By now, most people in the education sector would be familiar with The Disability Royal Commission.
Recently, the Commission delivered an Interim Report which included, amongst other things, a section entitled ‘Areas of Further Inquiry’.
One of the issues referred to in this section was ‘gatekeeping practices’. ‘Gatekeeping practices’ are where a school informally discourages a student with a disability (for example, a student who may be diagnosed with autism spectrum disorder) from attending the school with staff advising the parents that their child would ‘be more suited to another school’ because their school cannot cater for the child’s special needs.
In many situations, ‘gatekeeping practices’ are unlawful because the school would not have adequately discharged its obligation to consult sufficiently to determine what ‘reasonable adjustments’ the student requires and whether the school can meet those needs.
Disability Standards for Education 2005
The Disability Standards for Education 2005 (the Standards) seek to ensure that students with disability can access and participate in education on the same basis as other students. ‘On the same basis’ means that a student with a disability must have opportunities and choices which are comparable with those offered to students without disability.
Under the Standards, education providers have three main types of obligations. They must:
- make reasonable adjustments; and
- eliminate harassment and victimisation.
Obligation to Consult and Reasonable Adjustments
The requirements for schools to consult with a family whose child has special needs and to determine what reasonable adjustments are required was considered in the very important case of Finney v The Hills Grammar School.
- the Finney’s sought to enrol their daughter Scarlett, who had spina bifida, into Hills Grammar School (HGS);
- the Finney’s advised HGS of Scarlett’s diagnosis and they also provided detailed information on her condition so that the school could initiate the consultation process in order to determine what reasonable adjustments were required in order to enrol her;
- HGS subsequently gave consideration to Scarlett’s condition and ultimately decided not to offer her a place at the school; and
- the Finney’s took objection to the school’s decision and sought legal recourse through the Human Rights and Equal Opportunity Commission.
The Commission, in reaching its decision that HGS had discriminated against Scarlett, undertook an exhaustive comparison of the facts presented by the Finney’s and the School and held that the:
- investigation by the School as to the services and facilities that would be required by Scarlett was inadequate;
- inadequate investigation reflected an attitude of the School not to seriously consider Scarlett’s application for enrolment;
- School formed an unnecessarily negative view of Scarlett’s ability to access its services and facilities, based upon stereotypes and prejudices formed as a result of information obtained from sources that were not experts in Spina Bifida; and
- preferred course in gathering information about the needs of a student with Spina Bifida seeking enrolment is that it is “a combined effort” between the parents and the School.
An analysis of ‘reasonable adjustments’ cannot be looked at without considering ‘unjustifiable hardship’. Unjustifiable hardship:
- is a defence to a claim for discrimination that may be brought in circumstances where the ‘reasonable adjustments’ amount to unjustifiable hardship. That is, the cost of implementing the reasonable adjustments required would put a school in a position of financial hardship that is ‘unjustifiable’; and
- requires an assessment of what is fair and reasonable in the circumstances and it is up to the person or entity (that is, the school) to show that they will be put to unjustifiable hardship by implementing the reasonable adjustments.
In the Finney case, the Commission made it quite clear that it was reasonable for the school “to have to undergo some hardship in accepting Scarlett’s enrolment” which, importantly for many schools, extended to an assessment of how modifying the curriculum and any additional staffing costs required to enrol Scarlett, impacted on the school.
Unjustifiable Hardship Considerations
The Disability Discrimination Act 1992 (Cth) defines ‘unjustifiable hardship’ and makes it clear that “all relevant circumstances of the particular case must be taken into account”. Importantly for schools, part of these circumstances include:
- the financial circumstances, and the estimated amount of expenditure required to be made by the school; and
- the availability of financial and other assistance to the school.
So, if for example, a school has undergone some recent significant capital works projects such as the construction of a new Science Centre or Performing Arts Building or it can access some external funding to assist a student with a disability, then it may be very difficult to argue that making reasonable adjustments to accommodate the student would cause the school unjustifiable hardship.
Take Home Messages
When enrolling students with special needs, you ought to:
- treat the student in the same manner as you would for a student that doesn’t have a special need;
- consult, consult and consult;
- work collaboratively with the family;
- remember if for some reason the matter is litigated, a Court or Commission will undertake a detailed analysis of what information the parties disclosed, how and who analysed it and how the information was used to reach a decision; and
- have a comprehensive School Policy on enrolling students with special needs.
And finally, do not practise ‘gatekeeping’.
For more information contact our Education Special Counsel, Ben Foley.