Autistic children in Australia have no right to education

Bob Buckley

I am not a lawyer, so you cannot rely on my opinion; make sure you get professional advice in relation to this subject.

The US Supreme Court is about to hear a case about the quality of education for an autistic student - see

Endrew F. (Drew) is a student who, like virtually all children with disabilities, can make significant academic progress.  Drew has been diagnosed with an autism spectrum disorder (ASD) and with attention deficit/hyperactivity disorder (ADHD). From preschool through fourth grade, Drew attended public school in the Douglas County School District RE-1 in Colorado. Beginning in second grade, Drew engaged in behaviors in school that interfered more and more with learning. The school district developed goals for Drew’s education in his Individualized Education Plan (IEP) but, as he made little or no progress, repeated the same goals from year to year, or abandoned them altogether.  The school never effectively addressed his behaviors, and as a result Drew regressed. 

Before he began fifth grade, Drew’s parents withdrew him and enrolled him in a private school. The private school immediately developed a behavior intervention plan that addressed Drew’s specific strengths and needs.  Since then, Drew has flourished, and made significant academic progress.

US laws, the IDEA and the No child left behind Act, describes the right of every child to a free and appropriate public education (FAPE). In the USA, the courts decide what this means ... in effect, the courts can tell governments that they are not spending enough money or being effective in providing education.

Australian politicians, from all major parties, abhor the possibility that a judge or a court could say the education budget isn't big enough ... or the Education Minister has the wrong priorities. 

So a legal case like this is not possible in Australia. The law in Australia does not protect a child's right to education ... even though Australia signed the UN Convention of the Rights of the Child. 

Actually, a similar issue already played out under disability discrimination law in the Australian High Court. The result is described in Dr Colin Cambell's article A HARD CASE MAKING BAD LAW: PURVIS V NEW SOUTH WALES AND THE ROLE OF THE COMPARATOR UNDER THE DISABILITY DISCRIMINATION ACT 1992 (CTH). The Purvis vs NSW precedent in the High Court deprives a child who "might" show unwanted behaviour of the right to education in Australia. And Purvis vs NSW was cited as a precedent in Walker vs Victoria

It will be interesting to see the result of this case in the USA.