Disability standards for education: Ramifications for assessment

Disability standards for education: Ramifications for assessment Dr Elizabeth Dickson e.dickson@qut.edu.au

Outline of presentation • Analysis of reasonable adjustment in assessment • Consideration of assessment controversies

Direct discrimination ‘less favourable treatment’ of the complainant. Determined by comparing the treatment of the complainant with the treatment of another without the complainant's disability in ‘circumstances which are not materially different’. See DDA s 5 Limit: proof of unjustifiable hardship on the education provider will defeat a claim of direct discrimination

Indirect discrimination Indirect discrimination is also called ‘facially neutral’ or ‘hidden’ or ‘institutional’ discrimination. It occurs when treating people in the same way has a discriminatory effect on those with a protected attribute. 1. Condition placed upon the inclusion of the person with disability [usually inferred from the facts]; and 2. The person with disability cannot comply with the condition; and Either (most State acts) 3. persons without the disability can comply with the condition; and 4. The condition is ‘not reasonable’ Or (DDA, s 6) 3. The requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability; and 4. The condition is ‘not reasonable’ Limit: proof that the condition is reasonable will defeat a claim of direct discrimination

Direct discrimination in assessment • How could this arise? • A student with a disability is not permitted to do an exam/piece of assessment when others without their particular disability are • This is proved to be ‘less favourable treatment’ by the student • There is no relevant exemption – eg, unjustifiable hardship • This is not a ‘reasonable adjustment’ to the student’s assessment regime – more later

Indirect discrimination in assessment • Most discrimination in assessment claims are likely to be indirect discrimination claims because the discrimination is alleged to flow from the fact that students with disabilities are treated the same as students without disabilities. • They cannot comply with an ‘unreasonable’ condition that • They have to finish an exam/assignment in a set time • They cannot take a break in the middle of an exam • They have to be able to read/ hear/write/write quickly • They have to rely on an exam paper printed on white paper in 12 point font • They cannot eat during an exam • They cannot have an assistance animal with them in the exam room • They have to speak in public to demonstrate their knowledge

Consultation Before the education provider makes an adjustment for the student, the education provider must consult the student, or an associate of the student, about: whether the adjustment is reasonable; and the extent to which the adjustment would achieve …[inclusion] in relation to the student; and whether there is any other reasonable adjustment that would be less disruptive and intrusive and no less beneficial for the student. Standards 3.5

Reasonable adjustments (1) For these Standards, an adjustment is reasonable in relation to a student with a disability if it balances the interests of all parties affected. Note Judgements about what is reasonable for a particular student, or a group of students, with a particular disability may change over time. Standards 3.4

Limits on reasonable adjustment An adjustment will not be required if it is not ‘reasonable’ if it would cause unjustifiable hardship [Standards 10.2] if it would be inconsistent with an act authorized by statute [Standards 10.3] if it would jeopardize the health of a student with disabilities or the health of other students [Standards 10.4]

In summary, adjustment required if... • It is reasonable taking into account • Disability • views of student • Effect on student • Effect on others • Cost and benefits [Standards 3.4] • And, it does not impose unjustifiable hardship • Benefit/detriment to anyone concerned • Effect of disability • Financial circumstances of provider of service[Standards 10.2]

Ramifications of curriculum standards Aim of reasonable adjustment is to remove impediments to demonstration of knowledge and skills, not to advantage the student Need to work out what knowledge and skills are being assessed – not a wish list; consistent with curriculum Keep in mind the function of assessment – To give the student feedback on their performance? To rank students? To certify students as having reached certain benchmarks?

