The UN Committee on the Rights of Persons with Disabilities (Committee) recently sought submissions regarding its Draft General Comment on Article 5 (Equality and non-discrimination) of the United Nations Convention on the Rights of Persons with Disabilities (the Convention).
The Draft General Comment No.6, once finalised, will provide guidance to State Parties to the Convention – including Australia – as to their obligations under Article 5 and the interaction of that Article with the other provisions of the Convention.
Draft General Comment No.6 makes a number of statements regarding the principles relating to equality of opportunity and non-discrimination under Article 5 and the education of students with disabilities, including Article 24 (Education).
In particular, Draft General Comment No.6 makes the following comments relevant to the education of students with disability:
“Education laws shall ensure individualised education for each child without relegating children with disabilities to special education schools or classrooms. [para 18]
“State parties must refrain from any action that discriminates against persons with disabilities. In particular State parties shall modify or abolish existing laws, regulations, customs and practices that constitute discrimination. The Committee has on several occasions given examples in this regard: … [including] segregated education laws and policies … “. [para 32]
“The failure of some State parties to provide students with disabilities with access to mainstream, inclusive education is discriminatory, contrary to the objectives of the Convention, and in direct contravention of Articles 5 and 24. Article 5(1) interacts with Article 24 of the Convention and requires State parties to remove all types of discriminatory barriers, including legal and social barriers, to inclusive education. Equality cannot be achieved for students with disabilities as long as they continue to be segregated from mainstream education settings and so all students, including students with disabilities, must be welcomed and supported to participate in the classroom setting and school on an equal basis with others.” [para 70]
Article 5(2) of the Convention requires that State parties prohibit all forms of discrimination on the basis of disability. Segregated models of education, which exclude students with disabilities from mainstream education on the basis of disability, contravene Articles 5(2) and 24(1)(a) of the Convention. Article 5(3) of the Convention requires State parties to take all appropriate steps to ensure that reasonable accommodation is provided to promote equality and eliminate discrimination. This right is strengthened for persons with disabilities in Article 24(2)(b) which requires State parties to ensure an inclusive education on an equal basis with others in the communities in which they live by providing reasonable accommodation of an individual’s requirement in accordance with Article 24(2)(c). … .” [para 71]
“The Committee calls on State parties to be guided by its General Comment No. 4 (2016) on inclusive education when carrying out measures to fulfil their obligations under Articles 5 and 24.”
The Committee, after an extensive consultation process, issued General Comment No. 4 (Right to Inclusive Education) in August 2016 clarifying State Parties’ obligations under Article 24. General Comment No. 4 is the most authoritative detailed international instrument on the right to inclusive education and clarifies that:
“Inclusive education is to be understood as:
(a) A fundamental human right of all learners. Notably, education is the right of the individual learner and not, in the case of children, the right of the parent or caregiver. Parental responsibilities in this regard are subordinate to the rights of the child.
…” [para 10].
“… the importance of recognising the differences between exclusion, segregation, integration and inclusion. … Segregation occurs when the education of students with disabilities is provided in separate environments designed or used to respond to a particular impairment or to various impairments, in isolation from students without disabilities. … [para 11]
“… State parties [should] transfer resources from segregated to inclusive environments. State parties should develop a funding model that allocates resources and incentives for inclusive educational environments to provide the necessary supports to persons with disabilities. … . [para 70].
The United Kingdom did not choose to make a submission in the development of General Comment No. 4.
However, in relation to Draft General Comment No.6, the United Kingdom has made specific submissions in a dogged defense of its segregated education of students with disabilities. The UK Submission states:
“16. In relation to paragraphs 18, 32 and 70-72 [quoted above] we are concerned that the Committee appears to suggest that a specialist education setting is intrinsically inferior.
17. As the Committee is aware, we are fully committed to the inclusive education of disabled children and young people and the progressive removal of barriers to learning and participation in mainstream education. This is one of the key principles of our Special Education Needs (SEN) legislation, which we strengthened through the Children and Families Act 2014. This legislation secures the general presumption in law of mainstream education in relation to decisions about where children and young people with SEN should be educated. Alongside this, the 2010 Act prohibits discrimination against disabled people. This legislative framework helps contribute to the fact that 98.6 per cent of all pupils attend a mainstream school, including many with severe and complex SEN. Our legislation also places considerable weight on the views of families of children with SEN about whether their child should be educated in a mainstream school, a mainstream school with specialist provision such as a unit, or a special school. For a small minority of children with SEN, a specialist setting may be the place that would lead to the best outcomes for them and therefore the positive choice of parents. And this holds true for a small minority of young people with SEN, who may choose a specialist college as the place where they are most likely to fulfil their potential.
