Constitutional and legislative framework for inclusive education in Australia.

Forlin, Chris

IN this article we argue that, despite the complex arrangement of laws and policies for education in Australia, there is no legal mandate to ensure that inclusive education occurs. Although the legislative framework for inclusion appears deficient compared with other western countries, there are avenues for persons with a disability to seek redress. The legislative structure for education in Australia is presented from a constitutional basis. The duties, rights and responsibilities of teachers, specifically when including children with disabilities in their regular classrooms, are examined from a legal perspective. Finally, recent cases which have challenged regular class placements for children with disabilities are reviewed.

Introduction

As countries have increasingly adopted inclusive approaches to education, their policies have reflected the need to ensure equitable educational practices for all children. International legal systems have formed a model by which educators have viewed the process of inclusion. Frameworks for determining the rights of a child to education originate in a number of international declarations and recommendations such as the Charter of the United Nations (1945) and the Universal Declaration of Human Rights (1948). Children's rights to education have been enhanced further in the United Nations Declaration of the Rights of the Child, 1959 (Osmanczyk, 1985) where the initial responsibility for the education and guidance of the child is bestowed upon the parents. In Principle 7 of this Declaration, the right to education provides reference to the need for both `equal' and `full' opportunity for a child's moral and social development. Equality of education is promoted in the International Covenant on Civil and Political Rights: UN 1966 (Osmanczyk, 1985). This Covenant includes a generality clause: `All persons are equal before the law and are entitled without any discrimination to the equal protection of the law' (Article 26).

The foundations for ensuring the rights of all children to education were first established by the United Nations (UN). These rights were then incorporated into national documents which formed the principles upon which educational policies were developed. Although the rights of a child to education have been established by international agreements, it is the interpretation of these rights that is crucial to the implementation of the fight of all children to access similar educational opportunities.

Since the early 1960s, the UN has promoted greater awareness of the educational needs and rights of children with a disability (Convention against Discrimination in Education, 1960; Declaration on the Rights of Mentally Retarded Persons, 1971; Declaration on the Rights of Disabled Persons, 1975; International Year of Disabled Persons, 1981; Decade of Disabled Persons, 1983-1992) (for UN and international agreements, see Osmanczyk, 1985). These initiatives have been aimed at full participation for people with a disability by promoting the development of positive attitudes and by the provision of appropriate physical, social, economic and educational opportunities for persons with a disability. The most recent UN framework regarding the fight of a child to education is the United Nations Convention on the Rights of the Child (1989). This has generated formal commitment by over 107 countries and states, 35 of which are signatories (Alston, Parker, & Seymour, 1992). The Convention imposes a series of duties owed to a child and/or the child's parents or guardians, and promotes the `best interests of the child' principle (Poiner, 1996). In addition to the right of a child to education, the Convention specifies that this should be on the basis of equal opportunity (Article 28(1)).

An important outcome of the UN recommendations on the protection of human rights, including the right to education, lies in their influence on law and practice in the international community (Baehr & Gordenker, 1992). The UN established that children are considered to have the right `to education' on the basis of `equal opportunity' and to the development of their `fullest potential'. In many instances, this has been interpreted to mean the inclusion of all students, regardless of disability, in regular classrooms. The UN has promoted greater commitment to inclusion by advocating the principle of equity throughout the whole school system. Inclusive education incorporates the notion of social justice and considers the education of students with a disability to be an issue of equity, rather than simply one of placement (Ashman & Elkins, 1994). Inclusive education also implies a need to reconsider and reform school curriculum in order to cater for all children.

The UN has provided the stimulus for individual countries and states to develop their own code of ethics and legislation. The rights of a child to education, as advocated by the UN, are reflected strongly in the legislation that has emerged in the United States of America (USA).

