Is Inclusive Education a Human Right?

United Nations, Convention on the Rights of Persons with Disability (2008), available at <http://www.un.org/disabilities/default.asp?id=259> (last visited September 30, 2013).

Wallimann-Helmer I. , Chancengleichheit und ‘Behinderung’ im Bildungswesen (Freiburg im Breisgau: Karl Alber, 2012).

Graumann S. , “Freiheit als Entwicklungskonzept und das Menschenrecht auf inklusive Bildung,” in Wallimann-Helmer I. , ed., Chancengleichheit und ‘Behinderung’ im Bildungswesen (Freiburg im Breisgau: Karl Alber, 2012): 86–106.

Langenfeld C. , “Das Recht auf Bildung in der Europäischen Menschenrechtskonvention,” Recht der Jugend und des Bildungswesens, no. 55, (2007): 412–429.

Degener T. , “Die UN-Behindertenrechtskonvention als Inklusionsmotor,” Recht der Jugend und des Bildungswesens, no. 2, (2009): 200–219.

Felder F. , Inklusion und Gerechtigkeit. Das Recht behinderter Menschen auf Teilhabe (Frankfurt a. Main: Campus Verlag, 2012): 18.

Gordon J.-S. , “Human Rights,” Oxford Bibliographies in Philosophy (2013): 1–41.

It seems correct to assume that no one would argue that living in constant chronic and extreme pain is, indeed, “equally valuable” to any other life. As Tom Shakespeare convincingly argues in Disabilities Rights and Wrongs, impairments are sometimes extremely unpleasant experiences that profoundly limit people's lives. However, other impairments that also limit people's lives but do not cause constant chronic and extreme pain, such as deafness, are seen by the deaf community as non-disabling by nature. According to their view, it is society that places a “disabling” burden on deaf people.

See Shakespeare T. , Disabilities Rights and Wrongs (Routledge: London, 2006).

Harris J. , “One Principle and Three Fallacies of Disability Studies,” Journal of Medical Ethics 27, no. 6 (2001): 383–387.

Finkelstein V. , Attitudes and Disabled People (New York: World Rehabilitation Fund, 1980);

Finkelstein V. , The Social Model of Disability Repossessed, Manchester Coalition of Disabled People (2001), Disability Archive UK, available at <http://disability-studies.leeds.ac.uk/files/library/finkelsteinsoc-mod-repossessed.pdf> (last visited September 30, 2013);.

Abberly P. , “The Concept of Oppression and the Development of a Social Theory of Disability,” Disability, Handicap and Society 2 (1987): 5–20;.

Goodley D. , “‘Learning Difficulties, the Social Model of Disability and Impairment: Challenging Epistemologies,” Disability and Society 16, no. 2 (2001): 207–231;.

Hughes B. Paterson K. , “The Social Model of Disability and the Disappearing Body: Towards a Sociology of Impairment,” Disability and Society 12, no. 3 (1997): 325–340.

See CRPD, supra note 1.

See Degener , supra note 5.

See CRPD, supra note 1, at Article 24.

UN General Assembly, Universal Declaration of Human Rights (1948), available at <http://www.un.org/en/documents/udhr/index.shtml> (last visited September 30, 2013).

UN General Assembly, International Covenant on Economic, Social and Cultural Rights (1966), available at <http://www.unhcr.org/refworld/docid/3ae6b36c0.html> (last visited September 30, 2013).

Id.

See Gordon , supra note 7.

Bentham J. , “Anarchical Fallacies: Being an Examination of the Declaration of Rights Issued During the French Revolution,” in Waldron J. , ed., “Nonsense upon Stilts”: Bentham, Burke, and Marx on the Rights of Man (London: University of Notre Dame Press, 1987): 46–76.

MacIntyre A. , After Virtue: A Study in Moral Theory (Notre Dame: Methuen, 2007).

Cranston M. , What Are Human Rights? (London: Bodley Head, 1973). Admittedly, Cranston's position can be described as right-wing conservative concerning rights, which certainly makes him a non-mainstream thinker, but the related idea concerning his position – that one should attempt to stop the general inflation of human rights – is less provocative than one might think.

Lomasky L. E. , Persons, Rights and the Moral Community (Oxford: Oxford University Press, 1990).

See Degener , supra note 5.

In 1592, the converted Calvinist Johann I. (1550–1604) – who was impaired – made education for boys and girls compulsory in his principality of Pfalz-Zweibrücken, which was part of the Holy Roman Empire (the so-called “Old Empire” from the Middle Ages until the 19th century, followed by the German Empire 1871–1945). This was the very first time in human history in which education became legally obligatory.

