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On Friday 26 August 2016 the United Nations Committee on the Rights of Persons with Disabilities (Committee) adopted two General Comments relating to the Convention on the Rights of Persons with Disabilities (CRPD). The first (General Comment No. 3) relates to Article 6 (Women and Girls with Disabilities) and the second (General Comment No. 4) to Article 24 (The Right to Inclusive Education). These two General Comments were published by the Committee on Monday 29 August.
The focus of this note is General Comment No. 4 on the Right to Inclusive Education (General Comment No. 4).
Article 24.1 of the CRPD provides:
“State Parties [including Australia] recognise the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, State Parties shall ensure an inclusive education system at all levels … .”
Article 24.2 of the CRPD provides:
“In realizing this right, State Parties shall ensure that:
The Australian Government has endeavoured to discharge its obligations under Article 24 of the CRPD by imposing obligations on education providers (including private providers) to comply with the Disability Discrimination Act 1992 (Cth) and the Disability Standards for Education 2005 made under it.
There has been significant ambiguity as to what is meant by “inclusive education” and that ambiguity has complicated efforts to implement inclusive education systems.
The purpose of General Comment No. 4 is to provide Governments with guidance on the scope of their obligation to provide quality inclusive education for people with disability. This guidance is not, unlike the terms of the CRPD itself, formally binding upon ratifying countries, but it is significant and instructive of the requirements that the Committee will apply in reviewing compliance by individual countries with Article 24. It is also instructive of the scope of the fundamental human right to receive an inclusive education.
General Comment No. 4 has been the culmination of a near 2-year process involving the review of a draft General Comment and submissions from State Parties (including Australia), interested NGOs (including Children and Young People with Disability Australia), academics and disability advocates (including myself).
Every Australian parent, whether or not they have a child with disability, and every Australian education provider should take the time to read General Comment No. 4. Not only does it look at the scope of the fundamental human right to a quality inclusive education in providing an interpretative definition of that right, but it presents that right within its historical context, acknowledging and highlighting barriers and in light of its supporting academic, social and economic cases. [paras 1-4]
I highlight the following significant aspects of General Comment No. 4:
(1) Persons with disabilities and, when appropriate, their families, must be recognised as partners and not merely as recipients of education. [para 7]
(2) The right to inclusive education encompasses a transformation in culture, policy and practice in all educational environments [including private] to accommodate the differing requirements and identities of individual students, together with a commitment to remove the barriers that impede that possibility. It requires an in-depth transformation of education systems in legislation, policy, and the mechanisms for funding, administration, design, delivery and monitoring of education. [para 9]
(3) Inclusive education is to be understood as, amongst other things:
(4) The need to distinguish between “exclusion”, “segregation”, “integration” and “inclusion” is critical. Inclusion involves a process of systemic reform embodying changes and modifications in content, teaching methods, approaches, structures and strategies in education to overcome barriers with a vision serving to provide all students of the relevant age range with an equitable and participatory learning experience and environment that best corresponds to their requirements and preferences. Placing students with disabilities in mainstream classes without appropriate structural changes to, for example, organisation, curriculum and teaching and learning strategies does not constitute inclusion. Furthermore, integration (placing persons with disabilities in mainstream institutions so long as they can adjust to the standardised requirements) does not automatically guarantee the transition from segregation to inclusion. [para 11]
(5) The core features of inclusive education are:
(6) Education systems should apply the Universal Design for Learning (UDL) approach which recognises that each student learns in a unique manner and involves developing flexible ways for students to learn. [para 25]
(7) The denial of reasonable accommodations constitutes discrimination and the duty to provide reasonable accommodation is immediately applicable and not subject to progressive realisation. [para 30]
(8) Any support measures provided [including provision of education assistant support] must be compliant with the goal of inclusion. Accordingly, they must be designed to strengthen opportunities for students with disabilities to participate in the classroom and in out-of-school activities alongside their peers, rather than marginalise them. [para 33]
(9) Learners with communication impairments must be provided with the opportunity to express themselves and learn using alternative or augmentative communication, including electronic communication aids. Learners with social communication difficulties must be supported through adaptations to classroom organisation, including working in pairs, peer tutoring, seating closer to the teacher and the creation of a structured and predictable environment. Learners with intellectual impairments must be provided with concrete, observable/visual and easy-read teaching and learning materials within a safe, quiet and structured learning environment. [para 34]
(10) Governments must adopt and implement a national education strategy which includes provision of education at all levels for all learners, on the basis of inclusion and equality of opportunity. [para 40]
(11) Governments should gather disaggregated data and evidence on the barriers that prevent persons with disabilities from having access to, remaining in, and making progress in quality education to enable the adoption of effective measures to dismantle such barriers. [para 66]
(12) Governments should transfer resources from segregated [special schools and special units within mainstream schools] to inclusive education environments. [para 68]
(13) Inclusive education requires a support and resource system for teachers in educational institutions at all levels. Parents/caregivers of students with disabilities, where appropriate, can serve as partners in the development and implementation of learning programs, including individualised education plans. They can play a significant role in advising and supporting teachers in provision of support to individual students. [para 70]
(14) Quality inclusive education requires methods of appraising and monitoring students’ progress that takes into account barriers faced. Traditional systems of assessment, utilising standardised achievement test scores as the sole indicator of success for both students and schools, may disadvantage students with disabilities. The emphasis should be on individual progress towards broad goals. [para 72]
Now that the Committee has adopted and published General Comment No. 4, the Australian Government should review the Australian education system generally and in particular the Disability Standards for Education 2005 for consistency with the right to a quality inclusive education under Article 24 of the CRPD, as clarified by the Committee.
[This article was originally published on Starting with Julius]
[Cover photo © Department of Foreign Affairs and Trade’s photos]
Cátia Malaquias is a lawyer (LLB/BA), Director of Down Syndrome Australia, Deputy Chair of Down Syndrome WA and an active member of PLEDG, an organisation of parents of children with disability pursuing inclusive education for all children. She is also the founder of Starting With Julius, a project promoting the inclusion of people with disability in media and advertising.
As the mother of three children, one of whom has a disability, she aspires for all children to grow up in a world that respects their rights, embrace their diversity and includes them on an equal basis. Catia advocates for that change through her various roles and in her personal capacity, in the media, social media and public discussion spaces.