Children with special needs and the right to education

Missing the mark or scoring a goal? Achieving non-discrimination for students with disability in primary and secondary education in Australia: A scoping review

“…Three articles reported primary research: Lilley (2013) reported a qualitative research study involving interviews with mothers about their experiences enrolling their children with autism in primary schools; O’Connell’s (2017) legislation and case law analysis included some qualitative findings from interviews with education, disability and legal professionals; and Walsh (2012a) reported findings from a quantitative study of primary school educators. Apart from three articles dealing with primary schooling only (Lilley, 2013; Walsh, 2012a, 2012b), the included articles covered both primary and secondary schooling. Most articles specifically discussed at least one Standard.…”

“…Walsh (2012a, 2012b) contended that the system whereby parents have to bring a claim of discrimination to conciliation, and perhaps on to litigation, is failing to ensure the rights of children with disability. Disability discrimination in education is difficult to prove, and most decisions of courts and tribunals have gone against the complainant (Walsh, 2012a).…”

“…Disability discrimination in education is difficult to prove, and most decisions of courts and tribunals have gone against the complainant (Walsh, 2012a). Walsh (2012b) suggested that one reason few disability discrimination complaints related to primary schools have proceeded to the courts or tribunals is that parents lack knowledge about disability discrimination laws and may not even recognise their situation as discrimination. Walsh (2012b) concluded that ‘discrimination law is an inappropriate mechanism for addressing disputes regarding the provision of special arrangements for children with disabilities’ and that these rights should be enshrined in state and territory education legislation (p. 39).…”

“…Some of the articles (Dickson, 2014, 2019; Smith, 2012) pointed out that, while it has been difficult for State education providers to claim unjustifiable hardship because of financial costs, recent case law, such as Sievwright v State of Victoria (2012), indicates that there has been some shift towards the view that State education resources are finite, and there will be instances where adjustments will be deemed not reasonable because of their cost. In some legal cases, detailed examinations of budget allocations have been conducted and contributed to findings of non-discrimination on the part of State education departments refusing to commit expenditure to, for instance, one-on-one full-time teacher aide support (Walsh, 2012b).…”

Queensland’s new right to education:What does it mean for children with disabilities?

“…In a review of disability discrimination complaints against primary schools between 2003 and 2014, it was found that the further down the complaints-process that parents went, the less likely they were to receive a remedy. 50 Of the 28 reported matters that progressed to a court or tribunal during that period, the complaint was upheld, and remedy ordered, in only four matters; a further two were settled out of court. However, of the 23 reported conciliations during the same period, 22 complainants received a remedy, including apologies, financial compensation, review of the school's policies, additional teacher aide support, modification to infrastructure, provision of special equipment, review of enrolment procedures and reversal of decisions.…”