To treat someone less favourably on what the law considers to be protected grounds, e.g. sex, race, impairment etc, risks being in breach of legislation designed to deliver equal opportunity in the community. Most of the reported cases involve an employment situation. Two recent Australian cases, however, deal with the issue of discrimination against students at school. One case concerned services offered by a school to a deaf boy and the other examined a student’s expulsion from school because of bad behaviour, behaviour allegedly caused by his intellectual disabilities.

In Clarke v Catholic Education Office [2003] FCA 1085, the applicant applied to enrol as a pupil at a Catholic secondary college. At his primary school, the applicant had the assistance of a teacher’s aide who interpreted the words of his teachers and classmates using the Australian sign language system, Auslan. The applicant’s parents wanted him to attend the secondary college as a number of his friends would be attending and, during meetings with the school, the parents stressed that they wanted their son to have the Auslan system available in his teaching assistance program. The school offered assistance to the student that included provision of teachers or assistants trained in note taking and the use of signing support “if a staff member were to have these skills and be in a position to input into the learning program”. An enrolment offer was initially accepted, and then later withdrawn.

The applicant lodged a written complaint with the Human Rights and Equal Opportunity Commission that led to proceedings in the Federal Court. The applicant alleged that the school had indirectly discriminated against him by making enrolment at the college conditional on a model of learning that did not provide for a primary mode of communication by Auslan. In assessing whether discrimination had occurred, the court considered whether or not the applicant’s offer required him to comply with a requirement or condition, and if so, whether this condition or requirement was unreasonable in the circumstances. The court answered in the affirmative on both issues, stating that the condition required the applicant to participate in class without the assistance of Auslan interpretation and that, given his hearing impairment, this placed him at a serious disadvantage to other students. The court found that the school was acting unreasonably by failing to accommodate the use of Auslan for the applicant.

In the case of Purvis v New South Wales [2003] HCA 62, the High Court considered a complaint brought by a father on behalf of a state secondary school student expelled for violent behaviour. In this case, the student had suffered brain damage as a result of illness suffered as an infant, such damage leading to episodes of aggressive behaviour.

At first instance, the Commissioner of the Human Rights and Equal Opportunity Commission found that the State had directly discriminated against the student and he was awarded damages. The decision was overturned on review by the Federal Court of Australia and affirmed by the Full Court of the Federal Court. The father appealed to the High Court.

On appeal, the father argued that the term “disability” within the meaning of ss4 and 5 of the Disability Discrimination Act 1992 (Cth) referred to both his disorder and the resultant behaviour and, as a result, his son was treated less favourably than a person who did not have that disability would have been treated. The majority of the High Court disagreed with the father’s reasoning, stating that the question to be asked was whether an ordinary student behaving in the same way would have been treated any differently, arguing that the behaviour could have resulted from a number of causes - intellectual disability being only one. The court concluded that an ordinary student behaving in a similar way was the true comparative. Any student exhibiting such aggression would have been excluded as well and, as such, there had been no direct discrimination in this case.

Both of these cases reveal that discrimination can take many forms and can occur in many different environments, not just at work.