Should we take the 'disability' out of discrimination laws?: Students with challenging behaviour and the definition of disability

Abstract

Disability discrimination law has been of limited benefit to people with atypical and challenging behaviour. The role that law might play in upholding the equality rights of people with challenging behaviour is potentially expanded by changing medical and scientific knowledge about such behaviour, which brings more people within the definition of 'disability' and the protective ambit of the law. Yet this protective promise has not translated into legal gains, with few successful equality law cases decided in Australian courts and tribunals. This article critically examines the role of law, particularly anti-discrimination law, in regulating (or protecting) divergent behaviour, using a case study of students with challenging behaviour in Australian schools. It considers the lack of successful discrimination law cases in the education context, and asks whether, given this seeming legislative failure, disability discrimination laws have anything left to offer school students in terms of protecting their equality rights. The article gives an overview of anti-discrimination complaints and cases brought by students with challenging behaviour. It includes interview data from State and federal anti-discrimination bodies, legal practitioners and disability activists to complement case law and other public reports of discrimination. Using this background data, the article considers whether current discrimination law models do enough to protect the rights of students with challenging behaviour to education and inclusion in public life or whether new legal and policy measures are needed. It specifically examines changes to the regulatory landscape, including the Convention on the Rights of Persons with Disability, and whether there are any real prospects for law reform.