The mother of a year 5 student has had her race and disability discrimination complaint about her son's seating arrangement thrown out by the Civil and Administrative Tribunal of NSW (NCAT).

A parent, Ms R, took her complaint to the NCAT, after her original complaint was rejected by the President of the Anti-Discrimination Board.

Ms R's son, 'A', attends a NSW public school (the School). As such, complaints about discrimination are heard by the Anti-Discrimination Board of NSW, or NCAT. Complaints about discrimination by non-government schools are usually made to the Australian Human Rights Commission.

Ms R's complaint

Ms R was unhappy with two decisions made by A's teacher.

The first was a decision to seat A at the front of the class, away from other children. It was not disputed that this occurred. The teacher stated that this was because A was distracting other students, as well as himself. On Ms R's insistence, A's seat was again changed in Term 3. Ms R complained that the seating arrangement adversely affected her son, and that as a consequence, she had to enrol him in another school.

The second was a recommendation that A attend English as a second language (ESL) classes. In the end, A did not actually attend any ESL classes.

Was there discrimination?

Magistrate Hennessy, sitting as the Deputy President of NCAT and presiding over this case, stated the elements that Ms R would have to prove to show discrimination. The relevant legislation makes it unlawful for a person to discriminate on the grounds of race or disability.

A's race in the proceedings was not disputed. Nor was the fact that he had a disability, in that he wore glasses for short-sightedness.

To show discrimination, Ms R needed to prove, in respect of either A's race or his disability, that:

• the School denied him access to a benefit, or caused him a detriment;
• the School would not have treated a person of a different race, or who did not have a disability, differently; and
• at least one of the reasons for doing this was A's race or disability.

The decision

In respect of the decision to seat A at the front of the class, Magistrate Hennessy found that there were legitimate reasons given by the School for doing so. Magistrate Hennessy noted that Ms R agreed that A was seated at the front of the class so that he could be monitored by the teacher. There was no evidence that either race or A's short-sightedness were factors in this decision.

As for the recommendation that A attend ESL classes, Ms R did not put forward any reasons that this would be discriminatory. Accordingly, Magistrate Hennessy found that there was no basis for this allegation.

In the end, NCAT found that there was no substance to Ms R's complaint.

The importance of handling complaints

Although this case involved a public school which was found not to have discriminated against A, this case is a reminder for all schools of the importance of fulfilling their anti-discrimination obligations to students. It is also  a case in which robust complaints handling procedures may have averted litigation. See our series of articles on the benefits of implementing complaints handling processes and procedures for more information.