Monday, December 7, 2015

The ADHD child and the law, in the South African classroom. #ADD #Hyperactivity

Knowledge is a fickle spotlight. It opens the young, eager and ready human mind to the complex world, and enables a person of little sophistication to perform the vast feats of society's wise and ancient giants. By it, much is gained. By a lack of it - in a refined, ready to absorb, usable form - a poverty of potential menaces to escape and wreak terrible havoc upon the futures of those it sadly abandons.

Yet, even as education is the foundation of granite upon which our nation competes, today's education system is hardly a skeleton key. It is not always the foundational upliftment of every mind it so benevolently aims to empower. Due to forces beyond the control of their young, eager minds, many a child is terribly denied the sharp cutting edge of a refined scientific, linguistic and mathematically sound world view. Many children struggle to make sense of sentences and life giving lessons, amidst the echoes and mere wisps of the well meaning words which often occupy a classroom. For some disadvantaged souls, the classical method of education feels like tight restraints, tying them up and holding them back from actual learning. The sounds about them distract and pull attention as though they were the screech of nails upon a chalk board, as noise and light distract with the sort of diverting siren pull which the modern mind might only associate with ancestral figures witnessing the battle cries of mythical, or primeval creatures... the sort of seemingly dangerous distractions which, in ancient times, were thought to be conquered by heros of wit and learning.

Most schools will create ramps for the physically disadvantaged, and account for the diverse cultures and religions their pupils hold dear. Many also heed the government's herald call to adapt to the needs of a variety of different but equally dignified minds.

An education system created so many centuries ago, however, does not - and in fact can not - account for the needs of many a modern child. One such group of exceptions, often left in the shadows as their fellow students' learning styles are quickly accounted for, are children who suffer from the brain difference colloquially referred to as hyperactivity. It is these particular children, and how the law relates to their rights, and their needs, that I have chosen to write about in this instance.


Introduction

Specifically, I will look into the topic of the rights of ADHD children in the classroom, in more general terms. Specific structures at various schools are likely unique. The legal advice of a well briefed attorney in a specific matter will be of use to a parent in a specific matter. I have provided details on how this may be procured by people of various income levels, which I have spoken of below where I set out the general legal framework. I have also quoted from and referred to parts of Law of South Africa (LAWSA), a legal encyclopaedia published by LexisNexis.

Language Used

While in medical circles, politically correct language, such as referring to children as differently abled, and so forth exists, the rights of children and adults who are differently abled, come from the rights of the disabled, namely the rights to equality and to dignity. A parent of an ADHD child may not view their child as having a disability, and in particular a learning disability, but this is where their rights emerge from.

The Law in general: a balancing of rights, interests, and reasonable measures

It is important to make note of the fact that rights relating to the disabled, often take the form of positive rights rather than the prohibitions of negative rights. When dealing with positive rights, matters become less absolute. Reasonable attempts to accommodate the disabled are required in order that they may not be discriminated against, however there is not an absolute obligation to accommodate all forms of disability all of the time.

ADHD (Attention Deficit Hyperactivity Disorder), is a medical condition. It tends to relate to a deficit in relation to attention, and can manifest in sometimes disruptive hyperactive behaviour. Due to the nature of the condition, children with ADHD often struggle in an ordinary school environment. There are methods for dealing with the issue, and educational campuses such as that at Wits, do teach educators how to deal with a diverse classroom. While the rights of the child are paramount, reasonability of measures to accommodate ADHD children, and the balancing of their and other students’ and schools’ rights must be entered into when dealing with the needs of an ADHD child.

Public Schools versus Private Schools' obligations

A robust system to deal with children with disabilities exists in government public education, and in the special schools’ system run by the state. More general legislation dealing with discrimination applies to private schools, which can be attended at a parent or guardian’s own cost, and should have comparable or better education standards than public schools, but which are less affected by legislative cover which places a higher burden on public schools to deal with children with disabilities.

The Constitution and the United Nations

The Constitution of the Republic of South Africa, 1996, in the equality clause of the bill of rights, forbids unjust discrimination against people with disability. Discrimination, directly or indirectly by the state or any person against the disabled is automatically presumed to be unfair. It is thus up to the perpetrator of such discrimination to prove that their actions are justified. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), to which South Africa is a signatory, sets out rights to education and health, and ‘an adequate standard of living and social protection, including public housing, services and assistance for disability-related needs, as well as assistance with disability-related expenses in case of poverty’ (LAWSA).

