The following op-ed is written by Amy-Leigh Payne & Charlene Kreuser from the Legal Resources Centre.
The Constitution of the Republic of South Africa, 1996 (Constitution), provides ‘everyone’ with the right to basic education. ‘Everyone’ is a non-restrictive term. It means that, where a right is conferred on ‘everyone’, it applies quite literally to everyone. Viewed in the context of education, the right to access to education, therefore, does not exclude learners with disabilities. Despite the promise of education for everyone, it has become abundantly clear that South Africa has not yet taken sufficient legislative and other steps to ensure access to quality basic education for learners with disabilities.
The United Nations Committee on the Rights of Persons with Disability in its Concluding Observations for South Africa in 2018 reported that 25% of disabled learners were not attending school. This translates to almost 600 000 children not having access to any form of basic education. Learners with disabilities who manage to access basic education are often placed in separate “special” schools. The result is that all learners with disabilities are treated similar in the education system with not enough attention afforded to accommodating some disabled learners in mainstream schools should this be in their best interest. So-called “special” schools further often require learners to travel long distances to attend school and are more expensive to attend than mainstream schools as a result of the cost attached to ensuring that infrastructure and educational material are appropriate and accommodating.
Considering the Constitution and the commitments made by South Africa when ratifying the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007, disability should not be the barrier to education that it currently is. The UNCRPD places an obligation on states to “recognize the right of persons with disabilities to education” and requires them to “ensure an inclusive education system at all levels” [own emphasis]. More specifically, the UNCRPD requires states to ensure that disabled persons are not excluded from the general education system and that they “can access an inclusive, quality and free primary and secondary education on an equal basis with others in the communities in which they live” [own emphasis].
In order to comply with its constitutional and international responsibilities, it is imperative that the state take active steps to realise the right to education for learners with disabilities.
Where are we now? Steps taken by the state thus far
In 2001, the Department of Basic Education (DBE) published the Education White Paper 6 on Special Needs Education (White Paper on Special Needs Education). In this document, the DBE committed to providing access to education to all learners with disabilities and learners who experience other barriers to learning, as well as outlining how this should be achieved. Importantly, the White Paper on Special Needs Education called for the conversion of 500 out of 20 000 ordinary public primary schools in 30 school districts to full-service schools that can accommodate learners with disabilities, allowing “learners with disabilities to learn alongside peers of the same age”. By 2019, it was reported that the DBE had managed to adapt 848 schools.
Despite the DBE reaching its goal of converting 500 ordinary public primary schools before its internal deadline of 2021, an alarmingly high rate of disabled children remain without access to basic education in South Africa. The DBE’s Report on the Implementation of Education White Paper 6 on Inclusive Education for the period of 2013 – 2015 states that 25% of children with disabilities between the ages of 5 and 15 are not attending an educational institution. Although significant progress has been made since 2001, where 70% of learners with disabilities did not have access to education, 25% still translates to nearly 600 000 disabled children being out of school.
Together with a lack of equal access to education for learners with disabilities, a further barrier to education for these learners, as mentioned above, is that most children with disabilities who do attend school are still in separate “special” schools for learners with disabilities. It is recognised that in instances of severe or multiple disability, it is in the child’s best interest to attend an educational institution that only provides education for disabled learners. However, considering the aim of inclusive education set forth in the White Paper on Special Needs Education, this should not be the norm. Separate education, in contrast with inclusive education, exacerbates discrimination, exclusion, and marginalisation for two reasons. Firstly, separately educating abled and disabled learners shows an active refusal to address attitudinal barriers of disregard and prejudice towards disabled individuals. Secondly, it supports a medical model of disability, and not a social one. The social model “focuses on the abilities of persons with disabilities rather than their differences” and considers how different environments can be adapted to best accommodate disabled individuals, to ensure that they have equal access to rights and opportunities.
Beyond the White Paper on Special Needs Education, the Minister of Social Development adopted the White Paper on the Rights of Persons with Disabilities (White Paper) in 2016. Its vision is to create a “free and just society inclusive of all persons with disabilities as equal citizens” through implementing various policy directives. Importantly, the White Paper requires that education facilities be accessible not only in terms of infrastructure, but also that disabled learners be reasonably accommodated in schools. However, of concern is the lack of commitment shown in integrating disabled learners into the mainstream education system. Again, all disabled learners are viewed the same.
The White Paper is envisaged to be implemented over a 15-year period, from 2015 to 2030, coinciding with the National Development Plan: 2030. Since the White Paper’s adoption in 2015, little progress seems to have been made. This is particularly alarming given that it envisions the promulgation of disability specific legislation that should have been developed by 2019 to be promulgated between 2020 and 2030.
Towards a comprehensive legislative framework for disability education
South Africa’s ratification of the UNCRPD awakened a sense of hope for equal education for disabled learners. It is now more than a decade after its ratification and 20-years after the publication of the White Paper and the commitments made, yet disabled learners still face barriers in accessing education.
Currently, South Africa does not have legislation which looks to promote the rights of persons living with disabilities specifically. The South African Constitution does, however, prohibit discrimination against persons living with disabilities. There are also elements of protection for persons living with disabilities in other legislation. For example, with regard to education, the South African Schools Act 84 of 1996 refers to learners with special education needs. The Schools Act places an obligation on the state to provide education for disabled learners at a public school for learners with special education needs or at an ordinary public school where it would be reasonably possible to provide these learners with the relevant educational support.
Although South Africa’s current legislative framework offers some protection to disabled persons and learners, it is only through disability focused legislation that persons with disabilities can truly be protected against multiple and intersectional discrimination. The South African Law Reform Commission (SALRC) at the end of 2020 requested comments on the domestication of the UNCRPD, which included whether separate legislation is needed and what such legislation should look like.
Considering the barriers that disabled persons face in general, and the more specific barriers that disabled learners face in accessing education, the UNCRPD Committee’s comment that South Africa should adopt disability focused legislation is well founded. Disability legislation would not only be able to provide a comprehensive definition of ‘disability’ – one that recognises the multitude of disabilities and the importance of reasonable accommodation to ensure equal enjoyment of rights for disabled persons – but also give content to the rights of disabled persons in the South African context.
Drawing from the UNCRPD and the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (African Disability Protocol) and viewed in light of the right to education and the prohibition of discrimination based on disability under the Constitution, disability focused legislation should outline the right to inclusive education for disabled learners.
In this regard, the state should be obligated to adopt special measures to protect learners from discrimination in education and address the barriers that they face. Such measures include getting the basics right in terms of infrastructure, teacher training, learner/teacher support material, and assistive devices. Beyond the basics, special measures should also include the implementation of programmes aimed at sensitising staff and pupils to the challenges that persons with disabilities face and the marginalisation that they experience, as well as increasingly converting mainstream schools to full-service schools. Ensuring that there are enough full-service and separate disability focused schools per education district or province can go a long way in ensuring that disabled learners can access education and not have to travel far to do so. Increased full-service schools can also contribute to discouraging the perception that inclusive education for disabled learners equates to a ‘one size fits all’ approach.
Different disabilities and differing extents of disabilities require unique approaches to ensure that all disabled learners have substantively equal access to education. The barriers that disabled learners continue to face in accessing education in South Africa can be interpreted as the state lacking the will to comply with its constitutional, regional, and international obligations. It is unconscionable because, ultimately, the barriers to education for disabled learners leaves them behind.