Educational provision for students with a disability in the USA

In the USA, the education of children with a disability has been determined by federal and state law, the civil rights movement and associated court cases together with changing social and political beliefs (Friend & Bursuck, 1996). Federal and state laws reflect the UN principles of ensuring that all children have the right to equitable educational opportunities. In addition, legislation has been affected strongly by the outcome of key court cases which directly influenced the introduction of the first public law to establish federal guidelines for special education services. In Brown v. Board of Education (347 U.S. 483, 1954) it was established that it was inequitable to discriminate by segregating specific children and denying them access to certain schools. The Pennsylvania and the Mills cases established the principle of providing a free public education for all students regardless of disability.(1)

Together with Section 504 of the Vocational Rehabilitation Act (1973), which enforced the principles of non-discrimination towards people with a disability and of equal educational opportunities for them, these cases were instrumental in promoting the Education for All Handicapped Children Act (PL94-142, USA, 1975). Subsequent interpretations of the Act conclude that a child should be placed in the `least restricted environment' (LRE). This Act was reauthorised as PL101-476 the Individuals with Disabilities Education Act (IDEA). IDEA reaffirms the major provisions of the earlier legislation but uses the preferred term of `disability' as opposed to `handicap' and reflects greater emphasis on inclusive education for children with severe disabilities. Under this Act, children whose educational achievements are affected by one or more of the following disabilities are entitled to receive special education services: mental retardation, learning disabilities, speech or language impairments, deaf-blindness, serious emotional disturbance, autism, hearing or visual impairments, orthopaedic impairments, traumatic brain injury and other health impairments.

Together with landmark cases, the federal laws provide a basis for ensuring non-discrimination with respect to children with a disability, their equal access to appropriate education, and the financial provision necessary to support them. In the United States, inclusion is considered to be a right rather than a privilege as defined in IDEA's requirement to prohibit the placement of a child with a disability outside a regular class if inclusion, with appropriate support services, can be achieved satisfactorily. There are also significant legislative frameworks in the United Kingdom (UK) for inclusive education.

Educational provision for students with a disability in the UK

England and Wales have a key document, the Code of Practice, which was prepared by the Department for Education (1994), on the identification and assessment of children with special educational needs. This document sets out the legal position in respect of children with special education needs (SEN). Although the document does not legislate formally for inclusion, it does include the following presupposition in favour of inclusion:

 Children with special education needs, including those children with
 statements of special educational needs, should, where appropriate and
 taking into account the wishes of their parents, be educated alongside
 their peers in mainstream schools (Department of Education, 1994 1:2).(2)

Although the Code has national implications, it is the local education authorities (LEAs) who have the legal responsibility for SEN provision. Consequently there is noticeable variation in the degree to which inclusive education is practiced among LEAs. Some authorities are highly inclusive whereas others maintain a segregated special school focus, although most LEAs provide a continuum of services.

Compared with the legislation in the USA (IDEA), whereby educational provision for children with a disability is seen to be a right, in the UK the duty to provide education for children with a disability is prescribed in law and policy.

Inclusive practices in Australia

Many of the arguments applied to educational practices in .Australia have emanated from other legal systems. In particular, the move towards inclusive education has been influenced greatly by PL 94-142 and the IDEA in the USA. The outcomes of the recommendations contained in these two acts have been a major influence on policy development in Australia for the education of children with a disability. Specifically the recommendation for an appropriate education in the `least restricted environment' is reflected in most Australian policies.

Written formulation for the protection of the interests of all children in Australia regardless of disability, to equal educational opportunities, :is located in an array of commonwealth, state and territory statutes, ordinances, regulations and court decisions. Statutory provisions are to be found in several acts, including anti-discrimination and disability services legislation, education acts and health and safety legislation. Although a child's right to education is not sated explicitly in any Australian law, these acts reflect the principles contained in the UN agreements.

The Commonwealth Government, unlike the federal system in the USA, or the Department for Education in the UK, has no specific legislative powers in state education, although it does have an influence over educational policy making via funding arrangements. A lack of national legislation regarding the education of students with a disability is seen by some to provide both a strength and a weakness (Friend 87 Bursuck, 1996). It can also be argued that, with the current trend throughout Australia towards decentralising education and the devolution of management to individual schools, the absence of appropriate federal legislation may result in inequality of service provision to students requiring additional support (Forlin 8: Forlin, 1996).

In 1994, a ten-year framework for commonwealth departments and agencies was produced (Commonwealth Disability Strategy, 1994). This framework reflects a change in Australia from a welfare perspective to one which is fights based regarding meeting the needs of people with a disability. According to the Commonwealth disability strategy report (1994), `Australia is committed to the principle of equal opportunities for children, youth and adults with a disability in integrated settings in primary, secondary and tertiary education' (p.28). Currently, in most states and territories, education provision for children with a disability concludes at the age of 18 years when they are deemed to be no longer eligible under state education acts. Although several cases have `been brought which challenge this position (e.g. Hashish v. The Minister for Education of Queensland (1996) EOC 92-806), they have all been unsuccessful.