Reasonable adjustment in assessment likely to require: • adjustment to the format, time allowed for and scheduling of assessment items • Adjustment to the assessment ‘environment’ • In some circumstances, adjustment to the assessment instrument

Indirect discrimination in assessment • Most discrimination in assessment claims are likely to be indirect discrimination claims because the discrimination is alleged to flow from the fact that students with disabilities are treated the same as students without disabilities. They cannot comply with an ‘unreasonable’ condition that • They have to finish an exam/assignment in a set time • They cannot take a break in the middle of an exam • They have to be able to read/ hear/write/write quickly • They have to rely on an exam paper printed on white paper in 12 point font • They cannot eat during an exam • They cannot have an assistance animal with them in the exam room • They have to speak in public to demonstrate their knowledge

Reasonable adjustment… They have to finish an exam/assignment in a set time • Allow extra time They cannot take a break in the middle of an exam • Allow a supervised break They have to be able to read/ hear/write/write quickly • Allow an alternative format; eg computer, scribe They have to rely on an exam paper printed on white paper in 12 point font • Adjust formatting of exam paper

Reasonable adjustment... They cannot eat/take medication during an exam • Allow a supervised food/medication break They cannot have an assistance animal with them in the exam room • Organize a separate venue where assistance animal okay They have to speak in public to demonstrate their knowledge • Allow a ‘private’ performance

Assessment controversies • The ramifications for assessment of the Disability Standards have never been the subject of litigation • Need, therefore, to look at decided cases of alleged direct and indirect discrimination in order to infer the limits on reasonable adjustment likely to be recognized by the courts • We can identify potential controversies relevant to reasonable adjustment in assessment from decided discrimination cases

Reasonable adjustment and integrity of assessment At the tertiary level, discrimination challenges are typically made by students who are excluded for failing to meet course requirements and who argue that they failed because reasonable adjustments were not made to assessment. W v Flinders University of South Australia [1998] HREOCA 19 (Unreported, Commissioner McEvoy, 24 June 1998) (psychiatric disorder – teaching degree) Brackenreg v Queensland University of Technology [1999] QADT 11 (Unreported, Copelin P, 20 December 1999) (ADHD – law degree) Anticipate similar sorts of claims at the secondary certification level by students who don’t meet requirements for acceptance into a tertiary course??

Reasonable adjustment and integrity of assessment No obligation to pass students with disabilities who, despite adjustments to assessment format and conditions, cannot meet legitimate course requirements: ‘There is no obligation on the respondent to pass a student just because they have a disability’ [Brackenreg 4.2.2.4 iv] ‘In assessing whether an adjustment to the course of the course or program in which the student is enrolled, or proposes to be enrolled, is reasonable, the provider is entitled to maintain the academic requirements of the course or program, and other requirements or components that are inherent in or essential to its nature’. Standards 3.4(3):

Ramifications for assessment? • Do not have to make adjustments to the level of difficulty of assessment if it would compromise the standard of the course. • Make academic and ‘inherent’ components explicit

Reasonable adjustment and learning disorders • There is not a consistent approach to the accommodation of learning disorders across Australian education institutions • Resistant attitude that to accommodate a person with a learning disorder will give an ‘advantage’ to him or her? • Particularly problematic at the certification level where a student’s results in assessment will factor in to university entrance opportunities

Dyslexia Bishop v Sports Massage Training School [2000] HREOC No H99/55 (Unreported, Commissioner Cavanough , 15 December 2000) Complainant narrowly failed a written examination causing him ‘a delay in his career and a significant loss of self-esteem’. Court satisfied that the complainant's dyslexia amounted to a ‘disability’ within the meaning of the DDA. Indirect discrimination – term imposed that he complete an examination ‘in the same two-hour period as the other, able-bodied students’ HREOC found that ‘[t]here [was] a real chance that had [the complainant] been given an extra half-hour, or had the examination been conducted orally in his case, he would have passed’ The complainant was awarded $3,000 damages to compensate him for losses including the cost of relocating to another massage school where his disability was properly accommodated

Ramifications for assessment? • What is the purpose of the assessment? • What is being assessed? • What adjustments are possible? • Will an adjustment to mitigate the effects of a learning disorder compromise the integrity of the test?

