Walker vs State of Victoria and Disability Discrimination

By Rebecca Devitt

DATE: 15 June 2011

A recent Federal Court ruling has highlighted the lack of protection for students who have severe social and behaviourial disabilities.  The Walker family sued the Victorian Department of Education for discriminating against their son who suffers from multiple disabilities including Aspergers Syndrome and dyslexia, but the court ruled in favour of the department and found that no discrimination had occurred against the family.

In the case Walker v State of Victoria (2011), the Walker family claimed that their son, Alex  was not allowed to attend his high school full time during 2007 and was prevented from being on school grounds at lunch and attending school excursions.  The boy, who also has attention deficit hyperactivity disorder was also banned from travelling on a school bus, which meant an 80-kilometre return trip for his mother.

Federal Court justice Richard Tracey in his decision found that the department of education did not discriminate against the family and the department had made every effort to accommodate Alex’s needs, including the funding of an aide to support Alex.  The court noted however, that when Alex was supported one-on-one (full-time) his behaviour was satisfactory and when this changed after a year, his behaviour regressed and he became disruptive.

Commenting on the case, Murray Dawson-Smith, CEO of Autism Victoria stated that his concern was that when receiving one-on-one support Alex appeared to manage school reasonably well and questioned the ability of the school to retain funding for the aide.  Dawson-Smith stated that “given that when he had one-on-one full time support he managed school, I can only suggest that had this continued in the same way with the same set of skills by the aide perhaps the outcome for Alex may have been different”.

The case has raised questions about the ability of Australian law to protect children with a disability from discrimination. According to Bob Buckley, Convenor of Autism Aspergers Advocacy Australia, the case reflects a lack of understanding and support for children with social behavioural disabilities, as the Federal Court consistently referred to the efforts of the student with Asperger’s Disorder to communicate and participate as “misconduct.”

According to Mr. Buckley the Federal Courts decision “supported the harassment by the school of people who complain under the Disability Discrimination Act and the consequent exclusion of people with a disability from participation in their community.”

In Australia, children with a disability, particularly those with a behavioural disability are subjected to routine discrimination. They are excluded from school and denied an effective education when the school does not have the resources it needs to support such students.  In a previous High Court case, Purvis vs NSW, the court decided that a child who behaved in a dysfunctional manner can be excluded from any and all schools. The state has no obligation to educate such a child. This exclusion from education is contrary to the child’s right to an education under Articles 23, 24 and 28 of the Convention on the Rights of the Child.

The Walker family has been ordered to pay the education department’s legal costs.

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  • Kylie

    Perhaps the state should change their policy “no child left behind” – as if this were advertising it would be considered false or misleading!

  • Ian Rogers

    Clearly we have a “legal system” and not a “justice system”. How can Australia justify its criticism of other countries human rights performance when it can’t get the basics right at home?

    It is good that Australians are so keen to protect animal rights overseas, but I am deeply embarrassed that they do nothing when Aussie schools treat children with autism inappropriately (see http://www.abc.net.au/news/stories/2011/05/18/3219892.htm)

  • Michelle

    The number of children being diagnosed with Autism Spectrum Disorder now means that more schools or more funding need to built/allocated. We are so happy to let refugees in, or fund detention centres, but, what about our kids. These kids, like all kids, are the key to our future, not rejects to be ignored. Given the proper interventions ASD kids can be productive adults. The government needs to be accountable, the buck has to stop there. Help the kids, help the parents, help the schools.

  • Sam Connor

    Absolutely outrageous.

    The DDA now expressly provides that the failure to make ‘reasonable adjustments’ may constitute either direct or indirect discrimination.

    How, then, did the magistrate arrive at the conclusion that the case should be dismissed? Clearly, the failure to provide full time aide assistance (when it had been identified that one on support was suitable) impacted upon this child’s experience at school.

    Some of the comments are astounding. ‘It must fail because it cannot be said that the Department (or Branxholme) would have treated another student without Alex’s disabilities any differently from the way in which it treated Alex.’ What? If a student’s behaviour is clearly identified as being a consequence of their disability, they should be treated in the same way as a student without disability? Have these people even READ the DDA?

