BB v State of Queensland  QCAT 496, provides insight into the importance of considering the needs and interests of the student, other peers in the classroom, and the wider community.
A student at a large Brisbane state school had type 1 diabetes mellitus. This manifested in inappropriate behaviour, including low stress tolerance, intolerance of other children, difficulty coping with instructions, and an inability to control his temper.
The school implemented a Transition Plan, which initially limited the student's hours of attending school, with the intention of increasing attendance to full-time after developing a better understanding of the student. However, due to the student's repeated misbehaviour, he was later excluded from the school grounds and ultimately suspended. The school also proposed that the student be segregated from the normal classroom to provide him with an opportunity to build relationships with a new teacher in a less sensory-arousing environment.
The parents were dissatisfied with the school's approach and did not believe that the school's treatment of their son was in their son's best interests. The parents claimed that the school had directly discriminated against their son.
Did the school directly discriminate against the student?
Under the Anti-Discrimination Act 1991 (Qld), schools are prohibited from discriminating against a student with an impairment by denying or limiting their access to any benefit from their enrolment, or by excluding them or treating them unfavourably in connection with their training.
The Tribunal considered whether the school treated the student 'less favourably' than a comparator student without an impairment, but with the same behavioural issues. It then considered whether this was on the basis of the student's impairment. Importantly, the Tribunal viewed the school's evidence favourably because it was consistent with contemporaneous written records and delivered within a framework of professional concern for the student and community as a whole.
First, the Transition Plan was implemented to assist the student's transition and to minimise the need to address his misbehaviour with suspension or exclusion. Minimising the need to impose these sanctions with fewer attendance hours on an interim basis was not 'less favourable' treatment on the basis of his impairment. Within the context of the student's behavioural history, the school's approach was understandable.
Second, the student was excluded from the school grounds and ultimately suspended because of his repeated behaviour. Other students without diabetes but who had engaged in similar behaviour had also been removed from the school grounds or suspended. Therefore, the suspension was not 'less favourable' treatment.
Last, the purpose of proposing to segregate the student from the normal classroom was not punitive, but rather to support his learning. The student was not excluded from the class because he was located near other students and was encouraged to re-join when he felt ready. Removing the student from a situation of potential stress did not mean 'less favourable' treatment on the basis of his impairment.
The Tribunal concluded that the school treated the student no less favourably than it would have treated a misbehaving student without the impairment. The intervention taken was elevated according to the student's behaviour, rather than his impairment. The school did not act in bad faith, and it made appropriate allowances for the impairment according to the needs and interests of the student, his peers, and the wider community.
The parents' application was dismissed as there was no evidence of direct discrimination.
Students with an impairment cannot be treated any less favourably than other students. However, students may still be disciplined and managed in circumstances where another student without the impairment would be disciplined if they exhibited the same behavioural issues.
It is important to make contemporaneous written records when dealing with students and parents as, in this case, this resulted in the Tribunal viewing the school's evidence favourably. To understand how you can make effective written records, read our Five top tips for effective notetaking in schools
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.