ADD/ADHD • ADD/ADHD recognized as a disability for purposes of DDA: Minns v State of NSW [2002] FMCA 60 (28 June 2002) • Assessment case - BI v Board of Studies [2000] NSWSC 921 • Not a discrimination case – judicial review of administrative decision • BI case emphasizes the importance for the claimant of demonstrating a need for the special accommodation sought • BI had difficulty concentrating - granted rest breaks but not extra time • NSW guidelines at the time suggested that a student with ADD would not be granted extra time unless had some extra ‘functional’ disability • Court did not accept that these guidelines were ‘inflexible’ but found that the complainant had not demonstrated a need for extra time

Ramifications for assessment? • Require medical/expert reports • Consider medical reports carefully – is there a need for adjustment? • Take a flexible approach to developing and implementing policies on ‘special consideration’

Reasonable adjustment and ‘coping’ students • While compliance with unadjusted assessment conditions may be technically possible, if it results in ‘serious disadvantage’ to the student, it will not be compliance for the purpose of discrimination law • Hurst v State of Queensland [2006] FCAFC 100 • Argued a Deaf student who used Auslan to communicate could ‘cope’ with a signed English interpreter • Held that to ‘cope’ is not to ‘comply’ • ‘A disabled person’s inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage’.

Ramifications for assessment? • Avoid assumptions about what a student can (and cannot) do • Be careful when assessing a student’s capacity to comply with a condition – will they struggle to comply? • Avoid a ‘she’ll be right’ attitude

Reasonable adjustment and ‘successful’ students Discrimination case law suggests students may also argue a failure to make reasonable adjustment when they do not do as well as they had hoped. Hinchliffe v University of Sydney [2004] FMCA 85 (vision impairment; accessible materials) Hinchliffe was a high achiever bit argued she could have done better with better support During her enrolment her preference for format of learning materials changed Didn’t keep support staff informed about this change of preference

Ramifications for assessment? • For the duration of enrolment • Consult • Keep communication channels open. • Keep good records • Don’t assume that because a student is doing well, reasonable adjustment has been made • Don’t assume that what is required to make reasonable adjustment will stay the same over time

Reasonable adjustment and unknown disability Equality Act 2010 (UK) (c. 15) – no Australian equivalent Hinchliffe illustrates, however, that it is unlikely that education providers will be required to ‘second guess’ the adjustments required by students with disabilities and that the onus is on the student to keep the provider up to date. But...What about students who do not disclose their disability at all and then seek to rely on it to defeat some detrimental outcome? Enrolment forms/procedures usually provide the opportunity for students to disclose a relevant disability - but there is no compulsion to do so.

Reasonable adjustment and unknown disability If someone responsible for the student’s education knows, it will be enough – eg, if a class teacher is told. See Bishop v Sports Massage Training School. As educators are meant to be alert to learning difficulties, may be difficult for a teacher/school to argue that didn’t know about a disability if it’s obvious from its characteristics. See Chinchen v NSW Department of Education and Training [2006] NSWADT 180

Ramifications for assessment? • Report disability – do staff know the hierarchy for reporting? • Suspect disability where problem behaviour or failure to ‘thrive’ • and refer for testing

Reasonable adjustment and timing issues Beanland v State of Queensland [2008] QADT 5 The complainant had cerebral palsy and was visually impaired. He could not read or write. He was commencing Year 11 at Corinda State High and wanted to study English and German. Alleged discrimination in that the school insisted that he would have to be able to read and write to complete assessment. Before the matter was settled, complainant left Corinda and enrolled at a different school. Held no discrimination in that Corinda was willing to work out special consideration arrangements that would have allowed the complainant to study English and German. Tribunal said it was unsatisfactory, however, that someone be expected to commence study of a subject without knowing what special consideration would be available.

Ramifications for assessment? • Keep communication channels open • Plan early so that student can proceed with enrolment with confidence • But, must also keep in mind that ‘judgements about what is reasonable for a particular student, or a group of students, with a particular disability may change over time’ Standards 3.4 • Disability is flexible – may have different ramifications for different students and different ramifications for the same student at different times

Future challenge: National Curriculum While education will still be administered by individual state governments, the Commonwealth Government is implementing (imposing?) a national curriculum Are the same disabilities accommodated in each state? In the same way in each state? Should there be a national approach to special consideration in line with the national curriculum? Will the national curriculum mean an increased likelihood of discrimination claims if, say, a student in WA is allowed different adjustments from a person in Victoria? Should there be a separate assessment/certification regime for students with disabilities?

Disability standards for education: Ramifications for assessment