2019 Education Law Wrap-Up & Hot Topics

16 December 2019

As 2019 draws to an end, this article outlines the trends in the Education Sector we have seen over the year, and looks at which trends will carry into 2020.

The biggest themes of 2019 have been:

  • Gender inclusion;
  • Disability discrimination;
  • Use of technology; and
  • Early Learning Centres.

Gender Inclusion

The Sex Discrimination Act 1984 (Cth) and the Equal Opportunity Act 2010 (Vic) aim to protect people experiencing gender discrimination because of their sexual orientation, gender identity or intersex status. This includes in the education sector.

Schools have a responsibility to take reasonable steps to eliminate discrimination by providing a positive, supportive and respectful environment. Every Australian child is entitled to feel welcome and valued at school, which is why the result of the third national study on the health and wellbeing of LGBTI young people should be cause for alarm. This study found that 61% of LGBTI young people experienced verbal homophonic abuse and 80% of the respondents experienced abuse at school.

Fostering a culture of inclusion, safety and respect means that schools:

  • cannot refuse enrolment of a prospective student because the school is concerned about its ability to accommodate the student having regard to toilets or change rooms and gender specific activities.
  • cannot enforce uniform policies which dictate that students with particular characteristics must wear school shorts and dresses. While schools can set and enforce reasonable standards of dress, appearance and behaviour for students after taking into account the views of the school community, this exception is interpreted narrowly.

Consistent with the school’s duty of care, some things Schools will need to consider moving into 2020 to create a more gender inclusive environment is:

  • School Sports – consider developing a policy which facilitates inclusion for all students in sporting activities. At a minimum, consider appointing a staff member who students can speak to about joining a sporting team;
  • School camps – schools are unlikely to be able to rely on the exceptions in anti-discrimination legislation to restrict a student’s participation in a camp due to concerns about segregating students based on sex;
  • Bullying, harassment and discriminatory language/behaviour – challenge derogatory language and ensure there are student policies and codes of conduct which enforce inclusion and respect;
  • Training – schools should consider training and up skilling current staff (including counsellors) on gender inclusion and create sensitive strategies to assist having sensitive conversations with students.

Disability Discrimination

A recent Victorian case has reignited the concern for schools about defending failure to educate claims from parents (i.e. compensation for breach of contract or negligence by a school in failing to educate a student).

These types of claims generally arise when a school seeks to enforce payment teams and school fees.  However, the current case is made significantly more complex because the student had a disability. The student was set to graduate from year 12 this year, however, his mother claimed that her son’s skills have not developed satisfactorily during the 13.5 years at the Southern Autistic School (the School) and he was left unlettered and analphabetic impacting his ability to find suitable employment or be accepted into some form of tertiary education.

What is most concerning about this case for our school clients is that the School had made reasonable adjustments and the mother appears to argue that, in making reasonable adjustments as required by anti-discrimination law, the school had actually breached another obligation to educate. 

This case is listed for a three-week hearing in the Federal Court in 2020. If successful, this may give rise to another legal liability for schools.

In the meantime, schools should implement Reasonable Adjustments Assessment Rubrics and Behaviour Management Policies (compliant with VRQA July 2019 guidelines) to maximise legal compliance and engage with parents as much as possible about how the school may be able to best assist students with disabilities.

Use of technology

In 2019, the Victorian Government announced that it will ban mobile phone use by students during school hours in an attempt to address cyber bullying and distraction.

Independent schools are not required to follow this ban although they may introduce a similar ban (or one might already exist) regarding the use of technology by students.

Separately to this issue is the concern about the increase in children sharing sexual images through social media platforms. A recent eSafety Commission Report highlights the increased use of technology and its impact on organisations when creating a child safe culture, particularly the rise of image based abuse. Schools are not immune to this and should be aware of the risks of students using platforms such as Snapchat and Instagram given the broad nature of the duty of care and the ability of technology to stretch its application to organisations.

Removing phones will not remove a school’s liability for harm caused by cyber-bullying and image based abuse. However, having clear “bans”, enrolment documents and policies can equip schools to discipline any student that breaches them (which should occur).  Although, banning phones should not be a substitute for educating students about cyber-safety and social media use and having bullying and acceptable use policies which are diligently and consistently enforced.

In terms of the Government’s ban, schools do need to be aware of removing phones from students that require it for medical purposes (e.g. blood sugar monitoring apps) and phones that are removed need to be kept secure and not accessed by staff, otherwise there are risks of theft or privacy breaches.

Early Learning Centres

The Victorian Education Department will be publishing further guidance for schools on the Education and Training Reform Regulations 2017 in early 2020. The regulations relate to not-for-profit status (school funds only for the school, not the ELC) and “prohibited arrangements” (all transaction to be commercial and for the direct benefit of the school).

From what we have seen so far, it is unlikely that this guidance will address schools’ concerns.  The regs are very narrow, and only exempt “related” “feeder” ELCs.  Schools still need to grapple with the use (or non-use) of school funds in the operation of ELCs and:

  • how separate the accounting must be, particularly noting the funding mix between private (tuition fees) and government funding;
  • what constitutes related not for profit activities and whether the reference to “related” imposes a form of connection (and what this might be – for example, whether childcare for staff and the ELC be treated differently).

We expect that the basic framework of the Regulations will not change and that there will continue to be an emphasis in them on both:

  • use of funds - currently worded as “solely for the conduct” of the school; and
  • the need for schools to acquire services at market rate to avoid being “prohibited”.

We will have to wait and see what the Regulations say in 2020 but in the meantime, we recommend that schools maintain separate accounts for schools and ELCs and have a Memorandum of Understanding in place between schools and ELCs including provisions (at a minimum) regarding services and liability.

How we can help

If you’d like assistance or advice on improving your school’s policies and procedures in relation to gender inclusion, social media, managing students with disabilities, reasonable adjustments, early learning centres or enrolment contracts, please contact Cecelia Irvine-So from our Education Team on 9843 2121. Alternatively, you can fill out the enquiry form below.

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