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On March 17, 2017, after two years of litigation, the Chamber of Appeals in Administrative and Tax Litigation of Buenos Aires, Argentina upheld the lower court’s decision in Rodriguez, Cesar Alan v. Government of Buenos Aires City. This decision required the government of Buenos Aires City to give Alan Rodriguez, a young man with Down syndrome, his high school certificate.

Alan attended the same private school in Buenos Aires City since he was three years old. He was the first student with an intellectual disability enrolled at the school, which included him in the classroom alongside all the other students. He learned, studied, and passed exams each year, building friendships with his classmates. However, when he completed his education, school authorities and the Ministry of Education denied Alan an official certificate. They alleged that he received an adapted individual curriculum during his schooling and therefore, did not meet the mandatory minimum requirements of the official general curriculum. So, Alan decided to sue his school and Buenos Aires City by alleging discrimination on the basis of disability. The case was brought by the Civil Association for Equality and Justice (ACIJ) and was supported by amicus curiae briefs from independent experts as well as by the Article 24 Group for Inclusive Education, a coalition of more than 150 Argentinian organizations advocating for the right to inclusive education of people with disabilities.

From an international human rights law perspective, the right of children to education is universally understood as deeply connected with the principle of non-discrimination and equal access to opportunities. The International Covenant on Economic, Social, and Cultural Rights (ICESCR), Convention on the Rights of the Child (CRC), and World Declaration on Education for All, all affirm this right and the protections extended by it. With regards to persons with disabilities, the Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993), the Salamanca Statement and Framework for Action (1994), the General Comment No. 5 of the ICESCR Committee, and the UNESCO Guidelines for Inclusion (2005), advanced the discussion by stating that education for all means education for children with disabilities as well.

The Convention on the Rights of Persons with Disabilities (CRPD) was the first human rights treaty that crystallized these ideas by introducing the right to inclusive education. In Article 24, it explicitly prohibits school segregation of children with disabilities and ensures their education in the “general education system . . . at all levels . . . without discrimination and on the basis of equal opportunity.” The General Comment No. 4 issued by the CRPD Committee (General Comment 4) explains that neither segregation in separate environments nor integration in regular classrooms are proper inclusion. Integration is not inclusion because it implies simply placing “persons with disabilities in existing mainstream educational institutions with the understanding that they can adjust to the standardized requirements of such institutions.” Inclusion requires more, as it involves “a process of systemic reform embodying changes and modifications in content, teaching methods, approaches, structures and strategies in education to overcome barriers.”

However, children with disabilities are denied their right to inclusive education all over the globe. Millions of them are left out of education sector plans due to poor data collection and a lack of knowledge on how to include them in education planning and implementation.  Particularly, in Argentina and other Latin American countries, regular schools reject the admission of students with disabilities, essentially segregating them into “special” institutions that only accept children with disabilities. Many of them do not even go to school and their lives are restricted within their homes or therapeutic settings. Even when children with disabilities are accepted into a “regular” school, mostly due to the insistence of their families, they face negative attitudes. The schools also lack general knowledge on how to ensure full participation of children with disabilities in “regular” classrooms. These circumstances prevent children with disabilities from completing high school and even primary school. Among all the barriers these students face, one of the most daunting is standardized, rigid, and inaccessible curricula.

Although Articles 2 and 4 of CRPD require States to implement a “universal design” for learning for all students, Latin American schools are far from it. In Argentina, for example, when schools accept enrolling students with disabilities, they prepare an “individualized pedagogical program” for them. Under CRPD and General Comment 4, these individual curricula should not imply the reduction of content. Instead, it should involve teaching and learning methods and the consideration of students’ personality, talents, and passions, as well as their mental, physical, and communication abilities.

According to regulations of Buenos Aires City –challenged in the case at hand- children with disabilities must receive an Individual Pedagogical Project (IPP). IPPs were implemented in Buenos Aires City in 2000 by Resolution 1274/2000 as a “necessary strategy to attend to the uniqueness of students.” They are pedagogical plans that contain personalized goals and a pedagogical-didactic proposal that meets the needs, interests, and development of the maximum potential of each student. Students that receive an IPP only progress from year to year alongside their same age classmates if they reach the individual and personalized objectives required by their IPP. However, when it comes to certification requirements, these regulations fall in a normalizing and segregationist approach, as they state that to receive their certificate, students with disabilities must still comply with the annual “minimum contents” required for other students (Resolutions 25/201 and 219/2012 of Buenos Aires City).