(See Sehling E. , Die evangelischen Kirchenordnungen des 16. Jahrhunderts, Band 18. Rheinland-Pfalz I [Tübingen: Mohr-Siebeck, 2006]: At 406). In time, compulsory education was introduced by many nation states, until it became a legal human right in 1948.

See Universal Declaration of Human Rights, supra note 14, § 26;.

UN General Assembly, European Convention on Human Rights (1954), at Additional Protocol Nr. 1, § 2, 1, available at <http://www.echr.coe.int/Documents/Convention_ENG.pdf> (last visited October 11, 2013); 1966 International Covenant on Economic, Social and Cultural Rights, supra note 15 § 13.

Montakef M. , “Das Menschenrecht auf Bildung und der Schutz vor Diskriminierung. Exklusionsrisiken und Inklusion-schancen,” Studie des Deutschen Instituts für Menschenrechte (2006), Berlin.

Id, at 12.

Integrative education: UN General Assembly, The World Programme of Action Concerning Disabled Persons (1982), at “Education and Training,” available at <http://www.un.org/disabilities/default.asp?id=23> (last visited September 30, 2013);

UN General Assembly, Convention on the Rights of the Child (1989), § 2, 1 and § 28, available at <http://www.unhcr.org/refworld/docid/3ae6b38f0.html> (last visited September 30, 2013);

UN General Assembly, Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993), § 6, available at <http://www.unhcr.org/refworld/docid/3b00f2e80.html> (last visited September 30, 2013).

Inclusive education: 1994 The UNESCO Salamanca Statement § 1–4 and Framework for Action on Special Needs Education § 18; and 2006 International Convention on the Rights of Persons with Disabilities § 24.

See Cranston , supra note 20.

Id.

Proponents of this conservative view are not necessarily committed to the claim that all positive rights are utopian and therefore must be avoided. In fact, the right to education itself is also a positive right that requires the state to provide a means to guarantee the education of the citizens. It would be, indeed, unconvincing to question this particular positive right.

See Langenfeld , supra note 3, at 421.

Of course, the right to inclusive education is not the same as the obligation to participate in inclusive education, but if proponents such as Katarina Tomasevsky claim that integrative and segregated education must stop, because it violates the human dignity of students with impairments, then it is necessarily the case that this option becomes the only possibility.

See Tomasevsky K. , Report of the Special Rapporteur on the Right to Education (2002), available at <http://daccess-ddsny.un.org/doc/UNDOC/GEN/G03/104/95/PDF/G0310495.pdf?OpenElement> (last visited September 30, 2013).

Id, at 28.

UNSECO, Guidelines for Inclusion: Ensuring Access to Education for All (2005), at 14, available at <http://unesdoc.unesco.org/images/0014/001402/140224e.pdf> (last visited September 30, 2013).

An interesting point in case is the story about a comatose student who attended a regular class (see Franz M. J. , “Begegnungen mit einer Schülerin im Wachkoma,” Empirische Sonderpädagogik 1, no. 2 [2009]: 68–78).

In addition, the Whole Schooling Consortium, which is a program of Wayne State University in Detroit, is an international network of schools, teachers, administrators, parents, and faculty members who are dedicated to creating inclusive schools for all children. In 2001, Michael Peterson, the director of the Whole Schooling Consortium, and Lynne Tamor published a paper, Inclusive Education – Progressive Education: What Is the Relationship?, in which they claim that even in cases where the student is lying in coma or in a PVS, one should include him or her in class. They claim: “It is possible that many disability rights activists themselves may question whether it always ‘can’ be done: They are driven simply by the conviction that it must be done. One often hears activists say that they are willing to entertain the theoretical possibility that a person who cannot be included may exist…but in their own experience they have never met such a person and in fact cannot imagine such a person. Again, they adhere to Judith Snow's powerful statement that the only requirement for inclusion is breathing…and if technological assistance is required for the breathing, that's okay too. One can, of course, derail the basic premise here by spending time and energy debating the status of people in deep comas and so-called ‘persistent vegetative states’. We argue that this debate is a red herring, and further that extending inclusive practices ‘even’ to these people may well bring about changes in individual people's status. Indeed, there is a growing body of stories of people in such states who were none the less included as much as possible in community life, and seem to have emerged from those states, even if to a limited degree, as a result.”

See Tamor L. Peterson M. , Inclusive Education – Progressive Education: What Is the Relationship? Whole Schooling Consortium (Detroit, Michigan: Wayne State University, 2001): At 4–5, footnote 3).

