Disability and Education

What is disability discrimination?

Discrimination on the ground of disability means being treated less favourably than someone who does not have a disability – or who does not have the same disability as you.

By law, you have the right to equal treatment if you have a disability. The term ‘disability’ includes physical, intellectual, mental and emotional conditions.

The laws on discrimination are set out in the Equal Status Acts 2000 to 2018.

The law covers two types of disability discrimination:

Direct discrimination is where you are treated less favourably than another person in a similar situation, on the grounds that you have a disability and they have no disability or a different disability.
- For example, a school refuses to allow a student to go on a school tour with the rest of their class because they have a disability.

Indirect discrimination happens where a policy or provision that applies to everyone puts you at a disadvantage because of your disability. However, the policy may not be indirect discrimination if it can be justified as a necessary way to achieve a legitimate aim.
- For example, a school policy provides that everyone eats lunch at the same time and that students may not consume food at any other time. A student with diabetes may need to snack at different times in order to manage their condition. If the school refuses to amend their policy, this may amount to indirect discrimination.

What is disability discrimination in education?

Schools must not discriminate against a pupil or student in relation to:

The admission or the terms or conditions of admission to the school
Access to any course, facility or benefit at the school
Any other terms or conditions of participation in the school
Expulsion or any other punishment or penalty

In the Acts, the term ‘schools’ covers all public and private educational settings including pre-school services and universities. Sections 7 and 7a of the Acts focus on disability discrimination in education.

What must schools do to avoid disability discrimination?

Schools must make ‘reasonable accommodation’ for students with a disability or special education needs.

Under a general policy of inclusiveness, students with disabilities or special education needs should go to mainstream schools, where possible. The law states that schools must do ‘all that is reasonable to accommodate the needs of a person with a disability’. This means schools must provide ‘reasonable accommodation’ (such as special treatment or facilities) that will enable a student with a disability to take part in education.

Making reasonable accommodation might involve, for example, providing assistive technology or sign language interpretation.

If a school fails to provide this reasonable accommodation for a child with a disability, it may amount to discrimination on the ground of disability.

Exceptions: The law allows exceptions to the policy of mainstream schooling for children with a disability where mainstream schooling would not be in a child’s best interests or would cause serious problems for other students. See more details below.

Example: Reasonable accommodation allows a boy to take his assistance dog to school

A mother complained to the Workplace Relations Commission (WRC) when a school would not allow her son, who had a disability, to bring his assistance dog to school with him. The WRC found that the school had not followed the law because it had not provided ‘reasonable accommodation’ to the boy.

Example: Reasonable accommodation means a student with dyslexia fails to win a Supreme Court case

A Leaving Certificate student with dyslexia complained that the Minister for Education had failed to make reasonable accommodation for her condition in her exams. Although the exam assessor had not assessed her spelling and grammar, they had marked her Leaving Certificate results with explanatory notes about this exemption.

The Supreme Court found that the assessor had not discriminated against the student and had made a reasonable accommodation, by allowing her an exemption without lowering exam standards. The Court concluded that the law provides for a balance between the needs of the person with a disability and the overall effect on the service provider (in this case, the assessor) of making special arrangements for them.

Are general policies on inclusion in mainstream schools enough?

General policies are not sufficient. Schools are required to take an individual approach to the inclusion of students with disabilities. They must assess each student’s needs individually, and may have to change rules, standards or policies to meet these needs. The student or their parents should ask to meet with the school to discuss what special arrangements they may need. Schools should ask in detail about the specific needs of a person with a disability.

What about the costs of reasonable accommodation?

Schools do not have to provide special arrangements that cost more than a nominal amount. Where a school argues that providing reasonable accommodation would be too expensive, it must show that the costs involved are more than nominal. What is considered “nominal” varies from case to case and depends on a number of factors, including the size of the school and its resources.

To do ‘all that is reasonable’ to accommodate children with disabilities, schools must apply for any relevant grants or educational supports that are available to them. A grant may enable a school to provide special arrangements that are expensive, at only nominal cost to its own funds.

When are schools allowed to treat students with disabilities differently?

The Equal Status Acts allow exceptions to the general rules on treating people equally and avoiding discrimination. They allow a school to treat students with disabilities differently in certain situations where such disabilities, or measures taken to accommodate them, can affect other people.

For example:

To prevent harm to others – where a student’s disability could put themselves or others at risk of harm
To prevent negative (or detrimental) effects on the education of other students – where measures to accommodate a student with a disability make it impossible, or difficult, to provide educational services for other students
In sport – where the nature of the sport or sporting facility makes it necessary to treat students differently on a ground of disability

Example: Balancing the needs of a child with a disability with those of the school

A secondary school that expelled a boy with ADHD for disruptive and violent behaviour was found not guilty of disability discrimination. A court concluded that the action was necessary as the boy’s behaviour was having a negative effect on other students. It noted that the school had made every effort to keep the boy in school and had later provided and paid for private tuition.

How can I complain about disability discrimination in education?

If you think you or your child have been discriminated against on the ground of disability, you can make a complaint to the Workplace Relations Commission (WRC) under the Equal Status Acts.

It is also open to you to file a complaint or appeal if a school excludes, suspends or refuses to enrol you or your child on the ground of disability, using the school’s own appeals procedure. Students over 18 can appeal on their own behalf.. If you are not satisfied, you can then appeal the school’s decision to the Secretary General of the Department of Education under section 29 of the Education Act 1998.

We recommend that you seek legal advice before making a complaint to the WRC or an appeal to the Secretary General.