Implementing the right to education for children with disabilities

I wouldn’t know where to start! But, like all politicians, I would inevitably bring with me a number of personal biases, interests and passions. I am a mother of a school-aged child with multiple disabilities, so the area that currently captures most of my time and attention is the education of children with special needs. This is an area in need of urgent reform and, to me, it seems like a good starting point, particularly in light of the recent Gonski Review of Funding for Schooling. The most recent statistics suggest that around one in 12 Australian children have a disability. The most common disabilities experienced by school-aged children are intellectual and learning disabilities, physical disabilities and sensory and speech disabilities. These children experience difficulties with their learning, social acceptance, communication, participation in sports, seeing and hearing. Yet, 89% of these children attend mainstream schools – only 3% attend special schools. Special schools are generally targeted at children with the most severe of disabilities, and they have strict eligibility criteria. This means many parents have no choice but to enrol children with disabilities in a regular school, despite their special needs. There is no option in the middle.

Obviously, children with disabilities require significant levels of support if they are to successfully integrate into a mainstream classroom environment. Children with disabilities comprise around 7-8% of all children in mainstream schools, but the Gonski Review reported that less than 5% are considered eligible for extra educational support by State and Territory educational authorities. This means that a significant number of children with disabilities receive no additional assistance to facilitate their participation in, and enjoyment of, school. And I can tell you from experience that those who do receive extra educational support rarely obtain all the support they apply for and require.

What is most surprising is that these children have no legislative right to any assistance or support. Australian children have no right to an education, let alone inclusive or appropriate education, and there is no legislative entitlement to educational support for children with special needs in any State or Territory. This sets us apart from both the US and the UK where there exist legislative rights to education, and where educational authorities are obliged to provide children with disabilities with the support they require for full educational participation.

In Australia, if parents and educators are unable to successfully lobby their State or Territory educational authority to obtain the support required, in most jurisdictions, the only avenue for redress is discrimination law. The Disability Standards for Education (made pursuant to the Disability Discrimination Act 1992 (Cth)) require educational authorities to make ‘reasonable adjustments’ for children with disabilities. According to the Standards, these ‘reasonable adjustments’ should assist a student with a disability to enrol or participate in courses or programs, or use the facilities or services, of an educational institution on the same basis as a student without a disability. The Standards are currently under review, which is needed because, despite their promise, no educational provider has, to date, been held by a court to have contravened them. In fact, they have only been discussed in a handful of reported cases.

The 2009 amendments to the Disability Discrimination Act 1992 (Cth) are also promising. These amendments added to the definitions of direct and indirect disability discrimination, such that a person can now be found to have discriminated against a person with a disability if they fail to make ‘reasonable adjustments’ for them. The problem is that ‘reasonable adjustment’ is defined as ‘an adjustment that would not pose an unjustifiable hardship’ on the discriminator. This is woefully inadequate. Unlike the Convention on the Rights of Persons with Disabilities, or even the Disability Standards themselves, there is no guidance on what the reasonable adjustment should aim to achieve. There is no legislative requirement that the reasonable adjustment be aimed at ensuring the person with disabilities is able to enjoy and exercise their rights on an equal basis with others, for example.

Regardless, is disability discrimination really the most appropriate avenue for redress? It’s certainly not an effective one. Between 2003 and 2011, there were only 17 cases of disability discrimination brought against primary schools in Australian courts and tribunals. In only four of these cases did the complainant receive some kind of remedy. The legal tests are not easily applied in these cases, in fact, in one case the tribunal was actually unable to determine what the characteristics of the comparator should be.

My experience, and my research, suggests that children with disabilities have little to fear from their educators or their classmates. There is a significant degree of goodwill from teachers and principals towards these children. And their classmates, particularly young children, often accept them with open arms. Individual differences apply, of course, but these children experience less blatant discrimination at school than one might expect. Their difficulties are more systemic, than personal, in nature.

Despite the fact that education is not an area of Commonwealth legislative responsibility, there are at least two things I, as Federal Attorney-General, could do to improve the situation. First, based on the Convention on the Rights of Persons with Disabilities, I could create a legislative entitlement to education, including a requirement that children with disabilities’ individual requirements be reasonably accommodated in educational settings. Second, I could provide generous targeted grants to the States to fund special educational services for children with disabilities, consistent with the findings of the Gonski Review.

It makes good sense to mainstream children with disabilities. They have so much to teach us. They have the ability to inspire, and to bring out the best in, our able-bodied children. Many of them have the intellectual capacity to perform academically at the same level as their peers. Their opportunities should not be limited. But my fear is that, like deinstitutionalisation, ‘inclusive education’ will be looked back upon as a great idea that had huge potential, but was too under-resourced to ever work. The whole idea may need to be re-thought. But as long as we insist upon it, all children deserve their classrooms and teachers to be appropriately resourced and supported to make inclusive practices as successful as possible.

Dr Tamara Walsh is Associate Professor at the T.C. Beirne School of Law at The University of Queensland. Her most recent book is Homelessness and the Law (Federation Press, 2011).