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 publising 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 disiplinary 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 dissability, 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 requriement 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).