lutheran schools decision
Notice of HREOC
exemption decision re: Lutheran Church of Australia Queensland District
(10 June 1997)
of the Disability Discrimination Commissioner to the Commission
Discrimination Act 1992
Application pursuant to section 55 for exemption from a provision
or provisions of Part 2, Divisions 1 and 2
Notice of decision
Church of Australia Queensland District
for applicant: Allen, Allen and Hemsley, Brisbane
of application: That the applicant be authorised to institute a procedure
for assessing the needs of students with disabilities at schools for which
the applicant is responsible and, in the event of failure of that procedure
in any individual case, to apply to the Commission for a specific exemption.
of the Commission: The Commission declines to grant an exemption pursuant
to section 55 of the Disability Discrimination Act 1992 in respect
of the application dated 8 October 1996, by the Lutheran Church of Australia
President, on behalf of the Commission
10 June 1997
Recommendation of the
Disability Discrimination Commissioner to the Human Rights and Equal Opportunity
recommend that the Commission decline to grant a conditional exemption
pursuant to section 55 of the Disability Discrimination Act 1992 in respect
of the application dated 8 October 1996 by the Lutheran Church of Australia
on material questions of fact
3. Conclusion and recommendation
Findings on material questions of fact
decision in relation to this application does not depend on any findings
on material questions of fact.
Reasons for recommendation
and activity for which exemption is sought
supporting the application
on the affidavits
2.4 Statutory provision from which exemption is sought
of the application
Applicant and activity for which exemption is sought
applicant, the Lutheran Church of Australia Queensland District, is a
religious organisation that is responsible for 23 schools in the State
of Queensland. It applies for the following orders:
that the applicant, or any of the schools administered under its authority,
be authorised to assess, by use of suitably qualified persons, the physical,
behavioural and intellectual status of a student enrolled or applying
for enrolment to establish whether, or to what extent any disability exists;
that the applicant, or any of the schools administered under its authority,
may take steps, if a disability is established, to ascertain from suitably
qualified persons any precautions, facilities or other measures which
can be adopted to enable the student to participate, so far as is practicable,
in the activities of the school concerned;
that, if the assessment leads the applicant or the relevant school to
the reasonable belief that a disability exists and that the disability
requires treatment different from that given to other students, the following
steps will occur:
applicant or the relevant school will consult with the parent(s) of
the student, and with the student where appropriate, to attempt to reach
agreement on a suitable course of action in the best interests of the
student concerned, the other enrolled students, the school staff and
the school itself;
no agreement can be reached, the applicant will refer the situation
to a mediator approved by both the applicant and the parent(s), who
will attempt to assist the parties reach a mutually acceptable understanding;
there is still no agreement, the applicant may make application to the
Commission for a specific exemption from the requirements of the Act;
such further or other orders as the Commission thinks fit.
Affidavits supporting the application
application is supported by affidavits of Kenneth Charles Albinger and
Joy Sylvia Ryan. Mr Albinger is Director for Schools for the applicant.
Ms Ryan is Deputy Principal at Good News Lutheran School which is a school
administered under the authority of the applicant.
substantial paragraphs of Kenneth Albinger's affidavit state:
The Lutheran Church of Australia Queensland District is responsible for
23 schools in Queensland.
The schools can be divided into two categories:
primary schools, which, with one exception, are conducted by the local
congregation of the District. Typically, each would have a congregationally
elected School Council. These schools, whilst not legally under the
control of the applicant, in practice, respond to the applicant's guidance.
In so far as they receive funding supplements from government, it is
channelled through the applicant, via its Schools Department.
secondary schools which are governed under the authority of a College
Council. These Councils are subject, in the final analysis, to direction
by the applicant through its Schools Department.
Funding for any Lutheran school's operations is obtained from three sources
in the following basic proportions:
grants - approximately 30%;
Government grants - approximately 20%; and
and donations - approximately 50%.
The applicant does not operate with a profit motive and, with the exception
of budgeting for a minor operating surplus (approximately 2%) for future
capital expenditure, all funds generated are utilised to cover the costs
of the various schools' operations.
