The Politics and Unfairness of “Zero Tolerance” Behaviour Policies on Students with Disability

By Catia Malaquias

In response to a 2017 PISA report from the OECD indicating that Australia’s schools had a “bad behaviour” problem, the Australian Minister for Education, Simon Birmingham, called for “zero tolerance”.

The PISA report’s methodology and findings have been widely criticised – and its notion of behaviour was largely about levels of student engagement with their learning – but as a “bad behaviour” headline it attracted the inevitable political posturing about the need for “zero tolerance”.  As a mantra, “zero tolerance” is simple and saleable in that it affirms the traditional strict discipline view of schooling.  But as a policy to stem something that society deems undesirable, “zero tolerance” policies have inevitably exacerbated the relevant issue. Why? Because “zero tolerance” means “zero effort to understand”.

“Zero tolerance” is nothing more than a reactive policy response in the nature of a toddler’s tantrum: “If I yell loud enough, I will get my way and my audience will see how much I want to change things!”  Ipso tantrum, ipso fixum!”  But any alleviation of the issue is at best superficial – temporary –  and usually counter-productive in the longer term – as the underlying issue – or need – is not identified or understood and therefore addressed.

In the context of education – “zero tolerance” sends the message that school cultures should be built on “compliance”.  A “culture of compliance” is by definition an exclusionary culture for students with disability, particularly students who are not neuro-typical. The narrow range of “acceptable” behaviour that underlies our education system was devised a century ago for the industrial production line model of education which “exception reported” and diverted students with disability and perceived behavioural challenges into segregated “special education” settings.  Too little has changed.

We know that people with disability are disproportionately represented in school suspensions and expulsions.  Last year, the Victorian Ombudsman reported that 31% of students expelled from Victorian public schools in 2016 had a disability or mental health issue.  Some of the children expelled were as young as 5 and 6 years old. However, this is the tip of the iceberg – as informal exclusion – although often just as damaging – is so much more pervasive and under-reported. And students with disability are more likely to be excluded and suspended “informally”, often with the acquiescence of their parents, often acting under duress as they try to placate a mainstream school system that resists adjusting for, let alone welcoming, their child.

What is also frequently under-reported is the extent to which students with disability, compared to non-disabled students, are the victims of violence and bullying and the serious impact this has on their mental health, in the case of teenagers with disability accounting for almost half of the poorer mental health outcomes for them.  The imbalance in articulation and communication skills between the students can often mean that a student with disability is more likely to be wrongly painted or identified as the “cause” of the incident.  Implicit prejudice also plays its part.  Exclusion and suspension of the student with disability in circumstances that the student with disability perceives to be “unfair” will only exacerbate the student’s frustration and future behaviour – a down-ward spiral of adverse socio-emotional consequences.

One of the cases profiled in the Victorian Ombudsman’s report concerned the expulsion of a 7 year old child diagnosed with autism and severe behaviour disorder.  His mother told the Ombudsman’s investigation the obvious:

“Imagine what that does to a seven-year-old who has never been to any other school, who has a severe problem with change, who is told from one minute to the next ‘this is not your place anymore’ … he was devastated.”

His father told the Ombudsman that his son had been expelled for “consistently behaving in an unproductive manner … so he is basically expelled for his condition”.

The fairness of excluding students for behaviour that is related to or consequent upon their disability was at the centre of a recent landmark appeal decision of the UK Upper Tribunal in C&C  v The Governing Body of a School (August 2018), concerning the exclusion of a 13 year-old student due to behaviour linked with his autism.

In the UK students with disability account for almost half of all exclusions in schools.  The dramatic rise in exclusions of students with disability was facilitated by regulation 4 of the Equality Act 2010 (Disability) Regulations 2010 which purported to allow schools to exclude students with disability for behaviour amounting to a “tendency for physical abuse”, even where the behaviour resulted from a disability and the school had made no adjustments to meet the needs of the student.  In essence, if a student with disability had a “tendency for physical abuse”, then their disability did not need to be taken into account.

In C&C v The Governing Body of a School, in which the family’s appeal was funded by the Equality and Human Rights Commission and both the National Autistic Society and the UK Education Secretary of State intervened, the Upper Tribunal found that the exempting regulation could not apply to a student who has a recognised disability or condition that is more likely to result in a “tendency to physical abuse”.

