PART 2:
THE CONVENTION ON THE RIGHTS
OF PERSONS WITH DISABILITIES
Chapter 13:
The Right to Education
Convention on the Rights of Persons with DisabilitiesArticle 24, Right to education
1. States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and life long learning directed to:
(a) The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;
(b) The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential;
(c) Enabling persons with disabilities to participate effectively in a free society.2. In realizing this right, States Parties shall ensure that:
(a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;
(b) Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;
(c) Reasonable accommodation of the individual’s requirements is provided;
(d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
(e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.3. States Parties shall enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community. To this end, States Parties shall take appropriate measures, including:
(a) Facilitating the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring;
(b) Facilitating the learning of sign language and the promotion of the linguistic identity of the deaf community;
(c) Ensuring that the education of persons, and in particular children, who are blind, deaf or deafblind, is delivered in the most appropriate languages and modes and means of communication for the individual, and in environments which maximize academic and social development.4. In order to help ensure the realization of this right, States Parties shall take appropriate measures to employ teachers, including teachers with disabilities, who are qualified in sign language and/or Braille, and to train professionals and staff who work at all levels of education. Such training shall incorporate disability awareness and the use of appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities.
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.
OBJECTIVES
The information contained in this chapter will enable participants to work towards the following objectives:
· Define the right to education;
· Explain the importance of education for persons with disabilities;
· Understand the interrelationship between education and other human rights;
· Identify how the rights of persons with disabilities to education have been promoted or denied;
· Understand different perspectives on inclusive and special education;
· Seek strategies to advance the right of persons with disabilities to participate in education; and
· Understand the provisions on education in the Convention on the Rights of Persons with Disabilities (CRPD).
GETTING STARTED: THINKING ABOUT EDUCATION
Many children with disabilities throughout the world have been excluded from mainstream educational opportunities or denied the right to education. In some countries, negative attitudes about placing children with disabilities in the general classroom have resulted in segregated schools for children with disabilities, while in other countries the lack of disability awareness and financial resources is the main cause of exclusion. The World Report on Disability indicated that some progress has been made in recent decades, but still predominantly found that “children and youth with disabilities are less likely to start school or attend school than other children. They also have lower transition rates to higher levels of education.”[1] Persons with disabilities face many barriers, both at the systemic level and in schools, to full and equal access to the right to education. Under the CRPD, States Parties are now legally bound to provide persons with disabilities the opportunity and support they need, without discrimination, to access quality, lifelong education in an inclusive education setting.
Examples of Barriers to Education· Negative attitudes of teachers, school administrators, parents, and peers about the ability of persons with disabilities to learn and actively participate in education;
· Legislation and policy that explicitly excludes persons with disabilities from education systems;
· Lack of legislation and policy that promotes inclusive education;
· Lack of adequate funding to promote inclusive education;
· Lack of accessible transportation to educational facilities;
· Physical barriers to educational facilities (for example, lack of ramps, inaccessible bathrooms, and inaccessible classrooms);
· Lack of materials in accessible formats, such as large print, Braille, plain language, or visual representations of verbal information;
· Lack of alternate forms of communication, such as sign language or Communication Access Realtime Translation (CART), or facilitated communication; and
· Lack of teacher-training on inclusive education, resulting in a shortage of qualified teachers and support staff.
For proper implementation of inclusive education, it is not enough for persons with disabilities to simply be allowed to attend school or to sit in the classroom with their peers; the information and materials presented must be provided in an accessible manner for meaningful learning to occur. Persons with disabilities are entitled to reasonable accommodation and appropriate supports to be able to equally access and fully participate in education.
The Interrelationship of Rights
The right to education is interrelated and central to the enjoyment of all other human rights. Education is the foundation for a child’s future and has a direct impact on many other human rights. For example, education helps students develop meaningful skills that they will use in future employment. If children with disabilities do not enjoy the right to education, they may not have any skills that will help them exercise their right to work. The lack of work and financial support may impact other rights, such as one’s ability to live independently or the right to home and the family. Furthermore, education is important in helping members of society become informed about issues that impact them. When persons with disabilities cannot access their right to education, they may not be able to fully enjoy their right to participation in political and public life. There are many other examples of how the right to education is central for ensuring persons with disabilities can fully enjoy all of their human rights.
