Three News last night had a piece about Ryan Harrison, a 10-year old special needs student who has been barred from a school trip for "health and safety reasons". This is nothing but outright discrimination. It is also illegal. Discrimination on the basis of disability, including "physical disability or impairment", "intellectual or psychological disability or impairment", and "any other loss or abnormality of psychological, physiological, or anatomical structure or function" is prohibited by s21(h) of the Human Rights Act 1993. S57 makes it illegal for schools to deny or restrict any benefit or service - which clearly includes attending a school camp - on the basis of any of the prohibited grounds of discrimination. While s60(2) allows exceptions to be made for health and safety reasons, it does not apply where an institution can take reasonable measures to reduce any risk to "normal levels". In the past, Ryan has been accompanied on trips, and his parents have offered to do so in this case. The school has refused. The problem is not Ryan, but a school administration which is simply unwilling to comply with the law and accommodate him.
In common with other New Zealanders, disabled children have a right to free primary and secondary education. They also have a more basic right to be included in and participate in our society and to share in the same experiences anyone else has access to, insofar as is possible with their special needs. This isn't the 80's any more, when different students were shoved away in special schools and ignored, and we expect better. Te Huruhi School, and all our schools, should be living up to those expectations.
As a final note, given National's announced education policy of sticking special needs students in a ghetto so they won't "disturb" "normal" kids, someone should really corner Bill English and ask him what he thinks of this. I'm sure the answer would be illuminating.
7 comments:
I saw that too, and was horrified...
And, completely ignoring any legal obligations.... I can see perfectly well why there could be an issue, if there was no extra help to look after said special needs child... But when the parents offered to either attend themselves, or pay the costs of a carer/assistant, and pay any extra transport and accomodation costs this would entail.... they were still refused... I just cant see any logical/reasonable grounds on the part of the school.
It seems almost vindictive..
Fletch.
Posted by Anonymous : 11/01/2006 01:49:00 PM
Sorry I/S - a somewat flawed analysis (what would have been called "right answer, wrong working" under school c).
You forgot s 21A of the HRA. The Human Rights Act doesn't apply to state schools (except in their employment of staff).
You should actually use s 19 of BORA. You only need to establish a ground (e.g. disability) and needn't establish an area (e.g. educational institutions restricting benefits, subject to exceptions).
The only exceptions under BoRA are those that are prescribed by law and are demonstrably justifiable in a free and democratic society.
If you were right and the HRA did apply, then you'd have forgotten s 21B(1), which could be fatal to your analysis:
"(To avoid doubt, an act or omission of any person or body is not unlawful under this Part if that act or omission is authorised or required by an enactment or otherwise by law."
If health and safety laws authorise the school to refuse to take a child who is a danger to themselves on a camp, then it would not be unlawful discrimination (whether they do, I don't know, but either way, determining whether 60(2) applies is insufficient for determinng whether discrimination would be unlawful).
Posted by Graeme Edgeler : 11/01/2006 03:08:00 PM
Bugger - I keep forgetting that. Still, as you say, it gets to the same point.
And wouldn't OSHA have to be interpreted through the lens of the BORA, including the non-discrimination provision? That wouldn't override an explict ban, but it would make the school's interpretation difficult to justify.
Posted by Idiot/Savant : 11/01/2006 03:45:00 PM
I'm presuming OSHA is shorthand for the Health and Safety in Employment Act? I don't know whether it applies (if the concern isn't risk to an employee I don't know that it does), but yes it would have to be read consistently with BORA.
I'm not sure whether that would make a difference to the school in this case however. The requirement would (I assume) be to take all reasonable steps to ensure the safety of those involved. Either the trip can be made safe or it cannot - I don't see that an interpretation of a requirement to take reasonable steps could have a s 19 consistent interpretation assisting. No-one's proposing a situation where the child's safety can't be reasonably guaranteed and a BORA-consistent interpetation would allow him to go anyway (positive discrimination)?
Posted by Graeme Edgeler : 11/01/2006 04:55:00 PM
This really sucks. Both this kid's parents had offered to accompany his, and that should be more than ample.
The principal is clearly more interested in butt-covering than serving his students.
Posted by Russell Brown : 11/01/2006 05:46:00 PM
Well . . . if the boy's parents are generally happy with him attending the school, then yeah, the principal does seem to be the odd guy out here.
My intellectually disabled daughter attended a special-needs class in a regular high school in the 80s. She had to travel around three times the distance to the closest regular high school, but I'm grateful as hell for that special class and its very special teacher.
She used to let the specials out 20 minutes early so they could make it to the bus before the regular kids could monster them for their bus fare. All the mainstreaming in the world doesn't help when you've got an hour's walk home because someone spent your bus money on Space Invaders. Then there was the 15-going-on-27 glue sniffer, inappropriately streamed to the special class by an incompetent social worker. One species of abnormal disrupting an entirely different bunch of abnormals.
My point is that there is a whole spectrum of special needs, and a school's job is to provide for these needs. Intellectually disabled kids are not the same as those suffering autism, and autistic kids are generally different from those who exhibit aggressively disruptive behaviour.
Mainstreaming in regular classes won't make many problems go away, teachers can only do so much. Telling a vulnerable kid that all they have to do is tell someone in authority next time they're bullied by 'normal' kids is fine until they try it. It's when they're having their head held down a toilet for being a snitch that they realise the limitations of adult authority, and the myth of mainstreaming as a universal panacea. Children sometimes need to be protected from one another.
The headmaster in question should be agitating for the resources his school obviously needs. rather than penalising the unfortunate boy.
Posted by Anonymous : 11/01/2006 08:17:00 PM
I have just now sent an email to Bill English asking if he would be so kind as to explain his comments referred to here and advise what National policy is in this regard.
This is of interest given I have a special needs child currently in 'transition' from kindy to primary school.
I have asked that he post his reply directly to this thread.
Posted by Anonymous : 11/02/2006 12:25:00 AM
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