Obstacles to Private Higher Education for Persons with Learning Disabilities

Matthews Hall Dormitory, Harvard University by unknown author. Nouveau dictionnaire encyclopédique universel illustre (Wood Engraving). La Librairie Illustrée, (1885-1891).

People with mental disorders and learning disabilities face discrimination in many spheres of life, particularly in their access to education. The purpose of this writing is to highlight some legal impediments to their right to education that otherwise should be guaranteed by law. I am confining this to private and not public higher educational institutions. To simplify the scope of discussion, I am focusing on persons with mental disorders, where I am also taking a somewhat pedantic interpretation of mental disorder : essentially persons holding an OKU card (“Orang Kurang Upaya”, meaning a person with disabilities)[1]. The situation is that private colleges and universities can decline applicants from admission as students just because they have been diagnosed with a mental disorder.

The discrimination happens at the point of entry because students are expected to disclose  whether they have been diagnosed with any mental disorder or have any special educational needs. I am not focusing on discrimination at later stages after the point of admission. Getting admission is already hard enough.

We are been informed of some examples of discrimination at different stages:

a.     A private higher education institution outright rejected an applicant who disclosed he had a mental disorder, purportedly on the basis that they did not have an in-house psychologist who could attend to the applicant in the event of relapse of his condition. This despite the course now being fully online during the pandemic, and that other branches of the said institution accommodated persons with mental disorders.

b.     A case where a candidate for Bachelor of Medicine (MBBS) was dismissed after three months into the semester because he did not disclose the fact that he was diagnosed with a mental disorder[2].

I have not sighted a study defining or quantifying the occurrence of disabilities discrimination at private higher education institutions. The discrimination is not confined to persons with mental disorders but can also be extended to persons with learning disabilities, such as dyslexia, dyspraxia, and dyscalculia[3]. This is despite there being a great difference between mental disorder and learning disability. Diagnosis of either category though can entitle a person to an OKU card, under the above mentioned Garis Panduan Pendaftaran OKU.

THE LAW

The most important laws under discussion are as follows:

a.     The Federal Constitution (Articles 8 and 12)

b.    Persons with Disabilities Act 2008

c.     Private Higher Educational Institutions Act 1996

The Mental Health Act 2001 (which repealed the Mental Disorders Ordinance 1952 in West Malaysia) does not address the issue of discrimination nor access to education, as it is more focused on the administrative aspects of psychiatric care for mental patients.

There are several subsidiary legislations, guidelines and policy documents as well. Some of the important policy documents include:

• ·      Guidelines to Implement OKU Inclusion Policy at Institutions of Higher Learning (2019)[4]. 

• ·      1994 Salamanca Statement and Framework for Action on Special Needs Education[5].

• ·      UN Convention on the Rights of Persons with Disabilities (“UNCRPD”) on 8.4.2008, ratified on 19.7.2010[6].

Malaysia’s adoption of international policy values on the rights of disabled persons lead to the ratification of the UNCRPD, which paved the way for the Persons with Disabilities Act 2008. The Inclusion Development Plan 2020-2025 was later set up with noble objectives for the benefit for OKUs. A positive effect of such policy is that units were set up in various Government departments to oversee and implement policy objectives to accommodate OKUs. However, the implementation of such policies appear to give more emphasis to physical accessibility for physically disabled persons, and not the broader issue of systemic access and systemic discrimination. That means that the focus has been the physical or infrastructural aspect of accessibility and not the legal or delivery aspect of accessibility.

Clearly, the said Guidelines do not contain any imperative or mandatory tools that compel the Government to address discrimination. From our reading, the only part of the said Guidelines that deal with discrimination in admissions is in the closing paragraphs only:

 “Sebagai seorang insan, setiap pelajar OKU mempunyai perasaan dan cita-cita yang sama dengan pelajar lain untuk mempunyai kerjaya dan kehidupan yang baik. Pengambilan pelajar OKU untuk melanjutkan pengajian di IPT akan memberi peluang pendidikan yang sama rata dengan individu lain supaya mereka tidak berasa tersisih daripada arus pembelajaran nasional.”

