Teach the way they learn: The interpretation and realization of inclusive education in international law

By Carly Mara Toepke

Education is interwoven into the fabric of society and culture. Not only is education a fundamental human right in itself, but it also enhances all other human rights. As such, it takes an elevated place in the human rights regime. Unfortunately, current practice shows that this right is not equally realized for every learner, especially learner

• Language: English
• Publisher: Vandeplas Publishing LLC
• Release date: Mar 9, 2019
• ISBN: 9781600423062

Book preview

Teach the Way They Learn

The interpretation and realization of

inclusive education in international law

Lucerne Dissertation 2016

Dr. iur. Carly Mara Toepke, J.D.

Teach the Way They Learn: The interpretation and realization of inclusive education in international law

Lucerne Dissertation 2016

Dr. iur. Carly Mara Toepke, J.D.

Published by:

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Copyright © 2017 by Dr. iur. Carly Mara Toepke, J.D.

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ISBN 978-1-60042-306-2

Preface

This doctoral dissertation, Teach the Way They Learn: Interpretation and Realization of Inclusive Education in International Law is the product of four years of research undertaken at the University of Lucerne Faculty of Law and the Swiss Paraplegic Research (SPF) in Switzerland. Additional research commenced during a secondment at the Mental Disability Advocacy Center (MDAC) in Hungary. This research was supported by the European Union Seventh Framework Programme ([FP7/2007-2013] within the Disability Rights Expanding Accessible Markets (DREAM) project, Marie Curie Actions - Initial Training Network (ITN), grant agreement number 265057 by the Marie Curie Research Fellowship from September 2011 to August 2014 and by the University of Lucerne Faculty of Law from September 2014 to February 2015.

Within that four year period, parts of this research were published in the following forums:

Realizing Culture through Realizing the Right to Education. The obligation to monitor the right to inclusive education, in

LBR 108

Recht und Kultur Junge Rechtswissenschaft Luzern

183 (Steven Howe & Jessica Lai., eds., Schulthess, 2015).

Legal Opinion. Moving Towards Inclusive Education as a Human Rights. An analysis of international legal obligations to implement inclusive education in law & policy, ‘In1School’ Project (Dutch Fund for Disabled Children, 2014).

The Importance of Participation in Education for Society. Fulfilling the participation aspect of Article 24 of the UN Convention on the Rights of Persons with Disabilities, in

LBR 85

Recht und Gesellschaft. Junge Rechtswissenschaft Luzern

265 (Mariela Eletti-Maidana & Carly Toepke, eds., Schulthess, 2014).

Keeping Children Health through Education – A Look into the Connectedness of Health and Education under the U.N. Convention on the Rights of Persons with Disabilities, in LBR 70Recht und Gesundheit Junge Rechtswissenschaft Luzern

25 (Helena Zaugg & Lea Schläpfer eds., Schulthess, 2013).

Thank you Prof. Dr. Berhard Rütsche, Prof. Dr. Martina Caroni, LL.M., Prof. Jerome Bickenbach, PhD, LL.B, and the DREAMers for the feedback, support, and motivation boosts.

A special world of thanks goes to Prof. Lauren Fielder, JD LL.M. for your supervision, positivity, and friendship. I would not be here if not for you and could not have made it through this without you.

To those who believe that a person can write a thesis alone, please be advised that you are dreadfully wrong. I want to thank my colleagues, friends, and partners in crime who have supported and helped me in innumerable ways throughout this process – especially to Marie Fallon-Kund and Julia Amann who helped me finish the last lap. To every other person, a wholehearted congratulations on getting me through this.

My final and most dear thanks go to Popsy, Mom, Magoo, Skippy, my family, and to my Pączek. For the love and support that they showed me from half a world away, they deserve it all and more. A heavenly hug and high-five to Mori, who has always been my guiding inspiration to keep reaching.

To the moon and back.

