The educational rights of persons with disabilities
| Author | Douglas Hodgson |
| DOI | 10.1177/1358229112473337 |
| Date | 01 December 2012 |
| Published date | 01 December 2012 |
| Subject Matter | Articles |
Article
The educational rights
of persons with
disabilities:
International human
rights law and Australian
law perspectives
Douglas Hodgson
Abstract
Since the founding of theUnited Nations in 1945, the human rights normative framework
pertaining to persons with disabilities has expanded exponentially. In terms of interna-
tional public policy, it is now recognised that discrimination against persons with dis-
abilities is a violation of the inherent dignity and worth of the human person. This paper
proposes to examine those human rights which such persons now enjoy specifically in
relation to the human right to education. The first part of the paper will provide a
historical overview of the systematic development of the recognition of the educational
rights of persons with disabilities under the auspices of the United Nations, with par-
ticular emphasis upon the Convention on the Rights of the Child 1989 and the Con-
vention on the Rights of Persons with Disabilities 2006. Brief mention will also be made
of the recognition of such rights under regional human rights systems. Other non-binding
UN instruments such as the World Programme of Action concerning Disabled Persons
1982 and the Standard Rules on the Equalization of Opportunities for Persons with Dis-
abilities 1993 will also be analysed. The second part of the article will then consider how
these international standards have been adopted and applied in Australian law and policy.
It will specifically consider the relevant provisions of the Commonwealth of Australia’s
University of Notre Dame Australia, School of Law, Fremantle, Western Australia, Australia
Corresponding author:
DouglasHodgson, Universityof Notre Dame Australia,School of Law, Fremantle,Western Australia,
Australia.
Email: doug.hodgson@nd.edu.au
International Journalof
Discrimination and theLaw
12(4) 183–220
ªThe Author(s) 2013
Reprints and permission:
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DOI: 10.1177/1358229112473337
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Disability Discrimination Act 1992 and the Disability Standards for Education 2005 which
have been enacted thereunder as well as case-law of Australian courts.
The aims of this article are threefold: (i) to identify and discuss impediments to the
fuller realisation of the educational rights of persons with disabilities; (ii) to compare and
contrast the extent and impact of the international and national legal recognition and
protection afforded to persons with disabilities in the educational context; and (iii) to
identify strategies for securing more effective implementation of the right to education of
persons with disabilities. While the UN has excelled in formulating relevant and noble
treaty obligations and aspirational principles in this area, the author argues that the next
developmental stage must systematically address practical measures which can deliver
meaningful and objectively verifiable progress in the monitoring and implementation of
these rights. While international human rights law has long influenced legislative initia-
tives and policy development in UN Member States, it is the author’s contention that, in
this particular field, UN treaty-monitoring bodies can equally and reciprocally be
informed by relevant State practice including that offered by the Australian experience.
[T]he physical and mental handicaps which affect millions of children all over the
world ought also to be given particular attention, for it is essential, both for moral and for
economic reasons, that such children, to whom fate has been unkind but who are
perfectly capable of overcoming their handicaps, should not be excluded from the life of
society; they have a right to an education adapted to their situation.
(M’Bow, 1979: 12–13)
Keywords
Education, human rights, persons with disabilities
Introduction
It is estimated that there are 500–650 million persons with disabilities (approximately
10%of the world’s population), 150 million of whom are children. Sadly, many of the
causes of disability, such as armed conflict, illness, disease and poverty, are preventable.
More than 80%live in developing countries with access to very limited services. The
majority of children with disabilities residing in developing countries remain out of
school and are functionally illiterate. Often the extent of the disability is aggravated and
the period during which it is suffered is prolonged because of a lack of early/timely inter-
vention.
1
The United Nations Committee on Economic, Social and Cultural Rights has
observed that ‘The effects of disability-based discrimination have been particularly
severe in the fields of [inter alia] education’.
2
The term ‘disability’ encompasses a significant number of different functional limita-
tions. Peoplemay suffer disability throughphysical, intellectual,mental or sensory impair-
ment or through medical conditions, either transitory or permanent in nature, resulting in
hearing, sight or speech problems. Various international human rights instruments have
attempted to define the term ‘disability’. For example, Paragraph 1 of the Declaration
on the Rights of Disabled Persons proclaimed by the United Nations General Assembly
184 International Journal of Discrimination and the Law 12(4)
in Resolution 3447(XXX) of 9 December 1975 defines the term ‘disabledperson’ as ‘any
person unable to ensure by himself of herself,wholly or partly, the necessities of a normal
individual and/orsocial life, as a result of deficiency, eithercongenital or not, in his or her
physical or mentalcapabilities.’
3
For the purposesof the United Nations Convention on the
Rights of Personswith Disabilities 2006, ‘persons withdisabilities’ is defined in Article 1
thereof ‘to include those who have long-term physical, mental, intellectual or sensory
impairments which in interaction with various barriers may hinder their full and
effective participation in society on an equal basis with others.’
4
Indeed, preambular
paragraph (e) of the Disabilities Convention recognises disability as a dynamic and
‘evolving concept’ and that ‘disability results from the interaction between persons
with impairments and attitudinal and environmental barriers that hinder their full and
effective participation in society on an equal basis with others.’
The concept of education can be variously defined. Education occurs in its widest
sense in the interaction of the individual with the social and natural environment to
which he or she belongs. Education can be defined in the broad sense to encompass ‘all
activities by which a human group transmits to its descendants a body of knowledge and
skills and a moral code which enable that group to subsist’ (M’Bow, 1979: 11). In this
sense, then, education is primarily concerned with the transmission to the younger
generation of the skills necessary to effectively undertake the tasks of daily living and
with the inculcation of the social, cultural, religious and philosophical values held by the
particular community.
Education can, in turn, be more narrowly defined to refer to formal or professional
‘instruction imparted within a national, provincial or local education system, whether
public or private’ (M’Bow, 1979: 11). It is generally the case that the term ‘education’
is used in international instruments to refer to formal institutional instruction. For exam-
ple, the General Conference of the United Nations Educational, Scientific and Cultural
Organization (UNESCO) has defined the term ‘education’ for the purposes of its
Convention against Discrimination in Education 1960 to mean ‘all types and levels of
[formal] education, and includes access to education, the standard and quality of educa-
tion, and the conditions under which it is given’.
5
The European Court of Human Rights
has distinguished education in its wide sense from education in its narrow sense in the
following terms:
[education in the wider sense refers to] the whole process whereby, in any society, adults
endeavour to transmit their beliefs, culture and other values to the young, whereas teaching
or instruction refers in particular to the transmission of knowledge and to intellectual
development.
6
For the purposes of this paper, ‘education’ will refer to state-sponsored and taxpayer-
funded formal teaching or institutional instruction, as well as private sector education,
comprising the pre-primary, primary (elementary), secondary and tertiary levels of
education as well as adult education. Education in both its wider and narrower meanings
is particularly important for laying the foundations for the meaningful participation of
persons with disabilities in society throughout their lives. Indeed, Article 13(1) of the
United Nations International Covenant on Economic, Social and Cultural Rights
Hodgson 185
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