The approach taken by the DET in court cases can be found in court decisions or by attending these public trials. It is often 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 DET testing, at a Grade 1 level.
The DET’s reasoning for BA’s failure to progress was, as stated by the lawyer acting for the DET:
”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 DET’s arguments entirely. Remarkably, his reasons for judgment referred to expert and lay witnesses for the DET who did not actually attend court to give evidence. The appeal of the decision was settled by DET.
The child’s failure to engage in his schooling, his “disruptiveness”, “resistance”, and “poor behaviour” was raised repeatedly by the DET. There was no mention by the DET 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 DET is that students with borderline IQ or mild intellectual disability have little potential, or capacity to learn. This is in direct contradiction to DET publications and research. This is current, as an approach by DET, as of 2023.
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 DET, the Federal Court found that S’s slow progress in a formal remedial program “seems consistent with her cognitive ability“. This was despite DET staff admitting they did not provide the program according to the manufacturer’s instructions.
At the urging of the DET, 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 DET’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 DET witnesses who did not appear.
In A v State of Victoria, A’s “capacity to learn” was raised again and again by the DET 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 DET 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 DET 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 in the event they had 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, and 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.