The educational rights of persons with disabilities

Since the founding of the United Nations in 1945, the human rights normative framework pertaining to persons with disabilities has expanded exponentially. In terms of international public policy, it is now recognised that discrimination against persons with disabilities 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 particular emphasis upon the Convention on the Rights of the Child 1989 and the Convention 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 Disabilities 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 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 initiatives 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)