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"She presented as one who was deeply committed to the cause of her daughter's right to be educated in spite of her severe disability. She became deeply resentful of a regime which she perceived "found us to be problem people"". William Carter Q.C., Grahl vs The state of New South
Wales (NSW |
This comment was written by Mr Carter of the Human Rights and Equal Opportunity Commission (HREOC) following a formal complaint, by the parents of Sian Grahl, of discrimination on the grounds of disability under the Disability Discrimination Act (DDA) 1992.
And again in Scarlet Finney vs The Hills Grammar School (1999) Commissioner Innes found that in relation to refusing Scarlet's enrolment.
Adapted with permission 'Fair and Reasonable Kit' Back to Commissioner Carter's thoughts, |
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"The enrolment process was frankly discriminatory. The attitude displayed by the principal during the enrolment process was unhelpful and pedantic. The education of a child with severe disabilities is no doubt a difficult and challenging experience for any teacher or principal but it is one which the Department of Education anticipates and it has in place the policies and procedures to deal with it." Grahl vs The State NSW |
Many people have stories to tell following these cases, the parents, the students, the principals, the teachers and the bureaucrats and the Commissioners.
In this paper I will explain the rights based legislation of the DDA (1992) and its relationship to other legislation in my state of South Australia and how that impacts on the policy cycle in education.
I will describe the practical structures and strategies that enable the education system to comply with the DDA and enable such rights based legislation to become inclusive policies which acknowledge the rights and responsibilities of teachers, learners, parents and advocates.
What is the Disability Discrimination Act?
The DDA was passed by the Commonwealth Parliament in 1992 and took effect from 1 March 1993.
The objectives of the DDA are:-
a) to eliminate as far as possible discrimination against people on the
grounds of disability and
b) to ensure that people with disabilities have
the same rights before the law as the rest of the community and
c) to
promote the principle that people with disabilities have the same rights as the
rest of the community.
Who is covered by the DDA?
The DDA has a very broad definition of disability that covers a wide range of disabilities, imputed disabilities and possible future disability.
The DDA also covers carers or associates of people with disabilities who may suffer discrimination as a result of their caring role or association with a person who has a disability.
The most important policy instrument for me is within the legislation, Section 22: Education.
It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates:-
Enrolment:
It is unlawful for an educational authority to discriminate against a person on the ground of the person's disability or a disability of any of the other person's associated:-
a) if the school or institution is specifically for children/students
with a particular disability and the person wishing to enrol does not have that
disability.
b) If the child/student requires services or facilities which
would be an unjustifiable hardship for the educational authority. "Balydon
Primary school is built to cope with students with disabilities. Sian would be
better off going to school there.
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" Balydon Primary school was twenty kilometres distance from Bellingen and involved a bus journey of forty-five minutes each way. " William Carter, Q.C. (Gahl) |
Key points are made within the act and these include:-
It also introduces the notions of "access to benefit" and "detriment."
The broad definition means that everyone with a disability is protected. The DDA covers a disability which people:-
The DDA also covers people with a disability from being discriminated against because:-
Education Includes
Benefits include such things as school camps, counselling services and sport as well as choices about courses and subjects.
Reasonable adjustments
Changes/alterations to provide equal opportunity for a child or a student with a disability. These may include:-
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It is the primary responsibility of the site leader to show:-
(adapted with permission from Finney vs The Hills Grammar School, HREOC, 1999) |
Unjustifiable hardships
If the adjustments required to accommodate a person with disabilities impose an unreasonable burden on the organisation, then it may be considered an unjustifiable hardship. This applies only to the process of admission.
In determining unjustifiable hardship, the HREOC considers all circumstances including:-
It is unlikely that a large public educational authority eg. state/public education system would be able to use this defence due to the nature of financial support available from the government. However, each case is judged on its individual circumstances at local and systemic level.
It is important to consider, however that most adjustments will not amount to unjustifiable hardship.
Special Measures (Section 45)
Section 45 of the Disability Discrimination Act 1992 does not render it unlawful to discriminate to ensure persons who have a disability have equal opportunity in relation to education, employment, sport, provision of goods and services and capacity to live independently. It is therefore, lawful to provide special classes, units and programs as options for students with disabilities.
Harassment and victimisation
It is also unlawful to harass or victimise a person with a disability, or any of their associates.
Harassment includes persistent behaviour that offends, humiliates, intimidates and creates a hostile environment.
Victimisation of a person could occur because they have made a complaint, or are involved in any other matter in reference to the Act on behalf of themselves or another person.
In terms of access to benefits the Act asks us to consider if the opportunity (within education) would be available for the student if they did NOT have a disability. When considering the notion of detriment we have to ask does the action/decision limit access and choice.
The Action (Section 31) includes provision for the development of standards. I have been part of a national task force preparing these standards for national consultation. The main areas covered by the standards include:-
Each section includes the rights of students with disabilities and describes the legal obligations of education authorities, institutions and providers.
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"Parties must work towards the creation of a Standard that ensures the level of access to education demanded by the DDA, taking into account reaso, A Bleness and unjustifiable hardship, without either diminishing the rights of students with disabilities or expanding the responsibilities of providers." Elizabeth Hastings. Disability Discrimination
Commission, 1997. |
The Act also encourages organisations eg locally managed schools, Education Departments, to develop Disability Action Plans.
The purpose is to:-
Human Rights and Equal Opportunity Commission (HREOC)
The Disability Discrimination Act 1992 (DDA) contains provisions which enable people with disabilities to lodge a complaint with the HREOC if they feel they have been excluded from access to services normally available to people who do not have a disability.
The Commissioner's responsibilities fall within four main areas:-
The Commission is responsible for conducting investigations into allegations of discrimination or human rights infringements.
