A new NSW Parliamentary report on students with a disability in NSW schools and two recent reminders in the news about uniform policies and disability have brought the issue of harassment and disability discrimination in schools into sharp focus. Despite there being a complicated mixture of state, territory and federal laws relevant to these topics, it is essential for schools to understand their obligations and have appropriate methods in place for dealing with occurrences of harassment or discrimination with clear and relevant policies.
Discrimination and uniform policies
Firstly, in the news, the Victorian Civil and Administrative Appeals Tribunal (VCAT) has found that a Melbourne Independent school discriminated against a Sikh boy because its uniform policy barred students from wearing head coverings related to a non-Christian faith and also required hair to be kept cut short. Due to his religion, the 5-year-old boy never cuts his hair and wears the traditional patka on his head. The boy's father claimed that the school's decision to enforce its uniform policy, by asking the boy to remove the patka, disadvantaged his son on the basis of his religious beliefs.
As we referred to in our previous article, there are no strict legislative requirements on schools to implement a uniform policy and there are no specific standards set by each state or territory education regulator on school uniform dress codes or managing what students wear. Due to legislative exemptions, religious schools have the discretion to set their own uniform standards. As referred to in another of our previous articles, uniform policies or dress codes are left up to the individual schools to create and enforce, as long as they are not unreasonable.
The VCAT member in this case ruled that the school had excluded the boy from enrolling because he was unable to comply with the uniform policy, and that the school's uniform policy was discriminatory. She found that the school could have made an exception and allowed the boy to wear a pakta in the school colours. The Victorian Human Rights and Equal Opportunity Commission considers this an important test case for how to apply the exemptions to the Equal Opportunity Act 2010 (Vic) and to show that despite these religious exemptions, schools must ensure that their uniform policies are not discriminatory.
Discrimination and disability
On 21 September 2017, a report was tabled in the NSW Parliament regarding students with a disability or special needs in NSW schools. There is yet to be a formal Government response however some of the initial recommendations present an alarming picture about the adoption of inclusive approaches to disability education promoted heavily in NSW education legislation. In particular, the report highlighted the need for:
- greater support for the integration of children with a disability or special needs into the mainstream learning setting, where reasonably practical
- greater support for schools through a new funding model which better reflects the needs of these students including considerations of staffing allocations, specialist services, additional teacher release time, secondary school curriculum needs, and work, health and safety requirements
- a new reporting mechanism to provide greater transparency and include specific criteria identifying how the needs of students with special needs are being met from the available resources.
In related news, a mother has also brought a case against a Brisbane Independent school to ensure her autistic son's right to an education. The mother argued that her 7-year-old son, who suffers from autism spectrum disorder (ASD), has been denied a right to an education, despite the school's dedicated ASD program. The school argued that her son was expelled due to continued violence in the classroom and that the risk the violence displayed was not excused by virtue of his disability.
As we have reported in our previous article, schools have the responsibility to maximise learning outcomes and wellbeing for all students and ensure access to high-quality education that is free from discrimination. This is governed by the 'same basis' concept which means treatment of students with a disability must be on the ‘same basis’ as students without a disability, when presented with opportunities and choices offered to students without disabilities. Current Guidance on Personalised Learning as developed by the Federal Department of Education promotes making reasonable adjustments as part of a ‘personalised learning plan’.
In Independent schools this year, 61 per cent of students with a disability had ASD and about 48 per cent of students in the Catholic sector were linked to ASD. The principal of the Brisbane based school in this case told the court that he cannot guarantee another violent incident with the boy would not occur, which presents an unacceptable risk to both the boy and other students at the school. The judge presiding over the case seemed to agree, ruling that the boy was more suited to an "individualist and specialist program which mainstream schools are just not set up at this point to cater for." The appeal case to the Australian Human Rights Commission will be another landmark decision to watch in anti-discrimination law for schools, as will the NSW Government response to the NSW Parliamentary inquiry.
Lessons for schools
With these reminders about disability discrimination and uniform policy, it is an appropriate time for schools to review their harassment policies for students ensuring that staff are trained in current policies and model appropriate standards of behaviour. Students also need to understand what harassment is and when it occurs, and the appropriate methods for reporting incidents. Schools must ensure that current school harassment policies are supported by updated policies such as bullying, cyber safety, social media and disability discrimination.