Securing accessible education

We have won landmark cases securing and defending the right of children with disability to have equal access to education.

Scarlett’s story

In 1997, six-year-old Scarlett Finney was rejected by Hills Grammar School because of her disability. Scarlett had spina bifida. Spina bifida is a condition that can cause problems with mobility and brain fluid circulation, but physical effects vary from person to person.

Scarlett used a wheelchair but could walk short distances and had no difficulties with learning. She required some support from a community nurse (arranged by her parents) and from teacher’s aides provided by the government.

But Hills Grammar said it could not accommodate her needs and refused to enrol her.

Our Centre represented Scarlett’s parents in an unfair discrimination complaint at the Human Rights and Equal Opportunity Commission. This was the first significant test of the federal Disability Discrimination Act (DDA) in relation to a private school.

The DDA clearly stated ‘it is unlawful for an educational authority to discriminate against a person on the ground of the person’s disability … by refusing or failing to accept the person’s application for admission as a student’. But the school claimed it would suffer ‘unjustifiable hardship’ by enrolling Scarlett.

In July 1999, Human Rights Commissioner Graeme Innes decided that Hills Grammar had unlawfully discriminated against Scarlett.

Commissioner Innes found the school’s approach was ‘based on assumptions’ of Scarlett’s disability ‘which were either false or very general.’

Significantly, the Commissioner found the school had not adequately worked with Scarlett’s parents to discover the nature of her disability. The Commissioner’s decision established a requirement that education institutions actively engage with experts and parents to assess a child’s needs.

Hills Grammar appealed to the Federal Court, but the decision was upheld. Scarlett was awarded $42,628 in damages, including $37,628 for loss of educational opportunity (valued at the fees she would have paid) and $5000 for hurt and humiliation.

Counsel representing Scarlett were Nicholas Poynder and Stephen Gageler (current Chief Justice of the High Court of Australia).

Catherine’s Story

Our specialist disability discrimination practice also secured better support for children with autism in 2020, when we represented 8-year-old Catherine Blundy and her mother Hannah in Federal Circuit Court.

Catherine had been expelled from the Lakes Christian College, after the school had failed to provide supports recommended by health professionals.

We argued the school had discriminated against Catherine by failing to provide reasonable adjustments, banning her from the school bus, and expelling her.

The case settled, with Lakes College agreeing to measures to better support children with autism and enhanced training for staff.