The Commission has the legal power to conduct enquiries and resolve matters of discrimination and human rights infringement under four different Acts. These Acts, made by the Federal parliament, are aimed at protecting people from certain kinds of discrimination in public life and from violation of discrimination in public life and from violation of their human rights by federal departments and agencies.
A person who considers that he or she has experienced discrimination on the grounds of disability can make a complaint to HREOC. The complaint will be resolved through investigation and conciliation. If this is unsuccessful, the complainant can apply to the Federal Court to have the matter heard and legal determination and enforceable orders can be given.
The Act is based on conciliation! Anyone, a student with disability, their parent or advocate can make a formal complaint to HREOC which will then assist in determining what is 'fair and reasonable", case by case and issue by issue - not what is right or wrong.
Conciliation, as a process is in itself educative and usually satisfying to all parties but can also be seen as a powerful agent of change. The Act was designed to socialise a community towards inclusion and stop exclusion and to reflect current values and priorities that encourage best practice for all.
As an education administrator it would be easy to use the DDA as "a big stick" and insist that school communities comply with the Act or else.
However, the task of the educators and administrators is to ensure that our education community and the wider community has a common understanding of what this legislation means by:
The values within this legislation, challenge us administrators at the time when a formal complaint about disability discrimination from a parent of a child with a disability is made to the Human Rights and Equal Opportunity Commission.
It is at that important time that we must adhere to our values, comply with legislation and engage in respectful negotiation to resolve very complex issues in the context of conciliation without destroying school communities and families.
The DDA provides an opportunity to develop action plans for service delivery for the benefit of all. It is in this context that Negotiated Curriculum Plan's, IEP's, health care plans and learning management plans develop a logical approach to curriculum and service delivery at the system, local and individual level. It also provides the policy imperatives for logical planning, review of programs and collecting data is vital to eradicate detriment, albeit unintentional, especially for students with disabilities.
In the case of the DDA we have enough "hooks and handles" within the legislation to develop policy and implement structures and strategies that not only take the fear out of the Act but also are powerful for improving classroom practice and implementing systemic change.
Issues and actions
1. In the first instance after listening to many of the stake holders, we realised information about the Act was vital. We published and distributed widely a brochure about the Act.
2. We renewed our efforts of working with and listening to parent advocates, families and carers to identify what was occurring in schools that appeared to be discriminatory. We ran some informative workshops for those groups.
3. At the time we had 3 formal complaints being investigated and so after a review we established a published a process for the system to deal with such an event. This involved working closely with Crown Law, District Superintendents, Principals Association and policy advisers.
The review identified 2 major issues:-
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Common experience dictates that frustration, which is sourced to a deeply caring, even passionate desire, to ensure that the human rights to an education of one's child with a disability is honoured, will often lead to confrontation and conflict. Grahl vs NSW |
4. We found it useful to view the Act (and the complaints process) as a policy instrument and the basis of professional development For instance;
5. Evaluated/reviewed programs against a template of DDA issues. Eg. Preschool Support Program., Facilities guidelines
6. Throughout all this time - we worked on (and continue to do so) the national development of standards
7. Developed a self paced learning package for leaders in the system to ensure compliance with the Act. The package/kit is called "Fair & Reasonable".
The kit is designed to meet the individual needs of leaders. The modular style allows easy access to specific sections when needed and the incorporation of the audio tape encourages flexibility in use.
The kit can be approached on an individual basis or may be completed by a group. Tasks may be delegated to other members of the site leadership team and specific information shared with all members of the school community.
This kit represents 30 hours of solid work and we are negotiating for it to be used in future to gain accreditation within various post graduate awards.
Within the process of development we have involved parents, principals, people with disabilities, advocates and students.
The kit serves as a risk management tool and can be incorporated into a strategic plan. For locally managed sites, the DDA kit will support the requirements in the Annual Operational Plan calling for considerations and actions focussed on equity issues. The information can be shared with governing council members as part of their awareness of legislation underpinning site operation.
Additional benefits for other areas of site management will come from the adoption of the management practices suggested in the resource. Some ideas will be new, others will affirm and reinforce existing processes.
The following overheads show you the layout and style of the package.
The kit has a number of sections and these include:-
Conclusion
Educators need to use the community based values, espoused in the policy instrument of the DDA legislation to develop quality programs for the education of children and students with disabilities.
This enables us to:-
Some people often think that legislation has little to do with everyday schooling but I'd like to leave you with this reminder that rights based legislation impacts on systemic policy and daily life in schools.
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The catalyst for the unfortunate incident on 1 December 1997 was the closure, effectively ordered by the principal, of the gate which provided the most convenient access to the school for Sian, by now in a wheelchair, and for her mother who was the parent mostly concerned with her care and who habitually accompanied the child on her way to school. The consequential confrontation between mother and school principal promoted the latter to take this draconian and in my view unnecessary option of having the police remove the mother from the school environs. Grahl vs NSW |
It does not have to be like that! Rights for students with disabilities as described within the Act provide positive opportunities to develop logical structures and strategies within a sound policy framework - for the benefit of all.
Patricia Winter
Superintendent
SPECIAL EDUCATION
AND EQUITY 2
April 2001
With acknowledgment to Anna Brazier and Peter King
Bibliography
P.Bridgman & G.Davis. The Australian Policy Handbook, 2nd Edition. 2000
Marita Murphy and Burkhard Grahl on behalf of themselves and Sian Grahl v The State of New South Wales (NSW Department of Education) and Wayne Houston. http://scaleplus.law.gov.au.
Department of Education, Training and Employment. "Fair and Reasonable" Disability Discrimination Act Implementation Kit, 1999.
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