Legislative structure for education in Australia

The structure and function of education law in any country emanates from a constitutional basis. Law provides a framework to permit the operation of educational systems in Australia from the perspective of authority, duty, power, responsibility and policy. The High Court of Australia interprets the Constitution through cases brought before it and rules on the validity of laws. Education law is, however, jurisdictionally discrete and the current legislative basis for education in Australia varies on a state-by-state basis. The Australian Constitution (1900) confirms that the organisation and governance of education is a responsibility of the states.

The Commonwealth Government is empowered to override state provisions by applying its `external affairs' power in Section 51(xxix) of the Constitution. The statutory framework for education in Australia is complex, but of primary concern are the education acts in the states and territories. These acts and their updates provide the structure for education provision and they also define the duties, rights and responsibilities of participants.

In Australia, many of the federal and state laws that determine the extent of inclusive education are relatively new. Although none of them guarantee an unequivocal right to inclusion, their interpretation by the courts is important. Judicial interpretation of law provides resolution to educational issues of dispute and establishes precedent for future decisions.

In schools, there is a weight of tradition which embraces ideas such as accepted practice, teaching beliefs, professional practice and community expectations among other issues of tradition. As a result, there may be conflict between established law and local customs which may require arbitration. Such was the case in Clayton v. State of Victoria [1968] VR 562 where the accepted practice of maintaining chemicals in a non-secure environment was criticised, but no liability was found as this was deemed to be traditional practice in the school. In the majority of cases, established law will override local customs. With respect to inclusive education, though, there is very little established practice in Australia. Traditions are emerging, however, and it will be interesting to see how custom law interfaces with established law in this regard.

Teachers now have to educate students with a broad range of disabilities in their classes. It is, therefore, important that they are aware of their duties, rights and responsibilities, particularly those that pertain to inclusive education.

Teachers -- duties, rights and responsibilities

Many teachers in Australia include children in their regular classes who have a range of special needs. Of major concern to regular class teachers, when including a student with a disability in their classroom, is that the teachers may not perceive that they have the specific skills or training to perform their duties adequately. Regardless of training, all teachers owe a legal duty of care to all their students (Forlin & Forlin, 1998). In order to carry out this duty, teachers need to understand the special needs of each child so that reasonable care may be taken to ensure the child's safety. A lack of specific training for teachers regarding children with special needs does not justify the provision of less than adequate care. The duty of care for teachers is premised upon the susceptibility of children to injury. The more likely an accident, the greater the duty to guard against it (established in Ricketts v. Erith Borough Council and Another [1943] 2 All ER. 629). In educational systems, the duty of care is more onerous where younger children are concerned and where the activities being undertaken are of a hazardous nature. It is even greater for children with disabilities.

The standard of care which teachers are expected to show towards students under their authority is deemed to be that which would be exercised by a reasonably careful and prudent person in reasonably foreseeable circumstances (Fleming, 1992). The standard of care required is measured according to the circumstances. The more serious the likely outcomes of a course of action, the greater are the precautions required by law. For example, in Paris v. Stepney .Borough Council [1951] AC 367, a partially blind person was allowed to work without goggles. His good eye was seriously injured. Damages were claimed in respect of that injury on the grounds that the employers were negligent in failing to demand the wearing of goggles. The case was upheld and the defendants were found to be negligent.

In schools, some students may be more susceptible than others to accidents and therefore require extended or more diligent supervision. In Moore v. Hampshire County Council (1982) 80 LGR. 418, a gift aged 12 had been born with dislocated hips. As a result, she had undergone numerous operations and walked with a limp. Her mother told the school that she was not to take part in physical education. While attempting a handstand, the plaintiff fell and broke her ankle. On appeal, it was held that the teacher had failed to conform to the standard required of her towards the child who was in her care. In the final ruling, Watkins LJ. stated that when the parent of a child who has a physical disability tells the school the child is not to participate in physical education, the school is under a duty to give effect to it. The Moore ruling implies an increased duty of care for teachers who include children with disabilities in their classrooms. It is of particular note, with respect to this ruling, that even when a teacher is unaware of a parental directive, that teacher is still under a duty to comply with it.