The judge of the lower court found these regulations, which impose this blanket requirement on all students regardless of whether or not they are students with disabilities, to be discriminatory, contrary to the Constitution, and in violation of the principle of equality. Therefore, the judge decided the requirement was unconstitutional and the Chamber of Appeals affirmed this ruling. In her reasoning, the judge argued that the term “equal conditions” in Article 24 of the CRPD is ambiguous. It may mean applying the standard that all high school students must demonstrate knowledge at a uniform level. Alternatively, it may mean treating the different methods of student evaluation as equal, rather than considering some methods as superior to others. By quoting Ronald Dworkin’s book Taking Rights Seriously, the judge concluded that it is necessary to distinguish between the right to “equal treatment” and the right to “treatment as an equal.” The latter means giving people “an equal distribution of some opportunity or source or burden” and implies that each person should “be treated with the same respect and concern as anyone else.” In this case, the judge found that Alan was not treated as an equal because although he accomplished the goals established for him, he was denied his certificate because he allegedly did not reach the goals established for his classmates. That led to the holding of the case: giving students with disabilities different certificates on the basis of their different achievements is discriminatory and contrary to the CRPD.

This decision challenges the broadly accepted idea that students who cannot reach standardized goals, as well as those who can only achieve these goals through different teaching and testing methods, must be either excluded, segregated, or considered “second-class” students. It also challenges the belief, widely found in law and practice, that educational rights are conditional and based on a child’s abilities and “possibilities,” with no consideration of the child’s environmental barriers. An example of this pervasive belief in Argentina’s laws is the constant conditioning that including children with disabilities must correspond to their “possibilities” (Art. 42, National Education Act No. 26.206). Thus, instead of focusing on removing the barriers of the educational system, regulations amount to a legal presumption of these children’s inability to remain in regular schools and justify their systematic diversion into segregated settings (Art. 28, Resolution 174/12 of the Federal Council of Education).

The case also questions whether the ways by which educational systems measure their students are appropriate and if they facilitate real inclusion. The Program for International Student Assessment (PISA) is an instrument measuring children’s education around the world through standardized exams, assessing them in science, mathematics, reading, collaborative problem solving, and financial literacy. However, it does not evaluate students with disabilities. As its standardized method has been itself strongly challenged in its inability to measure the quality of education in general, it is even less clear how it could assess students with disabilities and inform policies to enhance their education as well.

International human rights law lays out other aims for education which would require the development of other skills rather than mathematics and sciences. It establishes that education shall “be directed to the full development of the human personality and the sense of its dignity, . . . strengthen the respect for human rights and fundamental freedoms” and “enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.” These standards and objectives cannot be realized without inclusive education. Thinking of education from a human rights perspective demands a serious review and discussion of our educational systems and goals.

Beyond the individual achievement, Alan’s case gained the support of society in general and civil society organizations in particular. Due to the insistent work of the Article 24 Group, the decision in this individual case was expanded towards all children with disabilities in Argentina. On December 2016, the Federal Council of Education issued two new and improved regulations (Res 311/16 and 312/16) for the inclusion of children with disabilities in regular schools. The new regulations recognize the right of children with disabilities to receive the same certificate as their peers when they complete their studies at a mainstream school using an adapted curriculum. This allows them to attend universities and provides them with better opportunities when applying for jobs.

Looking forward, this case suggests that strategic litigation can be an effective tool to challenge our segregating legal and institutional frameworks contrary to the CRPD. It is true that because of multiple barriers, only a few young men and women with disabilities finish high school and even fewer have the opportunity, energy, and resources to fight for their certificates. However, many families of children with disabilities in Latin America are reluctant to sue their schools or government because of the negative impact it may have on their children’s lives and education. Notwithstanding this concern, when dialogue with ministries and schools breaks down, the judiciary can play an important role in advancing the right to inclusive education not only through individual cases but also through class actions, especially in the many other Latin American countries that have ratified the CRPD.

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Author Mariela Galeazzi is an attorney from Argentina who coordinated the Disability and Human Rights program of ACIJ and was Alan Rodriguez’s counsel in the case discussed above. She is currently an LLM Candidate at American University Washington College of Law and a fellow of the Disability Rights Scholarship Program of the Open Society Foundations.