Discrimination law and visually impaired students

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Discrimination law and visually impaired students

• Elly Gay
• Senior Legal Adviser
• Conduct Ethics Branch
• Department of Education
• Statewide Vision Resource Centre
• June 2007

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Legislative Framework

• Victorian Equal Opportunity Act 1995 (EOA)
• Federal Disability Discrimination Act 1992
  (DDA)
• Federal Disability Standards for Education 2005
• ALL of these apply to us in Victoria, ie both
  state and federal laws operate concurrently

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Discrimination

• Equal Opportunity Act 1995 (Vic)
• Protected attributes under Vic legislation
• race, sex, age, impairment, physical features,
  pregnancy, religious belief or activity,
  political belief or activity, sexual orientation,
  parental status or status as a carer, industrial
  activity, breastfeeding, gender identity, lawful
  sexual activity, marital status.
• Federal legislation also covers age, race, sex
  and disability

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Equal Opportunity Act 1995 (Vic)

• Section 37
• An educational authority must not because of a
  students impairment
• refuse to enrol a student
• admit a student on less favourable terms and
  conditions
• deny or limit a students access to benefits
• expel a student or
• subject a student to any other detriment

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Definitions

• Educational institution means a school
  (government or independent), college, university
  or other institution where education or training
  is provided
• Detriment is widely defined and includes
  humiliation and denigration, personal distress etc

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Direct Discrimination

• When someone treats you less favourably than they
  would treat someone else without your impairment
  in the same or similar circumstances
• Example unreasonably refusing to allow a child
  with a vision impairment to attend a school camp
  because the child will not be able to participate
  in some of the activities eg horse-riding,
  archery.

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Indirect Discrimination

• The imposition of a rule, requirement or
  condition which
• someone with an impairment cannot comply with
• but which a higher proportion of people without
  that impairment can comply with
• is unreasonable
• Example requiring all students to take notes
  from the whiteboard disproportionately affects
  students with vision impairments and may not be
  reasonable

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Exceptions to discrimination

• Schools may lawfully discriminate against
  students with impairments if
• The student would require special services,
  facilities or modes of access not required by
  other students and providing these would impose
  unjustifiable hardship on the school/authority
  (Federal DDA)
• The student would require special services or
  facilities and it is not reasonable in the
  circumstances to provide them (Vic EOA)

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Other exceptions to discrimination

• Schools can discriminate
• To comply with another law (eg Occupational
  Health and Safety Act)
• To protect the health or safety of any person
  (including the person discriminated against) or
  the general public
• If the educational institution is for students
  with a general or particular impairment (eg
  special schools can exclude students who are not
  impaired)

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Disability Standards

• From 2005, Federal Disability Standards for
  Education have applied
• Disability Standards are subordinate legislation
  made under the Federal DDA
• Aim to clarify and make more explicit the rights
  and obligations under the DDA
• It is unlawful for a person to contravene the
  Standards
• Compliance with the Standards means compliance
  with the DDA
• Breach of Standards means a right of complaint
  exists to Human Rights and Equal Opportunity
  Commission

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Disability Standards

• Areas covered
• Enrolment/admission
• Participation
• Curriculum development, delivery, accreditation
• Student support services
• Harassment and victimisation
• There are standards for each of these areas

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Obligations on schools

• Example of participation standard
• Take reasonable steps to ensure that the student
  is able to participate in educational programs,
  services etc on the same basis as a student
  without a disability
• Consult on whether the disability affects the
  ability to participate
• Decide whether it is necessary to make a
  reasonable adjustment
• Make a reasonable adjustment
• Consider compliance measures flexible
  activities, alternative activities, additional
  support, substitute activities
• Consider also unjustifiable hardship

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Key terms

• Reasonable adjustment
• Measure or action taken by a school that has the
  effect of assisting a student with a disability
• In assessing whether an adjustment is reasonable,
  the provider is entitled to maintain the academic
  requirements of the course or program or other
  components that are inherent or essential to its
  nature.

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Key terms

• Reasonable adjustment means taking into
  account
• the students vision impairment
• the views of the student or carer
• the effect of the adjustment on the student
  including the effect on the students
• ability to achieve learning outcomes
• ability to participate in courses or programs
• independence
• the effect of the adjustment on anyone else
  affected, including the school, staff and other
  students
• the costs and benefits of making the adjustment

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Key terms

• On the same basis
• means treating the person with a vision
  impairment on the same basis as the person
  without a vision impairment
• Same opportunities and choices
• Compared to those offered to others without a
  vision impairment

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Key terms

• Unjustifiable Hardship
• All relevant circumstances including
• The nature of the benefit or detriment likely to
  be experienced by any persons concerned
• The effect of the disability on a person
  concerned
• Financial circumstances and the estimated amount
  of expenditure required to be made by the person
  claiming unjustifiable hardship
• Action plan, if one has been drafted

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Compliance Measures

• Examples of some compliance measures in the
  curriculum development standard
• Study materials are provided in a format that is
  appropriate for the student and, where conversion
  of materials into alternative accessible formats
  is required, the student is not disadvantaged by
  the time taken for conversion.
• Any activities that are not conducted in a
  classroom, such as field trips, industry site
  visits and work placements, or activities that
  are part of the broader course or educational
  program of which the course or program is a part,
  are designed to include the student.

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Summary of Process for Schools
Step 1
Step 4
Step 2
Step 3
School must take reasonable steps to ensure
participation and access to services on the same
basis
Does the student have a disability?
School must consult with student/carer about
reasonable adjustment
School must make reasonable adjustment if
necessary
Consider compliance measures in Standards
Use Program Support Group Meetings
Good Communication is very important
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Further Information

• Conduct Ethics Branch DoE
• Student Wellbeing Branch DoE
• www.humanrights.gov.au for more information
  about the Disability Standards
• www.humanrightscommission.vic.gov.au for more
  information about Victorian discrimination
  legislation