Emil Ford Lawyers

Disability and Discrimination

If a school suspends or expels a student with a disability, is it discrimination? As you would expect, it all depends on the circumstances for that suspension.

Joseph was a student with Down ’s syndrome who was temporarily suspended by his school. The school claimed that Joseph ran away from class on four occasions, threw an object from a balcony which hit a teacher and would not take instructions from his teacher. As a result of these occurrences, the Principal arranged a meeting with Joseph’s parents to discuss his behaviour and suspended him from school until that meeting. 

These may seem like reasonable steps for the school to take in regard to a student behaving in such a way. However, Joseph’s parents claimed that Joseph was expelled from school on account of his disability, which was unlawful discrimination under the Disability Discrimination Act.

The parents brought a case of discrimination against the school. The Court had to consider whether by excluding Joseph the school treated him less favourably than it would treat a person without his disability in circumstances that are the same, and if so, whether or not Joseph had suffered loss or damage as a result.

The Court found that Joseph had not been treated less favourably by the school than a person without his disability would have been treated and that Joseph had not been suspended because of his disability, but rather because of the school’s concerns about its duty of care to the teachers and other students. Therefore, the school’s actions were found not to be discriminatory and the Court was not required to consider whether Joseph suffered loss or damage as a result.

This result of this case is quite different to that of a student named Jess with intellectual disabilities. His disabilities include auditory short-term / working memory delay, expressive language impairment and symptomatic behaviours of concern. Jess claimed that his school had contravened the Disability Discrimination Act by: refusing him full-time enrolment and attendance at school, suspending him in the middle of 2016, expelling him in August 2016, forcing him to undertake a particular assessment task, failing to provide certain reasonable adjustments to enable him to access the school curriculum, and requiring him to adhere to the school’s behaviour management policies.

Jess also alleged that the school contravened the Competition and Consumer Act, arguing that the education services provided to him were not rendered with due care and skill and that various representations made to him by the school were false and misleading.

The school denied any liability for discriminatory conduct; however, it did make an offer to settle. This suggests that Jess’ case had some strength.

These two cases serve as a reminder to schools that the Disability Discrimination Act states that it is unlawful for a school to discriminate against a student on the grounds of their disability. This includes  both prospective as well as current students.  When a school does have to exclude a child with a disability, it is not considered discrimination if the reason for the exclusion is not the disability but rather the school’s concerns that it would breach its duty of care to the other students and the teachers if this child was not excluded.

Do you have a question about discrimination or duty of care? Please contact , or to discuss any questions you may have. 

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