By Catia Malaquias
The European Agency for Special Needs and Inclusive Education (European Agency) has recently updated its position on inclusive education systems. Their previous position paper was released in 2015, before the United Nations Committee on the Rights of Persons with Disabilities (CRPD Committee) issued General Comment No. 4 (Right to Inclusive Education) in 2016, which explained the obligations of countries under Article 24 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in relation to inclusive education.
“All learners of any age are provided with meaningful, high-quality educational opportunities in their local community, alongside their friends and peers.” [2022 Paper, p.1]
The 2022 Agency Position on Inclusive Education Systems (2022 Position Paper) states that “[n]ational legislation and policy must recognise the rights of all learners and actively prevent discrimination, stereotyping and marginalisation that are evident for all learners who may be vulnerable to exclusion from inclusive education for different reasons” [2022 Paper, p.1]. The Paper then elaborates:
“Countries’ legal frameworks must incorporate the commitments outlined in international conventions [e.g. Article 24 of the CRPD] and European communications to enshrine both equality and anti-discrimination. Legislation should ensure universal and equal access to inclusive education without discrimination. It must stress that segregation is a form of discrimination, as is the failure to provide necessary adjustments to ensure persons with disabilities can enjoy all human rights on an equal basis with others” [2022 Paper, p.1-2]. (emphasis added)
The European Agency’s Background Information Paper (Background Paper), in support of the Agency’s 2022 Position Paper, emphasises (amongst others) two human rights law points that have been opposed by the Australian Government and questioned by an interim report of the current Australian Disability Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (DRC) – although both points are supported by a legal opinion obtained by the DRC from an eminent international law expert. Those two points are:
- That realising the human right to an inclusive education is not compatible with countries maintaining in parallel a mainstream education system and ‘special’ segregated education settings for students with disability – in other words segregated ‘special’ settings must be phased out:
“The European Commission against Racism and Intolerance General Policy Recommendation No. 7 (2018) highlights that segregation is explicitly considered a form of discrimination. Moreover, General Comment No.4 on the UNCRPD further clarifies inclusive education and states ‘the exclusion of persons with disabilities from the general education system should be prohibited’ (Committee on the Rights of Persons with Disabilities, 2016, p.6). Section III, paragraph 40 clearly states that the Convention is ‘not compatible with sustaining’ both mainstream and special or segregated education systems (ibid, p.11).
The UN High Commissioner for Human Rights further strengthens this point, highlighting that:
‘To ensure the non-discrimination perspective, laws and policies should explicitly comprise as ‘no-rejection clause’, forbidding the denial of admission into mainstream schools and guaranteeing continuity in education (2019, p.12).’
They note that such action should be reinforced by ‘the provision of reasonable accommodation’ for persons with disabilities, with ‘impairment-based assessment for the assignment of schools’ being discontinued and ‘support needs for effective participation in mainstream schools assessed’ (ibid).”
[Background Paper p.7-8]
- That parents do not have a right to choose segregated education settings for their child with disability and therefore countries have no duty to so provide:
“Education systems must aim toward the provision of opportunities for all learners to fully participate and learn in their local schools. The right of all children to inclusive education is paramount. Parents should not be faced with having to express their preference for an education that ensures that their child’s needs are met (which may imply placement in a special school or separate classroom) or ensuring that their child has the same rights and opportunities as other learners (through placement in a mainstream school)”
[Background Paper, p.5].
The European Agency recognises the illusory ‘choice’ that many parents feel compelled to make in favour of a segregated ‘special’ education setting for their child when an inclusive education option in their local mainstream school is denied.
The Background Paper quotes the former Council of Europe Commissioner for Human Rights in advocating for explicit legislative direction that ‘parental choice’ should not undermine the child’s human right to an inclusive education:
“ … legislation should be comprehensive and explicit enough to address situations in which tradition, freedom of choice, parental consent … are used to legitimise discrimination and high concentrations of … children with disabilities in specific schools (2017, p.19)” [p.7].
The Justification for Inclusive Education
While the 2022 Position Paper notes that the ‘social, educational and financial benefits of inclusion have been well documented’ [p.1], the Background Paper summarises the justification for inclusive education as follows:
“There is a human rights justification; education is the right of the individual learner, and not, in the case of children, the right of a parent or caregiver. Parental responsibilities in this regard are subordinate to the rights of the child (General Comment 4, 2016). Learning with peers in the community where … [the learner lives] promotes a sense of self-worth and dignity, equal access to opportunities and other services in the community […].
There is an educational justification; the requirement for inclusive schools to educate all children together means that they have to develop ways of teaching that respond to individual differences and thus benefit all children. This can lead to the potential for education innovation – challenges presented by individual needs can motivate and inspire new modalities of teaching and learning provided there is ‘sensitivity to contextual realities … and … an understanding of the kind of provisions that would optimise and engender quality and equitable education for all children’ (Singal, 2019). Once these are established it will lead to improved academic outcomes, including for learners with disabilities.
There is a social justification; inclusive schools are able to change attitudes to difference by educating all children together, forming the basis for a just and non-discriminatory society. This leads to improved social integration, greater resilience and better preparedness for the world of work for learners with disabilities.
There is an economic justification; it is likely to be less costly to establish and maintain schools which educate all children together than to set up a complex system of different types of schools specialising in different groups of children. If access is only made possible in segregated special schools, there will always be large numbers of children with disabilities (especially in remote and poor regions) who do not have access to education. Furthermore, segregated schooling does not build inclusive communities where persons with disabilities can contribute socially and economically through the job market, which would ensure returns to education as for non-disabled children and reduction of loss of GDP. By isolating or excluding persons with disabilities, [society is] … depriving the rest of the community of their potentially substantial social and economic contributions (UNESCO, 2019, p. 14).”
[Background Paper, p.9]
New Social Contract for Education
The 2022 Position Paper also noted that the International Commission on the Futures of Education released the ‘Reimagining our futures together’ paper in 2021 which “stresses the need for education to a be a ‘shared social commitment’ – one of the key human rights – strengthening everyone’s capacity to care and co-operate across all levels of society” [2022 Position Paper p.1].
Inclusive education in general mainstream education settings is consistent with and furthers education as a ‘shared social commitment’. In that regard, the 2022 Position Paper emphasises the importance of political will to achieve the ethical outcome of our society becoming genuinely inclusive for people with disability:
“… it remains paramount for all countries to respond to the political imperative, as well as the important ethical imperative, to aspire to more inclusive societies” [p.1].
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[Header image: Photograph of a row of flag poles with European flags shown at full mast against the backdrop of a modern cylindrical high rise building with glass widows, with the following words written across the photograph “European Agency Issues Updated Position on Inclusive Education Systems”.]