In brief - Schools not guilty of discrimination where reasonable steps have been taken
The recent case of Walker v State of Victoria  FCA 258 highlights the challenges facing schools in managing students with disabilities and in managing the expectations of the parents of those students. It gives a useful indication of the steps that schools have taken to manage students with disabilities and which the courts have found to be sufficient.
In Walker, the Victorian Department of Education (VDE) was found not to have engaged in direct or indirect discrimination against a student on the basis of disability. The case was decided on an earlier version of the relevant legislation, the Disability Discrimination Act 1992 (Cth). However, as this earlier version of the DDA will continue to apply to conduct prior to 5 August 2009, the case is likely to be of continuing relevance to the court's consideration of discrimination for some time.
Background to Walker v State of Victoria
Alex Walker suffers from a number of disabilities, including learning disabilities, dyslexia, attention deficit hyperactivity disorder and Asperger's syndrome. He exhibited disruptive behaviour, including rudeness towards students and teachers. On occasions he was violent towards other students, particularly in the playground. In one instance he was also violent towards the principal. Alex's behaviours were found to be exacerbated by stress and tiredness.
From 2001 to 2006, Alex was a primary school student at Branxholme-Wallacedale Community School. From November 2007 through 2009, Alex was a student at Baimbridge College, initially studying on a part-time basis to transition to secondary school. In between the two schools, Alex was a student at another independent school, which was not the subject of a complaint.
Difference in perceptions of teaching and socialising regimes
Alex, by his parents, brought two complaints related to his schooling to the Human Rights and Equal Opportunity Commission. These formed the substance of the Federal Court proceedings.
The judge presiding, his Honour Justice Tracey, commented that the case essentially arose out of the differing perceptions of Alex's parents and the VDE as to the efficacy and effectiveness of the teaching and socialising regimes implemented at Branxholme and Baimbridge to cater for Alex's disabilities.
Alex's parents believed that if different strategies and additional resources had been utilised, Alex would have been able to achieve the same results as his peers, despite his disabilities. The VDE contended that Alex was given appropriate resources, that Alex's disabilities were such that his progress would be slower than that of other students, but that Alex had made progress.
Claim of direct and indirect discrimination
Alex's parents alleged direct and indirect discrimination in contravention of sections 22(2)(a) and 22(2)(c) of the DDA. At the time the case was brought, section 22(2) of the DDA provided that:
(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or disability of any of the student's associates:
(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or
(c) by subjecting the student to any other detriment.
Claim of direct discrimination on part of schools
Alex alleged that the VDE directly discriminated against him by:
- not permitting him to attend Branxholme during recess and lunchtime, or to attend excursions at Branxholme, and
- preventing him from attending Baimbridge during the third term in 2007 and full time thereafter, and preventing him from travelling on the school bus.
At the time, Section 5 of the DDA defined direct discrimination as treating someone less favourably than another person without the disability, in circumstances that are the same or are not materially different.
Justice Tracey noted that in order to establish his case, Alex would need to demonstrate that the VDE did (or failed to do) the above because of his disability, thereby treating him less favourably than it would have treated another student who did not suffer from his disability in the same circumstances. This required the court to look at why the conduct of the schools in question occurred.
Steps taken by the schools to accommodate disability
Detailed consideration was given to the steps Branxholme and Baimbridge had taken for Alex, including:
- Recess and lunchtime regime at Branxholme: When Alex became tired and stressed, his antisocial behaviour increased. To manage this, Branxholme, in collaboration with Alex's parents, implemented a plan that on some days Alex would be sent home (only a couple of houses away) for recess and lunch breaks, or be closely supervised while spending these breaks in the playground. Alex was also offered structured activities in a classroom during these breaks. He often took these up. The court noted that Alex was not entirely excluded, as he could ask for permission to go to the playground and this was unlikely to be refused. He would also attend recess and lunch on days when he could not go home.
- Exclusion from attending excursions at Branxholme: Alex was excluded from one multiple-night excursion for his safety and the safety of the other students. The excursion was not confined and there were concerns that Alex might run away,
- Exclusion from attending Baimbridge: The school had taken time to consider Alex's application for enrolment, prepare a plan to integrate Alex into secondary school and apply to the VDE for funding for an aide to assist Alex. For this reason, Alex continued to attend his correspondence studies and did not commence at Baimbridge until Term 4, 2007. Baimbridge and Alex's parents had agreed that Alex was to be integrated into secondary school gradually, so as to reduce his tiredness and stress levels. This included initially attending Baimbridge part-time, then gradually increasing his hours of attendance at the school. Alex was also to continue his distance education courses on the days of non-attendance.
- Exclusion from travelling on the school bus: Due to Alex's history of misbehaviour and sometimes violence, Baimbridge was unprepared to let Alex ride on the school bus unsupervised until there was an improvement in his behaviour, due to concerns for the safety of other students and the bus driver.
Direct discrimination claim rejected
Justice Tracey found that Alex's behaviour was disruptive to the learning and recreational activities of other students. More significantly, Alex's behaviour sometimes resulted in physical injury to other students. The court held that in these circumstances, both schools had no option but to devise strategies which were designed to assist Alex and protect other students.
His Honour concluded that Alex was not dealt with under the management plan imposed by Branxholme less favourably than another student who did not have Alex's disabilities, but who engaged in the same disruptive behaviour.
Baimbridge’s method of integration for Alex was also considered by his Honour not to amount to direct discrimination, as the delay in making arrangements for Alex’s attendance was reasonable and his exclusion from travelling on the school bus was based on a concern for his safety and the safety of others.
The VDE had therefore not engaged in direct discrimination under section 5 of the DDA.
Claim of indirect discrimination on part of schools
Alex claimed that the VDE had indirectly discriminated against him by, amongst other things, imposing a requirement that he access his education without one-to-one assistance from a teacher or teacher's aide appropriately trained and able to implement an individual education plan and a behavior management plan.
Section 6 of the DDA in force at the time provided:
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
In determining whether a substantially higher proportion of persons without Alex's disability were able to comply with the VDE's requirement that Alex access education without one-to-one assistance, Justice Tracey considered that the student body or Alex's class would be the correct comparator groups. The members of both these groups were able to undertake their education without the need for one-to-one assistance.
In determining whether the requirement was unreasonable, Justice Tracey noted that the test of reasonableness was objective, involving weighing the nature and extent of the discriminatory effect against the reasons in favour of the condition or requirement.
Indirect discrimination claim rejected
His Honour held that the small class sizes and the availability of aides meant that any requirement which may have been imposed on Alex was not that he should receive his education without any one-to-one assistance, but rather that he receive his education without exclusive assistance at all times. One-to-one assistance in Alex's case was unnecessary and it was not unreasonable that it was not provided.
As Alex had pursued some of his education without the assistance of a dedicated teacher and his education had progressed despite this, Alex was not unable to receive his education.
The VDE had therefore not engaged in indirect discrimination under section 6 of the DDA.
Amendments to the Disability Discrimination Act
The amendments to the DDA that apply to conduct after 5 August 2009 amended sections 5 and 6. Among other things, these amendments introduce a positive duty to make reasonable adjustments for a person with a disability. They also provide that indirect discrimination occurs where:
- the discriminator requires the person with a disability to comply with a requirement which they cannot comply with because of the disability, which has the effect of disadvantaging that person, or
- the person with the disability is able to comply with the requirement if reasonable adjustment is made, but such adjustment is not made.
Walker decision appealed
We note that the parents of Alex Walker appealed the decision of the Federal Court and the appeal was heard on 23 and 24 August 2011. The decision is awaited and we will provide an update once the Court of Appeal has handed down its decision.