Scarlett Finney’s battle with the Hills District Grammar School was
the first real test of the federal Disability Discrimination Act in relation to school education. The case put all
schools on notice about their obligations towards students with disability.
Scarlett (pictured) was born with spina bifida. The physical symptoms of spina bifida include problems
with mobility, and brain fluid circulation (hydrocephalus).
Scarlett’s family
wanted to enrol her in the Hills Grammar School, a private,
non-denominational co-educational school that catered for children from
Kindergarten to Year 12.
Scarlett
could walk short distances and otherwise used a wheelchair. She required some
assistance with toileting once a day, for which the Finneys had arranged a
community nurse to visit the school. She had no learning problems. She required
approximately five hours of teacher’s aide assistance per week, which was
provided by the government.
Hills
Grammar School rejected her application for enrolment on the ground of her
disability.
The school said that it couldn’t accommodate her special needs.
Scarlett’s parents made a complaint to the then Human Rights and Equal
Opportunity Commission, which at that time had the capacity to hear
discrimination matters. The Commission found the school had unlawfully
discriminated against Scarlett. Hills Grammar was ordered to pay her $42,628 in
compensation. The school appealed to the Federal Court but lost.
It was a
remarkable case because it was the first to test the provisions of the Disability
Discrimination Act
in relation to enrolment in a private school.
The Commission found that the
school had not undertaken a proper assessment of Scarlett’s needs, but instead
had relied on stereotypical assumptions and general information about spina
bifida, which can affect children differently.
The case
made clear that schools cannot refuse education to a child simply because she
has a disability. Instead, the case showed that schools must engage
conscientiously with parents and professionals in assessing the needs of
children with disability.
The
Commission also found that accommodating Scarlett’s needs would not have caused
the school ‘unjustifiable hardship’. Thus all schools, particularly private
schools, were put on notice that the law required them to make reasonable
adjustments and commit a reasonable amount of resources to integrate students
with disability.
The case
received considerable media attention, which did much to stimulate community
discussion about the issue. Scarlett was an articulate and confident child, and
spoke to the media, alongside her parents and PIAC. She said she was upset that
she could not go to the Hills Grammar School.
PIAC’s work to protect the right to equality for people with disability
continues today, with a focus on public transport. We await a decision in the Haraksin
v Murrays case,
relating to wheelchair accessible coaches.
In 2013, Innes v
RailCorp focused on the need for audible ‘next stop’
announcements on Sydney trains for blind and vision-impaired passengers. PIAC
client, Graeme Innes, successfully sued RailCorp for breach of federal
disability discrimination law after the state-owned rail corporation failed to
provide adequate audible announcements.
PIAC has also undertaken case and policy work
on airline travel and wheelchair accessible taxis.
We’ve made
some gains but we’ve also come up against some of the same barriers, again and
again. The primary barrier is the difficulty of finding clients willing to take
on the significant financial risk involved in pursuing a disability
discrimination claim. People with disability suffer discrimination in so many
aspects of their lives and to risk hundreds of thousands of dollars on a discrimination
claim is beyond the capacity of most.
The
introduction of the Disability Discrimination Standards has gone some way
towards addressing this deficiency.
Still missing, though, is an enforcement
mechanism that doesn’t rely on individuals taking the risk of bringing
litigation. If we want real advances in regard to accessible education,
transport and other services for people with disability, we need government to
design and fund a method of enforcing compliance.
Until then,
it will take the courage of clients like Scarlett and her parents, and other
people with disability, to forge the way ahead and ensure that schools,
transport and other service providers accommodate their needs and comply with
the law.
Return to People power: commitment, energy and dedication
Return to Celebrating 30 years of public interest advocacy