Disability Discrimination in Education: A Mixed-Methods Study Examining Complaints About Compulsory-Aged South Australian and Victorian Students with Disability-Related Challenging Behaviour

Abstract

Internationally, children and young with disability have a fundamental human right to both ‘education’ and ‘inclusive education’. However, only the Australian Capital Territory and Queensland incorporate certain aspects of the former right in their human rights Acts. No Australian law seeks to implement a right to inclusive education. While most Australian jurisdictions have no statutorily expressed right to education, let alone inclusive education, all states and territories, and the Commonwealth, recognise that every student should have access to primary and secondary education free from unlawful discrimination. This recognition is derived from the concurrent operation of compulsory education schemes and applicable anti-discrimination frameworks. Despite this legal landscape, existing research suggests that students with disability-related challenging behaviours access fewer educational opportunities than other learners with disability and their non-disabled peers. But little is known about the prevalence of this issue. Nor do we know how (if at all) the conflict inherent in such complaints is resolved. This is because the current complaint pathways are all confidential. This doctoral research is an exploratory study investigating this gap by examining the educational rights afforded to compulsory school-aged South Australian and Victorian students with disability-related challenging behaviour. In doing so, it considers how these students and their supporters attempt to seek redress under the students’ anti-discrimination protections at both state and federal levels. This is achieved by employing a ‘mixed-methods’ approach across three phases to understand how anti-discrimination law is working in practice. The three phases are (1) a doctrinal review of Acts and literature relating to educational rights and protections, (2) a questionnaire addressed to three equality agencies, and (3) semi-structured interviews with dispute resolution practitioners and family-member advocates who have supported students in these education complaints. The research findings lead to both a critical appraisal of the applicable laws and processes, as well as an investigation into the different levels of satisfaction experienced by the two stakeholder groups. This is achieved by reporting on otherwise confidential information to determine how the complaint pathways are working, and the situation post-complaint. This gives a voice to users of resolution processes who are often not heard.