Enrolment procedures for students with a disability

Enrolment procedures for students with a disability Dr Elizabeth Dickson QUT Law School e.dickson@qut.edu.au 24 August 2011

What will be covered? • Relevant legislation • Anti-Discrimination Act 1991 (Qld) (ADA) • Disability Discrimination Act 1992 (Cth) (DDA) • Disability Standards for Education 2005 (Cth) (Standards) • Scope of ‘disability’ under the legislation • Duty of reasonable adjustment • Managing the enrolment process • Can I reject an application for enrolment? • Cost • Impact of behaviour • Case law examples throughout

Legislative scheme • Protected attribute • ADA ‘Impairment’; DDA ‘disability’ • Protected area • Education • Prohibited behaviour • Direct discrimination • Indirect discrimination

Education • Education authorities and education institutions covered • Individual staff may be sued but likely indemnified by employer (vicarious liability) • Covers pre-school to post-compulsory, public, private and not-for-profit • Covers behaviour in pre-enrolment and post-enrolment periods

Direct Discrimination Direct discrimination arises when there is ‘less favourable treatment’ of the complainant. Whether treatment is ‘less favourable’ is 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

Disability Standards • Standards are enacted under the authority of DDA s 31. • Binding upon education providers in all Australian states and territories: DDA s 14; s 32. • Compliance with the Standards amounts to compliance with the DDA: s 34 • Theoretical protection against being sued • Intersection with ADA unclear – likely compliance with standards would amount to compliance with the ADA

Effect of the Standards • Cover a number of key aspects of the delivery of education services: • enrolment (Part 4) • participation (Part 5) • curriculum development, accreditation and delivery (Part 6) • student support services (Part 7) • elimination of harassment and victimization (Part 8)

Effect of the Standards • For each aspect, the Standards set out • student rights, ‘consistent with the rights of the rest of the community’ • the legal obligation of education providers – to take ‘reasonable steps’ to ensure students with disabilities enjoy those rights ‘on the same basis’ as other students • ‘measures of compliance’ • The overarching obligation is to make ‘reasonable adjustment’

Walker v State of Victoria [2011] FCA 258 (23 March 2011) • Case alleging discrimination and breach of the Standards • ‘The Disability Standards require no more of a government agency such as the Department than that, where necessary, it be alert to the need to adjust its normal practices when dealing with a disabled student; to consider, in consultation with the student or his or her parents, what reasonable adjustments to normal practices should be made to assist the student, and then to decide whether a particular adjustment is necessary and, if so, to implement it.’ [274]

Consultation • Walker: • ‘[The Standards] require a school to consult a student or his or her parents about prescribed matters. • They do not, however, require that such consultation take any particular form or occur at any particular time. • Those involved may meet formally or informally. • Discussions can be instigated by either the school or the parents. • Consultation may occur in face-to-face meetings, in the course of telephone conversations or in exchanges of correspondence.’ [284]

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 law [Standards 10.3] • if it would jeopardize the health of a student with disabilities or the health of other students [Standards 10.4] • Special measures [Standards 10.5]

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

Who decides what’s reasonable? • Walker: • Once consultation has occurred it is for the school to determine whether any adjustment is necessary in order to ensure that the student is able, in a meaningful way, to participate in the programmes offered by the school. • The school is not bound, in making these decisions, by the opinions or wishes of professional advisers or parents. • The school is also required to determine whether any reasonable adjustment is possible in order to further the prescribed aims. • There may, therefore, be cases in which an adjustment is necessary but no reasonable adjustment is able to be identified which will ensure that the objectives contained in the relevant Disability Standards are achieved.’ [284]

Enrolment rights ‘The effect of the following Standards is to giveprospective students with disabilities the right to enrol in an educational institution on the same basis as prospective students without disabilities, including the right to reasonable adjustments that are necessary to ensure that they are able to so enrol on the same basis as prospective students without disabilities’ Standards 4.1

Measures of compliance - enrolmentStandards 4.3 (a) information about the enrolment processes: (i) addresses the needs of students with disabilities; and (ii) is accessible to the student and his or her associates; and (iii) is made available in a range of formats depending on the resources and purposes of the provider and within a reasonable timeframe; and (b) enrolment procedures are designed so that the student, or an associate of the student, can complete them without undue difficulty; and (c) information about entry requirements, the choice of courses or programs, progression through those courses or programs and the educational settings for those courses or programs is accessible to the student and his or her associates in a way that enables the student, or associates, to make informed choices.