    Where are the records of support and transdisciplinary case conferences and attempts to implement classroom (and out of classroom) behaviour in a positive, not negative way? Did anyone bother to find out why Alex was consistently angry and aggressive towards other children? Was he being bullied at school, and if the records show that he was ‘making progress’, how was that measured? Just because a student is improving academically, it does not measure the impact on their emotional life.

    There are enormous issues with our school system and the way we treat students with autism. Should we let them be violent and aggressive towards other students? No. Should we address the antecedence of these issues to identify what kind of support they need, then work together in a supported environment to address the behaviours?

    By handballing kids with behaviour issues from school to school, we are reinforcing to the child that the child with disability is ‘not wanted’, that they have no right to be included as other Australian kids are. Makes you wonder what kind of impact that will have on that child when they become an adult.

  • Vicki

    This is disgusting and an outrage-but sadly doesnt surprise me.The term’inclusion’ is clearly nothing but lip service in our ‘justice’system.When is our system going to open it’s eyes to the long term benefits of adequately supporting and edifying our children with special needs and help them realise their often astounding potential?If this wasn’t discrimination then just What is???

  • Vicki

    As for the family having to pay the education department’s legal costs-for shame!

  • Tracey

    The new slogan for Northern Territory schools is ‘every child every day’ yet exclusion, suspension and expulsion due to inadequate servicing of special needs means that the whole policy is a joke especially when the parents can now be fined for their child not attending. Anyone would think a new parent looks at their newborn and says please make this child autistic so that they can go through life having hurdles thrown in their way making our lives as difficult as possible because I want my child to be rejected and tormented every step of the way.

  • Livian Jones

    I have SO much I want to say that you haven’t got enough space here for it…but here goes…
    Obviously not enough research was done into understanding what exactly having Aspergers means for day to day functioning…here is a hot tip…THE KID WAS NOT DISPLAYING ANY MISCONDUCT!!!! Part of having ASD/autism/Aspergers is AN IMPAIRMENT IN SOCIAL INTERACTION AND BEHAVIOUR!!!!
    I agree with everything Sam Connor said! Whilst I certainly don’t advocate putting anyone in danger, I fail to see where reasonable assistance has been provided to this child and his family…what happened to the notion of every child has the right to an education in a supportive environment?? Where was the support here? On what evidence was this decision reached?? I have had nearly 25 years experience supporting people with disabilities and for the life of me, I can see no justice in this atrocity what so ever…
    i also have a son with autism…and when I read tragedies like this, I fear for his education future!!!
    Another shining example of a ” one size fits all” approach to an issue that obviously didn’t fit any of their moulds!!!! This form of discrimination has been on television, every day life, now our schools….where next?
    And the biggest crime of all is the family have to pay legal costs!! GO THE AUSTRALIAN WAY!!!

  • Kate Berrill

    Those of us with children with a disability, and in particular those of us with children that have the ‘invisible disability’ label (grrrrr) are left with little or no choice in terms of educational settings for our kids, and are generally left with no option but to enrol our children into state mainstream settings…. Like it or not.

    In this country every child has the right to access a fair and equitable education. The DDA clearly states that schools have an obligation to make reasonable adjustments to accommodate the additional needs of students with disabilities. This case illustrates the glaring lack of equality, equity and social justice that children with disabilities and their families face constantly.

    These children and their families recognize these disabilities and needs and provide daily assistance/ therapies to support their children’s academic and behavioural needs. Families take responsibility for this, and we are assured that schools are accountable and responsible to do the same.These children deserve the same rights to nurture their ‘diffabilities’ and have their academic and behavioural needs addressed as neurotypical children do to nurture their ‘abilities’ and have their academic and behavioural needs addressed.

    This case suggests that the education system in this country is able to inconsistently quantify the level of assistance that some students receive before their needs or behaviours are deemed ‘inappropriate in an educational setting that is obliged to cater equally and appropriately for all.

