Disability discrimination law – what you need to know

Preventing direct and indirect discrimination against all students should be top of mind for all school leaders – but what do you need to know about this potentially confusing area of law in relation to students with disability?

Consider this scenario: A student comes to you early in the term and says she is really upset because she has been told by the sporting master that she is not allowed to play basketball because she is a safety risk. She has autism. What would you do?

One of the most challenging elements of K-12 education is ensuring that all students are treated equally, and with respect and dignity at all times. Ben Fogarty, Barrister at Denman Chambers, outlined the essentials of what school leaders need to know about disability discrimination law at the recent Education Law Masterclass.
From the outset, Fogarty suggested leaders simplify the complexities of their legal responsibilities by keeping in mind “the three -ives”. That is, be: pre-emptive, responsive and collaborative.
Some understanding of relevant laws and Standards also helps. These include:
  • Disability Discrimination Act 1992 (Cth) – ‘DDA’
  • Disability Standards for Education 2005 (Cth) – ‘Standards’
  • Anti Discrimination Act 1977 (NSW) – ‘ADA’
 What is the interplay between the DDA and Standards?
  • A student can argue both or just one in Complaints and Court cases
  • A breach of the Standards is a contravention of the DDA
  • The Standards broaden the protection of the DDA
Next, principals must be aware of what is unlawful under the DDA. This can be distilled into two fundamental areas:
Direct discrimination: treating a person less favourably because of their disability. For example, demanding a parent attends all excursions and after school activities to supervise her son who has autism. Was this action taken because of the disability? How were other students without disability treated in the same circumstances?
Secondly, indirect discrimination. That is, imposing a term or condition, even inadvertently, where the effect is that a person with disability cannot comply with that term or condition. For example, refusing a deaf student in-class Auslan interpreting for every hour of class. Is it reasonable in all of the circumstances?
Failure to make a reasonable adjustment may amount to direct or indirect discrimination. This might include failing to provide electronic (accessible format) class materials (eg handouts) before class to a blind student. Other unlawful conduct might include harassment and victimization.
Schools hold duties to:
  • Ensure a student with disability can participate on the same basis as students without disability
  • Consult about reasonable adjustments
  • Make reasonable adjustments
  • Take reasonable steps to make adjustment within a reasonable time
  • Prevent victimisation and harassment
However, it’s not all one-way; there is a balance to be struck. ‘Rights’ under the DDA and Standards must be balanced with the ‘rights’ of others. However, evidence will need to be shown that the options, alternatives and the impact of any action were all considered. A fair and reasoned decision-making process must be demonstrated, which is not based on what happened with another student.
There are defences/exemptions in the DDA and Standards:
  • An act was not done because of disability
  • An act was reasonable in all of the circumstances
  • To avoid the discrimination would have caused ‘unjustifiable hardship’
  • Academic integrity / Inherent requirements of a subject or course
  • Acts done in strict compliance with another law (eg complying with WH&S laws) 
Forgarty also suggested some practical tips when dealing with complaints:
  • Consult with the student (and, if applicable, their parents/carers )
  • May need to consult OT’s and other experts
  • Decide on what adjustments are necessary
  • Make adjustments within a reasonable time
  • Allow for changing needs over time
  • Have policies  on harassment/victimisation in place AND ensure staff know and follow them
  • Remain objective when a complaint is raised
  • Don’t delay
  • Listen to the student (and parents)
  • Keep student and parents informed
  • Keep contemporaneous written records
  • Be careful what you write in records (including emails and social media) 
Finally, Fogarty emphasised that many disputes could be resolved very early on by following pro-active, transparent and common sense processes – and urged school leaders to always consider the ‘3 -ives’ outlined earlier: be pre-emptive, responsive and collaborative.