Legislative Framework

However, it is in the form of legislation rather than that of the Constitution and treaty based rights, that rights are generally enforced. The Promotion of Equality and Prevention of Unfair Discrimination Act forbids discrimination against the disabled among others. Forms of discrimination include: ‘failing to eliminate obstacles that unfairly limit or restrict persons with disabilities from enjoying equal opportunities or failing to take steps to reasonably accommodate the needs of such persons’ (LAWSA). Note the standard of reasonableness, it is not an absolute command to accommodate.

According to LAWSA:

'282 General Although South Africa does not presently have a centralised piece of legislation (unlike the position in countries such as the United States of America and the United Kingdom) dealing with issues of disability, various other statutes make reference to matters of relevance to people with disabilities. For example:

'(a)

'The Mental Health Care Act1 provides for children who have severe or profound intellectual disabilities.

'(b)

'The Children’s Act2 brings South African child care and protection legislation for disabled children in line with the United Nations Convention on the Rights of the Child and the United Nations Convention on the Rights of Persons with Disabilities, 2006. The Act states, for example, that in any matter concerning a child with a disability, consideration must be given to enabling the child’s participation and providing the child with conditions that ensure dignity, promote self-reliance and facilitate active participation in the community.

'(c)

'The Preferential Procurement Policy Framework Act3 requires institutions (organs of state) to determine their preferential procurement policy and to implement it within the framework provided by the Act. The Act requires that a preference point system must be followed for certain contracts, and provides examples of specific goals that may be set in matters involving procurement, including contracting with persons, or categories of persons, historically disadvantaged by unfair discrimination on the basis of race, gender or disability.

'(d)

'The Local Government Municipal Systems Act4 outlines mechanisms, processes and procedures for community participation, taking into account the special needs of disadvantaged groups, among them people with disabilities.'


Public Schools' Obligations and Special Schools


In accordance with the Public Schools Act, public schools are required to admit students and to meet their educational needs, and to not discriminate as they do so.

According to LAWSA:


'SPECIAL SCHOOLS

'92 Classification The broad classification of schools in terms of the South African Schools Act1 is into public schools and independent schools.2 However, the need for making provision for learners with special education needs is recognised in broad terms in the national legislation.3 In the provincial legislation specific classification of schools is still made to a greater or lesser degree. While the provincial Acts reaffirm the general principle as laid down in the South African Schools Act that every public school should attempt to accommodate the needs of any learner who attends such school, they all contain specific provision with regard to learners with special education needs.4

'Some provincial Acts make provision for age requirements5 and determine the steps to be taken regarding admission of a child with special learning needs to a special school, at the request of a parent.6 Provision is also made for assessment by the principal or head of department and placement of such child at a special school after informing the parent.7'

And:

'86 Membership of governing bodies The South African Schools Act1 provides for the membership of governing bodies for both ordinary public schools and for public schools for learners with special education needs. With regard to the former, the governing body comprises elected members, the principal in his or her official capacity and co-opted members.2 The latter do not have voting rights3 and are members of the community, co-opted to assist the governing body in discharging its functions.4 The elected members must come from the parents of learners, from educators as well as staff members who are not educators and from learners in grade eight or higher at the school.5 The latter must have been elected by the representative council of learners.6 Where the school is an ordinary public school that provides education to learners with special needs, the governing body must co-opt a person with expertise regarding these needs if this is practically possible.7 With regard to the number of elected members and the categories of persons they represent, the respective MEC responsible for education in the province must determine a formula to be published by notice in the Provincial Gazette which provides for a reasonable representation for each category and which would be applicable to the different sizes and circumstances of public schools.8 However, the number of parent members must comprise one more than the combined total of the other members with voting rights.9

'In a public school for learners with special education needs the governing body must comprise not only the categories of persons already mentioned, but in addition experts in appropriate fields of special needs education. If applicable, the disabled persons and representatives of organisations for the disabled, of the parents of learners with special needs and of sponsoring bodies must also be represented on the governing body.10'


Conclusion

Classing ADHD as a disability, reasonable efforts should be made to accommodate children who display this different form of learning ability. However, reasonableness calls into account a balancing of rights and duties.

