Inclusive basic education in South Africa versus inclusive education under the CRPD

Article 24(1) of the CRPD is drawn largely from existing international instruments, especially the CRC and the ICESCR.¹²⁴ The Article adds to the pre-existing aims of education, the duty to ensure that education is directed towards the full development of the human sense of dignity and self-worth, and the development of the "creativity" of persons with disabilities. The requirement that education be directed towards the development of respect for human diversity is also new. In view of the connection between the aims of education and the content of education,¹²⁵ these additions could impact upon the existing scope of state obligations in respect of the right to education and hence the conceptualisation of inclusive education.

Article 24(2) sets out guiding principles as to how the right to education is to be implemented in order to achieve the aims envisaged in Article 24(1).¹²⁶ Article 24(3) addresses the right of persons with disabilities to learn life and social development skills in order to facilitate their full and equal participation in education and as members of society, while Article 24(4) sets out state obligations in respect of the training and employment of teachers, including teachers with disabilities, and other staff and professionals working at all levels of education. Finally, Article 24(5) provides for the right of persons with disabilities to access various forms of tertiary education and lifelong learning.

Inclusive education as envisaged under the CRPD is therefore the combination of all the factors in Article 24 as opposed to any one aspect thereof, and taking into account the other principles of the CRPD. It is also imperative to note that though Article 24 of the CRPD calls for inclusive education, the concept is not limited to children or persons with disabilities. As earlier said, the inclusive education philosophy posits that education ought to be accessible to all in society. It would therefore be inappropriate to regard Article 24 as a universal definition of inclusive education with application to all excluded groups. Rather, the Article sets out the parameters of inclusive education that caters for persons with disabilities.

The essence of Article 24(1) is that states have to legislate for the free and compulsory primary education of children with disabilities, and to ensure that the education of children with disabilities is part and parcel of the national general education management. To ensure non-exclusion from the general education system, the education of children with disabilities ought to be part of the overall management of education, and within the responsibilities of national education management authorities. It is particularly essential to factor in the education of children with disabilities into the planning of free and compulsory primary education.

The duty to ensure that children with disabilities can access inclusive and quality free primary education requires the elimination of barriers to access, and enabling the exercise of a choice of an education system for children with disabilities. The duty to ensure quality is a safeguard for the standards of education given to children with disabilities, particularly in the light of the history of their relegation to the peripheries of quality education through the emphasis on vocational training.

Article 24(2)(b), which calls on state parties to ensure that children with disabilities can access inclusive quality and free education, addresses both the content and location of education. As indicated earlier, however, Article 24(2) prefers the integration of learners into the mainstream education system, which means that it is essential for teachers to have the requisite training to enable them to respond to the diverse needs of all learners within the general education system. The Article also establishes a duty to provide individual responses to the needs of learners in the education system. In view of the range of needs of every individual, reasonably accommodating such needs demands flexibility and availability of resources.

As far as the provision of support measures in education is concerned, it is acknowledged that they are an integral component of all education systems.¹²⁷ The ambit of support measures ought to be understood to include the measures necessary to facilitate the effective education of children with disabilities, which are highly specialised and technical and mostly located in various professional disciplines. It is therefore difficult to exhaustively catalogue the kind of responses that would satisfy the requirement of the provision of support services under Article 24(2) of the CRPD. The law must provide the framework within which the support can be provided and accessed.

Finally, Article 24(2)(d) and (e) addresses the aspect of alternative locations for the education of children with disabilities, that is, whether in the ordinary school or in a specialised school. Essentially, the Article establishes a basis for choice between systems. Choice is not new in the context of the right to education.¹²⁸ Indeed, the free choice of education without interference by the state or by a third person is one of the four elements of the core content of the right to education recognised by the CESCR.¹²⁹ However, the principle of choice in education is often assumed to be parents' choice of appropriate moral or religious education of their children, and choice between private and public schools.¹³⁰ Arguably, the recognition of the right of individuals and bodies to establish and direct educational institutions under the CRC is aimed at guaranteeing such choice.¹³¹ The critical question in the light of the requirements of the CRPD is if this freedom of choice in education can be extended to choice between the regular and special schools for children with disabilities. Only an affirmation of this interpretation would guarantee the full implementation of Article 24. However, the implication of such an affirmation would be that by virtue of the recognition of the need to provide special education sufficient to sustaining equal choice, state parties to the CRPD would have to undertake to provide well equipped special schools to facilitate the exercise of choice for all learners, particularly those with sensory disabilities. The cost implications of this responsibility would be enormous, and they would to a large extent be discordant with the utilitarian and economic arguments put forth in support of inclusive education.

Recalling the preceding discussion on the conceptualisation of inclusive education in South Africa, some parallels can be drawn with the CRPD's conceptualisation. First, both the CRPD and WP 6 seem to confine inclusive education to the education of children or persons with disabilities. Secondly, while there is an apparent recognition of the need to provide free and compulsory primary education to children with disabilities on a basis of equality with other children in the communities in which they live, both the CRPD and WP 6 seem to tacitly allow the progressive realisation of inclusive education. Further, inclusive education as conceptualised in both WP 6 and its supporting SIAS programme, and in Article 24 of the CRPD are in large part concerned with the inclusion of children with disabilities into the mainstream classroom. Nevertheless, it is possible to consider inclusive education under the CRPD as only one facet of inclusion that can be supplemented by other approaches relative to other groups, such as, girls or cultural minorities. If it is so understood, WP 6 falls short of establishing a comprehensive inclusion framework in education as intended by the NCSNET/NCESS.

A further difference, albeit a subtle one, is the manner in which the need for disability-specific support is applied in the CRPD and in WP 6. In the CRPD the level of support necessary to facilitate learning for a child with disabilities seems less important to the choice of an appropriate placement of a learner with disabilities in the education system. In WP 6 the level of support that a learner needs is the axis for the decision on the appropriate placement for the learner. This distinction is significant because it affects the choices for learners. In the case of WP 6, once the level of support necessary has been determined, little choice is left to the learner on where to study. This is different from the CRPD's approach, which accords a lot of significance to equal choice in education for all children, as highlighted above.