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AASE Illawarra

Speedshare Session 2

Social Justice

Challenging Behaviours and Students with Disabilities

What has the DDA achieved?

Expert - Dr . R Dixon (UOW)

Have to go through complaint process before you can access the courts

Complaint data is private

Data is destroyed after 3 years

Very few cases taken to court

Why?

Complaint Process

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Withdrawn behaviours such as shyness, rocking, staring, anxiety, school phobia, truancy, social isolation or hand flapping

Disruptive behaviours such as being out-of-seat, calling out in class, tantrums, swearing, screaming or refusing to follow instructions

Violent and/or unsafe behaviours such as head banging, kicking, biting, punching, fighting, running away, smashing equipment or furniture/fixtures

Inappropriate social behaviours such as inappropriate conversations, stealing, being over-affectionate, inappropriate touching or masturbation.

What is challenging Behaviour?

Definition: No definition in Discrimination Law

Definition of Challenging Behaviour. Behaviour of such intensity, frequency or duration that the

physical safety of the person or others is placed in serious jeopardy or behaviour which is likely to seriously limit or deny access to the use of ordinary community facilities.

What is challenging behaviour?

Definition under the DDA is very broad

Legislation spreads responsibility broadly

Social level = Education Standards

Avoid any doubt – it has been amended to include behaviour

What is a disability

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“Aggression” is most likely behaviour to lead to expulsion

Need to ask question

Is it Contextual

What is the Function?

Attitudes to Challenging Behaviours

International Human Rights Charter

DDA

Education Standards

State Anti-discrimination Act

State Human Rights Act

Protection for students with disabilities includes

37% of the complaints relate to Disability

But only

6% relate to Education issues

No data for behaviour

Why?

What has happened since DDA and Education Standards

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Fear of reprisals for students

Advocacy fatigue

Chilling effect of negative case law

“Small” complainants vs “ Big Responders”

Why so few complaints?

No cases have been successfulWhy?

Usual scenario is: Examples

Aggressive behaviour

Boy

Excluded from School

Kiefel vs State of Victoria ( 2013)

JM vs JD

Purvis

“ No Positive Precedent”

A strong respondent e.g.

Education Authorities settleDoECatholic Education SystemAISA

Only ones that might lose go to court leads to

Negative creation of Case Law

Strategic Litigation Strategies

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Challenging behaviour seen as characteristic of the individual not as part of diabilityE.g. Swearing Parents vs Principals’ view

Lower level of tolerance for students with behavioural disability than with physical disability

Some question whether challenging behaviour should be protected under Discrimination Law?

Why is problem behaviour so hard?

Autism Spectrum Disorders

ADHD

Language and Learning

Intellectual Disability School is a hub for challenging behaviours

Behaviour often tails off after school

What types of students with disabilities are being referred

Home schooling – Largely ineffective

Intermittent attendance ( part-time attendance allowed) – usually leave school

Increased involvement in criminal justice system

Increased relinquishment into State care ( O’Connell, 2016)

Consequences of School Exclusion

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Case Studies

Social justice and children with special needs

The Manifestation Determination OR When to take offenceExpert - R Handley

J.C.In the ED class at a mainstream high school. Suspended for leaving the class and climbing onto the roof of one of the school’s block and disturbing classes. 

K.W.In the I.M. support class and suspended for aggressive behaviour after not responding to directions from a teacher supervising the playground at lunchtime to back down from a fight after students were teasing him about his Pokemon cards.  

M.S.Female students on the ASD spectrum who was suspended for swearing, knocking over desks and leaving the classroom without permission after an altercation with the teacher about the completion of work.

Examples

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Manifestation determinationUSA IDEA legislation 2004

Suspension Guidelines NSW Department of Education 2011

Human and legal rightsHuman Rights Commission 2016

Criminal law Criminal Code Act 1995 & The Crimes Act 1900

Key Focus

Was there a direct/substantive link between the behaviour and the special need?

How aware was the individual of the nature and quality of their behaviour?

At the time of the behaviour how able was the individual to control their behaviour?

If intervention strategies for managing behaviour have been identified how effectively were these applied in this situation?

✔✘

Key Concepts

Manifestation determination Individuals with Disability Education Act 2004

A manifestation determination is required by IDEA when considering the exclusion of a student with a disability that constitutes a disciplinary change of placement.

In carrying out the manifestation determination, the team must determine:

1. If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

2. If the conduct in question was the direct result of the LEA’s failure to implement the IEP.

If the determination of the review is “Yes” to either of the statements above, the behaviour must be considered a manifestation of the student’s disability.

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Susp

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Suspension GuidelinesNSW Department of Education 2011

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Human and Legal Rights Professor Gillian Griggs – President Human Right Commission Extract from Access to Justice Speech - February 1, 2016

The second issue of concern is the ‘administrative detention’ for years of those with cognitive disabilities In a complaint to the AHRC, we found that four men with intellectual and cognitive

disabilities had been held for many years in a maximum-security facilities. Each complainant had been found unfit to stand trial or found not guilty by reason of insanity. In respect to two of these men, they would have received a maximum sentence of 12 months had they been convicted by a court. Instead, they were imprisoned for four and a half years and six years respectively.