Ramifications of enrolment Standards • Focus of Standards is on a ‘right’ to reasonable adjustment to enrolment protocols rather than on a ‘right’ to enrolment: • Information about the school and about its enrolment processes, entry requirements, courses and programs are to be accessible by people with disabilities • may simply mean that staff are available to talk through the process • Forms and procedures can be completed by people with disabilities or an associate • again, may be enough to provide assistance to complete forms

Ramifications of enrolment Standards • Unclear, but seems that if a school refuses enrolment because of disability, any legal action would be an action under the discrimination provisions of the DDA (or ADA) rather than an action claiming that the school has not made reasonable adjustments as required by the Standards • That is, the complainant would argue direct discrimination

Ramifications of enrolment standards • When deciding about enrolment of a student it will be necessary to consider adjustments which are sought by the student and adjustments which can ‘reasonably’ be provided by the school • Therefore will need to consider how the student may be accommodated in terms of curriculum, participation and assessment and accreditation Standards • Time consuming as disability is unique

Enrolment protocols • Encourage disclosure of disability – enrolment form • Provide targeted enrolment assistance to students with disabilities and their parents • Pre-enrolment consultation necessary – student, parents, support teachers and other relevant school staff • Ask for relevant documentation • Keep good records of all conversations and meetings • Keep good records of what is agreed • Establish a good relationship at the outset: calm, professional, clear, regular communication

Unknown disability • Some people will not disclose a disability • Law suggests that cannot prove discrimination on basis of an unknown disability • Tate v Rafin [2000] FCA 1582 • But if school should have known because signs were evident then a different matter • Chinchen v NSW Department of Education and Training [2006] NSWADT 180 • Once disability is known adjustment will be required subject to limit of reasonableness

Can enrolment be refused? • Will I get sued if I refuse to enrol? • Sometimes you will be sued even if you have behaved ‘reasonably’ • Most complaints resolved by conciliation (Human Rights Commission; Anti-Discrimination Commission Queensland) • Some cases will go to hearing/trial if issues not clear, one party intransigent (Federal Court; Federal Magistrates Court; QCAT) • Costs disincentive

Can enrolment be refused? • Refusing enrolment is ‘less favourable treatment’ and potentially direct discrimination: Finney • Imposing ‘conditions’ on enrolment is potentially indirect discrimination: Clarke • Before refusing think carefully about the community and individual benefits of inclusion • Look at what the student can do as well as what they can’t do • Look at what the school can do as well as what it can’t do • Don’t ‘catastrophize’ the impact on the school: Finney

Can enrolment be refused? • Most relevant cases are about exclusion not refusal to enrol – but same considerations relevant • Cases about exclusion were regarded at the time as ‘settling’ the position in Qld – no point in suing • Some cases about exclusion are getting old – pre-Standards and changed (?) attitudes to inclusion • Cases authorising exclusion usually involve students with intellectual or behavioural impairment • Cases consistently suggest that difficult to refuse enrolment lawfully to students with physical impairments: • Finney • Murphy v New South Wales Department of Education [2000] HREOCA 14

Can enrolment be refused? • Formula: • Must make reasonable adjustment ‘balancing interests of all’ taking into account • Disability; Views of student; Effect on student; Effect on others; Cost and benefits • A reasonable adjustment will not be required if it imposes unjustifiable hardship taking into account: • Benefit/detriment to anyone concerned; Effect of disability; Financial circumstances of provider of service • Case law indicates that unreasonable adjustment or unjustifiable hardship may be proved in either of two ways: • Financial cost of adjustment • Impact of disability related problem behaviour

CostK v N School [1996] 1 QADR 620 • ADA (Qld) case • ‘K, the Complainant in this matter, is 11 years old…Her complaint against N School [a small Brisbane independent school], which she has attended since the beginning of 1993 when she commenced Grade 1 there, turns on its decision to exclude her and other special needs children…’ • ‘The evidence…convinces me that there have been significant problem behaviours, the most pronounced being fits of screaming. There have in the past been incidents of hyperventilation… • ‘[K’s teacher] says that K's screaming in the classroom situation and occasional hyperventilation presented major difficulties for her. The amount of time she had to spend attending to K and the time spent by her in preparing K's program also imposed considerable pressure on her. In August, 1996, she attended her medical practitioner suffering from anxiety.’

CostK v N School [1996] 1 QADR 620 • Unjustifiable hardship proved • Financial hardship: insufficient govt funding to provide reasonable support; parents of other children threatened to remove them if K’s enrolment maintained ‘I do not consider that one can justify requiring a small school like N to apply its resources to benefit a small number of children (a group no larger than four in the past) when there exist other schools in the general area which are already equipped to deal with special needs children.’ ‘In the present case, it seems to me that the issues are essentially whether the school has the financial means to meet the additional burden placed on it by provision of the services K requires; and whether there exist alternative placements for K which would have a bearing on whether any hardship imposed on the school is justifiable.’