Enforcing A Child's Rights

It is advisable that parents or guardians of ADHD children attempt to work together with education providers in order to attend to the needs of their children, and that they seek out schools and educators who have a preparedness to assist in the growth and development of their child, with mind given to that student's different form of learning ability. Persuasion can be a powerful tool and allows a soft touch approach in relation to the rights of a child with ADHD. This, however, is not always possible, and sometimes the assistance of a legal professional is required.

Procuring Legal Advice

Please be aware that the afore stated look into the topic of the rights of ADHD children in the classroom, does not constitute legal advice. Please consult your lawyer in relation to your individual legal needs. Please be aware also that the Law Society of the Northern Provinces provides an hour free consultation with an attorney they choose, in order to determine if you have a case in a matter. Please further be aware of Legal Aid’s 'toll free' legal advice phone line: 0800 110 110. In Gauteng, registered law firms taking cases for profit may be found for each area at the link: https://northernlaw.privyseal.com/find-an-attorney . Legal Aid may be contacted at their website, here: http://www.legal-aid.co.za/ .

References

I was very much pleased to read the information LAWSA has on the following topics, while I was researching this broad outline:

- LAWSA on schools
- LAWSA on disability
- LAWSA on Children and Family

Wednesday, December 2, 2015

The Strange and at Times 'Unsettling' Tale You Haven't Heard - of Gender's Winding Path in Western Culture.

Gender in global and western history – an 'unsettling' and winding tale of mismatching changes.

The image is bizarre. If I did not know that it was President Franklyn D. Roosevelt, I would naturally presume it was an infant little girl. The child wears a pretty dress and fancy shoes. It is dressed up for the photograph.

By today’s standards the image is unsettling. It was a different era, one in which people picked up a trade journal and were told that they should dress their young boys in pink and their daughters in blue. Pink was a vibrant, masculine colour, they were told… it would be a while before our cultural obsession with the colour pink would emerge. In those days, boys were often dressed in female attire until age six or seven, when they could wear their big boy pants.

Boys in pink little dresses, girls in blue.

Pants? The attire of a horse rider, and these days of a man. When boys reached a certain age, they too could wear pants. There is a reason the feminist movement loved the idea of abandoning dresses for trousers… a sign of majority, of the full citizen of the western society.

High heels have the same origin. They were worn by men, who wore them and tights. Imagine that, men wearing high heels, while women don’t. The higher the high heels, or court shoes, the wealthier the man. It was a show of indulgence. It however originated as a form of cavalry shoe.

Women are always quick to adopt fashions, and women soon wore court shoes too, and shoe designers set about making them even more elaborate and feminine than they already were when worn by the men. The French revolution struck, and court shoes, a sign of opulence, quickly went out of fashion.

It was not until the advent of the poster girl that heels made a return. Pornography and the fantasy girlfriend industry of the Second World War discovered that high heels accentuated women’s long legs. After that, the shoes made a return with women, not men.

Cheerleading was similarly once a man’s sole domain… when women tried to enter it, sports authorities tried to ban them, but alas, watching women cheer men on in short skirts was much more interesting, and male cheerleaders have become an aberration in the sport: rare, uncommon. It is no longer a career to launch a young politician’s career, and cannot catapult a man to the office of the President of the United States of America anymore.

What about dresses, you might ask? Jesus likely wore one. Though he might have called it a robe, or in the fashion of the Romans, a tunic. Pteruges, or the leather or cloth skirt, was a popular attire for Roman soldiers to wear.

Surely there must be a domain of femininity that was not once male? What about ear rings? History records these to be worn by both sexes for thousands of years. Makeup? Many a man wore this item during the enlightenment. Long hair? Images throughout history display men with rather long hair. Men in England would even wear majestic long wigs as a sign of high prestige.

One need only view a film or television show from another culture, and the men look strangely feminine, and display mannerisms and facial expressions that a western child is taught to suppress if they are male. In the western world, women go first, in parts of Africa, men go through the door before their feminine companions.

