In brief - Student fails to establish discrimination on the grounds of disability or race
In a recent decision in Parkes v The University of Newcastle  NSWADT 302, the NSW Administrative Decisions Tribunal (ADT) found that neither The University of Newcastle nor one of its lecturers discriminated against a student on the basis of race or disability.
Student claims three events prove discrimination against him
The complainant, Jesos Adrian Parkes, is a student at the university. He disclosed that he is a Rastafarian who had a history of mental illness. Subsequent to being suspended from the university, Mr Parkes sought leave to proceed with a discrimination complaint after it had been declined by the President of the Anti-Discrimination Board.
In his submission to the ADT, Mr Parkes alleged that the university had discriminated against him as a result of his race and disability when:
- he was told by his lecturer, Dr Wilks, never to play music again after he accessed and played a YouTube video on the university's equipment console
- in one of his lectures, Dr Wilks warned him never to ask a question in class again
- the university suspended him for a semester without reason
The university denied discriminating against Mr Parkes and asserted that the actions taken against him were appropriate responses to his behaviour.
Onus on student to establish discrimination
Pursuant to the Anti-Discrimination Act 1977 (NSW), Mr Parkes had the onus of establishing that the university had directly discriminated against him on the grounds of disability and race by proving:
- he suffers from a disability or is a member of a particular race
- the university subjected him to some form of unfavourable treatment
- the unfavourable treatment was different treatment than that given to others
- the reason for the unfavourable treatment was due to his race or disability
Would the university have treated another student differently?
In assessing whether the university's actions were discriminatory against Mr Parkes, the ADT assessed whether the treatment afforded to Mr Parkes would have been the same treatment afforded to a student who was not a Rastafarian and who did not have the same disability or mental illness.
Student instructed to turn off music in lecture theatre
Mr Parkes was instructed to turn off music and not to tamper with the university's equipment console after Dr Wilks found him broadcasting music at maximum volume from a computer in the lecture theatre.
The tribunal found in favour of the university and held that it was the nature and extent of Mr Parkes' conduct which led to Dr Wilks' request, rather than Mr Parkes' race or disability.
Student told not to ask questions
In asserting that he was discriminated against by being requested not to ask questions, Mr Parkes stated that a "white" student asked numerous questions without being censured. The university's response was that the "white" student asked relevant questions, whereas Mr Parkes did not.
The ADT found in favour of the university, noting that it was the nature and persistence of Mr Parkes' questions, rather than his race or disability, that prompted Dr Wilks' response.
Student suspended from studies for one semester
Mr Parkes was suspended from the university for one semester after he emailed threatening comments to his lecturer, Dr Wilks. The email contained a thinly veiled threat to murder Dr Wilks after Mr Parkes was given a lower mark for an assignment than the other members of his group. The ADT found in favour of the university, noting that the university had a genuine concern for safety.
University followed its own procedures and responded appropriately to threat
The ADT held that the university had not discriminated against Mr Parkes on the grounds of his race or disability, finding that the requests to turn off music and not to access university computer equipment formed part of the university's administrative procedures and would be employed regardless of the race or disability of a student.
With regard to Mr Parkes' suspension, the tribunal found that it was an appropriate response to a serious threat made by Mr Parkes and accordingly, leave was refused for Mr Parkes' complaint to proceed.
Educational institutions need to apply policies consistently
This decision illustrates the importance of educational institutions consistently applying their administrative policies.
We recommend that staff members be reminded of the policies periodically and undergo anti-discrimination training.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.