Some of the biggest transitions we all experience as children are those in moving from one type of education to another, writes disability lawyer Nan Jensen. For any of these transitions, it is important to plan early and establish the right fit for the student.
OUR EDUCATION system has a legal framework which provides specific rights for students and parents.
We start with early childhood which is not compulsory but because providers receive Ministry of Education funding, they are obliged to follow certain rules and laws.
Providers, many of whom are private businesses, are not obliged to enrol any child but the Human Rights Act 1993 still applies.
This Act forbids discrimination on the basis of disability, but it also allows an exception in cases where ‘reasonable accommodation’ cannot easily be given.
In effect, this means that if a child needs additional support, they may deny enrolment because they cannot meet the child’s needs.
Support in the form of education support workers and other specialists may be provided through the Ministry or one of a few other providers. This could be psychologists, speech-language therapists, physiotherapists or early childhood teaching specialists.
Primary school and the first two years of secondary school are compulsory.
Students must start school by age six and can leave after age 15 – but most students start at five, with some students remaining in secondary school until age 21.
If you choose to keep your child in early childhood education until they are six, any extra assistance available to them will be stopped when they are five unless you discuss this with the Ministry of Education and get it organised ahead of time.
The government claims all sorts of support is available at school, but before any transition, it is important you engage with the school and the Ministry of Education early to determine what support your child needs and what will be available.
Support and funding are supposed to be needs-based but there simply is not enough to cover all children and all needs and parents can be in a situation where they feel that they are constantly fighting and advocating for their child.
The Ongoing Resourcing Scheme (ORS) is the most sought-after funding because once your child has it, it cannot be taken away.
There are different levels of funding though and even when your child’s funding is approved, the number of teacher aide hours are never enough, and these can be subject to change.
Applications are time-consuming to prepare, making it vital that the person preparing it has experience in completing them.
It is not common to have to reapply several times, or ask for a review, before approval is finally granted.
Therefore, it is so important to get started early.
It is also easy to get in a conflict with school staff and the Ministry when you feel your child’s needs are not being met, but it is best to try to retain them as allies in advocating for resources for your child and their school.
The Act provides for an appeal process through arbitration – which is like a court case, but you have an arbitrator who decides the outcome instead of a judge.
The arbitrator is an expert in special education.
You can use the appeal process to appeal any decision by the Ministry that relates to special education (the Act still uses this term even though the Ministry talks about ‘Learning Support’).
The process is very stressful so you should only use it after having exhausted all other options.
Most appeals relate to ORS funding.
Suspensions and Stand-Downs
Suspensions and stand-downs are unfortunately a big issue for the autism community and generally for students with disabilities.
Recent research showed that autistic students were much less likely to be suspended if they had Ongoing Resourcing Scheme (ORS) funding. *
The principal may only suspend because of gross misconduct or continual disobedience or if the student’s behaviour could cause harm.
Stand downs are a period where the student may not attend class –up to five days per term and not more than a total of 10 days in a year – stand-down can also take place at school.
A suspension may only be for up to five days after which there must be a hearing.
It is important for parents and students to know their rights regarding this process because school boards often don’t follow proper processes. Students have the right to natural justice.
This means several things.
One is that the student has the right to tell their side of the story.
The principal should only suspend a student after considering all the circumstances, including any disability. Any incident needs to be fully documented and the student and parents must receive a copy of the report prior to the hearing, which must take place within five days of the suspension.
The school board representatives at the hearing must be independent – that is, they must not have a conflict of interest, such as a child who was involved in the incident. The board must consider the entire matter – including whether it was appropriate for the principal to suspend.
Once the board has heard all sides of the story, there are four options:
- to lift the suspension unconditionally
- to lift the suspension with conditions
- to extend the suspension
- or to exclude or expel the student.
I always recommend that people bring someone independent to any hearing. If the person is an experienced advocate, that is perfect, but anybody who is willing to take notes and be a ‘witness’ can play an important role.
You will probably be emotionally involved, so your witness is likely to hear things that you miss and they may be able to speak up if you suddenly lose your words.
Even if they say nothing, their notes can be valuable for reviewing the meeting and determining whether the process was done correctly and is fair and the board will be aware that a witness is present.
In my experience, many boards do not know how to conduct these hearings and make mistakes.
A recent newspaper article quoted a principal that described suspending students to attract more funding. This is a complete abuse of the suspension process.
What is Kiwi suspension?
Kiwi suspension is an unofficial exclusion.
This happens in secondary schools because schools that exclude students are required to accept a student who has been excluded from another school.
Some schools try to avoid this by encouraging parents to move their child to another school warning that the student is likely to be excluded if the suspension process is followed.
This is illegal and denies the student the right to natural justice. The school may try to make you think they are doing you a favour.
This practice is detrimental to students and results in incorrect suspension statistics.
Use of Restraint
Restraint is only permitted in certain circumstances such as:
- breaking up a fight
- stopping a student with a weapon
- when furniture or other objects are thrown close to others who could be injured
- preventing a student from running onto a road.
Search and Seizure
Search and seizure of student property has a prescribed set of rules and processes. In general, a school may not violate student privacy through routine search and seizure.
Any search must be based on a reasonable belief that the student has an item that is likely to endanger safety of any person or likely to detrimentally affect the learning environment.
Physical discipline is also forbidden.
What happens in tertiary education?
Tertiary education is not compulsory.
Most tertiary education providers try to accommodate students with disabilities, but my experience is the support they offer is often not suitable for autistics.
Again – the best way to achieve success is to find the right institution and meet the people that will be responsible for that area of study, as well as meeting the disability support team to discuss your needs.
Dealing with Disputes
One ongoing complaint to the Ministry of Education has been about the difficulty in making complaints and getting fair outcomes to disputes.
Families and students can feel quite powerless in these situations.
If the dispute is against the school, your first step is to follow the school’s complaints process, which normally means escalating from the teacher up to the board, if necessary.
If you’re still not satisfied, or if your complaint is against the Ministry, or another party, then some options are:
- complain to the Human Rights Commission (if the situation reflects discrimination because of a disability)
- complaint to the Ombudsman, who accepts complaints against government departments and organisations such as schools
- or Judicial Review, which is a High Court process – this option is costly and time consuming. You will also need a lawyer.
If your complaint is against a private provider or school, then you need to review the contract you signed on enrolment and speak to a lawyer.
Youthlaw is a Community Law Centre that specialises in the rights of young people and have considerable experience with Education Law. They may be helpful to you in preparing for a meeting.
The Education and Training Act contains a new disputes resolution process, but at the time of writing it is not operational. That is disappointing because people have been complaining about the lack of dispute resolution mechanisms for a long time.
Parents’ Rights
The Education and Training Act allows a parent or non-student to be fined or imprisoned if they intentionally insult, abuse, or intimidate a teacher or staff member of a registered school.
So, it is important, even if you are upset, to speak respectfully to school staff.
I have not heard of any parents charged with this offence, but I have heard of parents being trespassed from schools.
A trespass is a serious issue, with the notice lasting for two years.
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Nan Jensen
Nan Jensen is a lawyer specialising in disability law.
- She is a consultant with Quinlaw in New Plymouth. Practising from her home in Hamilton, she utilises technology to service New Zealand’s disability community nationwide.
- Nan has practised for almost 10 years, also providing legal education on Disability Law matters and acting as a director of The Disability Trustee, which provides trustee services to trusts with disabled beneficiaries.
- Nan was also recently diagnosed as autistic herself.
- Youthlaw 0800 884 529.