Further issues such as school excursions need to be considered within a framework of inclusive education. The duty of care for teachers with respect to off-site activities is unclear. What is established is that such activities require careful planning (Ayoub v. Downs (1982, SC(NSW) unreported), full authority from school administration (Brown v. Nelson and Others (1971) LGR. 20), and adequate supervision (Bills v. State of South Australia (1987) 38 SASR 80).

Teachers have a responsibility to supervise adequately all students in their care. Supervision that falls below a certain standard may result in injuries to students and subsequent legal action. The duty to look after students with appropriate care intensifies when students with a range of disabilities, including behavioural and emotional problems, are included in regular classrooms. Teachers are required to refrain from actions that may cause injury to students as well as take positive steps towards maintaining their students' safety.

If teachers do not provide an adequate standard of care for their students they may be in breach of their duty. Breach of duty is the failure to conform to the standard of conduct required in a given set of circumstances which results in the cause of harm (Carmarthenshire County Council v. Lewis [1955] AC 549). For example, in Barnes v. Hampshire County Council [1969] 1 WL1K 1563, a five-year-old child was run down by a vehicle following release from school. The authority was held liable for damages because further issues such as age and disability were considered as relevant to the capacity of the child to appreciate the danger. The duty and standard of care, therefore, vary according to the circumstances. To explain the duty of care for teachers in inclusive education, it is necessary to determine the standard of care required of all teachers.

In the majority of cases, the courts have looked to the profession to define which standard of care and supervision may be applied, noting that professional standards have changed over time. Decisions made regarding the standard of care required need to reflect both the foreseeability of a situation and the determination of what may be deemed to be reasonable in that situation.

A person cannot be held negligent if the damage was not a foreseeable consequence of the conduct. An individual is not expected to avoid injury at all costs, but is expected to act with reason in particular circumstances. The standard used to define reasonable action is an objective standard. In Foster v. Houston General Insurance Company, 407 So.2d 759 (La. App 1981, USA), an elementary school teacher took a group of 10- and 11-year-old children, who were to varying degrees intellectually impaired, on a walk to a local park. One boy suddenly ran onto the road and was hit by a vehicle. He died later. The Court held that the teacher had breached the duty of care by not providing appropriate supervision and not acting in a reasonable manner. The Court held further that the teacher should have chosen a safer route to the park and should have foreseen the risk. The children in question had poor attention spans, poor hearing and insufficient experience with busy roads and highways. The teacher was, therefore, found to be negligent in providing reasonable care. The Foster v. Houston ruling implies that a teacher has an increased duty to look after students with intellectual impairments and, in this particular case, the teacher had failed to act in a reasonable manner in the circumstances that had prevailed. The foreseeability and reasonableness of an action, therefore, is the test for negligence in education and elsewhere (Glasgow Corporation v. Muir [HL, 1943]).

In Australia, children have a legal right to attend school and their parents must ensure that this occurs. Although parents have a legal obligation to enrol their children in school, there is no reciprocal obligation for education authorities to provide an education for the child once enrolled. In Queensland, for example, `the Minister's duties are entirely discretionary and consequently the Minister has no real obligation to provide your child with an education once you have enrolled him or her' (Fitzgerald, 1994, p.63).

The promotion of equal educational opportunities for all children, together

with greater emphasis being placed on the right of children to be educated in the school of their choice, has led many parents to opt to enrol their children with disabilities in their local regular school. This has resulted in some difficulties whereby parents have begun to challenge the right of their children to attend their local school and, simultaneously, schools have begun to question the suitability of regular class placement for all children. With respect to children with severe disabilities, the situation of placement varies throughout Australia. In Western Australia, Tasmania, South Australia, Victoria and the Northern Territory, there are provisions that empower the Minister to place such students (e.g. Education Act, Tas, 1994, s.21). In the Australian Capital Territory, Queensland and New South Wales, the laws are silent on this placement issue. To date there have been only limited challenges regarding school placement and choice under the various state anti-discrimination and equal opportunity acts (e.g. Martinovic v. Ministry of Education (1989) EOC 92-264; Finn v. Minister of Education (1995) EOC 92-722).

The legislative framework for special education in Australia does not provide for inclusion rights despite the fact that there are currently several policies for inclusion and integration. Notwithstanding the presence of policy :frameworks for inclusion, law will override policy on an issue, if tested. Although all states and territories in Australia appear committed to inclusion in principle, these inclusion policies are not formalised by legal mandates. In this respect, Australia differs from the USA and the UK. Before such rights are effected in law in Australia, the various education statutes require amendment. This has not yet occurred. In Australia, there is a trend towards anti-discrimination and equal opportunity legislation as a means of resolving issues such as inclusion. This trend is now reviewed.

