Legislation, case law and current issues in inclusion: An analysis of trends in the United States and Australia

Abstract

Parent, civil rights, education and advocacy groups initiated a socio-political movement towards inclusive education in the 1960's by challenging education authorities to include students with disabilities in regular school settings. They argued from a 'rights-based platform that reflected the ideals of equity and social justice expressed in a number of international statements including, for example, the Universal Declaration of Human Rights (1948) and the United Nations Convention on the Rights of the Child (1972). It was not until legislative changes were made in the United States, however, that schools were required to educate students with disabilities alongside their non-disabled peers to the maximum extent possible. Since then, special education and the management of inclusion in schools have become public and accountable through the law and the pace of litigation over issues that relate to inclusion, student rights, disability and discrimination significantly increases each year (Osborne, 2000).

This article analyses and compares legislation and appeal processes that relate to disability discrimination and the management of inclusion in schools in common law countries including the United States and Australia. Specific laws and rights of appeal against administrative decisions and school actions that relate to inclusion are identified. Finally, the Australian disability discrimination legislation from both State and Commonwealth jurisdictions is described and analysed through the interpretation of case law. In particular the concepts of 'reasonable accommodation' and 'unjustifiable hardship' are discussed in relation to the way that principals manage inclusion in schools.