Educating Gracia: a lesson for all

According to advocates, if successful, the court case would have set an important precedent, bringing accountability to the way schools identify and cater to their gifted students.

A constant support to the MalaxEtxebarria family throughout the long legal pursuit of justice was Judith Hewton, QLD educator and editor of Mindscape magazine published by the QAGTC. “I have supported Robyn [who appeared in court for Gracia as self-represented] from the start of all this, appearing as a witness for her in the first court session. I believe she stood up for a principle that deserved support ... That is my personal stance and not necessarily that of QAGTC although members have expressed interest and concern.”

For Australia, the court case is a first. No other gifted child has taken a complaint of discrimination this far through the legal system. Having done so gives the MalaxEtxebarria's the unique opportunity to appeal to the United Nations under Section 29 of The Convention on the Rights of the Child which states that “the education of the child shall be directed to the development of the child's personality, talents, and mental and physical abilities to their fullest potential”.

“I think it would be wonderful if they proceed to the United Nations”, says Ms Hewton, “but I am very concerned for the family. Costs were awarded against them [in the High Court].”

All states and territories have policies for the education of students like Gracia; policies which stipulate that skipping one or more grades is an option which can ease the problems they face. Two separate government inquiries into the needs of gifted and talented children (1988 and 2001) found them to be the group most underserved within Australian schools. Research on the benefits is abundantly clear, according to Susie Errat, President of the Northern Territory Association for Gifted and Talented Children:

There is enormous research both in Australia and world-wide to cement the need for these children to be grouped together, accelerated and challenged but trying to get politicians to see this is not so easy. I think the political correctness surrounding many issues, but in particular gifted education are part of the problem. Our Australian culture and not wanting to appear better than anyone else is another issue. These children bring many special problems with their giftedness and they cannot be treated the same as non gifted students - their learning needs are totally different.

It is not unusual for minority groups to use the law to challenge and change expectations for how students are treated. Yet among the families of gifted children, in addition to the heavy burden of legal action, they must expose themselves to the burden of public opinion. Attitudes towards giftedness in Australia mean that the motives of such families are easily misread. According to Philip Lynch of the Human Rights Law Resource Centre, alleged discrimination against gifted children on the basis of age is “not within their thematic priorities”. An attempt to clarify how the Centre's thematic priority of “equality of opportunity” does not apply to gifted children, remains unanswered.

For families experiencing a mismatch between the needs of their children and the implementation of gifted education policies, the legal system is a poor substitute for understanding. That it may also be the only way to change attitudes towards gifted children shows what trailblazers the MalaxEtxebarria's have become. The assumption that gifted children are privileged by virtue of their ability to understand, rather than disadvantaged by a system that assumes all students of the same age share the same needs, is a myth not easily shed. A common cry among families of gifted children is that nothing is more unequal than the equal treatment of unequal circumstances.

Gracia MalaxEtxebarria was judged too socially immature to begin high school by people who had never met her. She was judged incompetent in grade seven outcomes without being tested. She was, however, accepted on her own merits at a private high school and proved her abilities and maturity were not determined by her age.

According to President of the QAGTC, Anthony Stevens:

Only when all parties are well informed can the values and actions of Article 29 UNHCHR have any possibility of realisation. It is important that parents and children are seen to be equal partners in these discussions so that the best outcomes can be determined for children in schools.”

The Court system had not been deliberating about whether Gracia was deserving of a place in a secondary school at an earlier age. It was deliberating about whether the officials in Education QLD were guilty of discrimination in any of their dealings with the family in their first decisions. As such, hindsight can play no part. The subsequent academic successes of Gracia are not evidence of any wrongdoing by Education QLD in their earlier decisions. This was the decision of the High Court.

Separate to the facts of this case, is the reason why arguments happen. I believe that school systems are, at times, let down by the prejudices and actions of individuals. I have personally witnessed these belief systems in action in people whom I know to be very caring and conscientious. Equally, I have dealt with some parents in the school setting, who are seriously struggling to maintain rationality and believe that “no” is not an answer they can ever accept. These extremes cannot be served by a process where one party has the dominant voice.

Striking a balance between institutional prejudice and parental extremes is important for our society. While this landmark case is certainly not about parental extremes, it is about the balance and Robyn’s fight for Gracia’s rights has raised awareness in our education system about the needs of gifted individuals.

I believe that, because of this case and other initiatives, Education QLD's decision makers are more receptive to the balanced voices of parents and Associations - one step closer to a better society.