Equity & Inclusion in Education

Disability & Education Brief No. 4

ASSESSING LEGAL
FRAMEWORKS FOR
INCLUSIVE EDUCATION

Conrad C. Daly

June 2016 Inclusive Education Series

KEY MESSAGES:
 Education for all is a fundamental right.
 Inclusive education requires (1) formal guarantees/commitment at the international, regional,
and national levels, and, subsequently, (2) more informal, implementing actions.

Box 1: Brief and Series Primer

INTRODUCTION
Education for all is a fundamental right; as such, it should
be free and accessible for all. Education is a particularly
important right, as it is itself not only fundamental, but as it
is also fundamental to a person’s ability to access and
exercise many other rights. To be complete, the education
system must be equitable and inclusive (E&I).
Fundamental rights are natural and inherent moral
principles granted to all people in every civilized society
without needing any system to proactively afford them.
The principal normative instrument laying down the right to
education is the Universal Declaration of Human Rights
(UDHR). It holds that fundamental education shall be free
and compulsory, with vocational and higher education
being “equally accessible to all on the basis of merit” (art.
26). Other instruments bolster that text, most notably the
International Covenant on Economic, Social and Cultural
Rights (ICESCR) (art. 13, 14). Also, the second Millennium
Development Goal (MDG) was achieving universal primary
education (91 percent achieved), and, more recently, the
fourth Sustainable Development Goal (SDG) is to “ensure
inclusive and equitable quality education and promote
lifelong learning opportunities for all”. While education can
be diversely understood, certain aspects are universal.
Why a series of briefs on education and disability?
Children with disabilities are at a disadvantage in terms of
school enrollment, education attainment, and learning.
Many of these children never enroll in school or drop out
prematurely. They may also learn less in school. This is a
challenge that must be confronted by education systems.
What are the topics discussed in the series? The series
aims to document the gaps between children with and
without disabilities, as well as programs and policies that
can help improve inclusion and equity in education systems
in order to improve education outcomes for all children.
What is the question asked in this brief? The question
is: How can legal frameworks support inclusive education?
How is the question answered? Law is a tool of change.
Because international and national legislative frameworks
are required for successfully implementing inclusion,
understanding the various elements, the best structure,
and the places of overlap is important for project managers.
Understanding that there is no one, single approach, this
Note explores how best to construct, assess, and develop
a country’s inclusive education system.
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Education should be “directed to the full development of the
human personality and the sense of its dignity”, and should
both “strengthen the respect for human rights and
fundamental freedoms” and “promote understanding,
tolerance and friendship among all”. (Art. 26(2), UDHR; Art.
13(1), ICESCR). It should also “enable all persons to
participate effectively in a free society” (Art. 13(1),
ICESCR).
Education is for everyone, meaning that a system that is
inequitable or non-inclusive is incomplete; the
fundamentals of education are unachievable without
inclusion. Inclusion is both a philosophy and a process that
seeks to promote participation, and to improve quality
learning outcomes; it combines access, quality, and
respect—for all and everyone. It requires legal guarantees.
I. THE INTERNATIONAL LEVEL
Guaranteeing both the right to education and its access
requires a broad legal base. Assessing commitment to
inclusion begins with whether the appropriate international
instruments have been signed and ratified. Ratification, an
act by which a State signs and then internally approves that
signature, is the appropriate level of commitment: only then
is the State legally bound by the treaty’s terms.
(1) International Agreements
The principal normative instruments laying down
inclusion/education for all are the Convention on the Rights
of the Child (CRC) (especially art. 23, 28), the Convention
on the Rights of Persons with Disabilities (CRPD) (art. 24),
and the already-mentioned ICESCR (art. 13). The CRC is
built around four general principles: non-discrimination (art.
2), the best interests of the child (art. 3), optimal
development (art. 6), and the voice of the child (art. 12).
The guarantee is made “on the basis of equal opportunity”
and must be “available and accessible to every child” (art.
29(1)(b)). The CPRD obliges States-Parties to create
accessible educational environments, the aim of which is
“[t]o enable persons with disabilities to live independently
and participate fully in all aspects of life” (art. 9), and
obliges them to guarantee the right of persons with
disabilities to education […] on the basis of equal
opportunity” (art. 24). The SDGs reinforce all of these
notions and make specific reference to inclusive education.
(2) Regional Agreements
Regional agreements also add important guarantees that
develop education. For instance, the African Charter on
Human and Peoples’ Rights (“Banjul Charter”) not only
guarantees inclusion in education, but also guarantees the
“promotion and protection of morals and traditional values
recognized by the community” (art. 17). Similarly, the
Protocol to the European Convention for the Protection of
Human Rights and Fundamental Freedoms (art. 2) and the
European Social Charter (Revised) (art. 15 & 17) have
substantially affected perceptions, expectations, and legal
norms across Europe, and even beyond.
II. THE NATIONAL LEVEL
By and large, international conventions do not have direct
effect. That is to say, while international instruments bind
States-Parties, it is for each State-Party, as its own
sovereign, to internalize and implement those treaties in its
own system, through its own laws (known as the
“domestication of international law”). Without such having
been done, it is a difficult and uncertain path to allege treaty
noncompliance. In short, though building on the basis of
international norms, the legal basis and architecture for E&I
education must be created by and in each State.
National laws are needed to create a system that
implements fundamental and internationally-recognized
rights.
Three levels require attention: (1) the constitutional
foundation, (2) the legislative architecture, and (3)
implementation by the executive.
(1) Setting the Constitutional Foundation
The Constitution is the supreme law of the land. It is
through that instrument that the State itself is constituted,
and thus that the State can create, execute, and adjudicate
laws, as well as bind itself to external, international
agreements. Typically, constitutional provisions on
education are limited to a blanket guarantee of the right writ
large without specific enabling provisions.
It is important that the right to education itself be enshrined
in the Constitution: First, so enshrining the right gives it a
moral power and purpose superior to any legislation.
Second, all branches of government are obliged to assure
that right, irrespective of any economic or other concerns
of the day. Third, painting the right as a broad-brushed
backdrop helps to ensure a more complete and generous
interpretation of subsequent, implementing laws.
Global opinion favours constitutionalization of the right to
education. A recent review found that 81 percent of
constitutions included the right to universal primary
education, of which 53 percent of them specifically
designated that primary education be free, and 37 percent
and 35 percent of which designated secondary and tertiary
education, respectively, as free (Heymann et al., 2014).
Countries that constitutionally protect education were
found to be more likely to have corresponding national
policies, a key aspect to implementing an effective and
inclusive education system (no causality is implied).
Relatedly, countries that constitutionally guaranteed
primary and secondary education had significantly higher
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net enrolment, independent of GDP and urbanization
(again, this does not imply attribution).
The global picture for disability legislation is not quite as
positive as it is for the right to education. The same review
found that only 14 percent of constitutions explicitly
included equality in education for persons with disabilities,
while 44 percent constitutionally guaranteed protective
measures for persons with disabilities writ large (Heymann
et al., 2014).
Box 2: Constitutionally Enshrining
the Right to Education
Constitutional provisions enshrining the right to education
are typically short. For instance, the relevant text in the
Constitution of India reads: “The State shall provide free
and compulsory education to all children of the age of six
to fourteen years in such manner as the State may, by law,
determine” (art. 21-A); this text, added through amendment
in 2002, is supplemented by a robust law that, among other
things, speaks to the inclusion of children with disabilities,
and which allocates resources to create inclusive learning
opportunities, and provides necessary supports and
accommodations (Right to Education Act, 2009).
While India is illustrative of the typical situation, other states
use their constitutions more robustly. Brazil is illustrative of
this latter group. In the ten articles of Brazil’s constitution
that guarantee the right to education (art. 205 to 214),
Brazil goes farther than most. For instance, it specifically
states that education is “the duty of the National
Government and family” (art. 205). Further, there is an
element of the practical, as the language, though beginning
by speaking in a tone similar to that discussed in the
aforementioned international texts, states three objectives
of education: “seeking the full development of the
individual, preparation for the exercise of citizenship and
qualification for work” (art. 206). Moreover, the rights of
persons with disabilities are specifically addressed, with
the National Government responsible for providing “special
educational assistance for the handicapped, preferably
within the regular school system” (art. 208.III). By contrast,
while the onus for assuring the delivery of education lies
with the National Government, it is for the Government
together with the States, Federal District, and Counties to
“collaborate in organizing their educational systems” (art.
211).
(2) Laying the Legislative Architecture
It is for the Legislature to create an organic law laying the
broader architecture of how to develop the right to
education, including obligations and accountability, which
the Executive will in turn implement. Such is the case as
social spending is traditionally in the Legislature’s purview,
and as an effective education system involves both various
ministries (education, health, labour, etc.) and various
levels of government (national, provincial, municipal).
Just as international instruments must be translated into
national ones, so, too, must constitutional guarantees be
rendered into actionable laws in order to have full effect.
The question of subsidiarity is often a matter of concern,
especially in federated states (as opposed to centralized
states), where the right to education might be shared
between sovereigns. For instance, in the United States,
while the federal government has substantial influence
through its Department of Education, the individual states
have primary responsibility both for providing education
and for maintaining and operating public schools. Similarly,
