Inclusive Education: An Interpretation Of Art. 24 Of The Convention On The Rights Of Persons With Disabilities (CRPD)

The following is the Submission made by Catia Malaquias to the Day of General Discussion on the Right to Education under Article 24 of the Convention on the Rights of Persons of Disabilities (UNCRPD), held on 15 April 2015 at the United Nations, Geneva.


I am a mother of three children (including a school-aged child with Down syndrome), a lawyer, a director of Down Syndrome Australia, the Chair of an association advocating the representation of people with disability in the media and was formerly a board member of an inclusive education association. However, I make this submission in my personal capacity.
I appreciate the opportunity to make this submission regarding the interpretation of Article 24 of the CRPD and commend the United Nations Committee on the Rights of Persons with Disabilities for proposing the development of a General Comment to provide guidance to States in interpreting the scope of their obligations under the CRPD in that regard.


The views expressed in this submission are underpinned not only by my personal views but also by the experiences that many parents and inclusion advocates have shared with me concerning the Australian education system. I believe that Article 24 of the CRPD, as a positive social behaviour-modifying provision, should be interpreted broadly and any qualifications to it should be read strictly so as not to erode its purpose. In interpreting the scope of the obligations of States, regard also needs to be had to overcoming the institutional and structural barriers to inclusive education. I also believe that the implementation of Article 24 requires greater emphasis on the importance of inclusive school cultures and the need for commitment from, and action by, States to foster inclusive school cultures. This submission also attaches an article that I recently published in the Journal of the Australian Institute on Intellectual and Developmental Disabilities (Interaction, 2014, Volume 28) seeking to juxtapose the historic but too frequently persisting cultural response to students with disability with the response that one should be able to expect from an inclusive school culture.

The importance of a Culture of Inclusion

The indicia of a truly inclusive education system are readily identifiable in theory but more evasive in reality. Those that purport to provide it often do not appear to understand or appreciate the three dimensional nature, and the longitudinal and intergenerational benefits, of the concept. The construct is frequently more basic, limited in scope and short-term in design.

The legal concept of an “inclusive education system” is not as intuitive as it should be and accordingly requires prescriptive clarification – the concept and its macro-socioeconomic utility is too critical to leave to definition on a State-idiosyncratic basis.

On World Autism Awareness Day it was reported that the Principal of a government primary school was removed from his school duties pending an investigation into the circumstances culminating in the construction and installation of a 2m x 2m metal-barred cage in the classroom of a 10 year old boy with autism – allegedly the cage served as a “withdrawal space”. This classroom was not in a remote location or in a developing country – it was, shamefully, in the capital city of Australia. Although the child could be said to have been literally “included” in a mainstream setting, the blatant message to this boy, his classmates, his family, the other teachers and the school community is far from inclusive – does anything represent segregation more than a metal-barred cage? Would such conduct facilitate the engendering of respect, acceptance, empathy and leadership in the boy’s peers?

In 2012 the President of the Primary School Principals Association of an Australian State publicly advocated that children with significant disabilities should be educated in special schools with specially trained teachers rather than in mainstream settings on the basis that mainstream teachers and classrooms were undertrained and ill-equipped. The sense in his view was, in his eyes, reinforced by the fact the special school system was in comparison underutilised – there was no thought of urging reallocation of resources in favour of the mainstream system. Again, the blatant message was far from inclusive and, unfortunately, unchallenged publicly by any Australian Government.

In my view, above everything else (including financial, human and physical resources), the success and life-long social, economic and health benefits of an inclusive education system, at both the individual and broader society levels, depend upon an inclusive culture at the family, school and broader community levels. The fostering of inclusive culture is communication and leadership intensive, not so much financially intensive. An inclusive culture is the atmosphere necessary for an inclusive education system, and the administrators, teachers and students (particularly those with disability) comprising it, to evolve and thrive. Where an inclusive culture is lacking or rarefied, families will continue to face the grinding, consuming need to “advocate” for their child’s rights in navigating against overt and subtle “soft” discrimination.

Defining the Right to an Inclusive Education System by recognising and overcoming the Barriers to Inclusion that entrench the status quo

(1) Lack of Information as to the evidence-based benefits of inclusive education

Entrenched attitudes and assumptions, defaulting in favour of segregated educational settings for students with disability, will continue to direct parents and students to special schools unless States consciously publicise the evidence-based life-long individual and societal benefits of inclusive mainstream education.

States taking the superficially palatable position that “it is the parents’ decision” effectively fosters discrimination against the rights of the child to an inclusive education experience through the skewed decisions resulting from uncorrected, unbalanced under-information. States should acknowledge that the challenge to end discrimination must start with the family unit, making properly informed decisions.