The Upper Tribunal found that the exempting regulation, in its application to students with disability, was discriminatory and contrary to their human rights.  Judge Rowley, recognised that “aggressive behaviour is not a choice for children with autism”, and stated:

“In my judgement the Secretary of State has failed to justify maintaining in force a provision which excludes from the ambit of the Equality Act children whose behaviour in school is a manifestation of the very condition which calls for special educational provision to be made for them.  In that context, to my mind it is repugnant to define as ‘criminal or anti-social’ the effect of behaviour of children whose condition (through no fault of their own) manifests itself in particular ways so as to justify treating them differently from children whose condition has other manifestations.”

Judge Rowley found that the exempting regulation came “nowhere near striking a fair balance between the rights of children … [with disability] and the interests of the community on the other”.

Polly Sweeney, the partner of the law firm representing the family, stated:

“We are delighted with this outcome and pleased that the Upper Tribunal has recognised in strong terms the profound and severe discriminatory impact that these rules have on vulnerable children …

As has been made clear in the judgement, this decision does not mean that schools are prevented from excluding children when it is necessary and proportionate to do so.  However, it will ensure that all disabled children are afforded the same safeguards, protections and rights under the law regardless of whether their disability gives rise to challenging behaviour.”

The Executive Director of the Equality and Human Rights Commission welcomed the decision:

“We are delighted with this judgement which will require schools to make reasonable adjustments to try to prevent or manage challenging behaviour and justify that any exclusion in these circumstances is proportionate.  This is a positive step towards ensuring that everyone has the opportunity to reach their potential through education and increasing the inclusion of disabled children in mainstream education.”

The Director of External Affairs of the National Autistic Society also recognised the potential of the decision:

“This is a landmark verdict which could transform the prospects of future generations of children on the autism spectrum, by helping them get the education that they deserve.  The Government should recognise this decision and act immediately to make sure that autistic children are no longer unfairly excluded from school.”

Although the above case was determined under laws applicable in the UK, the Commonwealth Disability Discrimination Act 1992 (the DDA) may provide similar protections for Australia students with disability.

The DDA, together with the Disability Standards for Education 2005 (the DSEs) made under it, requires schools to provide additional support or adjustments for students with a disability, to ensure that those students are not discriminated against and are able to access and participate in education on the same basis as students without a disability.  Importantly, while the DDA defines “disability” in section 4 on essentially medically-based terms by reference to impairments, diseases and disorders, a 2009 amendment clarifies that “a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability”.

While these words narrowly “frame” behaviour as resulting from disability when much of the behaviour that schools perceive as “challenging” is in fact the result of unmet needs (eg communication, sensory, etc) or failure to provide necessary supports or accommodations for some students, they mean that the DDA expressly recognises that some students with disability can experience disability discrimination in relation to behaviour.  Importantly, this means that all Australian State law and policies for the suspension or expulsion of students in relation to behaviour, must be compliant with the protections for students with disability that are provided under the DDA and the DSEs. 

But while Australia’s legal framework may be capable of requiring schools and their staff to see beyond a student’s behaviour and to make proactive adjustments and accommodations for the interaction of the student’s disability and school environments, the willingness to do so is undermined by political calls for “zero tolerance”.  Such calls simply entrench the historical status quo – particularly the view that students with disability do not belong in regular classrooms or only to the extent that they can fit the narrow behaviour range.

The recent Gonski 2.0 report “Through Growth to Achievement: Report of the Review to Achieve Education Excellence in Australian Schools” called for the de-industrialisation of Australian classrooms and differentiated teaching taking into account the needs of each student. It also recognised the importance of school culture to the effectiveness of the learning environment.  The answer to “bad behaviour” in Australian classrooms does not lie in superficial “zero tolerance” policies that disproportionately serve to exclude the most marginalised whilst not addressing the core problem – that students with and without disability are not academically engaged or feeling socially included in their schools and valued amongst their peers.

Every student and teacher deserves a safe, positive and supportive classroom and school environment where  students feel a sense of belonging, trust others, and are supported to learn and participate.  But the fundamental need of every student to feel that they belong and are valued in particular is threatened, and for many students with disability destroyed, by the easy politics of “zero tolerance” and the idolisation of “compliance” over ensuring supportive strategies and physical design that helps students engage in behaviour that support their learning and connection with others.

[Cover photo © Ravali Yan]

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