Anti-discrimination law as a vehicle for redress

Anti-discrimination legislation in the commonwealth and in the states and territories is complex and expansive. Commonwealth anti-discrimination legislation covers the areas of sexual, racial, political, and disability discrimination.(4) In the states and territories, the range of issues covered by this type of legislation varies. These laws are applicable to primary, secondary and tertiary education systems, together with further education and training sectors (e.g. Disability Discrimination Act, Clth, 1992, s.4(1); Anti-Discrimination Act, Qld, 1991, s.,4). In general, comprehensive anti-discrimination legislation has been enacted in Australia in response to international approaches to human rights. In the context of this article and within the debate regarding inclusive education, disability legislation is of critical importance.

Of particular significance is the meaning of the terms applied. Definitions of disability are highly relevant when explaining a legal framework. Although there are definitions for disability(5), issues such as learning difficulty and learning disability are not adequately defined. In order to proceed with a case under anti-discrimination legislation, it is necessary to show that a person possesses a disability as defined in law. Currently, throughout the various jurisdictions, broad definitions apply. (e.g. Disability Services Act, Qld, 1992, s.5; Disability Services Act, WA, 1993, s.3).

In Australia, two approaches are recognised: direct discrimination (e.g. Anti-Discrimination Act, Qld, 1991, s.9, s.10; Equal Opportunity Act, Vic, 1995, s.7, s.8) and indirect discrimination (e.g. Equal Opportunity Act, WA, 1984, 66V(3); Equal Opportunity Act, SA, 1984, s.29, s.51, s.85). Implicit in direct discrimination is that no student should receive less acceptable educational treatment because of a disability than would be received by a person without a disability in the same educational environment. This principle does not demand inclusion but mandates educational authorities to provide facilities for a person or persons with a disability that permit an equal access to education (Martinovic v. Ministry of Education (1989) EOC 92-264). In the Martinovic case, brought before the Victorian Equal Opportunity Board, it was alleged that two children with hearing and intellectual disabilities were discriminated against by receiving less favourable treatment. No discrimination was found to have occurred. The Board ruled that, if the Ministry had provided all the services requested for the two children with disabilities, this might have constitututed discrimination against other children in the same educational environment.

Indirect discrimination may be applicable in circumstances where there is no intention to discriminate but the practice of persons or the exercise of certain policies might be deemed discriminatory against persons with a disability. An example of indirect discrimination is the requirement that all children wear the same uniform irrespective of religious and/or cultural belie (Mandla v. Lee [1983] 1 All ER 1062). The issue of services and facilities for children with disabilities poses particular problems for educational authorities. Authorities are obliged to provide facilities that offer all students equal access to education. Should appropriate facilities not be provided for persons with a disability, then indirect discrimination might be found by a court. The Victorian Equal Opportunity Board, however, found otherwise in the Martinovic case. In educational establishments, the provision of facilities for all students is problematic. This issue encompasses a wide area including the provision of computers, library facilities, scientific, and technological equipment and off-site activities such as excursions and camps. To deny a person with a disability access to any of these facilities, among others, might be deemed to be discriminatory.

Should a student with a disability have been treated less favourably than other students, then anti-discrimination laws may provide a framework for redress. Should an education authority encounter `unjustifiable hardship', however, in meeting the requirements of anti-discrimination legislation (Disability Discmination Act, Clth, 1992, s.22(4); Anti-Discrimination Act, Qld, 1991, s.44(2)) then exemptions under the principle of `reasonable accommodation' may be applied.(6)

A further issue of potential discrimination during inclusive education relates to the behaviour of a child with a disability. In New South Wales, the Equal Opportunity Tribunal (1991) established that a person could not be discriminated against on the grounds of behaviour if that behaviour was imputed to the disability (Welsh v. The Commissioner Soil Conservation Service of New South Wales EOC 92-330). The first educational case to challenge this issue was heard before the Victorian Equal Opportunity Tribunal (Lynch v. Sacred Hearst College & Ors, 92-724, 1995). The complainant asserted that she suffered from a temporary psychological impairment caused by an alleged sexual assault and it was this impairment that caused the unacceptable behaviour that she exhibited at the school. The complainant had been given various detentions and was suspended and advised to transfer to another school. The Tribunal found that, at the time of the alleged acts, there was nothing to indicate that the complainant was suffering from an impairment or that the respondent ought to have been aware of an impairment. The behaviour problems that caused the school to suspend the complainant were not found to be directly linked to any impairment; therefore, in this case, no discrimination had occurred.