Austin, Texas in April 2017

Carly Mara Toepke

Table of Contents

1. Chapter: Introduction

I. Brief Introduction

II. Road Map

III. Methodology

IV. Qualifications

2. Chapter: Background

I. Introduction to Disability Human Rights

II. Introduction to Inclusive Education

1. Inclusion v. Segregation

2. Barriers to Inclusion

III. Chapter Conclusions

3. Chapter: Education & the Law: the right to education

I. Introduction

II. Education as a Human Right

1. Legal Standards for Inclusive Education

A) Soft Law Instruments

a) The Universal Declaration of Human Rights

b) The Convention against Discrimination in Education

c) The Salamanca Statement

d) Recommendation of the Committee of Ministers to Member States on ensuring full inclusion of children and young persons with disabilities in society

B) Hard Law Instruments

a) The International Covenant on Economic, Social and Cultural Rights

b) The United Nations Convention on the Rights of the Child

c) The United Nations Convention on the Rights of Persons with Disabilities

III. Education as an Economic, Social, and Cultural Right

1. Progressing towards Realization

2. Immediately and Progressively Realizing Education

A) Progressive Elements

B) Mandatory or Immediate Elements

a) Core Obligations

b) Non-discrimination

c) Taking Steps – Progressing

d) Compulsory Primary Education

IV. Participation and Inclusive Education

1. Defining Participation

2. How Participation Affects Society

3. Participation as an Element of Inclusive Education

V. Chapter Conclusions

4. Chapter: Interpreting the Right to Education

I. Introduction

II. Treaty Interpretation using the Vienna Convention on the Law of Treaties

III. Interpreting Inclusive Education in the CRC

1. Introduction to the CRC

2. Inclusive Education in the CRC

A) Relevant Treaty Articles

B) Supplementary Sources of Interpretation

a) CRC Committee General Comments

b) CRC Committee Concluding Observations on State Party Reports

IV. Interpreting Inclusive Education in the CRPD

1. Introduction to the CRPD

2. Inclusive Education in the CRPD

A) Relevant Treaty Articles

B) Supplementary Sources of Interpretation

a) CRPD Committee General Comments

b) CRPD Committee Concluding Observations

V. Chapter Conclusions

5. Chapter: Obligations of State Parties for Inclusive Education

I. Introduction

II. A Background to the Theory of International Legal Obligations

III. Obligations & Recommendations to Achieve Inclusive Education under the CRC

1. Policymakers’ Obligations

2. Obligations of Educational Professionals

3. Conclusions on the CRC

IV. Obligations & Recommendations for Inclusive Education under the CRPD

1. Policymaker’s Obligations

2. Educational Professionals’ Obligations

3. Conclusions on the CRPD

V. Obligations for Participation in Inclusive Education

VI. Chapter Conclusions

6. Chapter: Focus on the Obligation to Monitor

I. Introduction

II. Measuring Human Rights

1. Obligation to Monitor: Keeping Score

2. Human Rights Indicators

III. Monitoring the Right to Education

1. Indicator Framework for Inclusive Education

A) Structure, Process, and Outcome Indicators for Inclusive Education

B) Indicators for Inclusive Education in the CRPD

IV. Possible Difficulties in Monitoring Education

V. Chapter Conclusions

7. Chapter: The Swiss Case

I. Introduction

II. Relevant Swiss National & Intercantonal Law

III. Relevant International Law in Switzerland

1. European Convention on Human Rights

2. International Covenant on Economic, Social and Cultural Rights

3. UNESCO Salamanca Statement and Framework for Action in Special Needs Education

4. UN Convention on the Rights of the Child

5. UN Convention on the Rights of Persons with Disabilities

IV. Cross-Country Comparisons & Contrasts

1. Canada

A) Eaton v. Brant County Board of Education

B) Solski v. Quebec

C) Wynberg v. Ontario

D) Moore v. British Columbia (Education)

2. United States

A) Oberti v. Board of Education of the Borough of Clementon School District

B) Cedar Rapids Community School District v. Garret F.

C) Winkelman v. Parma City School District

3. United Kingdom

A) Bury Metropolitan Borough Council v. SU

B) A v. Essex County Council

C) Harrow Council v. AM

4. Other State Cases

5. European Court of Human Rights Cases

V. Strategically Using Case Law for Change

1. Discrimination Based on Segregation

2. Discrimination Based on the Denial of Rightful Reasonable Accommodations

VI. Overhaul for Change in Switzerland

1. Dismantling Barriers

2. Creating a Truly Inclusive Education System

3. Centralizing Education

4. Utilization of the Swiss Conference of Cantonal Ministers of Education

VII. Chapter Conclusions

8. Chapter: Conclusions, Recommendations, and the Future

I. Conclusions

II. Recommendations

1. Policy Implementation

2. Fulfilling Obligations

3. Using Law for Change

III. Goals for the Future

Bibliography

List of Abbreviations

CEDAW United Nations Convention on the Elimination of all Forms of Discrimination Against Women

