7 January 2021

ACAT sets aside suspension of Year 2 student with disabilities

| Ian Bushnell
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Young boy

The boy had been violent towards other students and the principal said her priority was safety. Photo: File.

A decision to suspend a Year 2 child with disabilities after a string of violent incidents has been set aside after it was found that the public school principal had other options at her disposal and had not met the requirements of the Education Act and the Education Directorate’s suspension policy.

The boy’s parents had sought a review of the one-day suspension handed out on 3 July 2019, but the Director-General had upheld it, so they then went to the ACT Civil and Administrative Tribunal.

ACAT heard the case in September last year, handing down its decision on Christmas Eve.

The boy – who has epilepsy, poor motor skills and difficulty controlling his emotions – has not returned to the school in question, but the case highlights the challenges for educators and parents alike.

He was not the only child with disabilities at the school, which had developed an Individual Learning Plan and allocated a shared Learning Support Assistant.

ACAT was told that the boy had had an unsettled first half of 2019 with a change of teachers, time spent out of class and a lack of friends, as well as possible bullying.

The family’s relationship with the school was also fraying, and trust between them had declined.

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On the day in question, the trigger had been an episode in the afternoon where the boy was drinking water dripping from a gutter and been told by a girl it was bad for him.

For unknown reasons, this enraged him and he has rushed at the girl and pushed her up against a wall. The girl told a teacher that the boy tried to strangle her although it was unclear whether this was the case.

He also swiped his hand against the face of a second girl before running off to an upstairs area where he kicked at least one other student, and began taping classroom doors shut muttering about ”stupid girls” and ”I’ll kill them”.

He then ran downstairs knocking over another child as he went and eventually made his way to the deputy principal’s office where his father, who had arrived to pick him up, found him calmer but still in a heightened state and unresponsive.

By then the principal had decided – based on the boy’s violence to other students, his non-compliance and his failure to de-escalate – to suspend the boy for a day to allow for a ‘Protective Action Plan’ to be developed.

Apparently, there had also been an incident the day before, but then he had been able to calm down.

The boy’s father had argued that the suspension was unwarranted, the evidence was insufficient and the response punitive.

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ACAT focused on the requirements for suspension under the Education Act and directorate policy and found the principal fell short, also finding that the boy’s circumstances had not fully been taken into account.

It found the principal had failed to consult the boy’s father before deciding on suspension, and the internal review had not presented the school’s version of events to the father as required under the policy.

The principal had also not documented events adequately for the parents and had not considered alternatives to suspension.

From the point of view of the ACT, ACAT did not believe that the boy was “persistently and wilfully non-compliant” or was a threat to the good order of the school.

It questioned the principal’s rush to suspension, although she had argued that safety was her priority and had stressed the immediacy and urgency of the situation.

”Surely a decision-maker would hesitate to impose a suspension … if it appears probable that the behaviour prompting the suspension is in part a manifestation of one of the child’s underlying disabilities,” ACAT said.

Previous evidence from the deputy principal had acknowledged that the boy may have been unable, rather than unwilling, to control his emotions on the afternoon of 3 July.

It said courses of action other than suspension were available, including a more therapeutic approach to the boy rather than investigatory.

”Other options were also available: the in-school alternate program described in the guidelines accompanying the policy, in which the child attends school but does not join in with other students; or an informal request to the applicant to keep his son at home for a day, the effect of which would have been the same as suspension but without the formalities and the punitive appearance of those formalities,” ACAT said.

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It said the Act’s overarching principle was the right of every child to a high-quality education.

”With that in mind, and taking all the circumstances of this matter into account, we have concluded that the correct or preferable decision was not to exercise the discretion to suspend the applicant’s child, but rather to pursue one of the alternatives identified above. Accordingly, we set aside the decision under review and substitute our decision that no action is to be taken under section 36 of the Act,” ACAT found.

The names of individuals involved and the school have been withheld to protect the identity of the child.

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Discrimination is a fascinating beast – tolerated when it meets the “woke” views and attitudes a number of younger parents and (apparently) keyboard warriors hold and roundly condemned by the same individuals when it doesn’t.

Soooo… having actually read the decision from ACAT, my question would be why has the child (parent/s) not been charged?

Regardless of disability, committing an assault is a criminal offence and in and of itself appears to have justified the suspension, the violence also appears to have occurred more than once. “Threats to kill” pop up in the criminal code as being a “no no”.

How does ACAT justify this decision, given the schools have an obligation to maintain a safe environment for ALL the students not just those with special needs?

It seems the message being put out is that if you are a disabled child you can feel free to assault and threaten little girls and excuses will be made for you with nil consequence.

I feel this approach may be more detrimental for the child than the long term approach of making them responsible for their own actions.

As matters stand his mum and dad are basically saying “it’s not your fault you were suspended son. See the tribunal supported us!” as opposed to “Son, if you continue assaulting people you will end up in gaol with a very large roommate called Bubba…”

I feel so very sorry for the children, and parents of these children, who are essentially being told that one child’s right to an education supersedes the risk to their safety and right to an education.

Bernard – so u would approve of police action against an intellectually challenged 7 year old? Get a grip!!!

Not so much the child given they couldn’t be charged in and of themselves, more the parents to help… encourage them.

What would you suggest Rose? Let’s pretend your daughter was assaulted at school in the same circumstances. Please do tell me how you would be brimming with understanding and explaining to your own child it was ok for the disabled child to have hit them? That it’s ok for this same child to make yours feel scared and unsafe in their school?

In ten and a half years, if the boy still hasn’t learned (which seems likely if your view and the parents attitude are the prevailing ones) the police WILL lock him up and what new excuses would you offer up then?

The implication that there should be no consequences for actions that see adults (those disabled and those that are not) jailed just doesn’t resonate with me for some reason.

What a waste of time and public money. The kid clearly needs to be in a specialist school to properly deal with his conditions rather than disrupting the education of other kids and creating stress on teachers. The system should stop pandering to these parents.

Adrienne Yeo11:07 am 08 Jan 21

Unless you happen to be one of “these parents”. I did not read the judgment, so cannot comment on this particular case, but yes, ultimately it it the parent’s responsibility to ensure the needs of their child are met. At the same time, the school needs to be accommodative and work with parents on implementing learning and behaviour management plans. It looks like there was no positive partnership or working relationship between parents and school, in this case. Usually this means parents have to find a new school, but this is not always possible or feasible.

Specialist schools are a thing of the past, people have been lulled into thinking that “inclusion” is a good thing, when it benefits neither the “included” child nor the rest of the children. Sure, there are a very few schools that cater to the severely disabled, but for a child with “invisible” disabilities, there is very little in the average classroom.

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