It is part of the education policy of the Lutheran Church to provide equal
opportunity to students, whether enrolled or potential applicants, irrespective
of any particular attribute or disability held by the student. The Lutheran
Church of Australia Queensland District By-Laws Part B, Schedule IV (relating
to College Councils) states at clause 7 that:
to the power of management vested in the Council, the College shall
be open to persons without discrimination to class, race or belief."
we have a discrimination policy which formalises our longstanding approach
to affected classes of student.
copy of that policy was attached to the application but is not reproduced
In my experience with the applicant, I have been involved with personally
and consulted by other staff in relation to many students who suffer from
disabilities. The following represents a number of disabilities which
might arise and create significant problems within our school system:
disabilities, such as a heart complaint, rendering a student's participation
in some areas of strenuous activity a serious risk to health and safety;
physical defects, such as a spinal disability, which may not be apparent
from the student's appearance nor disclosed by the student or the parent(s),
yet might be highly susceptible to damage from even minor physical contact;
that are particularly slow learners, such as those suffering from Down's
syndrome, who are unable to keep pace with other students and might
require the repetition of years;
children, who may require a withdrawal room and teacher's aide to enable
them to receive adequate supervision;
disturbed children, who may require staff to work with them individually
to assist them to overcome their problems and copy with the course requirements;
with physical disabilities requiring the provision of specific equipment
to enable them to be integrated within the school community;
types of student disabilities that are referred to by Joy Ryan in her
affidavit sworn in these proceedings.
The concerns that I have in relation to these types of students and others
with significant disabilities include:
potential risk to the health and safety of a student with a disability
through participating in activities which are reasonably likely to be
injurious because of the disability. Those risks can be minimised if
identified and addressed. In extreme cases, the risk may require the
School to prevent the student from participating in certain activities
if those activities could or would be injurious to the health of the
potential disruption or inconvenience to other students which may result
from the special needs of the disabled child either because of inherent
features of the disability or because of the special services required
to assist with the education process;
potential effect on staff who are not equipped to deal with certain
disabilities if the need for special facilities or services is not identified
early in the child's education;
emotional trauma to which a staff member may be exposed in the event
that a student with a disability suffers serious illness or injury during
the course of an activity which presents a high degree of risk to the
possibilities of a disability being beyond the qualifications and experience
to staff to manage without prejudice to the student in question;
risk of potential liability of the school in failing to balance its
obligations under the Act with those owed to the student having the
disability and all other students to take reasonable care to avoid foreseeable
risks of injury; and
possibility of prohibitive costs in providing special services in some
substantial paragraphs of Joy Ryan's affidavit state:
.... I am ... a member of the Association of Independent Schools of Queensland
(AISQ) Special Education Subcommittee for the distribution of funds under
the National Equity Programme for Schools (NEPS).
Under that scheme, the Commonwealth provides funding to the AISQ to be
allocated according to need. One of the criteria making a school eligible
for funding is the enrolment of a student with an intellectual, sensory,
physical, social or multiple impairment.
Each year, in or about August, schools within the AISQ have the opportunity
to apply for funding under the NEPS guidelines. It is the responsibility
of the subcommittee to review the applications, prioritise the claims,
and to recommend an amount for each claimant, after taking into account
the total funds available.
Because the NEPS funding is always inadequate to meet the full costs of
education for schools having students with disabilities, students are
ascertained as being within one of six levels of disability and learning
copy of the criteria for the six levels was attached to the application
but is not reproduced here]
levels classify the degree of support that a student requires to access
education as a result of the disability. Level 6 is the highest and most
Obtaining a credible ascertainment level is also a difficult exercise
for non-government schools. Although government schools have no difficulty
in funding an ascertainment of students with disabilities, private schools
are not allocated funding for this purpose. In my experience, the cost
of obtaining an accurate and reliable ascertainment is between $400 and
$500 per student.
On last year's figures, funding was so limited that:
were limited to schools with students ascertained at level 5 or level
amount available for each individual student was a mere $1,350.
The consequence of these limits was that any school with students having
disabilities ascertained at level 4 or below had to fund any additional
expense without NEPS support.
In my experience on the subcommittee and with Good News, there are a number
of disabilities which may require significant costs and practical difficulty
within the school system. Disabilities may be:
from conditions such as cerebral palsy, epilepsy or spina bifida, each
requiring extensive aide support;
such as vision or hearing impairment requiring additional and specialised
such as in a student with Down's Syndrome, or a student with an otherwise
well below average intelligence quotient, placing the student in a mild
to moderate range of intellectual functioning;
such as in autistic children or those with other conduct disorders;
as in students with more than one of these specific categories of disability.