In Europe, women covered their bodies extensively in centuries past, and as a result, their facial features became delicate and beautiful in order to gain a mate. Feminine facial features in some other parts of the world were less important, as more of a woman was visible, often parts taboo in western society. In some Asian cultures, men look intricate and feminine, while the women have a masculinity per the western mind set. In America, breasts have always been rather important to mating, and thus are often large, as are female bottoms. In Italy, a man’s fashion sense features strongly, and men are known for wearing intricate outfits. In parts of the middle east, only a woman’s eyes are on display, and this can result in women with the most beautiful eyes becoming most successful at reproduction. In the modern western world, a woman’s hair gains a significance in a sense it did not have in some past times when hair was covered. Scientists have shared a belief that the more angular faces men often have, are better reinforced against facial blows and were likely to have been beneficial in environments when men competed via physical aggression. Such a face can better take a blow from a well aimed punch.

Scientific study of static MRI images of human brains shows that while some features are more often present in women, or in men, brains are very rarely solely purely male or female… maybe 6% are. Studies looking at brain sex, or abilities and competencies often associated with women or men, have found the same. Men are more likely to be mechanical, and like the monkeys in a rather famous study, a boy is more likely to play with a toy car than say, a Barbie doll, but that is only a general occurrence. Many boys will be feminine in this regard, and many girls would prefer to play with the toy car. The culturally acceptable toy doll for a boy to play with is an ‘action figure’.

Sex consists of the DNA, and the sexual organs a person is endowed with… Except when boys are born with a certain gene, which causes their sex organ to only grow when puberty hits. We all start life as female. In the womb, testosterone does its magic for most boys… except it doesn’t for the Guevedoces or (loosely translated) ‘boy at twelve’ exceptions. In Las Salinas, Dominican Republic, about one in every 90 boys is reportedly a sufferer of this exception. The genes which usually cause a boy to grow a certain appendage in the womb, do not kick in until his parents expect him to be growing breasts. A wise name change usually follows the discovery of the unexpected anatomy. Until such time, the boys in question are exposed to life as female. Afterwards, they usually insist that they didn’t like being a girl anyway. Fascinatingly, the said appendage grows just in time for when boys gain a sexual ability and likely sexual desire… nature seems to view sex as based in its general but not absolute slide towards reproduction.

Then there are intersexed individuals, people who present with sexual organs of both sexes… naturally mind you. The practice tends to be to get rid of the part which least consists with the internal parts of such a child, though some prefer to leave their child as nature created them. Intersexed individuals always tend to be more one or other gender internally.

Professional athlete, Mokgadi Caster Semenya, of South Africa, is one such person. She caused great controversy during her career as a runner, winning with times a male would gain in sport. She is also reportedly a lesbian, which international media found to be something of note amidst the controversy of her running career.

Gender consists of the expectations surrounding a person of each sex in a given culture. It is a combination of the rules, and customs ascribed to each gender. Men used to variously wear dresses, high heels, and wonder around with makeup and long hair at various intersections of history… but should a man do so in today’s world, in a western nation, he would likely be viewed as a cross dresser, or transsexual or pansexual. In today’s world, men wear rather specific clothing, while women also adhere to clothing customs. These customs are important, as they help differentiate the sexes, which assists heterosexual individuals to mate, continuing the species. Dress also seems to play a part in connecting individuals of non-heterosexual orientations.

Sexual orientation, something which used to be strongly associated with gender, is rather unique from it in today’s western world. In Iran, homosexuals are allegedly made to undergo gender reassignment surgery. Famous code breaker, Alan Turing, committed suicide, likely as result of being convicted of homosexuality in Britain, and given hormones to sterilise him, which caused him to grow female sex organs. For him, the loss of his masculine figure was said to be too much. Many men who find women attractive, seem to think that they themselves are female inside. They undergo a risky and very expensive process involving hormones and then surgery, to change their outer appearance. Like Alan Turing, the process effectively sterilises them.

The idea of men being sterilised to gain acceptance or advantage, is not unheard of in history. Eunuchs famously cut off their manhood in order to gain positions of prestige, wealth, and high standing in government. In contrast, a Eunuch was to be outcast in ancient Israeli culture.

