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Clarke v. Catholic Education Office & Anor

[2003] FCA 1085 (8 Oct. 2003) (Australia)

Keywords: Australia, special educational needs, compensation, accessibility, entrance requirements, indirect discrimination
A student with a severe hearing impairment enrols at a Catholic secondary college. The student depended on the Auslan signing system to understand language and communication and the learning support model proposed by the college did not include the services of an Auslan interpreter. The school stated its belief that the learning support model was appropriate for his educational needs.

The parents offered to provide the school with $15,000 to relieve any financial restraints that may have limited their son’s opportunities at school. They suggested the grant may be used to provide support for a teacher or teacher aide to be trained in the use of Auslan, provide support for excursions or apply for Commonwealth grants. The school also rejected the offer of financial support from the parents because the offer may be considered inequitable for other students in the school.

The Court held that the school had indirectly discriminated against the student and ordered payment of $20,000 in compensation with $6,000 interest. Damages included the child’s perceptions of rejection and the frustration involved in changing schools and moving away from his friends and other Auslan speakers.

The condition of the child’s entry precluded access and participation in the educational experience by the student with the disability and it was not reasonable when all the circumstances of the case were considered. A condition of enrolment was established by the college that Jacob and his parents accept a model of support that did not include Auslan.

The education authority can be found to have unlawfully discriminated even if they didn’t hold that intention. This is indirect discrimination. See section on website relating to direct and indirect discrimination and the Bulgarian case of European Roma Rights Centre v Ministry of Education.