Pupil with disabilities: right to inclusive education?

Legal duty to make effective adjustments.

A student with a disability or chronic illness should be able to participate in regular education as much as possible. A school has a duty to make effective adjustments to make this possible. If this does not happen or happens insufficiently, the school makes a prohibited distinction between students with and students without disabilities. This is governed by the Equal Treatment on the grounds of handicap or chronic illness Act (WGBH/CZ). This obligation is not unlimited. A school does not have to make any adjustments that constitute a 'disproportionate burden'. If the elementary school is no longer able to make further adjustments, an admission statement can be requested. The student can then possibly go to special education. Of course, parents do not always agree.

The case of Kubo

Recently, the Human Rights Board (the Board) ruled that an elementary school had not made a prohibited distinction when it removed a student with Down syndrome from school. Kubo (13) had attended a Utrecht elementary school since 2007 and received intensive guidance. Up to and including grade 6, this went on without significant problems, but at some point problems arose: Kubo could no longer keep up with the group, had learning problems and showed undesirable behavior, such as running away and yelling. Initially, together with the parents, a new plan was drawn up to tackle the problems, but the school soon had to conclude that it was unable to act. An admissibility statement was requested from the partnership, after which an expulsion decision followed.
The parents did not agree with the course of events. They felt that the school had made insufficient adjustments and that their son would have the best opportunities in regular education. There is something to be said for the latter. Research shows that children with Down syndrome are often better off in regular education than in special education. Students in regular education more often have friends in the neighborhood and are well accepted by their classmates. They also develop their speech better and learn more school skills than in special education. Reason enough for Kubo's parents not to just leave it at that. They had already approached the Disputes Committee for Appropriate Education and had also lodged an appeal against the expulsion decision with the Central Netherlands District Court. They had been unsuccessful in both instances and the Board was now following suit. Although the elementary school had deviated from the agreements made during a certain period, the Board concluded, overall it had made sufficient adjustments. One must look at the "set of adjustments" the school had made. It was sufficiently established that the difference in development between Kubo and the rest of the students was great and that the school could not have done more.

Disproportionate burden?

When exactly does a school meet this duty to make "effective adaptations"? It is when further adaptations place a disproportionate burden on the school. This requires a very individual test in which several elements come into play: the size of the school, the available financial resources, the operational feasibility of the adaptations, etc. Possible adaptations include the use of an additional teacher or specialist expert, workplace adaptation, adjusted schedules and testing times, special learning programs or reward systems. If the school does not want to make an adjustment even though it is effective and not disproportionately burdensome, the school is making prohibited discrimination within the meaning of the WGBH/CZ. This was therefore not the case in Kubo's case, according to the Board.

Convention on the Rights of Persons with Disabilities

Kubo's case deserves attention for another -and perhaps even better- reason. Namely, Kubo's parents also argued that the school had violated the UN Convention on the Rights of Persons with Disabilities (UNCRPH), which the Netherlands ratified in 2016. This contention is somewhat more fundamental in nature and looks at how the system of appropriate education is organized in the Netherlands. Article 24 of the VRPH states that students with disabilities have the right to "inclusive education. They should not be excluded from the general education system. The UN has even explicitly stated that countries may not distinguish between regular and special education. As mentioned above, research shows that inclusion is much better for students with disabilities.

When does a school meet its duty to provide effective accommodations?

Appropriate education, as we know it in the Netherlands, conflicts with that right to inclusion, Kubo's parents argue. After all, we have a two-track system: regular versus special education. So, from an international law perspective, that system is unacceptable. Based solely on the presence of a disability, a student is admitted to either regular education or special education. That distinction is discrimination in itself because it is a system of segregation. Kubo should simply be allowed to continue participating in regular education for that reason, his parents say. Professors and researchers have expressed themselves in similar words: appropriate education is a system of segregation, not inclusion.

Appropriate education in violation of international law obligations?

That's quite something. Appropriate education was supposed to allow more students to attend regular education. The Board also disagrees with the argument of Kubo's parents. In the opinion the Board considers that "the current Dutch education system assumes that as many children as possible, regardless of their possible disabilities, participate in regular education". We read therein that the Board is in a sense somewhat bound by the political consensus that exists on appropriate education. With appropriate education, inclusive education in the sense of the VRPH is pursued as much as possible, the Ministry of Education, Culture and Science has stated in this regard. Interest representatives from primary and secondary education also seem to share the same opinion, to what extent can you allow a student with (very) specific needs to keep up in regular education without making disproportionate adjustments, causing overload or incurring costs? With that, the debate about inclusive education seems settled for now. The starting point is, and remains: students with disabilities should be able to participate in regular education, but this should not place a disproportionate burden on the school. A workable test, if you ask us.