The link between behaviour and impairment was also considered in the case of a seven-year-old child in Queensland brought under the Anti-Discrimination Act (Qld, 1991). The child exhibited an intellectual impairment but was expelled from the regular state school that she had been attending because of her disturbing behaviour (L v. Minister for Education (1996) EOC 92-787: Welsh v. Commissioner applied as authority). It was found that `her disruptive behaviours are elemental to her impairment and without them she would not have been suspended from school' (Holmes J, 1995, p.8). The judgement upheld the claim that `L' had been discriminated against within the meaning of s.10(1) of the Anti-Discrimination Act, and specifically under s.39 by an educational authority denying her access to the opportunity of continuing her instruction at the same school. Although the judgement acknowledged that `L' had been discriminated against because her behaviour was a direct result of her impairment, it was also held that thins discrimination was not unlawful. The Minister for Education argued that, under s.44 of the Anti-Discrimination Act, `L' required special services or facilities that would impose unjustifiable hardship on the educational authority. Holmes J considered unjustifiable hardship to include not only economic liability but also the human costs and benefits involved. He ruled that although he was not required to resolve the debate as to whether full inclusion was the best method for teaching children with an intellectual disability, there were other relevant issues that needed consideration. Specifically Holmes J proposed:

 The stresses placed on teaching staff at Beta without specialist training
 and the disruption entailed to other children are such as to outweigh the
 benefits to L and to constitute unjustifiable hardship to the Department
 should it be compelled to accept L back into the Beta School (L v. Minister
 for Education (1996) EOC 92-787, p.78,821)

Similar findings have occurred in two recent cases in Queensland (K v. N School, No. H54 of 1996; P v. Director-General, Department of Education, No. H53 of 1995). In each case, the schools had advised the parents theft they could no longer continue to enrol their children as it was causing them unjustifiable hardship to meet their specialised needs. Both tribunals found that the children had been discriminated against on the grounds of their impairment. This discrimination was, however, not ruled to be unlawful as it was deemed that continued placement at the regular schools required special services or facilities that would have caused the schools unjustifiable hardship. Both cases were subsequently dismissed.

It would appear that a precedent has now been set. Although it has been found to be unlawful to discriminate against a child on the grounds of behaviour if that behaviour is linked to a disability, it has also been established that this discrimination is not unlawful if its avoidance will cause the school unjustifiable hardship. Additional cases are likely to clarify the breadth of unjustifiable hardship and such interpretations will be significant for the inclusion movement in Australia.

It may take a considerable time for cases to go to trial and, because of the urgency to consider the child's education, interim decisions often have to be made. The two recent cases in Queensland brought before the Anti-Discrimination Tribunal required interim decisions. In both cases, the plaintiffs were applying to be allowed to continue at their present regular schools while waiting for their cases to be heard (K v. N School, No Misc. 10 of 1995; P v. Minister for Education, No Misc.12/95). In both cases the judgements were based upon the `balance of convenience' and what was in the `best interest' of the child. Where the child was still at the school (K v. N School), it was ruled that the child be allowed to continue until the case was heard. Where the child had already left the school (P v. Minister for Education), it was ruled that the child should not be allowed to return until the tribunal had met for a full hearing. The preservation of the status quo was the underlying principle upon which both judges appeared to make their decisions.

Should anti-discrimination litigation not offer an appropriate solution for redress, then a student with a disability might proceed with a claim for educational negligence and seek compensation in this way.

Educational negligence

Educational negligence applies to the idea that teachers may be held accountable for how they teach. Educational negligence poses further considerations while the normal tests for negligence need to be met. A duty of care must be owed to the student; there must be educational carelessness proven as a result of that duty; and because of carelessness or incompetence, on the part of a teacher or an educational system, a student must have suffered damage. There is currently no case law in Australia concerning educational negligence. In the USA, most courts have decided against extending the duty of care to encompass educational negligence because of public policy considerations. That is not to suggest that students in Australia, including students with a disability, might not proceed with claims of educational negligence against teachers. A plaintiff will need to show that a duty of care exists between the teacher and the student with respect to the educational issues raised. In England and Wales, courts have accepted the principle that legal claims based on the negligence of school systems and on educators to respond properly to the learning needs of students with a disability may be heard. English courts, however, have not to date held teachers accountable for educating in a careless manner. Nor have they held that educators who give careless advice or fail to discover a learning disability and fail to implement appropriate strategies are legally responsible. In X and others (minors) v. Bedfordshire County Council [1995] 3 All ER 353, it was ruled that schools assume responsibility for the physical safety and educational needs of children. Australia, however, is not bound by the rulings in the House of Lords, but such rulings may exert an influence on Australian courts.