CESCR Committee on Economic, Social and Cultural Rights

CRC United Nations Convention on the Rights of the Child

CRPD United Nations Convention on the Rights of Persons with Disabilities

DESA Department of Economic and Social Affairs

DPO Disabled People’s Organization

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

ed., eds. Editor(s)

EDK Swiss Conference of Cantonal Ministers of Education/Schweizerische Konferenz der kantonalen Erziehungsdirektoren

FOJ Federal Office of Justice

G.A. General Assembly

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

ICF International Classification of Functioning, Disability and Health

ICF-CY International Classification of Functioning, Disability and Health for Children and Youth

IDEA Individuals with Disabilities Education Act

NGO Nongovernmental Organization

OCR United Hebrew Congregation of the Commonwealth

SPF Schwiezer Paraplegiker Forschung

UDHR Universal Declaration of Human Rights

U.K. United Kingdom

U.N. United Nations

UNESCO United Nations Educational, Scientific and Cultural Organization

UNICEF United Nations Children’s Emergency Fund

U.S. United States

USAID United States Agency for International Development

VCLT Vienna Convention on the Law of Treaties

WHO World Health Organization

1. Chapter: Introduction

If a child can’t learn the way we teach, maybe we should teach the way they learn.¹

I. Brief Introduction

The right to education is a protected one for all children, and any discrimination in accessing this right is a violation of international law. This right is especially relevant in the human rights realm because the right to education opens up the doors to accessing all other rights.² States have binding obligations regarding the right to education and cannot idly work towards realization. The concentration of this dissertation is exactly that. This dissertation starts from the beginning, works towards today, and ends with future thoughts and suggestions regarding the right to education. Within the following Chapters, the expansive ideas from above will be walked through, built upon, and analyzed. The right to education has been vastly discussed in literature, but this dissertation analyzes the right in terms of legal obligations at the international level by looking at case law, statutes, treaties, and other both international and national sources. The dissertation then goes on to evaluate a single State and the interplay of national and international law regarding education. From that analysis, ideas for meeting international standards and obligations are given and to be used for realization of the right to education.

Without spoiling too much fun, Chapter 1 of this dissertation will lay out a brief road map of the upcoming Chapters, giving a sneak peek into what is to come. This Chapter will also discuss the methodology used when researching and the qualifications for the dissertation as a whole.

II. Road Map

This Section aims to give a guided road map on the Chapters to come. Each builds on and links with each other to form a complete analysis of the right to education and the legal obligations surrounding this right.

In Chapter 2 gives an introduction to the background of disability human rights and inclusive educatiom. These two concepts are connected and inseparable. Both concepts have evolved over time and have solidified in the international legal world. This introduction is a necessary building block before continuing as it gives the prerequisite foundation upon which this dissertation will build.

Chapter 3 then expounds on inclusive education as a human right. That Chapter discusses the nature and elements of the right to education, how it has evolved in the international legal world, and what the status of the right is today. This Chapter also discusses more deeply the element of participation. Education is a major key to outcomes on both individual and social levels. When children with disabilities are not able to participate in education, negative long-term effects on these levels can occur. The idea of participation in education is a broad concept that has eluded a proper, quantifiable definition. Nonetheless, participation is an important factor of education that should not be dismissed.

Then, Chapter 4 goes even deeper into the right to education and how it can be interpreted from the international legal instruments that provide for the right. This Chapter begins with a look at the tools needed for interpretation and the approaches used to interpret human rights instruments. Using these approaches and tools, two prominent international legal instruments that affect the right to education for children with disabilities will be interpreted and analyzed. Along with the direct textual interpretation of these instruments, supplementary sources will be discussed in order to clarify any ambiguities in the text.

Chapter 5 then uses those interpretations in the analysis of the State Party obligations for inclusive education. Together with the text and the supplementary clarifications, this Chapter discusses responsibilities of the State, the policymakers, the educational professionals, the parents, and the students. These obligations are categorized this way in order to facilitate the full realization of inclusive education for learners with and without disabilities.

Then, Chapter 6 focuses on the obligation to monitor. Monitoring is separated from Chapter 5’s obligations because this obligation is one that tends to be neglected or incorrectly completed. Chapter 6 hones in on the obligation to monitor and presents a structure that States can use to fully monitor and measure the implementation of the right to inclusive education. This structure can be adapted to each State as it utilizes indicators to show progressive realization and implementation of rights.