Nussbaum M. C. , Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge/London: Belknap, 2006).

In her book, Woman and Development: The Capabilities Approach, Nussbaum argues that the state should promote 10 basic capabilities: Life; bodily health; bodily integrity; senses, imagination, and thought; emotions; practical reason; affiliation; other species; play; and control over one's environment.

See Nussbaum M. C. , Woman and Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000).

See Graumann , supra note 3.

Id, at 93.

See MacIntyre , supra note 19.

Nussbaum M. C. , “Capabilities and Human Rights,” Fordham Law Rev 66, no. 2 (1997): 273–300.

See MacIntyre , supra note 19.

UNESCO World Conference on Special Needs Education, Salamanca Statement and Framework for Action on Special Needs Education (1994), at 19, available at <http://www.unesco.org/education/pdf/SALAMA_E.PDF> (last visited October 1, 2013).

Until this point, the Czech Republic had not undertaken any meaningful steps to end their discriminating policy.

See Tamor Peterson , supra note 36.

Lindmeier C. , “Inklusive Bildung als Menschenrecht,” Sonderpädagogische Förderung heute 53, no. 4 (2008): 354–374, at 361.

See Felder , supra note 6, at 72.

Shakespeare T. , “Disability: Suffering, Social Oppression, or Complex Predicament?” in Düwell M. Rehmann-Sutter C. Mieth D. , eds., The Contingent Nature of Life – Bioethics and the Limits of Human Existence (Berlin: Springer, 2008): 235–246, at 238.

Aristotle, Nicomachean Ethics, in Barnes J. , The Complete Works of Aristotle, vol. 2 (Princeton: Princeton University Press, 1729–1867).

See Felder , supra note 6, at 227.

Reinders H. , Receiving the Gift of Friendship: Profound Disability, Theological Anthropology, and Ethics (Grand Rapids: William B. Eerdmans Publishing, 2008): At 5.

What type of equality is adequate for inclusive education? It is reasonable to assume that equality in education must be proportional according to a particular standard. It would be unjust to adhere to arithmetical or strict equality – all people receive the same equal shares – since the starting positions for non-impaired people and impaired people are usually different. To provide the latter with the same amount of support in quantity and quality that non-impaired students receive is therefore unfair. The task, then, is to flesh out the particular standard of distribution in detail in order to show how one could guarantee each student an adequate education.

See Felder , supra note 6, at 225.

Young I.-R. , Justice and the Politics of Difference (Princeton: Princeton University Press, 1990): At 43.

Young I.-R. , “Structural Injustice and the Politics of Difference,” in Craig G. Gordon D. Burchardt T. , eds., Social Justice and Public Policy (Bristol: Policy Press, 2008): 77–104.

See also Felder , supra note 6. A related debate concerns the dangers of a group-based approach for people with impairments since structural discrimination and inequality might be supported by the ascription of being a member of the group. In this context, stigmatization, marginalization, and social exclusion might be promoted and not avoided

(see Shakespeare T. , “What Is a Disabled Person?” in Jones M. Basser Marks L. , eds., Disability, Diversability and Legal Change (The Hague: Kluwer, 1999): 25–34, at 31;.

see Felder , supra note 6, at 233–234).

The fact that people in social groups might be better able to console each other by virtue of a shared understanding, to support people in the same situation, and to provide valuable help during hard times than it is the case for individuals, who must continue on their own, seems plausible (see, the civil rights movements of the African-American community, gay people, and gender equality).

Brunner G. , “Menschenrechte von Minderheiten: Individualrechte, Gruppenrechte oder Selbstbestimmungsrechte?” Jahrbuch für christliche Sozialwissenschaften, no. 39, (1998): 103–124, at 113.

In order to determine whether people with impairments do have a legal (and moral) claim to rely on group rights, this must be thoroughly discussed. However, a detailed discussion of this issue goes beyond of the scope of this article. All in all, I am skeptical about the existence of group rights in the context of human rights and hence of particular group rights for impaired people.

Gordon J.-S. , “Moral Egalitarianism,” Internet Encyclopedia of Philosophy (2007).

Cohen G. A. , “On the Currency of Egalitarian Justice,” Ethics 99, no. 4 (1989): 906–944;.

Dworkin R. , “What Is Equality? Part1: Equality of Welfare,” Philosophy and Public Affairs 10, no. 3 (1981): 185–246.

In order to cover the costs of, for example, area-wide technologically well-equipped schools, designed to house people with different of impairment, specially trained teachers, and educational programmes of successful team teaching, and so on.

See Lomasky , supra note 21.