    Clearly it seems that some students are ‘more deserving’ of a fair, equitable and appropriate education than others.
    Shame, shame shame.
    Australia the lucky ‘for some’ country.

  • Val Francis

    This case is so sad and I feel very deeply for the Walkers. These kids if given half a chance can probably be a very useful and productive member of society. I am sure their son will be – but at what cost to his parents health and wellbeing. Thank goodness they are the sort of parents who are concerned for the rights of their child – Thank you for trying as it illustrates the inequity and injustice in the education system and society as a whole. And to THEY had to pay the education dept legal expenses!!!! I agree SHAME SHAME SHAME.

  • kerry symonds

    This case is indeed a sad indictment of the Australian human rights of people with disabilities not having fair access to basic education or a fair judicial system which allows this mistreatment to continue. Students within the education system are labelled uncooperative if their behaviour is unmanageable they are promptly exited from the system as “In the too hard basket” and there they forfeit their right to education because the staff don’t want to deal with the problem. Then when the parents protest they meet a solid wall of silence and an unwillingness by the education department to clarify or justify what is happening then treat the family as though they are the problem. I say well done to the Walkers for standing up to the department. Their son deserves the right to access education regardless of gender, race, culture, abilities or disabilities and I find it heartbreaking that a family has to fight for this right and then for their sons rights to be disregarded by the judicial system is archaic to say the least. The Australian education system needs to reevaluate policies and procedures put in place to deal with special needs students and its willingness to provide a fair system for all. Hopefully the rolling out of an Australian wide curriculum and the Quality accreditation assurance systems will provide the beginnings of a fresh approach.

  • Anna

    What education revolution? Having a high functioning Autistic child about to enter high school, all I have noticed is a cut to funding. No education revolution for us! The rules for special needs funding have changed since my child was first assessed and the assessment is now intentionally very tough and draconian (no doubt due to budget cuts). Unless your child is now severe enough to qualify for a special school, you can forget about intermediate funding and assistance. Other countries do this so well, yet Australia seems to be regressing and cutting the funding to the children who need it most. It is now near on impossible to get funding for these high functioning ASD kids in schools. Next step for us is to go it alone into high school and hope that we can somehow get through it. Every day can be a battle with an ASD child. Fortunately for us, our child does not have behavioural issues, more so lacks educational, organisational and social aptitude. My heart goes out to the Walkers. Devastating decision made obviously by someone with no understanding or experience of the disability. Thank you for trying. I can only hope that one day, with one common voice, we can get some changes and make a difference for these children.

  • lexie

    This article made me cry, I am going through the start of this process, my son (7) have global delayed development, he has 5x the adult amount of adrenaline pumping through his system, He has been diagnosed with O.D.D severe separation and anxiety. He does not in the eyes of the education department qualify for a teachers aide even. His is borderline I.Q Every document we have from every professional states that my son needs one on one attention and yet still the department is ignorant to his needs. We have tried to apply for an aide under the critical needs, language and behavioural needs, but each application we put in the department rejects. Their own independent psychologist from lewis and lewis recommended that my son needed a teachers aide full-time at school. And still the department cannot fit him into one of their boxes and until they do my son will continue in mainstream school with no help, and due to the borderline I.Q he does not qualify for a special needs school. The system is so heartbreaking it is unbelievable

  • ASD Association

    What an absolute disgrace! This is not acceptable, inclusive education. ASD (A School Development) Association aims to change this. We are currently devising a stream of education that focuses on the best possible learning outcomes and learning environment for children with Asperger’s Syndrome and High Functioning Autism. Our aim is to integrate into a mainstream setting just as the Montessori and Steiner streams of education have at some government schools. Follow our journey, or ask questions at our facebook page – ASD Association. To Alex and his dedicated parents, we are truly sorry that you have been let down not only by the Dept. of Education but by our court system.

  • Being Honest here, But I personally think the Dept Of Justice is showing its Personal Hatred towards all those Disabled, not the 1st time its happened, probably won’t be the last.