Many of these disabilities are of such a degree that they require extensive
support, at an expense which is likely to be met by the school. The ascertainment
levels from 3 upwards indicate the types of exceptional attention required.
By way of example, I refer to the experience of my own school, Good News.
We presently have five students who are ascertained at level 4 or higher.
summary of their conditions and the services provided to them was attached
to the application but is not reproduced here.]
total cost of providing additional support services to these students
in teacher aides alone amounts to $44,288 per year, comprising:
of full time support teacher's time $13,528.00
per week full time aide $18,460.00
per week part time aide $12,300.00
Under the NEPS 1995 allocation, the school received a total of $5,400
(four students ascertained at level 5 or above at $1350 each), which left
a shortfall in the sum of $38,888 to be made up from other funds available
to the school.
In my experience, the situation at Good News is not an isolated one and
rarely would available funding be sufficient to cover the costs of educating
children with significant disabilities.
Apart from providing teacher aides, there are a range of other difficulties
resulting from a student's unusual needs. In particular:
time and expense must be devoted to teacher training, such as the release
of teachers to the Autistic Centre for training and attending workshops;
stress, which results from an inability to copy with the demands of
educating students with special needs without adequate training or experience.
I have been involved with a number of teachers who have indicated the
serious effect a difficult student may have on their ability to teach
both the student concerned and at large;
potential effect on other students in the class, who may be denied attention
because of the special needs of a particular child. Additional time
may be spent on teaching the child, or consulting the parent(s) or devising
programmes specifically designed for that student;
effect on the child itself, whose interests require some special attention
out of the ordinary class environment. Such short term individual treatment
away from the rest of the class is practised and has proven effective,
with the full approval of the children's parents at Good News;
safety and health of the child who may have the tendency to go missing,
suffer a fit, or suffer injury if momentarily unsupervised.
From my perspective as Deputy Principal at Good News Lutheran School,
there is no intention of limiting or avoiding our obligations as educators
of students, disabled or otherwise. Our record in relating to educating
students with disabilities stands for itself. However, I make this affidavit
in support of the application on the basis that cooperation between school
and parent is vital to the successful education and support of the child
in question, and I believe that the applicant's proposal is worthy of
Comments on the affidavits
this application falls to be determined on questions of the construction
of the DDA and not upon the material questions of fact described in the
affidavits. I have included the substance of the affidavits because they
provide first hand descriptions of the context which has given rise to
the application. Notwithstanding that others may hold different views
about how children with disabilities are to have their rights to education
observed, it is fair and reasonable that the present applicant be given
the chance to explain its motivation.
no doubt whatsoever that the practical and financial difficulties raised
on behalf of the applicant affect many children, their parents and schools
across Australia. This is a source of deep concern. The DDA is aimed at
ensuring, by eliminating discrimination as far as possible, that people
with disabilities exercise and enjoy the rights and responsibilities of
the whole community. Access to education is fundamental to the exercise
and enjoyment of those rights and it is incumbent on the community through
its elected representatives in governments to ensure that sufficient resources
are directed to universally accessible education.
Statutory provisions from which exemption is sought
DDA provides as follows.
(1) It is unlawful for an educational authority to discriminate against
a person on the ground of the person's disability or a disability of any
of the other person's associates:
refusing or failing to accept the person's application for admission
as a student; or
the terms or conditions on which it is prepared to admit the person
as a student.
It is unlawful for an educational authority to discriminate against a
student on the ground of the student's disability or a disability of any
of the student's associates:
denying the student access, or limiting the student's access, to any
benefit provided by the educational authority; or
expelling the student; or
subjecting the student to any other detriment.
This section does not render it unlawful to discriminate against a person
on the ground of the person's disability in respect of admission to an
educational institution established wholly or primarily for students who
have a particular disability where the person does not have that particular
This section does not render it unlawful to refuse or fail to accept a
person's application for admission as a student at an educational institution
where the person, if admitted as a student by the educational authority,
would require services or facilities that are not required by students
who do not have a disability and the provision of which would impose unjustifiable
hardship on the educational authority.
