School’s shortcomings: A lesson on dealing with discrimination

11 October 2023

Warning: This article contains details about bullying, discrimination and anti-Semitism which may be upsetting for some readers. Reader discretion is advised.

Five former Jewish students of a Victorian state high school commenced proceedings against the State of Victoria and its employees for perpetuating, and failing to protect them from antisemitism. When is a school liable for the discriminatory behaviours of its students?

In issue

  • The case considered the responsibility of a principal to address bullying and discrimination perpetuated by, and against, its students.

The background

Five applicants brought a claim against the State of Victoria, the principal of Brighton Secondary College (BSC), Mr Minack, and two BSC teachers. The applicants relied upon three causes of action: contraventions of s 9(1) of the Racial Discrimination Act 1975 (Cth) (RDA), contraventions of s 18C of the RDA, and negligence.

The applicants broadly alleged that during their time at BSC, they were the subject of antisemitic bullying and harassment by other students. The main allegations were that, unlike other minority students, no or no adequate steps were taken by Mr Minack after they made their complaints. They further alleged that he made remarks during school speeches that were offensive and contravened the RDA and he made discriminatory disciplinary decisions. An applicant also alleged a teacher made unwelcome Hebrew greetings to a Jewish student. The applicants all left the school for fears for their safety (save for one student, who moved overseas for personal reasons).

The decision at trial

The court accepted the evidence of the witnesses that there was an unusually high level of antisemitic bullying and harassment, and tolerance thereof, directed towards Jewish students. In contravention of section 9 of the RDA, Mr Minack did not utilise available means to curtail the behaviour, including by imposing appropriate disciplinary consequences and taking systemic approaches such as school-wide campaigns used at BSC previously to protect LGBTQIA+ students. The staff previously implemented a deliberate strategy to demonstrate acceptance of gender which indicated that they knew how to employ such strategies and that, crucially, it was 'not ignorance that led to the neglect of the interests of Jewish students who were experiencing antisemitism (at [395]).' The evidence indicated Mr Minack implemented policies to curtail such behaviour, but they required students to identify the perpetrators of discrimination and, as the trial judge remarked, 'students might not wish to identify their bullies (at [266]).'

These failures impaired the applicants’ human rights to security of person and protection, to education, and to preservation of their Jewish identity and thus contravened the RDA. The allegations were also analogously made in negligence, and upheld.

The claim by an applicant against a teacher for the use of Hebrew, was also upheld in circumstances where the student and their mother had previously made clear that this conduct was unwelcome. Allegations relating to inadequate or prejudiced disciplinary decisions failed in circumstances where the decisions were made in accordance with BSC policy and were not held to be materially infected by considerations of race. Allegations that Mr Minack gave inappropriate speeches failed in circumstances where the evidence did not address the context for the speeches nor identified precisely what Mr Minack said.

The orders

The State accepted it was vicariously liable for the conduct of its staff and was ordered to pay a total of $435,280.74 split in varying sums between the students. The court 'unusually' invited the State to make the relevant payment to an applicant on an ex-gratia basis, noting findings of fact that he suffered from antisemitic bullying, but findings of law that the allegations could not succeed under the RDA because he had not proved the principal at the time (Ms Podbury) failed to deal with the bullying and harassment (at [1650]).

The court also provided directions for the parties to negotiate on the form of an apology, but noted if they could not agree, an apology might not be necessary. Her Honour considered the institutional character of an apology was 'well understood' and the applicant and their families would find an apology 'meaningful' (at [1975]).

Implications for you

The case is a timely reminder to workplaces, schools and organisations that the RDA and tortious duties of care may require them to proactively and systematically address discriminatory behaviour perpetuated by, and against, those within their control.

Chief Justice Mortimer remarked that the '…strategies are not ones that call for elaborate analysis in academic research before they can be implemented. They are common sense, proactive approaches to adolescent student behaviour, and common-sense support mechanisms for affected students (at [267]).'

Kaplan v State of Victoria (No 8) [2023] FCA 1092

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