At the same time, barriers to other human rights can prevent persons with disabilities from claiming their right to education. For example, a school building may be accessible for a child who uses a wheelchair, but if no accessible transportation exists, the child may not be able to attend school. Furthermore, persons with disabilities who are denied the right to live independently and are forced to live in an institution may not have access to education. These examples demonstrate how the right to education and other human rights are indivisible, interdependent, and interrelated.
WHAT DOES HUMAN RIGHTS LAW SAY ABOUT THE RIGHT TO EDUCATION?
International human rights law has long recognized the right to education. Article 26 of the Universal Declaration of Human Rights (UDHR) provides that:
… [e]veryone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) reaffirms the right to education in Article 13, which calls on States Parties to:
recognize the right of everyone to education. [States Parties] agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms.
Article 5 of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) calls on States Parties to guarantee equality under the law for the right to education. Article 10 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) affirms the right of women to non-discrimination in education. The Convention on the Rights of the Child (CRC) further articulates the right to education in Article 28: “[S]tates Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity.” Article 28 encourages the development of general and vocational education, as well as educational guidance that is available and accessible to every child. Furthermore, Article 29 of the CRC calls on education to be directed at the development of a child’s personality, talents, and mental and physical abilities to their fullest potential.
The CRPD further outlines the right to education for all persons in Article 24, Education. Article 24 clearly applies the right to education to persons with disabilities and provides that “States Parties recognize the right of persons with disabilities to education.” Furthermore, Article 24 employs the concept of inclusive education for the first time in international law:
1. …With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and lifelong learning…
2(b) Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;The concept of inclusive education outlined in the CRPD is new to international law and has set a new standard for countries to implement. The CRPD requires States Parties to implement inclusive education systems that ensure reasonable accommodations for children with disabilities. Inclusive education promotes the education of children with disabilities in general education programmes.
Article 24 of the CRPD requires States Parties to ensure that “persons with disabilities are not excluded from the general education system on the basis of disability.” This means that States cannot prohibit children with disabilities in law or practice from attending general schools because of their disability. It also means that States must ensure that persons with disabilities do not face barriers in general education settings that amount to exclusion based on disability.
Furthermore, Article 24 also requires States to ensure that “[p]ersons with disabilities receive the support required, within the general education system, to facilitate their effective education.” To this end, Article 24 calls on States Parties to ensure that “[r]easonable accommodation of the individual’s requirements is provided.” Article 24 also requires States Parties to provide reasonable accommodations for persons with disabilities “to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others.” Reasonable accommodation is defined in Article 2 of the CRPD:
….necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
Reasonable accommodation in the context of education requires discussions between the educational provider, the student with a disability, and depending on the student’s age, parents and/or family members in order to ensure that the accommodation meets the access needs of the student and can be implemented by the provider. If a student with a disability is seven years old, then it is important for parents or family members to be involved in these discussions. However, if a student with a disability is a 20-year-old university student, he or she should be able to advocate directly to the university for appropriate accommodations.
There is no “one size fits all” formula to reasonable accommodation, and it is important to note that different students with the same disability may require very different accommodations. For example, some students with low vision may use screen-reading technology and therefore request that all information is provided to them in electronic format, while other students with the same disability may prefer materials in large print.
It is important for reasonable accommodations to be discussed and re-evaluated regularly to ensure that the accommodations are being implemented effectively. In many countries, individualized education plans (IEPs) are developed on a yearly basis for students with disabilities. In such countries, parents, teachers, and students with disabilities create an IEP at the beginning of each school year that outlines the accommodations the student will receive in school that year. The concept of reasonable accommodation is discussed in more detail in Part 2, Chapter 1, Equality and Non-Discrimination, and Part 2, Chapter 2, Accessibility.
