Selma Milovanovic Legal Affairs Reporter
March 25, 2011
A TEENAGE boy with multiple disabilities who was sent home during lunch and banned from school excursions has lost his discrimination claim against the Education Department.
The Victorian boy, whom The Age has chosen not to name, has Asperger's syndrome (an autism spectrum disorder), dyslexia and attention deficit disorder.
Lawyers for the boy, now 16, told the Federal Court his IQ dropped due to the alleged discrimination. The court heard he was not allowed to travel on the school bus, forcing his mother to drive 400 kilometres each week to take him to school.
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The school claimed the boy had exhibited sexually inappropriate and violent behaviour. The court heard he hit other students, once hit a principal, and swore at teachers.
The boy's mother sued two schools on his behalf, with her claims centring on indirect discrimination: that the schools set up conditions her son could not meet because of his disabilities.
Federal Court judge Richard Tracey ruled it could not be said the department would have treated another student without disabilities any differently than it had treated the boy.
He said most of the complaints were unfounded but that the requirement the boy be educated without ''one-on-one assistance'' was detrimental to the boy under the disability law.
However, he said he was not satisfied that it was necessary the boy received the exclusive attention of a teacher or an aide at all times.
Justice Tracey said the boy's education progressed and expert opinion showed the arrangements were ''more than adequate to meet his educational needs''.
Justice Tracey dismissed the claim the boy studied without an individual education plan that addressed his disabilities. He said no evidence supported the claim the boy's teachers and aides were not trained to manage his disabilities.
Speaking about the schools' decision to ban the boy from the playground during recess and lunch breaks, he said principals had no option but to devise strategies designed to help the boy and protect other students.
The decision (Judge's description) is http://www.austlii.edu.au/au/cases/cth/FCA/2011/258.html