After that, Chapter 7 presents an analysis of Switzerland’s education law and how international law affects law at the national level. A cross-country comparison is made between the United States, the United Kingdom, and Canada to observe the level of inclusive education implementation in like-situated States. Then, strategies for how to change the law to include inclusive education are given. Following the glimpse into other countries and international courts, the Chapter moves back to Switzerland and how the State can take the outside examples and use them for positive change and fulfillment of international obligations.

Finally, Chapter 8 closes this dissertation. Within that Chapter, conclusions and recommendations are made to sum up what has been discussed. The Chapter ends with a hopeful look to the future and the prospective aims of human rights law and the right to inclusive education for learners with disabilities.

III. Methodology

This dissertation employs a mix of doctrinal and comparative legal research. The main methodological tool employed is the cross-jurisdictional comparative and interpretive assessment of the law of multiple States and international law. This methodology provides a means to discuss, compare, and analyze the law in a non-biased way. These analyses are used both in theoretical discussion as well as to give practical tools and suggestions to States. It is theoretical as it gives utopian approaches to the implementation and realization of disability human rights law, but the dissertation also makes note of the reality and restrictions States face while fulfilling international legal obligations. Additionally, this dissertation looks at where disability human rights law comes from and the evolution of the right to education. Comparative legal research is used within when examining decisions regarding education and disability human rights from the judiciary at both the national State and international legal body level. By looking at different States with differing positions in the international community, it is possible to observe how law is cultivated and affects the international legal arena, different States, cultures, and individuals.³

While this dissertation does not produce new empirical data, create new indicators, or use interdisciplinary research methods or theories, it uses existing data, literature, and research to provide States and other researchers a tool to implement the right to education for all learners. The research is primarily legally and academically based. It utilizes both primary and secondary sources, including cases, journal articles, manuscripts, legislation, and treaties. The research was conducted in Switzerland and the United States. A mixed approach with varying sources was chosen to allow a wider, non-legal based population to access the material in order to work together with the legal professionals to enable a real legal change for the inclusive education of all learners.

IV. Qualifications

Before beginning, a few qualifications about this dissertation must be made. Firstly, to limit the scope of the dissertation, the United Nation Convention on the Rights of the Child (CRC) and the United Nations Convention on the Rights of Persons with Disabilities (CRPD) are the focus of this dissertation. Although other international instruments are referenced, the CRC and CRPD are emphasized over the rest. Secondly, while Switzerland was chosen as a test case to evaluate a national legal system against the international obligations, this dissertation is not limited to application in Switzerland. Although Switzerland was chosen as a convenience sample and because Switzerland’s legal system and affiliations create a unique case to study, this uniqueness does not alienate it from the rest of the world. Any tools or recommendations discussed regarding the Swiss case can similarly be applied to other States.

2. Chapter: Background

I. Introduction to Disability Human Rights

The concept of disability has evolved from the over-medicalized, pathological and individualist accounts of disability to a movement focused on social oppression and environmental barriers.⁴ This movement aims to end the oppression, marginalization, and social exclusion of people with disabilities.⁵ The Social Model of Disability is an established model that conceptualizes disability as a socially constructed phenomenon. The Social Model focuses on dismantling the societal barriers that cause disability instead of focusing on the way a person is able to interact with society. This model looks at disability through the lens of society’s inability to accommodate a person instead of a person’s inability to accommodate to society that causes disability. The Social Model has influenced policy at both national and international level, and it has been fundamental in the formation of binding international law.⁶ This influence comes in the form of taking the focus away from the medical conditions of the individual and understanding disability in the social view, thereby changing the focus of law and policy regarding the rights of people with disabilities.⁷

People with disabilities have the same human rights as people without disabilities. Although there are no barriers intentionally created to discourage these rights per se, the problems arise when people with disabilities attempt to access their human rights and are excluded or barred based on their disabilities. The CRPD articulates that the barriers to the enjoyment of rights lie not in the disability itself, but in the social, physical, economic, cultural and attitudinal barriers faced by people, including children, with disabilities….the Convention on the Rights of Persons with Disabilities provides the detailed elaboration of the measures needed for [rights] realisation.⁸ This concept is in fact the basis of the Social Model of disability in that it expresses how society creates barriers, disabling people.