18. It follows from this that we are committed to the provision of high quality education in both mainstream and specialist settings. Our reservation to Article 24 and the accompanying Interpretative Declaration reflect our commitment to inclusion and to providing meaningful choice over where those with complex SEN can be educated. Specialist provision is a context where a small minority of students with SEN will best fulfil their potential and prepare effectively for a fulfilling adult life.”
I make the following observations on the above extract from the UK Submission.
(A) The extensive and objective research evidence, which is acknowledged in General Comment No. 4, strongly supports the position that the education of students with disability separate from their non-disabled peers results in long-term inferior academic, social, independence and economic outcomes. Further, the research does not suggest that the academic outcomes of students without disability are adversely affected, and if anything are improved. Further, the students without disability also benefit socially and emotionally from inclusive settings. Accordingly, segregated settings are intrinsically and generally inferior and discriminatory.
(B) The reference to 98.6% of students being educated in mainstream schools is misleading. That percentage includes students with disability co-located with a mainstream school but educated primarily if not exclusively in segregated classes or units. It does not demonstrate a relative increase in the education of students with disabilities in regular classrooms, and certainly does not suggest an increase in the provision of genuinely inclusive education in regular classrooms. In fact, recent statistics suggest that, like Australia, there is a proportionate increase in students with disability, particularly autism and intellectual disabilities, attending segregated settings and that proportionately more segregated facilities are being constructed (see UK article “SEND pupils pushed out of mainstream schools, new data shows”).
(C) Like Australia, the UK is justifying segregated settings and their expansion, on the basis of “parental choice”. Again like Australia, the “on the ground” evidence suggests that parents are exercising neither an informed or a free “choice”. Rather, the demand for segregated settings is to a large degree the composite of:
- insidious “gate-keeping” practices by mainstream schools designed to discourage enrolment of students with disabilities;
- poor attempts by mainstream schools to implement genuinely inclusive education by failing to make appropriate adjustments and providing necessary supports – resulting in parents feeling that “inclusive education” has failed them when in fact the mainstream school failed to provide “inclusive education”; and
- parents not having or obtaining adequate and impartial information and advice.
Few parents “choose” for their child to attend a segregated setting if an inclusive and supported education option is open.
(D) The UK Submission uses the language of “special” and “specialist” to describe segregated settings. Paragraph 12 of the Draft General Comment notes that the Convention was specifically drafted to avoid use of the word ‘special’ “because of negative connotations this word has in the context of disability”. The concepts of “special education”, “special needs” and “specialists” are counter-productive in education and compromise the transition to inclusive education.
The simple fact is that segregated settings – whether labelled ‘special’ or not, by definition, deprive students with disability of factors critical to their long-term outcomes, including access to a “higher expectations” academic environment, learning from peers (peer tutoring) and the opportunity to develop social and emotional skills to function better as members of the community (i.e. segregated settings are not representative of the community). Indeed research shows a clear positive correlation between academic attainment and social and emotional benefits, and those benefits are proportional to the extent of the school day spent in regular classrooms.
The UK Submission is not only disappointing, it is troubling. Given the moral, human rights and pedagogic imperatives to implement inclusive education, one must ask whether the UK government’s defence and continued expansion of segregated settings is being driven by a change-adverse “dual” system that lacks not only the skill, but more significantly the will, to implement the necessary systemic academic and cultural change … to the disadvantage of, and in the denial of the rights of, its most marginalised students.
“Outline Of The Most Recent Review Of Evidence On Inclusive Education”, Starting With Julius
“He Ain’t Special, He’s My Brother” – Time To Ditch The Phrase “Special Needs”, Starting With Julius
“UN Committee Clarifies Right To Inclusive Education”, Starting With Julius
“SEND pupils pushed out of mainstream schools, new data shows”, Jess Staufenberg, Schools Week, 9 November, 2017
“Children with Down’s syndrome are entitled to a mainstream education, just like everyone else”, Nancy Gedge, TES, 3rd December 2017
[Cover photo © Chris Lawton]