While the outcomes of recent education decisions have been disappointing for the sector, putting aside the manipulation of the court processes to obtain conservative case law, such outcomes have a number of advantages. Firstly, the flaws in the legislation are being acutely highlighted and the judgements highlight the obvious need for law reform. Secondly, particularly for children with cognitive disabilities, it may be possible for them to bypass Australian law and approach the United Nations directly very soon, if it is proven that the laws here are so rigid as to be unusable.
Thirdly, it reveals that DET actually have millions of dollars that they are paying to top-end law firms and in settlements, that could, if at any stage it was led by someone who had an interest in students with disabilities obtaining an education, be provided directly to schools in order to assist them support those students.
Fourthly, court cases reveal DET’s genuine position on the provision of education to children with disabilities, as opposed to its publicised position in its materials, and how they really value children with disabilities and their families.
The DET approach to students with disabilities and families is often punitive, harsh, judgemental and aggressive. Other testimony in court cases has revealed:
- the DET position is that children with borderline IQ or mild intellectual disability should not have intensive assistance provided to them because their disabilities are such that they have limited educational prospects/capacity;
- many teachers do not know what the term “remedial” means;
- many teachers do not know what “evidence-based” teaching methods are;
- evidence-based programs do not need to be administered according to instructions;
- individual education plans do not need goals, strategies or measurable outcomes;
- individual education plans can exist only in teachers’ heads;
- behaviour plans can exist only in teachers’ heads;
- “zero tolerance” in a behaviour plan as an approach is acceptable;
- putting a child with autism in a bathroom on their own in response to behaviours of concern is acceptable;
- school reports can double as individual education plans;
- a formal applied behaviour analysis program is not a reasonable adjustment;
- children with autism who are having a meltdown are viewed as “contravening behaviour standards”, “violent”, and “aggressive”;
- a functional behaviour assessment is not a reasonable adjustment (NB: Note the nexus with the line directly above);
- an individual education plan is not a reasonable adjustment;
- it is appropriate to use martial arts experts to train staff in schools to respond to children with disabilities;
- generalist teachers are appropriate to undertake functional behaviour assessment, analysis and develop and monitor behaviour plans for children with complex challenging behaviours – qualified behaviour analysts are not required;
- some segregated schools will refuse to provide the assistance of their psychologist if a child has the services of a private psychologist external to the school;
- appropriate speech pathology programs for children with severe language disorder can consist of one sentence and the speech pathologist’s file notes;
- behaviour plans can be developed for a child without the knowledge or input of parents;
- consultants can be brought in to work with children without the consent of parents;
- deaf students do not have the right to Auslan interpreters;
- DET publications are “only guidelines” and do not need to be followed;
- it is acceptable to use restraint against a child with a disability to “enforce behavioural standards”.
In the interests of transparency, it is important that parents know whether DET policies and guidelines will be upheld. An examination of evidence given in formal court and tribunal proceedings clearly shows that educational practice supported by the DET does not reflect its publications, or approach educational best practice. In fact there is no “practice” and individual staff can make whatever decisions they choose in relation to the interventions provided to a child (or a refusal to provide interventions). DET claims to provide an education which is world-class. Such a claim can be compared with the practice of not writing down individual education plans, or not having outcomes which can be measured.
DET evidence to courts versus advice to parents and advocates outside courts is often completely contradictory. For example if it suits DET, the evidence will be that no matter what the situation, students with disability should not be receiving one-to-one assistance outside the classroom – all learning should take place with the child’s peers. In situations where complaints are made about the isolation of the child, the DET position will be the opposite.
DET is a government department, and therefore is not bound by fair trading/trade practices legislation, in particular the ‘false, misleading and deceptive conduct’ aspects of such legislation.
However too much evidence from DET has now been recorded and given on oath. Its inconsistencies and changes in position to suit the circumstances are creating a risk of perjury charges against individuals.