Potential Reasonable Accommodations in EducationAccommodations may include:
· Changing the location of a class.
· Providing different forms of in-class communication.
· Enlarging print, or providing all handouts in Braille.
· Providing students with a note-taker.
· Allowing students to use assistive technology in class and on exams.
· Allowing students to take exams in a private room.
In addition to promoting inclusive education, Article 24 of the CRPD also calls on States Parties to:
…enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community.
To this end, Article 24 calls on States Parties to facilitate “the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills.” It also requires States to facilitate “the learning of sign language and the promotion of the linguistic identity of the deaf community.” Furthermore, Article 24 calls on States to ensure that “the education of persons, and in particular children, who are blind, deaf or deafblind, is delivered in the most appropriate languages and modes and means of communication for the individual, and in environments which maximize academic and social development.”
The CRPD also calls on States Parties to employ teachers who are qualified to teach sign language and/or Braille. Additionally, teacher training programmes should include a disability awareness component and should educate future teachers about “the use of appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities.”
Teacher Training to Promote Inclusive EducationAn inclusive education component should be added to curriculum for University students training to be teachers. Teachers should learn about inclusive education and teaching children with disabilities as part of their degree program so that all new teachers are prepared to teach in inclusive schools. Teachers should be knowledgeable in effective inclusive education strategies, including:
· Methods to communicate in different ways (for example, Braille, Sign Language, Augmentative and Alternative Communication);
· Methods to provide reasonable accommodation and appropriate supports for students with disabilities;
· Participatory and flexible teaching methods and curriculum development that includes all students; and
· Skills for promoting acceptance and awareness of disability issues with peers, teachers, families, and school administrators.
The Benefits of Inclusive Education
Inclusive education benefits communities, families, teachers, and students by providing knowledge and understanding of disability-related issues. Inclusive education ensures that children with disabilities attend school with their peers and provides them with adequate support to succeed both academically and socially. According to the World Report on Disability:
The inclusion of children with disabilities in mainstream schools promotes universal primary completion, is cost-effective and contributes to the elimination of discrimination. Creating an inclusive learning environment will assist all children in learning and achieving their potential. Education systems need to adopt more learner-centred approaches with changes in curricula, teaching methods and materials, and assessment and examination systems. Many countries have adopted individual education plans as a tool to support the inclusion of children with disabilities in educational settings.[2]
Communities benefit from inclusive schools by gaining more knowledge and understanding about disabilities. The introduction of children with disabilities into mainstream schools introduces children with disabilities into the local communities and neighbourhoods and helps to break down barriers and prejudice. Communities become more accepting of difference and everyone benefits from a friendlier, open environment.
Schools benefit from inclusive education programmes as well. The concept of inclusive education focuses on each individual child’s ability to learn rather than treating all children the same. Teachers are able to instruct each child in a more individualized way. All children, with and without disabilities, benefit from a teaching style catered to their individual way of learning. Inclusive education also features different teaching techniques, such as drawing, singing, and participatory activities. Studies suggest that young children retain more information when they are “involved” in learning rather than just receiving lectures. Inclusive education also allows teachers to become more dynamic in the classroom, and thus makes school more enjoyable for children and teachers, alike.
CASE STUDY
Violations of the Right to Education in EuropeIn MDAC v. Bulgaria, the Mental Disability Advocacy Center (MDAC) brought a “collective complaint” against Bulgaria before the European Committee of Social Rights (ECSR) of the Council of Europe. The complaint alleged that children with intellectual disabilities living in Bulgarian “Homes for Mentally Disabled Children” (HMDC) receive no education because of their disability. The collective complaint stated that the Bulgarian Government violated Article 17(2) of the revised European Social Charter, which mandates States “to take all appropriate and necessary measures designed to provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools.” The complaint further alleged that the Bulgarian Government violated Article E of the Revised European Social Charter by discriminating based on disability.
