. While the delegate accepted that the school could have handled some aspects of the matter more sensitively, this was not in itself discrimination. The decision to transfer the student temporarily while the new aide received further training was a reasonable response in the circumstances, particularly in view of the school's duty of care for the safety of students (16 October 1997).

Failure to identify and label children as dyslexic not discriminatory in itself

An advocate complained that a State education department discriminated by failing to name, define or recognise dyslexia as a learning disability. The delegate of the President confirmed the decision of the Disability Discrimination Commissioner to decline the complaint. He found that the evidence provided did not substantiate the claim that the failure specifically to identify children as having dyslexia led to them being less favourably treated than other children, and that there was evidence that the educational needs of the children concerned were being addressed within existing funding and programs (2 October 1997).

Requirement to enter pre enrolment agreement on behaviour not unlawful

A parent complained that her son had been discriminated against on the basis of his disability when his school required him to enter an agreement regarding responsibilities and expected behaviour and means of addressing the behavioural problems which had led to his suspension. The student had been diagnosed by a psychiatrist as having "Oppositional Defiance Disorder" and there was evidence that his behavioural problems were due to this disorder. However, the President found that the requirement to enter into an agreement on addressing behavioural problems was not less favourable treatment on the basis of disability but rather was intended and designed to assist the student (31 July 1997).

Discipline for behaviour problems found not unlawful

A complaint on behalf of a boy who had been diagnosed with attention deficit disorder and hyperactivity alleged that he had been discriminated against by being disciplined by counselling, detention and suspension for fighting and other violent behaviour. The President upheld a decision by the Commissioner to decline the complaint. There was no evidence of direct discrimination because of a disability, since consistent disciplinary measures had been applied to other students who behaved similarly. Regarding a claim of indirect discrimination on the basis that the student was unreasonably required to comply with requirements which he could not comply with because of his disability, the President was satisfied that the school had acted reasonably in attempting to maintain discipline in the interests of all concerned. He noted that the school had attempted to accommodate disabilities which might have contributed to the behaviour by applying a range of disciplinary approaches before moving to exclude or suspend him (11 July 1997).

Request for donation not unlawful

A parent of a child with an intellectual disability complained that parents of students using a school's support unit for students with disabilities, and no other parents, had been asked to make a voluntary donation towards the cost of support services. Confirming the decision by a delegate of the Disability Discrimination Commissioner to decline the complaint, the President decided that this did not constitute unlawful disability discrimination. Since no withdrawal of service or negative consequences followed if a parent chose not to make the donation, no detriment had been suffered (30 June 1997).

Failure to ask disability status on application form not unlawful

Confirming a decision by the Disability Discrimination Commissioner to decline a complaint, the President of the Commission decided that an education provider had not acted unlawfully in failing to ask applicants to declare their disability status on its application form and in relying on students to take the initiative in declaring a disability (19 June 1997).

Requirement to undergo counselling and rehabilitation before readmission not unlawful

A student with a disability complained that he had been discriminated against by a university imposing conditions that before he could be re-admitted to any course of study he should demonstrate that he had undergone counselling and rehabilitation and received a favourable recommendation from a medical practitioner nominated by the university. Confirming a decision by the Disability Discrimination Commissioner, the President decided there had not been unlawful discrimination. He did not regard the imposition of the conditions as direct discrimination. He noted that indirect discrimination under the DDA must involve imposition of a condition or requirement which the person with a disability cannot or does not comply with. He found no evidence that the complainant was unable to meet the conditions rather than simply refusing to do so. In the circumstances (which included the fact that the student's previous exclusion had been on the basis of evidence of a history of threatening behaviour towards students and staff) and having regard to the university's responsibilities he also found the conditions to be reasonable. (20 March 1997).

Lack of disability entry program for medical course not unlawful

A person with a disability complained that non provision of a special program to allow people with a disability to gain entry to a Bachelor of Medicine course was discriminatory. Confirming a decision by the Disability Discrimination Commissioner, the President decided this was not unlawful discrimination. (11 December 1996).

Move of campus not discriminatory

A complaint on behalf of a woman with a mobility disability requiring her to use a wheelchair alleged that she had been discriminated against by a proposed move of her tertiary education campus to a location further from her home and more difficult to travel to. The delegate of the Commissioner declined the complaint. There had been no less favourable treatment on the basis of disability (since the campus would be moved for everyone) and hence no direct discrimination. Regarding indirect discrimination, the delegate noted that while the move might be argued to impose a condition or requirement of being able to travel further on the complainant, there was no evidence that this was unreasonable or that it was more difficult for people with a disability overall to access than the existing site (1996).

Preferred education format not required by DDA

A man complained on behalf of a family member with a learning disability that he had been discriminated against by his school discontinuing small classes previously provided for students with learning difficulties. The Commissioner declined the complaint. While the DDA defined less favourable treatment because of disability as discrimination, this did not mean that it was unlawful to discontinue special benefits or more favourable treatment. She rejected the argument that there had been indirect discrimination. The school had made a reasonable assessment that the boy would derive little benefit in continued small group tuition and would benefit more from an individualised program within a larger class. She noted that the DDA did not oblige schools to provide education in a particular format preferred by a student or family (1996).

No discrimination found in school suspension after behaviour problems

A parent complained that her son had been discriminated against by being expelled from school because of behaviour problems. She claimed that although the students behavioural problems were caused by the attention deficit disorder with which he had been diagnosed, the school had focused only on the behaviour and shown a lack of awareness of the disability.

The Commissioner declined the complaint. She found that the student had been suspended rather than expelled. She noted that

• the teachers had recognised the behaviour as a manifestation of a disability but this knowledge did not assist them in day to day management of the behaviour
• this was common with diagnoses of attention deficit disorder, which lacked easy remedies
• after trying a number of behaviour modification strategies the principal had decided that the student's needs were not being met and that his relationship with the school was beyond repair
• the suspension was for three weeks while a smooth transition to another school in the area was negotiated (1996).

School for deaf children not required to provide sign language interpreter

A girl who is deaf complained that she had been discriminated against by her school refusing to provide her with a sign language interpreter for the Higher School Certificate examinations. The Commissioner declined the complaint on the basis that the act complained of was not unlawful. She noted that the school concerned was a specialised school for deaf children and that the program of the school focused on using residual hearing as the primary means for development of speech and language, and that enrolment in the school was on the clear basis that sign language support was not available as this would be contrary to the objectives of the program. In these circumstances the matters complained of did not indicate either direct or indirect discrimination and could rather be considered special measures of assistance as permitted by section 45 of the DDA (1995).

Education complaint adequately dealt with by school policy change

The parents of a boy with an intellectual disability complained that he had been discriminated against when they were advised to withdraw him from the local primary school and enrol him in a specialised class at another primary school. The Commissioner declined the complaint on the basis that it had already been adequately dealt with, by the boy being re-enrolled in the original school as a result of settlement of a legal action and a change of policy by a new principal. (1995)

School merger not unlawful discrimination

A man complained that his children who have asthma were being discriminated against by a decision to close their school and merge it with another school on a site having significant air pollution problems. The Commissioner declined the complaint. She rejected the contention that a requirement to attend the new merged school or another school 5 kilometers away was unreasonable and discriminatory (1994).