The Right to Inclusive Education in South Africa: Recreating Disability Apartheid Through Failed Inclusion Policies
Authors Timothy Fish Hodgson
Affiliations: Legal Advisor: Economic, Social and Cultural Rights, International Commission of Jurists
Source: South African Law Journal, Volume 135 Number 3, p. 461 – 501
South Africa’s inclusive education system is in crisis. Although various pieces of legislation, policies and guidelines conceive of an inclusive education system, these policies are merely ‘nice theories’. The dual ‘apartheidisation’ of South Africa’s education system on the basis of race and disability continues. South African law and policy on inclusive education – both in conception and implementation – must be interpreted through the lens of the United Nations Convention on the Rights of Persons with Disabilities and the Africa Disability Protocol which entrench the right to inclusive education. Understood in this light, the right to inclusive education – a constitutional right in South Africa – includes three core components, namely: a right to an inclusive education system; a right to accessibility; and the right to individualised support including reasonable accommodation. Measured against these standards, the government’s failures are widespread and devastating and amount to systemic violations of children with disabilities’ constitutional right to inclusive education. On a systemic level, an estimated 597 953 children with disabilities still languish out of school. Those who do attend school remain predominantly in segregated special schools. The inadequacy of infrastructure and unavailability of learning materials are good examples of violations of the right to general accessibility. Evidence suggests it is unlikely that most schools provide reasonable accommodations and individualised support measures, violating learners’ individual rights. To build a more inclusive South Africa, a more inclusive education system is urgently needed. A more inclusively minded approach to public interest litigation and advocacy is necessary if the law is to contribute meaningfully to this enormous task.