*A new guide for early years settings is also about to be published.
Many of the disability duties in the Equality Act require different treatment for disabled pupils: we have to make reasonable adjustments and we can treat disabled pupils more favourably without discriminating against pupils who are not disabled. It’s also worth noting, not least because of the overlap between disabled pupils and pupils with special educational needs, that the SEN legislation requires us to make additional and different provision for children with SEN.
But that different treatment can be difficult for schools to handle. There is much encouragement for schools to have policies that are applied consistently to all children and often that very consistency is seen as the essence of fairness: we treat all children fairly; we apply the same policies and rules to all children in the same way. A school doing exactly that was found by the Tribunal to have discriminated. The judge said:
To treat everyone the same, to apply the school’s rules and procedures on behaviour management regardless of disability, is to discriminate against a pupil whose disabilities call for a proportionate response, or adjustments, to be made.
On the other hand, emphasising difference can stigmatise. There are real risks that we see the disability before we see the child, that we make assumptions about what they will be able to achieve, that we compromise ambitions, and, in much of the educational narrative, we talk about stretch and challenge for our brightest pupils and we talk about help and support for those who struggle with learning (quotes from articles in the education press).
So when does different treatment emphasise difference, tend to exclude rather than include, hold disabled pupils back and potentially lead to discrimination? When does treating disabled pupils the same ignore the differences for which we need to make adjustments?
It seems to me that this is more to do with how we make adjustments and how we promote acceptance of difference. Some of this is embedded in the culture of each school.
One of the first claims of discrimination that went to the Tribunal involved a child with diabetes, who needed a high calorie snack mid-morning. The school had a healthy snacks policy and this meant only fruit could be consumed in the playground at break. Hannah was sent to eat her biscuits outside the headteacher’s office, so missed her recreational time with her peers. Not only that, but most children who get sent to sit outside the head’s office tend to have misbehaved and have been sent there as a punishment. The Tribunal found that the school had discriminated.
I tend to put myself in the position of the staff on duty in the playground and wonder how I would have explained why Hannah was allowed to have biscuits while others were condemned to their apples and oranges. This is where I think we are missing a trick: young children accept incredibly readily that, to achieve the same ends, we may need to do things differently: Hannah has to have biscuits to keep herself healthy; we need to eat fruit to keep ourselves healthy. At a young age, life is pretty bizarre and endlessly fascinating and here’s another thing about how different people stay healthy.
So, how we encourage that openness to difference is important, how we celebrate difference and the great variety of humankind is a good indicator of how comfortable everyone feels in their school.
At the same time, the more we can incorporate those adjustments into our day-to-day school practices, our policies and how we organise ourselves, the less we need to intervene individually and risk singling out individual children. Or, as Lani Florian[1] and her colleagues put it:
Instead of providing something different or additional for children who experience difficulties in their learning, inclusive pedagogy seeks to extend what is ordinarily available to everybody.
Florian, L. and Black-Hawkins, K.
This is not just inclusive schools, this is inclusive teaching.
In her next blog, Philippa will be considering the definition of disability and whether, and if so how, we can know whether a child may count as being disabled under the Equality Act.
[1] Florian, L. and Black-Hawkins, K., 2011. Exploring Inclusive Pedagogy. Educational Research Journal, 37(5), pp. 813-828
