A Lawful Guide for Parents, Schools & the Right to Discipline

The Community Law Centre has received a number of calls from parents, who feel their children are being excluded, from part or the entire school curriculum, because they have a disability of some description.

These types of situations include:

Children with behavioural difficulties not being allowed to go to school camp parents being asked to keep 'difficult' children home during Education Review Office visits children with high physical and intellectual needs not going on school outings because they require too many resources.

Parents frequently contact the Law Centre, to complain that a special needs child is facing a Board of Trustee's disciplinary hearing for behaviour, which is a recognised symptom of their medical condition or have been suspended already as a result of this behaviour.

There are also complaints from parents that pressure is being put on them to 'voluntarily withdraw' their child, the rationale being that another school may better fulfill their needs.

Parents are made to feel that their child is responsible for other children's needs not being met.

It is important to note that the Education Act 1989 provides that: "People who have special educational needs (whether because of disability or otherwise) have the same rights to enroll and receive education at state schools as people who do not."

All students, no matter what behavioural or other difficulties they have, are entitled to an education.

As well as the Education Act, there are other Acts, which set out entitlements of students with disabilities to an education:

The New Zealand Bill of Rights Act 1990 states that everyone has the right to be free from discrimination, including disability.

The Health and Disability Commissioner Act 1994 sets out consumer rights in a special code (Code of Health & Disability Services Consumers' Rights). Education can be considered a disability service under this Act and must be provided at an appropriate standard.

Humans Rights Act 1993 - This Act gives authority to the Human Rights Commission to protect human rights in New Zealand. It includes the right of access for people with disabilities to equal educational opportunities.

My child has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). Can this be classified as a disability?

'Disability' (as defined in s 21 of the Human Rights Act 1993) can mean:

  • Physical illness
  • Psychiatric illness
  • Physical disability or impairment
  • Intellectual or psychological or anatomical function or structure
  • Any other abnormality or loss of physiological, psychological or anatomical function or structure
  • Reliance on something like a wheelchair or guide dog
  • Organisms in the body capable of causing illness, for example, HIV.

It seems that medical opinion is of the belief that ADHD is a neurological disorder, so therefore could be classified as a disability.

My child has been suspended for "continual disobedience". But he has been diagnosed with Attention Deficit Disorder (ADD). I believe his behaviour is a symptom of the disorder rather than disobedience.

The Education Act 1989 recognises continual disobedience as grounds for suspension. However, the disobedience should be such that a student regularly or deliberately disregards school rules. There must be an element of deliberate non-cooperation or defiance.

Behavioural problems caused by recognised medical conditions would not usually be regarded as deliberate. A decision to exclude a child on those grounds would be open to a complaint to the Human Rights Commission, a legal challenge or review of the procedure by the Ombudsman.

Schools cannot:

  • Refuse to enroll a student because of disability
  • Give a student with a disability terms of admission that are not as favourable as those given to other students.
  • Treat a student detrimentally by giving a student with disabilities less benefits or services than those provided for other students;
  • Exclude a student by suspending or expelling them because of disability.

My child has an intellectual disability. Her class is going on camp, but the principal has told me that it would be impractical for her to go. Is this fair?

The school camp is generally regarded as part of the school curriculum. It is unlawful to deny a student with disabilities the same benefits provided to other students.

A child with high or very high needs generate extra staff and funding. Parents should argue that this extra funding could assist a special needs child to go on camp.

Ask yourself:

  • What does my child need to go on camp?
  • How can that be provided?
  • Is it reasonable to expect the school to provide this extra assistance?
  • Can I help to get this extra assistance? (E.g.. can you offer to parent-help for some of the time?)
  • Who can help me to get extra assistance? (E.g.. IHC Advocacy Service).

When would it be reasonable for a school to discriminate on the grounds of disability?

When it is obvious that he risks would be unacceptably high to the student with the disability, or to staff or other students, e.g.. taking a child with a severe physical disability climbing.

Also when it would be totally unacceptable for the school to have to provide adequate resources or services. For example, is it reasonable in this sort of situation to expect a school to provide toilet facilities for a child in a wheelchair at a school camp?

Parents/caregivers should encourage discussion with the school to facilitate the education of their child, especially if in these sorts of situations caregivers can be found for the child and /or services can be arranged.

With Thanks to the Wellington Community Law Centre
Published in March 1999