Coming after recent media attention on the increasing segregation in NSW of “gifted” students based on selective academic streaming, the Australian Journal of Human Rights (produced by the Australian Human Rights Centre at the University of NSW) has published an article that critically analyses recent policy developments in NSW that will increase the segregation of students with disabilities.
NSW, perhaps more than any other state of Australia, is presiding over an increasingly vertically stratified and segregated education system based upon “intellectual” expectations and implicit prejudice.
The article concludes that the growing segregation of students with disabilities in NSW amounts to a significant breach of their fundamental human right to an inclusive education under international human rights law. Further, it provides much-needed analysis of relevant legislation and government policy in light of Australia’s legal obligations under the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which was ratified by Australia in 2008.
The authors, Emily Cukalevski (from the Centre for Disability Law and Policy, National University of Ireland, Galway and a former associate to the United Nations Special Rapporteur on the Rights of Persons with Disabilities) and Catia Malaquias (a lawyer and co-founder of All Means All), analysed Article 24 of the CRPD, especially in light of the CRPD Committee’s guidance in General Comment No.4 and General Comment No.6.
They specifically considered the meaning of “inclusive education” and noted that special schools, special units co-located in mainstream school grounds and special classes in mainstream schools are each forms of “segregation” that are incompatible with inclusive education. General Comment No.4 defines “segregation” as the provision of education to students with disabilities “in separate environments designed or used to respond to a particular impairment or to various impairments, in isolation from students without disabilities”. They authors further consider the implications of the CRPD Committee’s guidance that segregation is disability-specific discrimination and the right to non-discrimination includes the right not to be segregated.
The authors also critically analysed the development of the NSW Government’s policy position and its genesis in a recent report of the NSW Parliament into the education of students with disabilities. Despite the report’s overall intent seemingly being in line with the core purpose of Article 24, it established a flawed foundation for NSW’s policy as it misconceived inclusive education and consequently concluded that segregated settings and a policy of inclusion are not “mutually exclusive ideals”. Unfortunately, as the authors have identified, this conclusion is inconsistent with the report’s own definition of inclusive education, as well as the CRPD’s guidance.
The authors have concluded that the NSW Government’s current policy, and in particular its commitment to increase “support class establishments … at a greater rate than general enrolment growth”, not only contravenes Article 24 but also amounts to deliberate and impermissible retrogression under the CRPD:
“[T]he plan to increase segregated support classes is an unjustified retrogressive measure. It is a deliberate policy decision that is designed to reverse the progress made towards realising an inclusive education system in NSW. It directly targets learners with disabilities and diverts funding and resources away from inclusive education measures; where funds could be used to support students with disabilities in regular classes, they will now be deployed to deliver a greater level of segregated education to those students in support classes. This decision has not been justified on the basis of limited resources or an economic crisis and it is not intended to be temporary. Rather, it has been justified on a misconception of inclusive education itself and on a skewed understanding of student ‘needs’.”
The article also notes that while a decade has passed since ratification of the CRPD, Australia does not have an overarching national inclusive education strategy. The Australian Government is obliged to ensure that Article 24 is implemented without limitations or exceptions in all parts of the country. The absence of a national commitment to inclusive education has contributed to compromising and delaying the realisation of the human rights of Australian students with disabilities across Australia’s States and Territories:
“The lack of a strong national framework has provided space for the NSW Government to commit to measures that are not only inconsistent with Article 24 but also amount to an impermissible retrogression under the CRPD. It has also led to concerning jurisdictional divergences.”
The authors end with a call for the Australian Government to drive the systemic and cultural change that is required to realise inclusive education consistently across Australia – through the adoption of stronger national discrimination legislation and the provision of guidance and coordinated policy reform (including a national inclusive education strategy) – to ensure that all schools can become beacons in their communities for the inclusion of people with disabilities.