CostP v Director-General, Department of Education [1995] 1 QADR 755 • ADA case • Difficult to prove hardship based on cost against the state? ‘I would also add that, if the supply of services only involved maintaining teacher's aide hours for P at eleven hours, together with the other assistance he was provided in 1994, it seems to me that the respondent would not have made out a case that provision of these services was unaffordable. While it may have required some re-allocation of resources and even the raising of some extra revenue to provide that amount of services, I am clearly of the view that the respondent has not satisfied the onus of establishing unjustifiable hardship based on the cost of the extra five hours per week of teacher's aide time.’ • See also L v Minister for Education for the State of Queensland [1995] 1 QADR 207 • What does this mean for wealthy independent schools?

CostState of Victoria v Turner [2009] VSC 66 • Victorian Supreme Court – a more realistic attitude? • 102 Relevant considerations … include the cost of alternative conditions and the financial circumstances of the respondent. Evidence relevant to these considerations must be assessed by the Tribunal having regard to the practical realities of the situation facing the respondent and not hypothetically as if resources are unlimited…103 Where the State is the respondent to a claim alleging indirect discrimination in relation to education, the circumstances the Tribunal must consider include the fact that the State does not provide benefits to a single student (the complainant) in a single school but operates many schools with many students and that the education budget each year is not unlimited.104 Where the evidence before the Tribunal establishes that a decision by the Tribunal in favour of the complainant will have flow-on effects for the respondent in relation to other persons in a similar position to the complainant (for example, where the proceeding is a test case), the flow-on effects are a relevant consideration for the Tribunal. However… If the respondent wishes the Tribunal to take into account not only the direct but also the flow-on costs to it of a finding in favour of the complainant, it should present evidence of these costs…’

CostSievwright v State of Victoria [2012] FCA 118 • 207.The obligations of the State in respect of individual children must be considered alongside the wider legal responsibilities which teachers and administrators owe to all students…The PSD is designed to achieve that purpose by implementing objective eligibility criteria for students to access additional funding. • 208. As discussed…above, Jade was not eligible for funding under the PSD until late in 2008, when her IQ was reported to be 68. Before that time, provision of a full time aide for Jade was beyond the financial capability of her school. • 209. Mr Tainsh gave evidence about the enormous cost that would be associated with providing a full time aide to all students who had a IQ in the vicinity of Jade’s before she qualified for the PSD…Such an imposition would double the current PSD budget requirements and result in a need for the State to engage 20,000 extra staff. • 210. Jade’s teachers made significant efforts to implement the recommendations made by experts in relation to Jade, to the extent that was practical and within budget constraints. Given that no expert recommended Jade be provided with an aide in the terms pleaded by Mr Hancock, in all the circumstances, is not unreasonable that such an aide was not provided.

CostCatholic Education Office v Clarke (2004) 138 FCR 121 • DDA case • Parent contributions?? • In Clarke parents offered to contribute to finding and funding an Auslan teacher for son • ‘81 While there were reasonable theoretical concerns held by the respondents as to possible future equity arguments if poorer parents in a like situation presented, Jacob was the only profoundly deaf child anticipated to attend McKillop in the year 2000. There would have been no real problem in accepting the Clarkes’ contribution for that year. That would have permitted more time for consideration of what should and could have later been done…’ • Does not mean, however, that should ask for extra from parents

Impact of BehaviourL v Minister for Education for the State of Queensland [1995] 1 QADR 207 • Unjustifiable hardship: ‘detriment to all people concerned’ as a result of her inclusion • Disruption of learning environment: • ‘the greater problem is that even with that level of resource, as long as L remains in the regular classroom, disruption of other children is inevitable, at least until her skills are improved. Even the process of intervention, with withdrawal of her from the classroom when she is noisy or when she requires toileting, must of itself be disruptive to other children.’ • Stress to staff: …stresses placed on teaching staff at Beta without specialist training and the disruption entailed to other children, are such as to outweigh the benefits to L and to constitute unjustifiable hardship to the Department should it be compelled to accept L back into the Beta School.’ • Similar findings in K and P

Impact of behaviourK v N School [1996] 1 QADR 620 Stress: ‘I am also satisfied that there is another respect in which hardship would be caused, namely the stress caused to teachers who have inadequate experience and expertise in teaching special needs children, particularly in a context where the school's attempt to educate K so far has been relatively misguided and unsuccessful, and where there has been considerable animus built up between the school and the child's parents. The latter is a hardship which could be overcome with appropriate specialist assistance; the difficulty is that one then returns to the problem of how that assistance is to be funded…’