Grounds of the application
grounds of the application are contained in the applicant's submission
on section 22 of the DDA and the availability of a defence to a complaint
lodged under it. For ease of reference I have added paragraph numbers
to the applicant's submission and interpolated my comments where appropriate,
The significance of section 22 (4) of the Act cannot be understated. Unlike
the Queensland legislation, which allows unjustifiable hardship to be
advanced as a defence in respect of students who have already been enrolled,
the Commonwealth provision does not.
The section assumes that schools will be acquainted with the physical
and mental condition of each student at the time of enrolment and, after
determining that unjustifiable hardship would not result from the admission,
will proceed to accept the student. It also assumes that refusal of enrolment
might occur at that stage if enrolment would cause unjustifiable hardship.
However, unless careful investigation is carried out at the time of enrolment,
those assumptions may well prove false. Should a student later present
with a disability, even if management of that disability would cause unjustifiable
hardship, the school will have no option to exclude the student.
The issue is not whether the school has no legal option to exclude the
student. A decision to exclude is in the same category as the course of
action outlined in paragraphs 1-3 of the application. That is, it remains
within the discretion of the school to make its own operational decisions.
The effect of subsection 22 (4) is to increase the chance of a complaint
succeeding, if one were lodged. It is not necessarily the case that a
decision to exclude a student would involve discrimination within the
meanings of sections 5 or 6 of the DDA.
If one accepts that this state of affairs is not always reasonable, there
must be some means for a school to take such reasonable steps as it considers
appropriate to identify any disabilities. That is not to say that enrolment
will be refused or that a student will be excluded. It is simply to enable
the school to consider whether it is practical to accept or continue the
enrolment and management of the student's disability.
It is for this reason alone that paragraphs 1 and 2 of the application
have been so framed. We believe it is essential that these steps be permitted
in fairness to all relevant parties, not least the student concerned.
A failure to detect potential risks or special services and precautions
to avoid them is not in anybody's interests.
We note from an earlier discussion that you agree that these steps are
sensible and practical measures for a school to take, but query whether
they were not already permissible under the legislation without the need
for an exemption. The terms of the Act are equivocal in this regard, particularly
section 5 which talks about an aggrieved person being treated "less
The proposal outlined in paragraphs 1 and 2 of the application appears
on its face to be a reasonable approach. It may not be the only way of
addressing these issues and it is possible that another institution would
adopt a procedure that is either a variation on this theme or even one
that is quite different. These matters are entirely outside the power
of the Commission to approve or disapprove. The Commission's only role
is to consider whether there are grounds for granting an exemption.
It is likely that examination and assessment will be proposed:
Because of a patently obvious disability;
ii. Because the student discloses the disability to the school at the
time of applying for enrolment; or
iii. Because the disability is discovered at a later stage, after enrolment
has been accepted.
A student in any of these situations might well consider that they are
being treated less favorably in being forced to submit to examination,
testing and potentially prolonged discussion about the suitability of
the enrolment. Objections are particularly likely among families which
believe in mainstreaming without any special considerations for the child.
Such a requirement would not be applied to all students because of great
inconvenience and expense.
As the legislation presently stands, there is no comfort in obtaining
the disabled person's consent as a means of legitimising an act of discrimination.
While it might be argued that a family which refuses to allow an assessment
to occur is proceeding at its own risk, we believe there are strong obligations,
both legal and ethical, to ensure all appropriate measures are taken to
allow the child to participate fully in the school's activities. That
might well be impossible (in the case of providing special facilities)
or hazardous (in the case of susceptibility to injury or damage) without
the proper inquiries.
In a sense, the school is potentially in breach either:
If it investigates; or
ii. If it fails to and, as a result, neglects to provide the necessary
facilities or take the necessary precautions.
There is a general defence available in the form of the special measures'
provision of the DDA which appears in section 45 and applies to all the
declarations of unlawful discrimination contained in DDA Part 2. Section
45 relevantly provides:
This Part does not render it unlawful to do an act that is reasonably
ensure that persons who have a disability have equal opportunities
with other persons in circumstances in relation to which a provision
is made by this Act; or
afford persons who have a disability or a particular disability, goods
or access to facilities, services or opportunities to meet their special
needs in relation to:
employment, education, accommodation, clubs or sport; ... or
afford persons who have a disability or a particular disability, grants,
benefits or programs, whether direct or indirect, to meet their special
needs in relation to:
employment, education, accommodation, clubs or sport; ...
the views I express below about the more specific defence of unjustifiable
hardship, I believe that the issues raised in paragraphs 2 and 3 of the
application are within the scope of section 45.
a school wishes to carry out procedures such as those described in the
present application, then they will be entitled to assert the special
measures defence. They may be subject to complaint but the DDA provides
a framework in which they can justify their actions.
the measures proposed by the applicants would need to be tested in the
circumstances of particular cases I have no hesitation in saying that
the measures, if accurately described and conscientiously implemented,
would fall within section 45. Such measures would be lawful and would
not require exemptions.
