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Below, The Educator asks Sarah Jones and Jennifer Parkes, partners at Hicksons Lawyers, based in Sydney and Newcastle respectively, about ways in which principals can navigate the often complex and emotionally-charged issue of disability discrimination in schools.
TE: What are the most important considerations for principals to take on board when professionally and legally navigating the issue of disability discrimination?
SJ/JP: Clear policies: An education provider’s policies should be clear in supporting appropriate standards of behaviour in order to avoid disability discrimination and emphasise inclusiveness. Policy should unambiguously promote respectful treatment and a commitment to providing a safe study environment. The policy should also indicate that reasonable adjustments will be made to accommodate students with disabilities, to the extent that the inherent requirements and academic integrity of the institution’s courses of study are maintained.
Apply policies consistently and with the policy in mind: Principals must be prepared to apply the provisions of the policy consistently. Any deliberations under policy should be documented and reasons given for a decision. These reasons should refer to issues relevant to the policy only, be based on evidence to support the decision and should not be arbitrary.
TE: Can you provide an example of a case in which a disability discrimination lawsuit was filed but could have been easily avoided?
SJ/JP: A student with a known disability was refused an extension of time to complete a program at a university. The student complained that the reason the application was refused was the disability. The university argued that the student’s poor academic performance influenced the decision and in any event, reasonable adjustments had been made to accommodate for the effects of the disability.
It was also argued that the extension of time to complete would compromise the currency of the student’s knowledge, and therefore the academic integrity of the program. These arguments were in keeping with the university’s policies and the inherent requirements of the program.
There was evidence that the decision maker had considered applications for extensions of time for several other students. A comparator student was identified who demonstrated academic progress which was not materially different to the student. The comparator student was allowed an extension of time to complete the program. This student did not have a disability.
Evidence emerged that the decision maker had also formed the view that the student would not be a suitable graduate for reasons related to the disability, and may have relied on this opinion when the decision was made. The suitability for practice was not a consideration required under the policy.
The university’s decision was overturned by the NSW Civil and Administrative Tribunal. The Tribunal accepted that the decision against the student was not consistent with decisions made in relation to other students in similar circumstances and there was a likely inference that the decision was based on considerations irrelevant to and not provided for in the university’s policies and therefore discriminatory.
This decision highlights the need to make decisions based upon the considerations outlined in the education provider’s policies and not to take into account extraneous considerations. The education provider must be able to satisfy a tribunal (and therefore itself) that the student in question has been treated the same as a student without a disability so far as the inherent requirements of the program allow.
It is recommended that an independent review of decisions such as this be made prior to being put in place to ensure no extraneous factors have influenced the decision.
Education Law Masterclass
Registrations remain open for the 2017 Education Law Masterclass, returning to Sydney in August.
The one-day conference will bring together some of Australia’s top law experts to address the key issues and challenges facing those in leadership positions in Australian schools.
The masterclass will cover the Disability Discrimination Act 1992, litigation in the education sector, establishing legal boundaries with difficult parents, online bullying and the sexting problem and managing staff relationships with students.
Click here to view the full conference schedule.
*Completing the Education Law Masterclass will contribute 5 hours and 45 minutes of NESA Registered PD addressing standard descriptor 6.2.2 from the Australian Professional Standards for Teachers towards maintaining Proficient Teacher Accreditation in NSW.