P v Director-General, Department of Education [1995] 1 QADR 755 Stress and disruption to the learning environment: ‘I am of the opinion that the other students supplied special services and facilities by agreeing to remain in the classroom with P and by attempting to extend to him camaraderie and friendship. When one includes these contributions by the employees of the respondent and P's fellow students as part of the supply of the special services or facilities, one can see that the intolerable situation faced by the members of each of those two groups of people constituted unjustifiable hardship flowing from the supply of special services or facilities. Accordingly… one would conclude that the respondent has satisfied its onus to establish the exemption provided by s. 44.’

Impact of behaviourPurvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 • High Court DDA case involving a ‘violent’ high school student, Daniel Hoggan • Unjustifiable hardship not available (remedied now) • Held that excluding a student because of behaviour caused by disability is not discriminatory • Court influenced by the fact that accommodating Daniel may have compromised duty of care to others at the school • Pre-Standards • Argued – unsuccessfully – in Purvis that more could have been done to adjust to Daniel’s impairment

Impact of behaviourCases since Purvis Cases since Purvis where the exclusion/suspension of a student has been found not to be discriminatory on the basis that a student without the disability but with the behaviour would have been treated the same way: • Tyler v Kesser Torah College [2006] FMCA 1 (Unreported, Driver FM, 20 January 2006): student with Down’s syndrome had, allegedly, thrown an object from a balcony which hit a teacher • Zygorodimos v State of Victoria, Department of Education and Training [2004] VCAT 128 : student had thrown tantrums, been inattentive, put ‘inappropriate objects’ in his mouth, and run from the classroom. • Walker v State of Victoria [2011] FCA 258: Disruptive behaviour, bad language, low level violence

Codes of conduct • Can students with disability related problem behaviour be required to obey the school rules? • Yes – provided they are ‘reasonably adjusted’ to account for the disability • Relevant cases were decided as indirect discrimination cases: a condition imposed that they comply with the school’s discipline code • Cases are pre-Standards but Standards reinforce the position

Codes of conductS on behalf of M & C -v- Director General, Department of Education & Training [2001] NSWADT 43 M lost on a ‘technicality’ in NSWADT but the tribunal addressed the issue of the reasonableness of the condition. It was ‘reasonable’ to have a discipline code: ‘No sensible person would dispute that it is reasonable for a community, an organisation or a school to set rules and standards of conduct for its members/students. The point is so trite it needs no further discussion’. but ‘not reasonable’ to apply it inflexibly as had happened in M’s case: ‘While such behaviour [physical aggression] is clearly unacceptable, and it is reasonable to require that such children [children with ADHD] respect others and their property, it seems to us that it is unreasonable to apply a disciplinary regime in blanket fashion to all children regardless of their subjective features.’ ‘Not only was M an ADD sufferer, she was well behind her colleagues academically…In those circumstances, it was unreasonable to expect that she could significantly modify her behaviour as a result of being frequently disciplined in the absence of that attention, support and special care. It was in our view therefore unreasonable to punish her in the same fashion as any other member of the student body if she failed to comply with the requirements of the Code.’

Minns v State of New South Wales [2002] FMCA60 • DDA case • Federal Magistrate’s Court held the condition that Ryan Minns comply with the school’s discipline code was ‘reasonable’. • Note that the code had been modified to adjust to Ryan's disability: ‘I am of the view that the requirement that was placed upon Ryan to comply with each of the school's disciplinary policies as modified was reasonable in all the circumstances. The classes in which Ryan was placed would be unable to function if he could not be removed for disruptive behaviour. The students could not achieve their potential if most of the teachers’ time was taken up with handling Ryan. The playgrounds would not be safe if Ryan was allowed free rein for his aggressive actions. Therefore the claim for indirect discrimination must fail in the manner in which it is put’.

More information • www.austlii.edu.au • Cases • Journal articles: Australia and New Zealand Journal of Law and Education; International Journal of Law and Education • QUT Education Law masters subject, 2013 • Credit for masters degree; or • CPD – whole or part of subject • QUT offers onsite staff training in education law issues: • Disability Standards; negligence; reporting of suspected child sexual abuse; bullying etc • Australia and New Zealand Education Law Association: • www.anzela.edu.au • Journal, cheap PD seminars, cheap annual 1 day ‘updater’ conference (QUT, 10 August 2012)

Thank you! Dr Elizabeth Dickson QUT Law School e.dickson@qut.edu.au

Enrolment procedures for students with a disability