(emphasis mine)

The result of this is, without clear mandatory or imperative aspects of the Guidelines, our OKUs cannot rely on the Guidelines to legally compel the Government to deliver their rights. What I mean by delivering rights is:

a.     The negative aspect : that the Government shall act against acts of discrimination against OKUs by striking down any rejection of admission or barrier to entry to private higher education, and

b.     The positive aspect:  to create structural mechanisms and incentives to make it happen. 

So in either aspects, there is no provision that a court of law can rely on to create an enforceable court order. There is no clear cause of action, at least based on the provisions sighted. Courts need to be able to identify a clear cause of action, otherwise a claim may be struck out. Not surprising that there are almost zero reported case law on point[7].

I will not address the question of what kind of guidelines have the force of law, as the discussion in court decisions do not confine the basis of enforceability to one factor but it seems to depend of various factors -- and not merely the name of the instrument or the language of compulsion used[8]. However, the Guidelines are still useful as a reference point for policy implementation.

Persons with dyslexia would find that the focus of the Government’s policy on education, is not them[9].

Can Private Colleges discriminate against OKUs and deny admission on the basis of their disability?

Yes they can, because there are no laws that force them to accept OKUs. Fundamental to this question is the public versus private sector divide. Broadly speaking, admission by a student to an institute of higher learning entails agreement between contracting parties. At a principle level, you just cannot force a party to accept students against their will.

As a matter of public policy, the Government can still (and we are made to understand, does) implement quotas for OKUs at public institutions of higher learning. 

On the other hand, the Government seems capable of imposing its will on the private sector, for example, since 1981 housing developers have been imposed the 30% quota for low cost housing under successive national housing policies, and this policy is extended through the Dasar Perumahan Negara (2018 – 2025). However, a housing quota is entirely different from an imagined anti-discrimination law that empowers the court to force a private college to accept an OKU student.

Subject to further research on this area, perhaps a quota on private colleges can be legally feasible and also encourage private colleges to set aside a space for OKUs.

Many private higher education institutions have been facing severe financial constraints during the COVID-19 pandemic, with their financial condition affected by travel restrictions against foreign students, the total migration to online teaching, and other factors. We are informed, however, that some big names in the private higher education industry are open to talking to deserving OKU candidates to offer them a place on a case by case basis.

Can an OKU sue a private college for discrimination on admission?

Following the above paragraphs, the answer is no. Since this question also concerns the issue of discrimination, let us go further on whether the Federal Constitution itself guarantees OKUs freedom from discrimination in the sphere of education.

Article 12 of the Federal Constitution provides:

“Rights in respect of education 

12. (1) Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth— 

(a)  in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or

(b)  in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside the Federation).”

(emphasis mine)

This should of course be read together with Article 8 of the Federal Constitution.

The Federal Constitution is the supreme law of the Malaysian legal system. Some of the clauses, such as in relation to the rights of arrest provide mandatory duties on the court and the authorities[10]. Others, such as Clause 12 above declare generally the prohibition against discrimination, but it is still generalistic and only declares that such rights exist. 

From the main paragraph of Article 12 itself there are 2 main operative limbs, being the word “only” and “religion, race, descent or place of birth”. The first limb implies that discrimination is still permitted in some situations. It could refer to bad grades or the ability of the Government or the institution to provide, for example. The second limb clearly omits “disability” or “mental health” as a category of prohibited discrimination.

As such, it appears that Article 12 itself does not impose a duty on the Government (i.e. the “public authority”) to prohibit discrimination on the basis of disability or mental health. 

Therefore as far as Article 12 is concerned, there is no obligation on the Government to create and enforce policies to prohibit discrimination against persons with mental disorders, and by extension, special educational needs such as dyslexia, admissions to institutions of higher learning.

It may be politically incorrect and unpopular for an institution to quietly turn away applicants with disabilities. Or a more innocuous method is for the administrators to hide behind a wall of bureaucracy and impose various hurdles and requirements that make it very difficult for a person with mental health disability to comply. These are all politically incorrect and unpopular. But it is not prohibited under Article 12 by its literal words.

Section 89 of the Private Higher Educational Institution Act 1996 provides:

“89. Distinction of race and creed prohibited.

(1) Subject to the provision of Article 153 of the Federal Constitution, membership of a private higher educational institution, whether as an officer, teacher or student, shall be open to all persons irrespective of sex, race, religion, nationality or class.

