Equality of opportunity for all?: An assessment of the effectiveness of the Anti-discrimination Act 1991 (Qld) as a tool for the delivery of equality of opportunity in education to people with impairments

Dickson, Elizabeth Anne (2007). Equality of opportunity for all?: An assessment of the effectiveness of the Anti-discrimination Act 1991 (Qld) as a tool for the delivery of equality of opportunity in education to people with impairments PhD Thesis, T.C. Beirne School of Law, University of Queensland.

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Author Dickson, Elizabeth Anne
Thesis Title Equality of opportunity for all?: An assessment of the effectiveness of the Anti-discrimination Act 1991 (Qld) as a tool for the delivery of equality of opportunity in education to people with impairments
School, Centre or Institute T.C. Beirne School of Law
Institution University of Queensland
Publication date 2007
Thesis type PhD Thesis
Supervisor Reid Mortensen
Total pages 447
Collection year 2007
Language eng
Subjects 1301 Education Systems
330104 Educational Policy, Administration and Management
Formatted abstract The primary object of the Anti-Discrimination Act 1991 (Qld) (QADA) is to ‘promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation’. The aim of this thesis is to determine whether the QADA has been an effective tool for delivering equality of opportunity in education to Queensland people with impairments. A communitarian context is adopted as the conceptual framework for this evaluation. Communitarians recognise that each citizen is, prima facie, entitled an ‘inclusive’ education in the mainstream community. The thesis canvasses recent Queensland education policy which emphasises, consistent with communitarian theory, that an ‘inclusive’ education should be made available to students with impairments encompassing both access to a regular education in a mainstream classroom and access to the full range of educational opportunities open to other citizens. The thesis contends that this kind of inclusion is an important benchmark of ‘equality of opportunity’. The policy of inclusion is informed by a shift in the understanding of the nature of disability and of the place of people with disabilities in the wider community. Disability, the social restriction experienced by people with impairments, is now widely regarded as, to a large extent, a social construction. Disability flows from the failure of society to accommodate the different needs of people with impairments. Moreover, the accommodation of people with impairments is now asserted as a rights issue rather than a welfare issue. People with impairments claim the same basic rights as people without impairments, including a right to educational opportunities. The terms of the QADA, it is argued in the thesis, have been influenced by these developments in disability theory. Evidence of education practice and the body of case law that has gathered over the 16 years since the QADA was enacted, however, suggest that the implementation of ‘inclusive’ education policy has met with resistance from those charged with providing educational opportunities to students with impairments. It has proved particularly difficult to deliver inclusion to students with certain types of impairments, particularly intellectual and behavioural impairments. To this extent, the thesis identifies a dissonance between education policy and practice and suggests that the legislation has not delivered an unfettered right to equality of opportunity for people with impairments. Analysis of discrimination in education cases decided under the QADA, and under similar legislative regimes in other Australian jurisdictions, demonstrates that respondent education institutions have utilised a variety of strategies constructed from the terms of the legislation in attempts to defeat claims of discrimination and to defend prima facie discriminatory practices. The thesis analyses the elements of these strategies and how they have been promulgated in the cases. A number of limits on the right to equality of opportunity are extrapolated from the cases. Overt limits arise when inclusion of a student with impairment compromises the health and safety of others in the education community or has a detrimental effect on the learning environment. An overt limit also arises in respect, particularly, of tertiary institutions which are entitled to exclude students who cannot maintain legitimate academic standards. Another overt limit, albeit narrower, is acknowledged when the financial cost of inclusion compromises the viability of the education provider or, in some circumstances, prejudices other students in the education institution. The thesis also identifies a series of covert limits which, although not made explicit in the cases, may be inferred from the reasoning which informs them. At this level, the financial cost of inclusion vi may be detected as an issue behind the overt health and safety and learning detriment limits identified above. It appears that courts and tribunals are also less likely to recognise a right to inclusion when a student does not take appropriate steps to mitigate his or her disability. Finally, there is some suggestion that a right to a mainstream education will not be recognised where a court or tribunal considers there to be no objective ‘benefit’ to the student arising from the inclusion. The thesis considers the legitimacy of the limits to equality developed in the cases and of the strategies underpinning the limits, in communitarian terms, and in terms of contemporary disability theory.

The law as stated in the thesis is current to 28 February 2007.
Keyword Queensland. Anti-Discrimination Act 1991
Discrimination -- Law and legislation -- Queensland
Discrimination in education -- Queensland
People with disabilities -- Education -- Queensland
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