Even if one were to assume that the defence of unjustifiable hardship
allowed for the exclusion of a student whose enrolment had already been
accepted, there are a number of issues which are considered in the supporting
academic material which we believe are unlikely to be protected by the
A reading of section 11 of the Act does not reveal specific considerations
which might allow the defence to operate. For example, we have doubts
that the terms of the defence could operate to prevent a student from
participating in a particular sporting activity because of a fear on the
school's part, supported by medical opinion, that participation could
be injurious to the student's health. An injury to the student for which
the school could not be held legally responsible may not amount to unjustifiable
hardship from the school's perspective.
It appears to us that the defence is more concerned with the ability of
the discriminator to provide appropriate conditions, after taking into
account the potential effect on the student with the disability if that
provision is not made.
Under the proposed application, the Commission always retains the ultimate
right to permit or refuse a departure from the terms of the Act. An aggrieved
student always retains the right to have the Commission determine the
issue. Paragraph 3 (a) & (b) simply allow the parties to adopt a mutually
acceptable solution without the cost and inconvenience of a consent application
to the Commission. The applicant certainly intends to make individual
exemption applications (as the terms of the application require) if the
student in question maintains an objection supported by the act and insists
The Commission in any case retains the power, pursuant to section 55,
to set terms and conditions on a grant of exemption. Insofar as paragraph
3 of the application allows the parties to settle issues for themselves,
there is no need for the involvement of the Commission. In my view, there
is no need for the involvement of the Commission in any case.
Commission is not a regulatory body. It has no function under the DDA
of enforcing compliance with the Act. The Commission does have the very
important function of promoting the objects of the DDA but this falls
far short of policing observance of the Act. The only legal sanction under
the DDA for unlawful discrimination is that provided by the complaint
handling process and the role of the Commission in that process is to
receive, investigate and attempt to resolve complaints by conciliation.
If conciliation fails then a hearing may be conducted and a determination
For these reasons, we do not believe that an action plan will solve the
immediate problem. While it appears to be a useful device to assist with
compliance, it is closely linked with the defence of unjustifiable hardship
through section 11 of the Act. In the case of current enrolment or discrimination
complaints which do not fall within the defence, the action plan might
not assist in protecting the school from liability or encourage it to
reach agreement with a student, knowing that any arrangement must be approved
by the Commission by way of formal exemption.
After receiving the present application I asked the applicants to consider
whether in their circumstances an action plan made under section 61 of
the DDA might serve instead of an exemption. I accept their response that
in a strict legal sense an action plan, linked as it is to the defence
of unjustifiable hardship, does not resolve the problem posed by subsection
statutory concept of unjustifiable hardship contained in the DDA has the
effect of saying that discriminatory conduct is prohibited unless not
discriminating would impose an unjustifiable hardship. Each of the sections
in Part 2, Divisions 1 and 2, of the DDA which declares discrimination
to be unlawful in certain areas also contains a subsection providing for
unjustifiable hardship. These subsections, in effect, allow a defence
to be raised to a complaint alleging unlawful discrimination.
relevant provision with respect to education is section 22. The section
is structured in four subsections. Subsections 22(1) and 22(2) declare
discrimination by educational institutions against students to be unlawful
with respect to decisions before or on admission (subsection 22(1)) and
to decisions after admission (subsection 22(2)). Subsection 22(3) concerns
special schools. Subsection 22(4) contains the unjustifiable hardship
provision but applies only to admission, that is, to the matters covered
by subsection 22(1). It does not apply to expulsion, denial or limitation
of access to benefits, or other detriment, that is, the matters covered
by subsection 22(2).
my opinion the effect of section 22 is that if a student is excluded at
the outset, the institution may succeed in establishing the unjustifiable
hardship defence under subsection 22(4); if the student is admitted, the
defence is not available. On the face of it this would mean that where
there is a possibility that adjustments, or other features of a student's
participation, may impose unjustifiable hardship (or not be feasible at
all), educational institutions may have an incentive to exclude students
with a disability at the outset rather than admitting them and trying
to achieve satisfactory resolution of any needs for adjustment.