(2) No test of religious belief or profession shall be adopted or imposed in order to entitle any person to be admitted to such membership or to be awarded any degree, diploma or certificate nor shall any fellowship, scholarship, exhibition, bursary, medal, prize, other distinction or award be limited to persons of any particular race, religion, nationality or class.”

                        This is the most important provision of law in respect of the rights of a student against discrimination vis-à-vis a private college university. Clearly only race, religion, nationality and class are protected categories and not mental disorders or special educational needs. Therefore, even on the basis of constitutional rights, there is no compulsion for a private college to accommodate the admission of the OKU.

Conclusion

The present legal regime falls short from guaranteeing OKUs the right to education, as underlying the spirit of the 1994 Salamanca Statement and the UN Convention on the Rights of Persons with Disabilities. Especially for private institutions. It remains to be seen whether public institutions of higher learning, whilst possibly providing quotas, would provide a meaningful recognition of such right. I believe the OKUs themselves are the best judge of that. The abundance of policy statements in support of OKUs promising access to education should be inspiring but they fall short on delivering on them. A wise person once observed that people with good intentions make promises, but people with good character keep them. For that reason, we must not give up on the children, young adults who face obstacles to education due to their disabilities[11].

[1] The OKU card is issued by the Social Welfare Department (“Jabatan Kebajikan Masyarakat”, or “JKM”) in line with the latest Garispanduan Pendaftaran OKU, as amended with effect from 14.8.2020 through “Surat Pekeliling Ketua Pengarah Jabatan Kebajikan Masyarakat Malaysia Bil 8 Tahun 2020”.

[2] This is my simplification of the facts, there was a bit more to the case. He had been on medication and had difficulty attending early morning class. When he was called by a senior administrator to show cause, he disclosed his condition and his medication – where such fact was also disclosed to his lecturers.

[3] There are some famous persons who were dyslexic growing up but became successful for example, Richard Branson, Tom Cruise, and Orlando Bloom. On the other hand, the prevalence of dyslexia in prisons in some parts of the world is alarming, as found in a research paper indexed with the National Library of Medicine, Prevalence of Dyslexia among Texas Prison Inmates published by the Texas Medical Association in Texas Medicine 2000 Jun;96(6):69-75. 

[4] https://www.moe.gov.my/muat-turun/pekeliling-dan-garis-panduan/2785-garis-panduan-pelaksanaan-dasar-inklusif-oku-di-ipt/file

[5] https://unesdoc.unesco.org/ark:/48223/pf0000098427 This is an old document from 1994. You can print it directly from the referenced UNESCO archive portal but the interface is a but cumbersome to download. There is predominantly an emphasis on early childhood education and school, and little said about tertiary education or adult education.

[6] https://www.un.org/disabilities/documents/convention/convoptprot-e.pdf. Article 24 at paragraph 5 says, “5. States Parties shall ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities.” That is the only clause I found in all the 50 Articles that specifically mentioned general tertiary education and adult education. “General” is not defined, but I suppose it could mean public education and not private education.

[7] Please refer to the decision of Low Hop Bing J (as His Lordship then was) in Jakob Renner & Ors v Scott King, Chairman of the Board of Directors of the International School of Kuala Lumpur & Ors [1999] 4 MLRH 347, which is not exactly on point but makes interesting reading on this area.

[8] Noor Shariful Rizal Noor Zawawi  v PP [2017] MLRAU 83; Diana Chee Vun Hsai v Citibank Bhd [2009]1 MLRH 881; and DR H K Fong Brainbuilder Pte Ltd v SG-Maths Sdn Bhd & Ors [2020] 6 MLRA 588, where the Court of Appeal found that what distinguished the guidelines for having a force of law is the existence of an enabling provision in the parent act

[9] I have attempted a “Ctrl + F” search on the 292-page Malaysia Education Blueprint 2013-2025 (Preschool to Post-Secondary Education) and found the word “dyslexia” mentioned only once on the 118th page (Section 4-15 under “Groups with Specific Needs”).

[10] Clauses (2), (3) and (4) of Article 5.

[11] “It is not beyond our power to create a world in which all children have access to a good education. Those who do not believe this have small imaginations”. Nelson Mandela (2007) https://www.mandelainstitute.org.za.