Lost to the Education System
Adelaide High School c 1945. Wikimedia Commons.
Public schools have persistently misused exclusionary discipline on students with disabilities. Exclusionary discipline refers to the temporary or permanent exclusion of a student from school because of behaviour that is perceived as negative, disobedient, or disruptive. [1] In NSW, laws such as the Education Act 1990 (NSW) govern the use of exclusionary discipline in public schools. However, these laws disproportionately impact students with disabilities. [2] In 2022, 17.8% of students enrolled in NSW public schools were identified as students with disabilities; among those students, 10% had been suspended. [3] Across all jurisdictions in Australia, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability found that students with disabilities were suspended more times on average than students without disabilities. [4] To ensure that students with disabilities have the right to a safe, equal, and inclusive education, we must address this issue.
The disproportionate use of exclusionary discipline on students with disabilities often arises from misinformed or prejudiced views on disabilities. [5] Educators and staff frequently misinterpret behaviours related to disabilities (such as escalated reactions) as actions intended to cause disruption. [6] However, students with disabilities frequently express these behaviours to communicate dysregulation, frustration, or boredom, especially when they cannot clearly verbalise their feelings or regulate their emotions. [7] Because this behaviour is not often intentional, exclusionary discipline fails to foster any positive behavioural change and fails to deter disruptive behaviour. [8] The Royal Commission found that many schools failed to provide reasonable adjustments to students with disabilities, as well as any support required under the Disability Discrimination Act 1992 (Cth). [9] Rather than addressing the underlying causes of this behaviour through appropriate support, schools have often responded punitively through exclusionary discipline.
Detrimental Impacts of Exclusionary Discipline
Article 24 of the Convention on the Rights of Persons with Disabilities affirms the right to an inclusive education for all persons with disabilities. [10] Article 24 states that students with disabilities should be educated in a system that fosters their full development and potential without discrimination. [11] However, exclusionary discipline denies students this right, which can severely impact their personal and social development. [12] Suspensions can severely disrupt learning, reinforce unwanted behaviour, cause social isolation, and contribute to students feeling unfairly judged or inappropriately labelled. [13] Expulsion, especially for students with complex behaviours, can lead to prolonged disengagement from education as parents navigate the process of re-enrolment in other schools. [14] Moreover, past research suggests that students with disabilities who become disengaged from education are at an increased risk of early criminalisation. [15] Therefore, the prevalent use of exclusionary discipline contributes to a disheartening reality where many parents feel effectively lost to the education system. [16]
Recently, legislators have demonstrated a commitment to addressing this issue. In 2023, the NSW Parliament established an inquiry into the experiences of children and young people with disabilities in educational settings. [17] Additionally, the NSW Law Reform Commission is reviewing the Anti-Discrimination Act 1977 (NSW) and considering the inclusion of positive obligations to prevent discrimination. [18] However, despite this progress, the NSW Department of Education recently removed the cap on the number of suspensions permitted. [19] Coupled with the alarming statistics highlighted in this article, there is an urgent need for NSW to assess its legal framework and commit to reform. Excluding students with disabilities should strictly be a measure of last resort.
[1] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, September 2023) vol 7, 161 (‘Royal Commission’).
[2] Ibid 162.
[3] NSW Department of Education, ‘2022 Suspensions and Expulsions’ (Dataset, 24 February 2023) 8 <https://data.cese.nsw.gov.au/data/dataset/suspensions-and-expulsions-in-nsw-government-schools/resource/0cffdeec-b3d6-4963-add5-dd63231175ca/view/700b990a-dd2c-4031-a334-3318b6406f5d>.
[4] Royal Commission (n 1) 163.
[5] Ibid 166; Australian Centre for Disability Law, Submission No 75 to Legislative Council, Parliament of NSW, Inquiry into Children and Young People with Disability in New South Wales Educational Settings (19 March 2024) 9-10.
[6] Royal Commission (n 1).
[7] Elizabeth Dickson, The Palgrave Handbook of Education Law for Schools (Springer International Publishing, 2018) 353
[8] Royal Commission (n 1) 166.
[9] Ibid.
[10] United Nations Convention on the Rights of Persons with Disabilities, GA Res 61/106, UN Doc A/RES/61/106 (12 December 2006) art 24.
[11] Ibid.
[12] Dickson (n 7).
[13] Royal Commission (n 1) 165.
[14] Ibid.
[15] Ibid 166; Legal Aid NSW, Submission No 28 to Legislative Council, Parliament of NSW, Inquiry into Children and Young People with Disability in New South Wales Educational Settings (February 2024); The Victoria Institute, Education at the Heart of the Children’s Court Evaluation of the Education Justice Initiative (Final Report, December 2015) 2.
[16] Royal Commission (n 1) 166.
[17] New South Wales Parliament, ‘Children and Young People with Disability in New South Wales Educational Settings’ (Web Page) < https://www.parliament.nsw.gov.au/committees/inquiries/Pages/inquiry-details.aspx?pk=3022>.
[18] New South Wales Law Reform Commission, ‘Anti-Discrimination Act Review’ (Web Page, 29 August 2023) <https://lawreform.nsw.gov.au/current-projects/anti-discrimination-act-review/anti-discrimination-act-review-terms-of-reference.html>.
[19] Youth Law Australia, Submission No 32 to Legislative Council, Parliament of NSW, Inquiry into Children and Young People with Disability in New South Wales Educational Settings (February 2024).
This article was originally published under the title ‘A Veto on Justice: Atrocities and the United Nations Security Council’ in The Brief Edition 2, 2024 — Ceci n’est pas une loi.