right to education for a child with disability being decided in NZ

The NZ High Court "found that Green Bay High School in Auckland was not justified in excluding a student with Asperger's syndrome, following a row he had with a teacher." [see article]. This may not be over yet.

I am not a lawyer and I do not know NZ law. I know that under international law, paragraph 3 in Article 23 of the United Nations Convention on the Rights of the Child (CRoC) says every child has a right to "education, training, health care services, rehabilitation services [and] preparation for employment" ... and that "the state" is ultimately responsible for ensuring this happens. Specifically, in relation to children with a disability, the CRoC says ...

... assistance ... shall be provided free of charge ... and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development ...

The Australian High Court, with a marginal 4:3 decision, set a strong precedent in Purvis vs NSW that any and all schools can exclude a child/student with disability if the school suspects (without any need to refer to relevant professional expertise) that the student may someday behave "inappropriately" (in the school's judgement). This legal precedent resulted in Walker vs Vic (see http://a4.org.au/a4/node/338 and http://a4.org.au/a4/node/619). Australia (the state) abrogates its responsibility to ensure "the disabled child [in Australia] has effective access to and receives education, ...".

Now the New Zealand system is being tested.

The article say the student has "Asperger's syndrome" (a clinical disorder called Asperger's Disorder in the DSM-IV, now merged into Autism Spectrum Disorder in the DSM-5). As is often the case, the school may not have the resources, knowledge, etc. to address the student's clinical disorder while the student is at school; in other words, in the school setting he is not getting the treatment and rehabilitation that is his right as the CRoC describes. There is no sign that the school sought the resources and expertise that this student needs from the Education Department or from the Government/state more generally.

The school, part of the public education system, has not sought the support of the Education Department and other elements of "the state" to address the student's need in relation to his education. Instead, their approach is to exclude the student and push all the responsibility for meeting his right to "treatment, rehabilitation and education" onto his parents. These actions simply does not meet the child's rights under international law.

The article quotes Mr Allan Vester, Secondary Principals' Council chair, as saying:

"I always put a simple little test to it – if I wouldn't be happy having that student in a class with one of my own children or my grandchildren, I shouldn't really have anyone else's children in that class. So you do run into that tension between doing what's right for the individual, and also doing what's right for the entire group."

This shows the typical prejudice/bias that students with disability face from most officials. Mr Vester's "simple little test" is about "doing what's right for the entire group" excluding the student with a disability. It is not the entire group at all. Mt Vester's "simple little test" is completely exclusive. His test should have two parts; the second part should ask "if the child with a disability were my own child, would I regard the actions as meeting my child's needs?". His position completely fails this balancing part of the test.

At this stage, we do not know whether the New Zealand Government will follow the NSW lead in Purvis vs NSW and appeal to their High Court. Nor could I guess the probable outcome. We wait with interest.