Before the ratification of the CRPD, disability was defined variously and people with disabilities were categorized in differing manners dependent on the situation and national context. As discussed, the definition of disability has moved away from the categorical, medical, individualized model that has historically been in place when discussing people with disabilities.⁹ Since 2008 when the CRPD was ratified, the posture of this Convention was adopted when defining disability. The CRPD describes, not defines, disability as an evolving concept and that disability results from the interaction between people with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.¹⁰ As such, this convention looks at disability in terms of the social, economic, physical and other barriers presented to people with disabilities instead of a category to group people into or a threshold to meet in order to be considered part of that group.¹¹ The description, not definition, in the CRPD focuses on how society creates these barriers and then goes into detail on how to dismantle those barriers. The greater the social barriers, the greater the participation constraints imposed on people with disabilities and equal access to their guaranteed human rights.¹² The convention aims to tackle these problems and social barriers.

Prior to 2006, the idea of a set of cohesive, binding, international disability laws was one that had been attempted but remained elusive and unattainable. In fact, the only way that human rights issues were addressed on an international level specifically for people with disabilities was through the application of minor references in binding instruments.¹³ Although significant efforts were made, all the instruments specifically designed to address the rights of people with disabilities created prior to 2006 were nonbinding and ineffective to reach those peoples’ needs. These nonbinding instruments included the Declaration on the Rights of Mentally Retarded Persons in 1971,¹⁴ the Declaration on the Rights of Disabled Persons in 1975,¹⁵ the World Programme of Action Concerning Disabled Persons in 1982,¹⁶ the United Nations Decade of Disabled Persons from 1983 to 1992,¹⁷ Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care in 1991,¹⁸ the Standard Rules on the Equalization of Opportunities for Persons with Disabilities in 1993,¹⁹ and the 1998 Resolution for Human Rights of Persons with Disabilities.²⁰ Each instrument provided goals for signing Parties to reach for the equal rights of people with disabilities. Although these instruments set goals, they fell short of the cohesive equal rights protection for people with disabilities that was missing in international law. Even though none of these international instruments were binding, it can be concluded that the equal rights of people with disabilities were on the international legal agenda. In fact, the many attempts made with soft law instruments demonstrate that the international goals of guaranteeing people with disabilities the same human rights and access to those human rights as every other person has been pervasive and not insignificant. ²¹

Although done with the best intentions, these soft law instruments faced certain problems. First, these instruments were nonbinding, and State Parties had no incentive, obligation, or clarity on how to actually implement or enforce the principles included within the instruments.²² The foremost problem with the previous instruments and the inability to actuate these within the State Parties stemmed from this issue of implementation.²³ Implementation was not clearly explained or even mandatory in these soft law instruments. Therefore, State Parties were incapable or unable of fully creating, maintaining, or fulfilling the policy requirements needed to meet the aimed level.²⁴ These obstacles, among others, lead to continued inaction in the implementation process and policy formation. Therefore, the aims of the instruments were not fully achieved.

Although these instruments are soft law, soft law has an integral influence on hard, binding law. Soft law can instigate the formation of hard law and is consciously used to generate support for the promulgation of treaties or to help generate customary international law norms.²⁵ This means that the goals and principles enunciated within soft law instruments help form State behavior and can help form binding law. Also influentially, soft law is often created to fill in the gaps that open up when a standing body of hard law encounters new and unforeseen circumstances.²⁶ Observing this dual sided relationship between soft and hard law, one can see the progression of human rights instruments through time and how States choose to support the instruments and goals within them.

The first time disability was discussed in hard, binding international law was in an unlikely source. The CRC, which as the names suggests focuses on the rights of children, clearly provides that State Parties need to recognize that children with disabilities need extra support in accessing their rights. The CRC recognizes children with disabilities as rights holders that should be able to access those rights with the assurance of dignity, the promotion of self-reliance, and the participation and inclusion in society.²⁷

A major legal change occurred in December 2006, however, when the CRPD was adopted and later ratified in May 2008.²⁸ The CRPD is the first comprehensive instrument on disability policy that gave State Parties fixed requirements at meeting a certain level of implementation as well as consequences when these levels are not met.²⁹ The major aim of the CRPD is to give people with disabilities access and protection to the same human rights as every other person and to ensure equal participation in society.³⁰ The rights within the CRPD are based on respect for inherent dignity, individual autonomy, independence of people, non-discrimination, full participation in society, equality of opportunities, accessibility, and the equality and protection of women and children.³¹ People with disabilities face problems in accessing their human rights due to segregation, isolation, and physical, attitudinal, and mental barriers.³² The CRPD works to eliminate all of these barriers. This Convention demands that State Parties respect human rights, guarantees people with disabilities protection against violations of human rights, and requires that these rights be fulfilled by the State.

