Care and consistency key to discrimination findings about anti-Semitism

In the case of Kaplan v State of Victoria (No 8) [2023] FCA 1092, five Jewish former students at Melbourne’s Brighton Secondary College (College) received compensation of $435,000 after the Federal Court found they had been subjected to anti-Semitic bullying and harassment, and that the State of Victoria and the Principal of the College breached the Racial Discrimination Act 1975 (Cth) (Act) by failing to properly address anti-Semitism at the College. This case highlights the significant discrimination and child safety implications of a school’s failure to proactively address discriminatory bullying and harassment against its students on an individual and systemic level.

Background of the case

The applicants, five former students from the College, filed a claim against the State of Victoria, the Principal of the College, and two teachers from the College. The claim alleged:

  • contraventions of s 9(1) of the Act, which makes racial discrimination unlawful;
  • contraventions of s 18C of the Act, which makes it unlawful for a person to do an act that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people because of the race, colour, national or ethnic origin of the person (anti vilification provisions); and
  • negligence.

In summary, the applicants alleged that:

  • they were subjected to anti-Semitic bullying and harassment by individuals and groups of students at the College between 2013 and 2020, including verbal taunts and physical attacks;
  • they were exposed to a considerable volume of offensive graffiti, namely hundreds of swastikas drawn in classrooms, books and across the school grounds;
  • the above conduct made them fearful for their safety at School;
  • despite repeated complaints, staff at the school failed to take action in response to the anti-Semitic conduct;
  • the College failed to prevent or take disciplinary action in relation to the anti-Semitic behaviour at the College;
  • unlike treatment of other vulnerable minority student groups, inadequate steps were taken by the Principal and others at the College to address treatment of the applicants and protect Jewish students;
  • the Principal and staff at the College failed to take proactive or systemic steps to discourage the graffiti, educate students about its impact on vulnerable groups of students, or facilitate behavioural changes at the College.

Finally, the applicants alleged that the Principal contravened the anti-vilification provisions of the Act in respect of at least one speech he gave to a full school assembly, where the applicants allege he made remarks that offended, insulted, humiliated or intimidated Jewish students and were offensive more generally to Jewish people.

Each of the five applicants left the school as a result of the above.

The decision by the Court

The Court upheld the applicants allegations in part, and found that State of Victoria was vicariously liable for the Principal’s failure to adequately respond to anti-Semitic bullying and harassment by students.

The applicants succeeded on some of their claims under section 9(1) of the Act and negligence claims. Specifically, the Court found that:

  • the Principal engaged in unlawful discrimination contrary to the Act against four students by his failure to:
    • take systemic and co-ordinated action to address anti-Semitic bullying and swastika graffiti at the College;
    • enforce the College’s policies on racial harassment.
  • another employee engaged in unlawful discrimination under section 9(1) of the Act against one applicant by greeting him in Hebrew in front of his class, despite being told that the conduct was unwelcome and singled the applicant out.

The Court accepted the applicants’ claim that the Principal failed to address anti-Semitic bullying and harassment in a systemic and proactive way using recognised and established approaches in Australian secondary schools and approaches that were used at the College for other vulnerable students.

The Court found that the Principal contravened s 9 of the Act by failing to take reasonable and appropriate steps to discourage swastika graffiti and the anti-Semitic bullying and harassment of students. Appropriate and reasonable steps could have included taking disciplinary action against students who engaged in bullying and harassment, and taking systemic approaches to address the issue through school-wide campaigns. The Court found that at a leadership and systemic level the Principal took a different, and less favourable, approach to anti-Semitic bullying and harassment of Jewish students than he took, or would have taken, to the bullying and harassment of other vulnerable minority student groups. As a result, this different and less favourable approach to anti-Semitism was also adopted by College staff.

The Court observed an inexplicable and unusual tolerance for anti-Semitic graffiti and a preparedness to ignore, downplay and take less seriously the complaints made by Jewish students and their families. There was also a disinclination to adopt any systemic, school-wide steps to address anti-Semitic student behaviour, despite this having been done, appropriately, to protect LGBTQIA+ students and to encourage tolerance and acceptance of students who identified in that way or who were exploring their identity.

In relation to the claims made in negligence, the Court upheld the negligence claims made by four of the five applicants.

Damages and compensation orders were made against the State totalling approximately $435,000.

In its orders, the Court also provided a declaration to be made outlining the above findings of discrimination. The Court also prescribed some steps to be taken between the parties to negotiate a form of apology from the State of Victoria that is compatible with the Court’s reasons.

Key takeaways for organisations to help address discriminatory bullying and harassment

  • Anti-Semitism in schools must not be tolerated, and schools should take proactive steps to protect the safety and wellbeing of Jewish students when incidents of anti-Semitic bullying and harassment arise.
  • Schools should ensure they have a policy, procedure and code of conduct that sets out:
    • acceptable and unacceptable behaviours by and against all students;
    • how the school will prevent and respond to bullying, harassment and discrimination, regardless of the protected attribute. Appropriate proactive steps should be taken to support students subjected to discrimination and deter the discriminatory behaviour.
  • Schools should adopt a consistent approach to allegations of bullying, harassment and discrimination, regardless of the protected attribute (e.g. race, religious belief, gender, sex and disability). That said, the actions taken to deter harmful behaviour may be appropriately tailored to the relevant vulnerable cohort, in consultation with appropriate stakeholders.
  • Schools in Victoria must also ensure that their policies and procedures to protect students from bullying, harassment and discrimination align with the Victorian Child Safe Standards and Ministerial Order 1359, which requires Schools to ensure that equity is upheld and the diverse needs of students be respected in policy and practice.
  • There are different thresholds for reportable conduct between jurisdictions. However, discriminatory bullying and harassment may also cause significant psychological and emotional harm, and a failure to address this could in some circumstances constitute significant neglect in the form of supervisory neglect. Depending on the circumstances, this may constitute reportable conduct under a reportable conduct scheme, which may need to be reported and investigated.  

How we can help

Our safeguarding team has expertise in both child safety and discrimination matters. We are well placed to assist with incidents raising either or both of these issues and can provide peace of mind in navigating any allegations or investigations that may arise.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.