Accommodating difference - discrimination in schools and universities: what reasonable adjustments does the law require?

Key Points
  • Education is considered a basic human right and providers have a legal obligation to adequately accommodate individual needs.
  • An educational institution is not required to incur unjustifiable hardship in providing adjustments.
  • The legal framework is complex and varies across jurisdictions.

Discrimination in schools and universities – what reasonable adjustments does the law require?

Although laws, guidelines and other frameworks differ across the globe, the most basic guiding principle of anti-discrimination policy is identified and articulated by the preamble to the International Covenant on Civil and Political Rights, which reads, in part:

…recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

Access to education is considered a basic human right and education providers across Australia strive to support students of all abilities. Unfortunately, issues continue to arise where students believe they have not been adequately accommodated and subsequently initiate action against a service provider.

In the broader Australian context, an educational institution is not required to incur unjustifiable hardship in providing adjustments particularly in relation to adjustments which may be necessary for persons with disability. Assessment of what may constitute a hardship to an organisation is often scrutinised if complaints are referred for determination by Courts and Tribunals. 

Unfortunately, legal requirements for an educational provider are not always straight forward.

Institutions in Australia have responsibilities to counter discrimination under an extensive regulatory framework, at the State, Federal and also at an International level, under an interlocking series of United Nations treaties and covenants. The legal frameworks under which anti-discrimination activities function vary across jurisdictions and are based upon which characteristic forms the basis for any alleged discrimination. All States and Territories in Australia have some form of anti-discrimination legislation, though, of course the areas covered by these statutes vary between jurisdictions.

Understanding the legal frameworks which govern this area and developing best practice, clear policies and procedures in response can assist educational institutions and other service providers to avoid issues, and their students or clients to feel appropriately supported.

Hicksons Partner, Jennifer Parkes, has extensive experience assisting education institutions and businesses to navigate this complex area of law and recently presented at the Australia & New Zealand Education Law Association Conference on avoiding discrimination in a service delivery setting.

Post by Jennifer Parkes

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