Knowing your rights

Education for children with autism is governed by specific rules and rights that aim to provide them with equal learning opportunities and the chance to participate alongside their peers. 

It's important to understand these laws and options to help your child seamlessly integrate into school life, allowing them to thrive in the same environments as their friends and classmates.

Your child’s right to education

In Australia, all children have the right to go to school, including those with autism. This is backed up by important rules like the Disability Discrimination Act 1992 (DDA) and the Disability Standards for Education 2005 (DSE). These laws help ensure that children with autism can go to the same schools as other children, get the help they need to learn, and take part in all school activities.

Choosing the best school

As a parent, you can send your child to either a mainstream or a special school. Mainstream schools are intended for all children and are meant to make adjustments so that students with autism can learn and participate effectively. Special schools are designed for children who require specific types of support. Each school has its own admission criteria, so it's important to explore several options to find the right fit for your child.

Supports in school

Children with autism may require additional support at school, such as a teacher’s aide, specialised equipment, or access to therapy. Schools are responsible for providing this support to ensure that all students can perform to the best of their abilities and fully participate in school life.

Understanding the law

The laws previously mentioned, such as the DDA and DSE, ensure that children with autism can attend school alongside their peers. These laws align with broader international agreements that Australia supports, such as the Convention on the Rights of Persons with Disabilities. The goal is to create inclusive schools where children with autism can learn and thrive just like other children.

What the Disability Standards for Education (DSE) covers

The Disability Standards for Education (DSE) applies to many types of educational settings, including preschools, all types of schools, vocational training providers like TAFEs, and universities. The standards aim to create an environment where all students, especially those with disabilities, can learn and participate fully.

The DSE is designed to protect and promote the rights of students with disabilities, including those with autism. These rights are fundamental to ensuring that all students have equal access to educational opportunities. These rights entail:

• Comprehensive access to education: Students with disabilities have the right to access and participate in the full range of educational opportunities. This includes not only the right to enrol in courses but also the right to receive all forms of education and training on the same basis as students without disabilities. This access should be holistic, covering everything from academic courses to extracurricular activities and school events.

• Modifications and adjustments: A crucial part of these rights is the entitlement to reasonable modifications and adjustments. This means that educational settings must be physically accessible and the curriculum must be adaptable to accommodate different learning needs and styles. For example, a student with autism might require a quiet space for taking exams or the use of technology that assists in communication.

• Support services: Access to appropriate support services is another significant right. These services could include specialised teaching aids, assistance from aides, and access to therapy or counselling services within the educational context. It is vital that these supports are not just available but are of high quality and tailored to meet the individual needs of the student.

• Protection from discrimination: Protection from discrimination is a fundamental right under the DSE. This includes preventing direct negative actions and promoting an inclusive and respectful environment for all students. Educational providers must actively work to prevent bullying and harassment and ensure that all students feel safe and valued.

Duties of educational providers under the DSE

Educational providers have a set of clear responsibilities under the DSE to ensure they uphold the rights of students with disabilities. These duties include, but are not limited to:

• Effective consultation: Educational providers must engage in meaningful consultation with students with disabilities and, where appropriate, their families or carers. This consultation is key to understanding the specific needs and preferences of each student and forms the basis for any adjustments or supports provided. It ensures that interventions are not only theoretically effective but practically beneficial.
• Provision of reasonable adjustments: Once needs are identified, schools have the duty to provide reasonable adjustments. These adjustments should make it possible for students to participate in education on an equal basis with their peers. The term "reasonable" means that the adjustments should be feasible without causing unjustifiable hardship to the school, yet effective enough to meet the students’ needs.
• Ensuring accessibility: Beyond adjustments, ensuring accessibility in a broader context is critical. This includes physical accessibility to buildings and facilities, as well as accessibility to learning materials, which should be available in formats that are usable by all students. For example, providing textbooks in both print and digital formats can help meet diverse needs.
• Training and awareness: Educational providers must also ensure that their staff are trained and aware of their obligations under the DSE. This includes training on how to make adjustments, how to communicate effectively with students who have disabilities, and how to foster an inclusive environment that respects and values diversity.‍
• Monitoring and feedback: Schools are required to monitor the effectiveness of the measures they have implemented and to seek feedback regularly from students with disabilities. This ongoing process helps ensure that the measures remain relevant and effective, adapting over time to meet changing needs.

How schools make adjustments

Talking and planning are key parts of making education accessible. This involves:

• Discussing how a student’s diagnosis affects their school life.
• Figuring out what adjustments are needed to help them participate fully.
• Making sure the changes are practical and work for the student.

These adjustments are important because they help students access their educational rights. However, schools shouldn’t have to make changes that would be significant in difficulty or expense.

Schools must be safe places where all students feel welcome. To do this, they must:

• Put in place ways to prevent bullying and unfair treatment.
• Teach everyone what behaviour is acceptable and what isn’t.
• Make sure there are easy ways for students to report problems and get them resolved.

Exceptions to the Disability Standards for Education (DSE)

While the DSE is designed to promote inclusivity and accessibility for all students, including those with autism, there are specific circumstances under which schools and other educational institutions might not have to adhere strictly to these standards. These exceptions are not loopholes but carefully considered provisions that ensure the standards are applied in a fair and practical manner. Here’s a deeper look at when and why these exceptions might apply:

Unjustifiable hardship

One of the primary exceptions is if adhering to the DSE would cause "unjustifiable hardship" to the educational provider. This means that if making the required adjustments or accommodations would be too costly, difficult, or disruptive, a school may argue that it is unable to implement them. It’s important to note that this isn’t a simple claim schools can make; they must provide solid evidence to support it.

For example, if a small rural school is asked to install expensive, specialised equipment that is only usable by one student and would strain the school's budget, the school might claim unjustifiable hardship. However, the school must thoroughly assess all possible options, like seeking funding assistance or finding less costly alternatives, before deciding that they cannot meet the requirement.

Public health concerns

Another exception is related to public health. This exception is applicable when a student's disability poses a direct threat to the health and safety of others. For example, if a student with a highly infectious disease wishes to attend classes during an outbreak, the school may need to make decisions that could appear to discriminate against the student but are actually made to protect the health of the entire school community. In such cases, the decisions must be based on current medical evidence, not generalisations or stereotypes about the disability.

Special measures

Another type of exemption involves special measures intended to achieve equality for students with disabilities. Sometimes, to ensure that students with disabilities receive the additional support they need, schools might implement measures that are discriminatory in nature but designed specifically to improve their participation and advancement in education. For example, a school might offer a scholarship program exclusively for students with disabilities or provide additional tutoring sessions that are not available to other students.

These special measures are not considered discriminatory when their sole purpose is to help level the playing field for students with disabilities. Instead, these steps are considered necessary to promote an inclusive educational environment.

Proving the need for an exception

It’s crucial for schools to remember that the burden of proof lies with them when claiming any of these exceptions. They must demonstrate, through clear evidence, why the standard provisions of the DSE cannot be met. This process ensures that exceptions are not misused and that all students' rights to education are respected as far as possible.

Addressing discrimination: Additional resources and steps for parents

When facing a situation where you believe your child has been discriminated against due to their disability, it’s essential to be well-equipped with information and know the specific actions you can take. Beyond understanding your child's rights and communicating with their school, here are further steps and resources that can help: