All students with a disability have a human right to attend their local school, feel welcome and included, have access to the curriculum, and have fair outcomes from a quality education.
We know that when disabled students learn alongside students their age at their local school they are set up for a life of citizenship, community participation and inclusion. The research tells us that non-disabled children also benefit from inclusion; their learning increases along with their values of diversity and inclusion.
Unfortunately, students with disabilities have been treated unfairly within the New Zealand education system for far too long. They have been discriminated against by not having access to what they need to thrive at school.
Examples of discrimination include, disabled students being denied enrolment or not being able to attend all day, being encouraged to go to a school that is ‘more appropriate’ for disabled students, not participating in school activities, or being placed with a teacher who lacks the confidence or support to teach students with different learning needs. Many students cannot access the supports they need for equitable access to education.
What we have done
In 2008, after decades of work with the Ministry of Education to solve the problems, IHC lodged a complaint under Part 1A of the Human Rights Act 1993. This legal mechanism considers whether government policy and processes are free from unlawful discrimination. IHC thought what was happening for disabled students at school needed to be looked at by human rights law experts.
IHC’s legal action is now 13 years old! Our case had to go through the Human Rights Commission and then government lawyers wanted to “strike-out” key aspects of the IHC case. We had a hearing in the Human Rights Review Tribunal in 2015.
Despite years of special education announcements and changes the overall situation on the ground for children with disabilities at school has not improved.
Why IHC is taking this legal action
IHC is taking this action as a last resort. We have tried everything else over the years to get a fair deal for disabled children and young people at school. We have:
- talked with Ministers and the Ministry of Education for many years
- written many letters and submissions to the Government about the problems and suggested solutions
- developed resources to help families to speak up for their children at school
- funded research that identifies what disabled children need at school to get a fair deal
- funded seminars for schools to talk about how to include and teach disabled children and young people
- listened to families and disabled children and young people telling us about what they find difficult at school and what would make things right
- had discussions with principals, teachers and Boards of Trustees and their representative organisations over shared concerns about disabled children and young people at school.
Key messages from the complaint
- IHC’s complaint responds to the high numbers of complaints and concerns received about the difficulties disabled children and youth have with enrolling at their local school, participating in school life and accessing the curriculum.
- These difficulties are clear evidence of discrimination. IHC believes the problems are structural and discrimination occurs as a result of government policy and systemic failure.
- Disability and children’s organisations agree that disabled children and young people are entitled to the same educational opportunity as all New Zealand children and failure to do so must be addressed through a human rights mechanism not through tweaking of special education policy.
- A fair go for disabled children at school means that they are welcomed, their learning needs are met and that they have the supports to enable them to do so. It also means that they are able to participate in all aspects of school life.
- Education policy needs to reflect the rights to education without discrimination and on the basis of equal opportunity enshrined in both the Convention on the Rights of the Child and the Convention on the Rights of Disabled Persons and New Zealand’s legislation.
- The recently released Convention Coalition Monitoring report (Article 33 of the United Nations Convention on the rights of Disabled Persons) confirms that young people with disabilities say they have experienced discrimination through having limits placed on their right to access education in the same way as their non disabled peers.
- It is important to note that the complaint is not about debating which types of educational settings provide the best learning environments for students with disabilities. IHC is focusing on government policy that allows discrimination to occur when parents enrol their son or daughter at their local mainstream school.
- IHC supports recent government initiatives to build inclusive practice in schools but we are calling for the systemic change necessary to end the problems experienced by disabled children, families and schools. The problems have gone on for too long and need to be fixed now.
What is happening now?
After five years of waiting the Human Rights Review Tribunal handed down their decision at the end of 2020. The Tribunal dismissed all of the Crown’s “strike-out” arguments.
This was great news! The discrimination experienced by disabled students with disabilities in education can now be heard by human rights experts.
Early in 2021, we had more good news – The Director of the Office of Human Rights Proceedings, Michael Timmins, agreed to provide legal representation to IHC. He thinks the way in which disabled students experience discrimination in their access to education is a serious matter of great public interest. Michael Timmins wants to talk with government about what they could do to better protect disabled students from discrimination at school.
How can you be involved?
Before writing up new court documents to take our case forward, the Director of Human Rights Proceedings, Michael Timmins, wants to hear from families and students.
- What difficulties have you and your child faced at school?
- How did you go about trying to solve those problems?
- What changes do you think need to happen for your child and other disabled students to get a fair deal?
Michael also wants to hear from people from the education, disability, and community sectors about what they think about these problems and how they could be solved.
When can you get involved?
IHC will be arranging meetings around New Zealand this year. Please let us know if you would like to host a meeting, attend a meeting or would like to support the complaint by contacting the Advocacy team on Phone: 04 472 2247, 0800 442 442 or email email@example.com