The law of negligence has been developed so that students in schools have recourse to financial compensation should foreseeable physical damage occur during school hours. It may be reasonable to assume that similar principles might apply should intellectual damage occur to students as a result of incompetent teaching or educational carelessness. An appropriate standard of care is, however, difficult to apply to all students due, in part, to the varying interpretation of acceptable teaching standards and the unacceptable burden on the courts should litigation in educational negligence become common.

Conclusion

It has been established that the legislative framework for special education in Australia does not provide for inclusion rights despite the fact that there are current policies for inclusion and integration within the various jurisdictions. Appropriate policy and practice in Australia are essential components of inclusion; however both are open to legal challenge and might be found deficient, if tested at law. Unlike the USA, where people's rights are promoted by constitution, in Australia, specific laws and policies are required to ensure equality of opportunity. In the absence of legal provisions for inclusion, anti-discrimination and equal opportunity law appear to be providing avenues for redress for persons with a disability. The lack of legislative frameworks for inclusion in Australian jurisdictions, promotes the need to develop suitable legal models.

Of major importance is that teachers have a legal responsibility to offer reasonable care to all children in their classes, regardless of the child's disability or the adequacy or otherwise of their own training. Teachers who dc, not provide an adequate standard of care may be deemed negligent. It is essential that teachers are fully aware of their obligations to all children in their care, particularly those with special needs. In cases where a child's

behaviour causes difficulties or where additional resources and support are required, schools appear reluctant to accommodate these students. In this regard, schools have been successful in challenging parents' right to choose a regular school for their child on the grounds of `unjustifiable hardship'. Even where an action by a school has been shown to be discriminatory, it has not necessarily been ruled as illegal. This is likely to form a precendent for future inclusive practices. Although regular schools are willing to include students who have reasonable social skills and who require limited additional support, they are concerned about accepting all children with special needs. In increasingly devolving education systems, resources are likely to be allocated more to individual schools and less externally funded support will be provided for children with disabilities. Extensive demands on limited resources may not augur well for increased inclusive practices.

Keywords

constitutional law
disability discrimination
discriminatory legislation
educational discrimination
international law
special needs students

Notes

(1) The Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania (334 F.Supp. 1257 (E.D.Pa. 1971); 343 F.Supp. 279 (E.D.Pa. 1972); and Mills v. Board of Education of District of Columbia (348 F.Supp.866 (D.D.C. 1972)).

(2) The Code defines explicitly the provision that schools need to make for children identified as giving their teachers 'cause for concern'. It also defines these children in terms of identifiable characteristics. It prescribes the degree of assessment and support that should be provided at different levels within a school using existing resources.

(3) Currently the following legislation provides for the placement of children with disabilities in special education: Education Act, SA, 1972, s.75(a); Education Act, Vic, 1958, ss.64(C)-(H); Education Act, WA, 1928, ss.20(A)(D)(F); Education Act, NT, 1979, ss.34-35; Education Act, Tas, 1994, s.21.

(4) Sex Discrimination Act, C1th, 1984; Racial Discrimination Act, C1th, 1975; and the Disability Discrimination Act, Clth, 1992.

(5) A comprehensive explanation of disability is supplied in the commonwealth act at Section 4 (Disability Discrimination Act, Clth, 1992).

(6) For variations in interpretation of `unjustifiable hardship' and `reasonable accommodation', see Anti-Discrimination Act, NSW, 1977, s.4(4); Anti-Discrimination Act, Qld, 1991, s.5, s.44; Disability Discrimination Act, Clth, 1992, s.11, s.22(4).

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Dr Peter Forlin and Dr Chris Forlin are Lecturers in the Faculty of Education, University of Southern Queensland, Toowoomba, Queensland 4350.

Peter Forlin

Chris Forlin

University of Southern Queensland