Furthermore, no other human rights instrument thus far has applied the empowerment approach to people with disabilities.³³ This approach illustrates the necessity of participation and mobilization of people with disabilities more thoroughly than the legal predecessors of the CRPD.³⁴ The empowerment approach refers to strengthening of the presence and feeling of community.³⁵ The major points presented in the CRPD are aimed at the connection between the individual’s autonomy and social inclusion.³⁶ The empowerment approach aims to protect people with disabilities against exclusion and isolation from the community. It also works to keep the human rights of people with disabilities prominent on the political agenda when it comes to policymaking, implementation, and enforcement. In this way, the CRPD boosts the prominence of the protection and implementation of the human rights of people with disabilities.

Another precedent made in the construction of the CRPD was that the instrument was formed, supported, and actualized by the people that it aims to protect.³⁷ This is innovative as compared to other international instruments. Direct participation in the creation of the CRPD by those it affects makes the instrument’s construction more impactful. Working together with many United Nations agencies along with Disabled People’s Organizations (DPO), people with disabilities participated in the creation of the CRPD.³⁸ DPOs presented the voices and the ideas of people with disabilities, inspiring the core principles and protections of the CRPD.³⁹ The perspectives of these groups of people were essentially the central core of the instrument, inspiring the contents and moving it forward through the ratification and implementation processes.

From the creation to the binding nature of the CRPD, it has become an influential and innovative instrument.⁴⁰ The nuances of the CRPD, as compared to prior instruments that focused on the protection of people with disabilities, elevate law and policy regarding people with disabilities up to the standards of the other core human rights treaties. This comes from the fact that the CRPD has become one of the core human rights treaties, each of which has international support.⁴¹ In effect, the standing as a core human rights treaty gives the CRPD a permanent, expansive stature. It proclaims more than mere suggestions regarding standards for equalization and accessibility of people with disabilities. It is binding law.

II. Introduction to Inclusive Education

The World Report on Disability estimates that there are between 93 and 150 million children with disabilities in the world.⁴² Children’s rights have been specially protected in the CRC because the international community agreed that the rights of children need extra support to be realized. Adding disabilities to the mix can lead to even further marginalization and human rights violations of children. One right that is pertinent for children of all abilities is the right to education. Each child has the human right and equal opportunity to access education. Education is a fundamental right that enhances all other rights and freedoms and traverses the boundaries to allow access to other human rights.⁴³

In promoting friendship and loyalty, and in safeguarding the commitment to freedom and peace, basic education can play a vital part. This requires, on the one hand, that the facilities of education be available to all, and on the other, that children be exposed to ideas from many different backgrounds and perspectives and be encouraged to think for themselves and to reason. Basic education is not just an arrangement for training to develop skills (important as that is); it is also a recognition of the nature of the world, with its diversity and richness, and an appreciation of the importance of freedom and reasoning as well as friendship. The need for that understanding-that vision- has never been stronger.⁴⁴

A basic education is still missing from many children’s lives; however, the right to basic education is not explored here. What this Chapter – along with the rest of this dissertation - focuses on is how the right to education should be interpreted as an inclusive education, as is clearly written in the CRPD. Children who are excluded are not given the same access to education as those who are included, and thus are not able to access the right to education equally and without discrimination. In many cases, children with disabilities have not been able to access the mainstream education system for a myriad of reasons.⁴⁵ The most viable and fulfilling way to end this exclusion is through the implementation of inclusive education.

The right to education has evolved into guaranteeing an inclusive, individualized education that promotes social cohesion, belonging, and participation. Inclusive education is a process intended to respond to students’ diversity by increasing their participation and reducing exclusion within and from education. To participate in education, each student must be continually and meaningfully involved in an educational programme.⁴⁶

1. Inclusion v. Segregation

The exclusion of children with disabilities from the mainstream school is the exclusion of the children from the community.⁴⁷ By segregating children with disabilities in separate classrooms from children without disabilities, children lose the chance to learn to accommodate and support each other ignoring differences, share in friendships and social opportunities, and accept the differences of others.⁴⁸ Segregation, in fact, enables social exclusion while inclusive education provides an