MDAC summarized their argument as follows: “The fact that only 6.2% of children from “Homes for Mentally Disabled Children” receive schooling clearly gives rise to an inference of discrimination based on disability for which the Bulgarian Government is directly responsible.” The ECSR found a violation of Article 17(2) in conjunction with Article E of the revised European Social Charter, and held that Bulgaria discriminated against children with mental disabilities by denying them their right to education.
Source: MDAC v Bulgaria, Complaint No. 41/2007, European Committee of Social Rights, Decision of 3 June 2008.
In International Association of Autism Rights v. France, Autism Europe alleged that France violated the right to education for persons with disabilities and argued that 80-90% of persons with autism had no access to adequate educational services. Autism Europe also pointed to insufficient provisions for: mainstreaming education; early intervention; teacher training; and funding education for children with disabilities. The ECSR found that France’s overall lack of progress in this area constituted a violation of the right to education and the right of all persons to non-discrimination under the revised European Social Charter. Under the Charter, social rights must be realized within a reasonable time and the ECSR held that the Disabled Persons Act had been passed in 1975 and that twenty years was a sufficient amount of time to realize the right to education. Accordingly, the ECSR found that there were an unacceptable number of educational placements for persons with autism.
Source: Autism Europe v. France, Complaint No. 13/2002, Decision on the merits of 4 November 2003.
The Duty to Respect, Protect, and Fulfil Obligations Relating to the Right to Education
Taken as a whole, States’ obligations with regard to education include:
1. Obligation to respect: States must refrain from denying or limiting equal access to education.
Example: The State may not adopt or maintain laws that discriminate against persons with disabilities in their access to education.
2. Obligation to protect: States must take all appropriate measures to ensure that third parties do not restrict the right to education of persons with disabilities.
Example: The State must ensure that private universities do not discriminate against persons with disabilities by failing to accommodate persons with disabilities.
3. Obligation to fulfil: States must be proactive in their adoption and implementation of measures to give effect to the principles of equal access and non-discrimination in education.
Example: The State may provide disability training to public school teachers to help them understand how to effectively accommodate students with disabilities.
Example: The State may introduce affirmative action programmes to enhance the participation of students with disabilities in education.
The Transition to Inclusive EducationIn order to implement effective inclusive education systems, countries must make a commitment to:
· Amend legislation to ensure education is accessible to every child;
· Devise a time table to eliminate segregated schooling;· Create a plan to close down institutions and move children into community settings;
· Implement training for teachers and school staff;
· Create a comprehensive system for data collection;
· Allocate resources for child-centered learning;
· Identify performance indicators; and
· Remove barriers.
In sum, international human rights law strongly supports the right of persons with disabilities to have equal access and full inclusion in education. The enjoyment of the right to education facilitates the enjoyment of other rights by persons with disabilities.
USEFUL RESOURCES ON EDUCATION
· CAST Universal Design for Learning: http://www.cast.org/index.html
o Organization devoted to making education universally accessible to all.
· Centre for Studies on Inclusive Education: http://inclusion.uwe.ac.uk/csie/index.htm
o UK-based inclusive education research centre.
· Inclusion International: http://www.inclusion-international.org/en/ii_priority_areas/ie/index.html
o Education webpage for the leading international organization devoted to the inclusion of persons with intellectual disabilities.
· Special Rapporteur on the Right to Education, “Report on the Right to Education of Persons with Disabilities” (19 Feb. 2007): http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G07/108/92/PDF/G0710892.pdf?OpenElement
o UN independent expert report on children with disabilities and education.
· UNESCO, Inclusive Education: www.unesco.org/education/inclusive/
o Official UNESCO webpage on inclusive education.
· World Health Organization & World Bank, “Chapter 7, Education,” World Report on Disability (2011): http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf
o First ever global report on disability that includes coverage of education.
Notes________________________________[1] World Health Organization & World Bank, World Report on Disability 208 (2011): http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf
[2] World Health Organization & World Bank, World Report on Disability, p. 208 (2011): http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf
