The Right to Inclusive Education and the European Court

We all want inclusive education, right? Although we also know that governments (except Italy) are generally not very eager to realize it. But in a verdict in September 2020, the European Court for Human Rights has endorsed inclusive education as a right that is fundamental to enjoy other rights. Because, if society excludes you, they dehumanise you; you are told that you are a failure that needs to be fixed before entering the society. And a human society does not want to dehumanise you, right?

What is the European Court for Human Rights?

Europe has its own United Nations, which is called the Council of Europe (CoE), with 47 States (the EU has only 27 States). The Council of Europe was founded in 1949 to prevent another war and to protect human rights and democracy after the terrible holocaust in World War II. Nearly all of the European States are members. These states adopted the European Convention of Human Rights. If a citizen thinks that the State has violated a person’s rights they can go to the European Court of Human Rights, but only after they’ve been to all the national courts. The Court decides if a country has violated the rights of their citizens as recorded in the Convention. For the UK (and Europe), an important judgment is the Osman case (a young man stalked by a teacher which resulted in a murder), in which the Court judged that the state has to protect the life of their citizens. This can be used against the local authorities when they do nothing against hate crime. Another famous verdict is the Cosans and Campbell case, in which the Court judged that parents don’t have to sign a paper that allows the school to execute corporal punishment. States usually comply with the verdict, and because of this the European Court has a strong influence on states to take their obligations seriously.

The right to education.

One of the human rights is the Right to Inclusive Education. While the European Council at the start spoke only on the Right to Education (Article 2 of the first Protocol), the article gradually was extended to inclusive education by the Committee of Ministers of the Council of Europe and by exchanging views with other international courts. However, it is not consolidated yet in the European Court, where in every case there might be different judges with different attitudes. In light of this, it is so important that in the latest verdict of G.L. against Italy, the Court explained the merits of, and the necessity for inclusive education so thoroughly.

What was the case about?

The case involved a Young person with severe learning difficulties who had been provided with enough learning support and care in nursery school (4-6 years of age) “to enable her to benefit from the educational and social service offered by the school on an equal footing with the other pupils”, as Italian law prescribes. But after starting the elementary school, the local authorities stopped the support by telling the parents that the local support budget was spent on adults with a muscle disease, and that therefore they couldn’t provide support for this Young person. The parents went to the local judge, the appeal court and the supreme court of Italy, who all confirmed that the local authorities’ lack of budget was a good enough argument to not be able to give the desired support. The European Court, however, disagreed by calling this discrimination because the lack of budget affected only this Young person and not the other pupils. The Court argued further:

“without support the [Young person] was unable to continue attending prima ry school under conditions equivalent to those enjoyed by non-Disabled pupils, and that this difference in treatment was due to her disability.”

And:

“support was needed to promote her autonomy and personal communication and to improve her learning, relationship life and school integration, in order to eliminate the risk of marginalization.”

The Court also mentioned the huge advantage for other children in reiterating the Council of Europe Ministers:

“providing Disabled persons with the opportunity to participate in ordinary educational structures is important not only for them, but also for non-Disabled people who will become aware of disability as part of human diversity.”

In her decision, the Court mentions the obligation of each State under the European convention, by stating:

“due diligence [by the state is] required to ensure that the applicant enjoys her right to education on an equal footing with other students.”

And the Court stresses the necessity of inclusive education for social integration:

“the discrimination suffered by the applicant is all the more serious because it took place in the context of primary education, which provides the basis for education and social integration and the first experiences of living together.”

Paragraph 54 is interesting:

“The Court also recalls that when a restriction of fundamental rights applies to a particularly vulnerable class of population that has in the past suffered significant discrimination, the state’s discretion is then significantly reduced.”

This means that the state must have very strong appropriate arguments to restrict the right to inclusive education.

What do we learn from this verdict?

1. That now we have the European Court on our side to convince local authorities about inclusive education.
2. Lack of budget is no excuse for not giving a pupil the support she needs. Budget cuts must be divided evenly between Disabled and non-disabled pupils.
3. The court might be the place to fight discrimination on the grounds of disability, like in the US, the case Brown v the board of education, accelerated the civil rights movement. (If you have no money to start a legal process, then the state must give you the money, because the right to have practical access to a court (Article 6.1) is a very strong one since the Irish Airey case).
4. How much will this affect things in the UK? Even though the United Kingdom has left the European Union in January 2021, the UK is still a member of the European Convention on Human Rights, as such, it is still bound by the ruling of the European Court on Human Rights. For Disabled people in the United Kingdom, this means that the people are still able to hold the UK Government accountable with regards to it’s obligations to protect the rights of Disabled people.

Further reading

The Case itself can be found here: HUDOC: ECHR no59751/15