while there is no federal constitutional right to education in
the U.S., each of the states has guaranteed that right in its
own constitution. By contrast, Brazil, also a federated state,
guarantees the right to education in its federal constitution,
even sketching out the foundations for legislative
architecture therein (ch. III, § I).
Globally, the legislative case for education is positive.
Tuition-free, compulsory primary education is offered by 77
percent and 90 percent of low-income and middle-income
countries, respectively (World Policy Analysis Center,
2016). Enrolment in primary education in developing
regions reached 91 percent in 2015, up from 83 percent in
2000. At the same time, however, there some 57 million
out-of-school.
The picture for disability inclusion is not quite as positive.
Traditional special education systems create a separate
place for educating those with disabilities, including
isolated residential institutions, typically under special laws.
True to guaranteeing equal opportunity, segregated
systems need to be transformed into inclusive ones where
students with disabilities learn in the regular school system.
Even more problematic, however, is that special laws
frequently clash with other laws on non-discrimination,
disability inclusion, and education. Understanding points of
contention and supremacy of laws is crucial here.
Legislation supporting inclusion should emphasize
explicitly that persons with disabilities are full citizens, and
have the full panoply of rights—political, civil, economic,
social and cultural. Any form of discrimination should be
forbidden (including, notably, education, civic and political
participation, employment, public access, housing,
transportation, healthcare, and culture), and equality of
opportunity be promoted. Depending on the nation’s
needs, tangible measures and systems to support rights-
realization and non-discrimination should be created.
Inclusive education legislation should account for the
responsibilities of the various jurisdictions and authorities,
notably between national, provincial, and municipal
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authorities, as well as their respective financial
contributions and commitments. Specific provisions
allocating budget and resources to creating inclusive
learning opportunities and the provision of necessary
supports and accommodations for students with disabilities
should be made. The place for “reasonable
accommodations”, as well as for how best to create barrier-
free environments, and the use of assistive aids, devices,
and technologies to facilitate learning experiences, should
also be addressed therein.
Box 3: Constitutional Funding Mandates
Typically, the Legislature arranges educational funding
through an organic law. There are several advantages to
doing as much, notably the ability to work around economic
downturns or to create different and more creative
arrangements, as required, as well as to draw different
ministerial authorities together. Sometimes, however, the
constitution itself has specific funding provisions. While it is
preferable to use legislative rather than constitutional
funding mandates for education, efforts by states with
constitutional mandates should be acknowledged.
(3) Developing Executive Implementation
It is for the Executive to develop the design that the
Legislature has, on the basis of international and
constitutional guarantees, drawn up. Unlike legislation,
which set the larger expectations and obligations,
regulations develop mechanisms and systems supporting
the learning needs of all, including those with disabilities.
Details implementing the legislature can be developed
through regulation and policy.
If the Legislature has not already done so, then the place
for reasonable accommodations should be defined here.
Other aspects include curricula, training and capacity,
school choice, vocational education and training (VET),
tertiary education, finance and funding, the role of cultural
and religious organizations, graduation/dropouts, testing,
accountability, transport, and afterschool care.
References
Heymann, J., A. Raub and A. Cassola, Constitutional
Rights to Education and their Relationship to National
Policy and School Enrolment, 2014, International Journal
of Educational Development.
Is primary education tuition-free and compulsory?, World
Policy Analysis Center (2016).
UNICEF, Webinar & Booklet 3 - Legislation and Policies for
Inclusive Education, 2014, New York: UNICEF.
The author is with the World Bank Group. This series of briefs was
launched by the Education and Urban-Rural-Social Global
Practices at the World Bank. Please contact Charlotte Vuyiswa
McClain-Nhlapo (cmcclainnhlapo@worldbank.org) and Quentin
Wodon (qwodon@worldbank.org) for information about the
series. The brief series is part of the SABER Equity and Inclusion
program that benefitted from the support of the Global Partnership
for Education. The opinions expressed in this brief are those of
the authors only. They may not represent the views of the World
Bank Group, its Executive Directors, or the countries they
represent. Photo by Alex Chichi and provided by COOPI.

Formal mechanisms—notably legislation and regulation—

and informal mechanism—notably education plans and
policies and means of interdepartmental collaboration—
are necessary to creating an inclusive system of education
with support cutting across silos.

Inclusion is established through both formal law-making

regulations and less formal policies. An integrated legal
and policy framework that is flexible and equitable in all
aspects affecting the attainment of a quality education
should be prepared. That framework should set clear
definitions and specific objectives, guarantee access to the
same quality education for all throughout the country, and
introduce monitoring mechanisms. The framework should
provide guidance, and direct training and capacity-building.