In some Australian jurisdictions, most notably WA and Queensland, there is little access to legal advice or regular review for many of these people. Funding concerns are typically given as the explanation as to why the prison detention of those with cognitive disabilities is employed rather than medical support facilities. This no longer an adequate response and is a breach of the Convention on the Rights of Persons with Disabilities.

There are certain characteristics of individuals with ASD that might make them vulnerable to involvement in crime given certain situational disorders.PROFESSOR NEIL BREWER, FLINDERS UNIVERSITY

A common issue would be their ability to understand their rights,' says criminal defence lawyer, Trish Johnson (ABC radio interview, 14/09/2014).

'One of the rights is their right to remain silent, and I've seen lots of examples where a defendant has had his rights explained, he's been asked, "Do you understand?”

'Similarly to people with intellectual impairment, the automatic response is, "yes, I understand," when more often than not they don't.

'Probably out of a sense of embarrassment, not wanting to admit that, "I don't understand what you just said to me." That can obviously lead to applications to have a record of interview excluded once that matter hits court.'

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Criminal LawThe Criminal Code Act 1995 4.36: The Code provides as follows: A person is not

criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that: A) the person did not know the nature and quality of the

conduct; or B) the person did not know that the conduct was wrong (that is,

the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or

C) the person was unable to control the conduct.

Criminal LawThe Crimes Act 1900 (NSW) THE CRIMES ACT 1900 (NSW) 4.29 There are two specific

relevant provisions in the Crimes Act which employ terms other than those used above.

Substantial impairment 4.30 A defendant charged with murder may be acquitted of that offence and found guilty of manslaughter if he or she can prove that, at the time of the acts or omissions causing death, his or her capacity to understand events, to judge right from wrong, or to control himself or herself was “substantially impaired by an abnormality of mind arising from an underlying condition”.

That impairment must be so substantial as to warrant liability for murder being reduced to manslaughter.

Initial consideration of relationship between situation and special needs of the individual(s). 

Question of control and responsibility given significant 

influence of the cognitive development, confusion and stress experienced at the time of the incident. 

Evaluation of established intervention strategies to determine their significance to the incident

Application of more preventive strategies in the management of future incidents than in inferring punishments that have little significance as deterrents.

Areas of Concern

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Lack of initial consideration of relationship between situation and special needs of the individual(s). 

Questions of control and responsibility given significant influence of the cognitive development, confusion and stress experienced at the time of many incidents. 

Is there sufficient evaluation of established intervention strategies to determine their significance to the incident

Application of more preventive strategies in the management of future incidents than in inferring punishments that have little significance as deterrents.

Areas of Concern

Restorative Justice

Practitioner K Burnett

Restorative Justice

Provides a framework

with which to heal and

restore relationships

when mistakes are made

and conflict arises.

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Philosophy of Restorative JusticeIn certain tribes in South Africa, when someone does something wrong, he is taken to the centre of the village and surrounded by his tribe for two days while they speak of all the good he has done.

They believe each person is good, yet sometimes we make mistakes, which is really a cry for help. They unite in this ritual to encourage the person to reconnect with his true nature.

The belief is that unity and affirmation have more power to change behaviour than shame and punishment.

This is known as Ubuntu - humanity towards others.

Context: Holy Spirit College

Underlying philosophy of PastoralCare system for approximately 15years

Purpose is to resolve conflict,restore relationships and build thepotential for self regulation ofbehaviours and attitudes

Principles of Restorative Justice a) Fostering student awareness of how their behaviour affects

others.

b) Actively involving the student in making them accountablefor their actions.

c) Acceptance of ambiguity.

d) Separate the deed from the doer.

e) Every instance of wrong-doing is a learning opportunity.

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Restorative Justice Questions a) What happened?

b) How did it happen?

c) How did you act in this situation?

d) Who do you think was affected?

e) How were they affected?

f) How were you affected?

g) What needs to take place to make things right?

h) How could you behave differently if the same situation happens again?

Practical Examples of Restorative Justice in Action

Student - Student Conflict

Scenario: A Year 10 student has been verbally harassing another Year 10 student.

He has been calling her racially derogatory names on an ongoing basis. His friends are now joining in the harassment.

Practical Examples of Restorative Justice in Action

Student – Teacher Conflict

Scenario: Two Year 12 students have been consistently rude and disruptive towards their teacher and classmates.

The teacher is experienced and has exceptional classroom management skills. However the teachers current ability to

cope is being hindered by a seriously ill child at home.

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Practical Examples of Restorative Justice in Action

Student - Parent - Teacher Conflict

Scenario: Parents have received correspondence from the College indicating their Year 11 Student has plagiarised a large

proportion of an assessment task.

The parents are upset by the wording of the letter and the possible ramifications for their child.

Consequences of Restorative Justice Greater accountability - better understanding of consequences

A socially just strategy - accessible and relevant for students of all abilities

Increased resilience - empowers the 'victim'

Students begin to examine their own behaviour - demonstrate an ability to self reflect. A recent example: “I know I have let myself down”

“I went home and told my parents what I had done”

“I knew what you would want me to do”

Perceived negatives: a ‘soft’ approach? Time consuming?