my view this is a most undesirable result that is out of keeping with
the objects of the DDA. Such a position would undermine efforts, made
in good faith, to achieve access, and thus undermine rather than promote
the objects of the DDA. There is a risk that in some cases unjustifiable
hardship will be imposed on the institutions or staff or on other students.
to date indicates that in education more than in many other areas, the
process of achieving equal access and opportunity may often require individualised
consideration and interaction and that some solutions will be identifiable
in the course of a student's participation which were not identifiable
in advance. One cannot, however, assume that all access problems are able
to be solved, and solved without unjustifiable hardship, if only the attempt
is made. Moreover, as demonstrated by complaints experience in relation
to both education and employment it is also the case that some problems
only become apparent with experience. Equally, there are situations where
unjustifiable hardship only becomes manifest as the circumstances of a
particular case develop over time.
clearest solution would be to amend section 22(4) to cover the matters
within 22(2) as well as those within 22(1) currently covered. This would
appear advisable since principles from decisions to date under the DDA
do not appear to give much assistance on the point in question.
written to the Commonwealth Attorney-General pointing out the difficulties
with this provision which have been raised by the present application.
Standards could resolve issues in this area but their adoption must be
some way off. There is a general consensus that of opinion that Standards
should not depart substantially from the current effect of the DDA. Standards
therefore are unlikely to apply an unjustifiable hardship exception to
the matters in section 22(2) unless the same effect can be found in the
it is worth noting that there is, by implication, a test of "reasonableness"
contained in DDA section 6 that is not affected by the absence of an unjustifiable
hardship defence to section 22(2). Section 6 provides:
For the purposes of this Act, a person ("discriminator") discriminates
against another person ("aggrieved person") on the ground
of a disability of the aggrieved person if the discriminator requires
the aggrieved person to comply with a requirement or condition:
which a substantially higher proportion of persons without the disability
comply or are able to comply; and
is not reasonable having regard to the circumstances of the case;
which the aggrieved person does not or is not able to comply.
applicants assert that they are at some risk of discrimination in individual
cases. This may often be direct discrimination and, as I have pointed
out above, if dealt with by way of appropriate special measures will be
not unlawful. If the discrimination is indirect then in addition to the
special measures defence the applicants could also find some degree of
comfort in section 6.
succeed, a complaint of indirect discrimination must satisfy each of the
three criteria in section 6. It is possible that the scheme proposed in
the application will be a significant matter to be overcome by any person
seeking to show that a requirement of condition is not reasonable having
regard to the circumstances of the case.
3. Conclusion and recommendation
the reason for the current form of DDA section 22 it must be presumed
as it stands to reflect the intention of the Parliament. I accept the
contention of the applicant that, with respect to the matters it raises,
the defence of unjustifiable hardship is not available. In my view, however,
a defence is available with respect to special measures under section
45 of the DDA. I think that this should alleviate concern on the question
of disability discrimination complaints alleging less favourable or differential
treatment being indefensible. That is to say, where the differential treatment
is intended for the benefit of the student concerned a defence is available.
Whether the defence succeeds is a question to be decided in each case.
respect to paragraphs 1, 2 and 3 of the application, the Commission has
no power to make decisions about the matters raised. The Commission cannot
give a general authorisation, it can only deal with the question of the
appropriateness of procedures in the circumstances of a particular complaint.
The applicants are not at present seeking exemptions for conduct that
would be unlawful.
respect to paragraph 3(c), the Commission is always able to entertain
an application for an exemption. In Re: Women's
Legal Service the Commission accepted that the power to grant
exemptions should only be exercised to further the objects of the DDA.
Thus an applicant for an exemption would need to discharge a significant
burden of proving that the public interest in furthering the objects of
the DDA would be met if the exemption were granted. It is not a proper
exercise of the exemption power only to construct a shield against discrimination
complaints without advancing the objects of the DDA. In the present case,
although it could be argued that the procedure the applicants wish to
establish will benefit students with disabilities, the procedure cannot
be directly assisted by an exercise of power by the Commission.
that the Commission decline to grant the application.
Disability Discrimination Commissioner