Gender is rather important to modern society, and transsexuals, people who aim to transition from one gender to another, make up a disproportionate proportion of people below the poverty line, and are also far more likely to contemplate suicide. They are also often expelled from their familial and social networks. Parents tend to want grandchildren. Transsexuals often tell of how their parents and friends accuse them of murdering the person they had known before. Their position is one which is precarious, even in cultures that claim to accept them.

In robotics there is a concept known as the uncanny valley. The closer a robot looks to being human without quite being so, the more disturbing it is, it elicits a strong reaction of disgust. The same concept applies to cartoons and graphics. Something which is obviously not human, but which has aspects of humanity is viewed as wonderful. That which is just off elicits strong reactions of disgust. Transsexuals are often just off expectations of male or female, with drastic results for their life and career prospects. With modern gender expectations, the idea of a born male individual appearing as almost female is one which has been met with great and terrible violence. Such people are often murdered or in the least bit discriminated against. They are also often viewed as sex objects and harassed. They are strongly encouraged to undergo expensive hormone treatments and then surgery. They are told that to have the rules and customs of the other gender apply to them, they must do so. When they do however, many discover the meaning of hell on earth. Just as liberal civil rights supporting Americans are against racism in their words and beliefs, but have been shown to show strong bias and discrimination in person, even the most accepting cultures tend to strongly discriminate against transsexuals in person.

A study of penguins was once thought too rude to publish. It found that male penguins would attempt to mate even with a dead female penguin. There was enough there to ignite its instincts. The study was censored to protect polite society at the time.

The parts of the brain which cause a man such as myself to find a woman sexually attractive, can also appear in a female brain. The same processes are as fallible as those of a penguin. The overall evolutionary intention of continuing the species is there and present in enough individuals to continue the evolutionary line, but a small portion of the population does not find the opposite sex attractive, or finds their own sex attractive. Some even strangely find inanimate objects, animals, or persons who are not yet capable of consensual reproduction to be sexually attractive.

Sexual attraction however is distinct from sexual orientation. Orientation consists of a choice, a life direction. People have been found to be sexually aroused by primates mating, and there is recent academic literature which claims that women find sexual images of other women arousing. A mere arousal however does not make a sexual orientation.

Just as the human brain can be a mismatch of features, likewise the body can be also. So called femboys, or feminine males, are men who have facial and other features that resemble those of women. In the modelling industry, such individuals have been known to thrive. The presence of feminine features can also cause such individuals to be sexually attractive to members of their own sex. However, as violent incidents involving such individuals would suggest, orientation is not the same as attraction.

Attraction can often be further refined, and at times may be influenced by culture. Many men have an orientation to women of a certain race, hair colour, body type or facial features. In some cultures, overweight women are seen as most eligible. In others, a thin body is. In past times, good birthing hips were seen as very attractive. I know that as a man, there are many women in the world whom I do not find at all sexually attractive. I am certain they are found to be attractive by some men, just not me. I also suspect that my genetics and upbringing have heavily influenced which women I find attractive. Men in certain cultures find a woman attractive based on her buttocks and her bosom. I usually don’t even notice either until I accidentally discover they do indeed exist. For me, the thing which causes a woman to be attractive to me, is her face. Following that, are her legs, and her body health. Of course, a beautiful voice, high level of intelligence and attractive accent are also a must for me. Glasses are also something I like on a woman; I am not certain why.

Studies have found that children who don’t have a mother and a father can suffer anything from teen pregnancy (from a bad relationship with their mother), to jail and poor grades in school (from a bad relationship with their father). Fathers who become a primary care giver tend to display some of the same brain changes as mothers who do likewise. However, something either absolute or gender based seems to be at play in children. Somehow the gendered influence of both parents is important in our society. Perhaps it has to do with life experience. Men are more likely to land in jail or get poor grades in school, and are thus more likely to guard a child against these. Women are more likely to get pregnant… much more likely in fact.

Gender consists of the rules and customs that cultures create around people of various sexes, and in some cultures people born one sex seek acceptance as a member of the other gender, or for some or all of those rules and customs to apply to them. Gender develops both from the physical attributes of the sexes, such as male strength, or the female ability to give birth, and from life experience and demographic likelihoods. It is a complex system, which is ever evolving. What it has at its centre, is the result of the reproductive ability and nurturing capability of the human person, and the many complex results thereof.

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