The approach taken by the DoE in court cases can be found in court decisions or by attending these public trials. Speak to someone who supports parents in making discrimination claims and have a look at DoE Defence documents. It is an aggressive approach, designed to be as critical as possible of the child and their parents.
An example is A v State of Victoria [2013] FCA 832. BA had an Expressive, Receptive and Pragmatic Language Impairment and Mild Intellectual Disability. Despite these disabilities, he did not qualify for individual funding for the entirety of his primary school education. By the time he moved into high school, he had English levels, confirmed by DoE testing, at a Grade 1 level.
The DoE reasoning for BA’s failure to progress was, as stated by the lawyer acting for the DoE:
”We are not blaming the father, we are not blaming the family, but the child had come from a broken home and was clearly emotionally disturbed … the teachers did a fantastic job.”
He said BA often ate sugary, fatty foods, such as doughnuts, and this was only one example of a lack of home support. ”Teachers were really worried that B… A… was not going to school with a wholesome meal.”
http://www.theage.com.au/victoria/teen-sues-over-school-failure-20120430-1xv3j.html
In this case, the judge hearing the matter accepted the DoE’s arguments entirely. Remarkably, his reasons for judgment referred to expert and lay witnesses for the DoE who did not actually attend court to give evidence. The appeal of the decision was settled by DoE. Regardless, the approach reflected the victim blaming of the DoE and its belief in its own lack of responsibility in the education of students with disabilities.
The child’s failure to engage in his schooling, his “disruptiveness”, “resistance”, and “poor behaviour” was raised repeatedly by the DoE. There was no mention by the DoE of the links between illiteracy, language impairment, and behaviours, despite the fact that research on such links is freely available, and has been so for many years.
Capacity
Another common position taken in court cases by DoE is that students with disability have little potential, or capacity to learn. This is in direct contradiction to DoE publications and research. This waso current, as an approach by DoE, as of 2024.
In S v State of Victoria [2012] FCA 118, S had a borderline IQ/mild intellectual disability and a language impairment. After submissions by the DE, the Federal Court found that S’s slow progress in a formal remedial program “seems consistent with her cognitive ability“. This was despite DoE staff admitting they did not provide the program according to the manufacturer’s instructions.
At the urging of the DoE, the Court ignored the expert evidence of an Associate Professor – an educational psychologist whose area of expertise was educational research and policy, and the assessment and remediation of children’s educational problems. Instead the Court accepted the evidence of the DoE’s witness, who was a neuropsychologist whose area of expertise was traumatic brain injury. This was the same judge who wrote in his judgement about DoE witnesses who did not appear.
In A v State of Victoria, A’s “capacity to learn” was raised again and again by the DoE to explain how he could leave school without the basic literacy and numeracy skills to function in the community.
Given the research on the ability of children with cognitive disabilities to learn, the approach by DoE is regrettable and has no corresponding link with best practice or science. It does however explain the very poor academic outcomes experienced by many students with disabilities in Victorian schools.
The evidence suggests that this approach is taken by DoE in order that teachers do not have to put much effort into teaching. This is particularly the case in segregated schools, where witnesses, for example from Southern Autistic School, pride themselves on the effort they put into convincing parents to lower their expectations of their children.
Instead of listening to school staff, if you want to know what your child’s capacity is if they have evidence-based, competent teaching, seek a report from an educational psychologist or neuropsychologist. Schools such as Southern Autistic School that have a curriculum which in a week may only have three academic classes in it and the rest are leisure activities, are never going to bring out the best in any child. Therefore you need to find a school that is led by someone that assumes capacity, rather than incapacity.
Ironically, in the context of many of these cases arising due to schools not wanting to, or unable to spend money on children with disabilities, millions of dollars are spent every year by the DoE on private law firms to aggressively defend discrimination complaints including those below:
Allens Lawyers
Minter Ellison
Clayton Utz
Hall and Wilcox
K&L Gates
Maddocks Lawyers
Landers & Rogers
This is in addition to the money spent on the DoE internal Legal Division, and through the Victorian Government Solicitor’s Office.
Legal cases are encouraged by the DoE through its refusal to meaningfully engage in internal complaints procedures with parents, choosing instead to have its Legal Division write on behalf of Regional Offices, negating any complaints.
The approach of the DoE to students/families who “complain” is best summed up in the case Kaplan v State of Victoria, which while not a disability discrimination case, is a race discrimination case. This was an extremely lengthy case of two months duration, which the DoE was bound to lose, and did, and which cost them millions of dollars. The Federal Court of Australia ordered an apology to the students involved. The students initially simply wanted an apology, which was refused, and therefore the matter went on to court. This decision by the DoE provides an accurate reflection of the culture at DoE.