(2) Short term outcome-specific and student-specific decision-making

Inclusive education should be seen for what it must be, an enduring, cross-sectional, societal normative value – it is a priceless societal value – it must be seen as more than just a “student with disability”-specific concept intended to improve “student with disability”-specific outcomes in the short-term and with largely economic opportunity cost.

Only when regard is had to the longitudinal and multi-faceted benefits of inclusive education for all students are the short-to-medium term necessary adjustments, resource reallocation and the counter-arguments to inclusive education seen in their proper and limiting perspective.

(3) The pervasiveness of the medical model of inclusion and the associated assumption that significant resources are always required to remediate the “special need” of a student with disability

Although the concept of an “inclusive education system” in Article 24 of CRPD is based upon the social/rights based model, the medical model insidiously prevails with its stigmatising and segregating effects.

The medical model underlies the former “special schools for special (medical) needs” approach that persists through inertia in structural entrenchment, the clinical relationship between disability and medicine and the focus by States on medical evidence and medical labels of disability to objectively justify education assistance resource allocation decisions.

The segregating implications of the medical model must be consciously identified in the system and administrators must be empowered to see through and beyond this model – to see a child with disability as an individual within our diverse human family – an individual with normal human needs albeit requiring individualised adaptations to ensure that those normal human needs are met – but without “special” or idiosyncratic needs.

Only on this basis can a truly inclusive education system be achieved that allocates teaching and other resources across the classroom based on (less-stigmatising) functional or educational need rather than on perceived (stigmatising) child-specific medical needs of a “special” few.

(4) Maintenance of a “parallel segregated ‘special school’ universe” as a palatable option to an inclusive mainstream education system

Together with under-information as to the evidence-based long-term benefits of inclusive mainstream education, continued State investment in maintaining and increasing “special school” places erodes and stunts the organic growth of a vibrant inclusive education system.

In Australia, special schools are regarded as more resource-intensive than mainstream schools and accordingly it is suggested that the proposed new school funding model will allocate a comparatively higher funding loading to students with disability in “special schools” and in “support units” within mainstream schools (themselves liable to being “special schools” within a mainstream school). This creates an incentive for parents to choose a segregated school option, particularly if their child has a significant need for education assistance. Educators in mainstream schools also advise parents to take that path on the flawed reasoning that more resources always produces better outcomes regardless of the model to which the resources are allocated. This position is not backed by the weight of evidence.

The reallocation of “special school” and “support unit” resources to enhancing inclusion in a truly representative mainstream setting is at best delayed by maintaining and feeding the parallel system.

The existence of higher funding for “special school” and “support unit” alternatives continues to entrench the societal assumption of “segregation” as the default and superior position. This arguably impacts on the quality of the effort and the commitment from educators to include students whose families opt for a fully mainstreamed setting. It is not uncommon for parents to be welcomed into schools with the statement, in the first breath, that “we will do our best” followed by, in the next breath, words to the effect that “if it doesn’t work out we can consider a special school”.

(5) Refuge for States in the qualifiers of “unreasonable accommodation”, “progressive realisation” and the limited “available resources” from promptly implementing their obligation to provide an “inclusive education system”

This barrier is not only raised by some developing nations with clearly limited means, but also by affluent nations such as Australia.

In my view, where a Convention such as the CRPD seeks to modify long-entrenched international social behaviour it should be interpreted in a manner that furthers its social purpose. In particular, qualifications on the socially-modifying right and associated obligation of States must, having regard to the degree of entrenchment to be overcome, be interpreted with stricture so as not to undermine or facilitate the undermining of the purpose of the Convention.

In any event, the effect of the qualification is not to relieve a State from taking any steps in furtherance of an inclusive education system – rather the State at the least is to take steps “to the maximum of available resources … by all appropriate means, including particularly the adoption of legislative measures”. Further, some aspects of the obligation to provide an “inclusive education system”, properly interpreted, are not subject to “reasonable accommodation” or “progressive” implementation – they are immediately realisable.

As stated above, the critical step and (at least) implied obligation of States under the CRPD to foster an inclusive education culture for the effective operation of an “inclusive education system” should be regarded as an immediately realisable element of a State’s obligation under Article 24 of the CRPD – promotion of such a cultural environment is not particularly resource intensive and would no doubt benefit from additional legislative and policy prescription, as well as public education and media campaigns.

Whether the asserted qualifiers of “reasonable adjustment” and limited “available resources” are legitimate or merely, together with “under-information” and maintenance of “parallel” systems of segregation, serve to engender fallacies or operate as “self-fulfilling prophesies” over time only the passing of that very valuable time will tell.

In the meantime, we have the well-documented and researched examples of Italy and Norway as to what can be achieved when a State is dedicated on both a legislative and normative societal-value basis to achieving a fully inclusive education system.

This Submission was first published on the website of the Office of the High Commission for Human Rights (United Nations) and on the website of GLOBI – Global Observatory for Inclusion.

[Cover photo ©  Bob Cotter ]

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