Author: Angel Baker

International Standards for Education: A Discussion of the Convention on the Rights of Persons with Disabilities.

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There were international declarations and conventions that are the foundation for the Convention on the Rights of Persons with Disabilities (“Convention”).  One of those precursors was the Universal Declaration of Human Rights (“UDHR”), which states, “Everyone has the right to education.” Furthermore, under the UDHR, education in the elementary and fundamental stages is to be free and compulsory. The UDHR further requires that education be directed towards the full development of the human personality and strengthen respect for human rights.  Lastly, the UDHR acknowledges that parents have a prior right to choose the kind of education that is given to their children.
Another precursor to the Convention is the International Covenant on Economic, Social and Cultural Rights (“ICESCR”), which has two articles which set out the right to education. Article 13 of the ICESCR contains a general statement that everyone has the right to education and that education contributes to the full development of the human personality. Furthermore, Article 13 requires primary education be compulsory, available, and free to all.  Article 13 also requires secondary education, including technical and vocational education, to be available and accessible to all by every appropriate means.  Article 13 requires, as well, fundamental education to be intensified for people who have not received or completed their primary education.  Additionally, Article 13 mandates that systems of schools are established and the teaching staff be continuously improved.  Article 13 further requires that the liberty of parents to be able to choose for their children schools, other than those established by the public authorities, which conform to minimum educational standards.  Article 14 of the ICESCR requires each state party that has not been able to secure compulsory primary education free of charge, “to work out and adopt a detailed plan of action for the progressive implementation . . . of compulsory primary education free of charge for all” within two years.

Another international document, that lead the way for the Convention, is the Convention on the Rights of the Child (“CRC”).  Article 28 of the CRC requires free, compulsory, primary education for all.  Article 28 also requires that different forms of secondary education available and accessible to all.  Additionally, article 29 of the CRC requires the full development of the child’s personality and his or her talents and abilities to their full potential.  The right to education is universal and must extend to all children, youth, and adults with disabilities.  This right is further addressed in several significant, internationally approved declarations, including the World Declaration for Education for All (1990), the Standard Rules on the Equalization of Opportunities for Persons with Disability (1993), the UNESCO Salamanca Statement and Framework for Action (1994), and the Dakar Framework for Action (2000).

The Convetion offers more benefits and protections than the previous international documents.  Article 12 of the Convention recognizes equal recognition before the law for persons with disabilities.  Article 12 requires that countries ensure the equal right of persons with disabilities. Article 7 of the Convention requires that the best interests of the child be the primary consideration and due weight in accordance with their age and maturity.   Article 24 of the Convention ensures the right to education for persons with disabilities, which requires that all countries to have an inclusive education system.  The inclusive education system provides equal opportunity without discrimination at all levels of education for all types of learning. Article 24 states that an inclusive education system enhances the development of persons with disabilities in their emotional, physical, and mental abilities. Article 24 states that with greater access to education, persons with disabilities will likely more fully participate in their respective societies.

Article 24 requires an “inclusive education system.”  Article 24 of the Convention requires countries to ensure opportunities for persons with disabilities by not excluding them from the general education system due to their disability.  Article 24 requires that the general education system be free and compulsory at the primary education level on an equal basis with others in their own country.   Article 24 also requires countries to ensure secondary, tertiary, and life-long learning opportunities, for persons with disabilities, on equal with others in their own country. Additionally, article 24 requires countries to provide reasonable accommodation to persons with disabilities, so that they may receive an effective education. Article 24 states that reasonable accommodation includes effective individualized support to maximize academic and social development. Article 2 of the Convention defines “reasonable accommodation” as the “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”

The Convention is not a limitation on country laws to protect persons with disabilities, but sets out a minimum standard for all countries to ensure equal opportunity for persons with disabilities.  Additionally, the Convention allows countries to enact higher standards to give more protections for persons with disabilities to effectuate equality.

For more information, check out these links.

The Universal Declaration of Human Rights (1948) http://www.un.org/en/documents/udhr/

International Covenant on Economic, Social and Cultural Rights (1966)  http://www.un-documents.net/icescr.htm

The Covenant on the Rights of the Child (1989) http://www.ohchr.org/en/professionalinterest/pages/crc.aspx

The Flagship on Education for All and the Right to education for Persons with Disabilities: Towards Inclusion  http://www.unesco.org/education/efa/know_sharing/flagship_initiatives/disability_last_version.shtml

The Convention on the Rights of Persons with Disabilities (2006) http://www.un.org/disabilities/convention/conventionfull.shtml

CRPD ratification arguments concerning education

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The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) requires States to “ensure an inclusive education system” in Article 24. The United States of America (U.S.) has signed, but has not yet ratified the Convention.

Why was the U.S. Senate reluctant to ratify the UNCRPD? On December 4, 2012, the U.S. Senate considered the ratification but fell short by five votes. One of the main points of contention concerned Article 24 on Education.
On July 12, 2012 Michael P. Farris, J.D., LL.M., arguing against ratification of the UNCRPD, noted that there were two core human rights treaties, which already provided guidelines for protection of persons with disabilities: the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social, and Cultural Rights. Both of these Covenants embrace the pro-parent view of the Universal Declaration of Human Rights (“UDHR”). Article 26(3) of the UDHR proclaims: “Parents have a prior right to choose the kind of education that shall be given to their children.” This is contrary to the views later expressed in the United Nations Convention on the Rights of the Child (CRC) and Convention.

The UNCRPD adopted concepts from the CRC, which lead to the conclusion that parental rights in the education of disabled children are supplanted by a new theory of governmental oversight and superiority. Many of those who argued against ratification believed that government agents, not parents, are being given the authority to decide all educational and treatment issues for disabled children; that all of the rights parents have under current American law will be undermined by this treaty.

In Article 7 of the UNCRC, where the relevant provisions state:“In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age appropriate assistance to realize that right.” Under the UNCRPD, those that are anti-Convention state that this gives government officials the authority to substitute their views for the views of parents as well as the views of the child as to what is best in all situations. If parents think that private school or home school is best for their child, the UNCRPD gives the government the authority and the legal duty to override that judgment and keep the child in the government-approved program that the officials think is best for the child.

However, this may not be true. The UNCRPD protects “parental rights and highlights the important role of parents in raising children with disabilities.” It states that children with disabilities will not be separated from their parents on the basis of their disability. Furthermore, the two proposed reservations on federalism and private conduct provide additional protection to parental authorities. This ensures that the state and federal disability law and protections are preserved.
The question is which side is right?

For more information:
U.S. International Council on Disabilities,http://www.usicd.org/index.cfm/convention

Parental Rights http://www.parentalrights.org/index.asp?Type=B_BASIC&SEC=%7B2A2E1C77-F0CF-4FE6-95A1-8624698ADF46%7D and (for) http://www.usicd.org/doc/CRPD%20MythsFacts%200719%202013.pdf

Accessibility of Museums

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The Americans with Disabilities Act requires public accommodations (businesses and non-profit organizations) to provide goods and services to people with disabilities on an equal basis with the rest of the public.  Museums, like other businesses, that serve the public are to allow visitors with disabilities to fully experience all that museums have to offer, including exhibitions, programs, special events, publications, and videos.

The New York Times wrote an article titled “Welcoming Art Lovers With Disabilities.” It discusses that a museum held public exhibition of original art made in its “Seeing Through Drawing” classes. This exhibit was done to accommodate people who were blind or partly sighted. The art was described to them and they were allowed to touch it as well. Another museum held tours in American Sign Language to accommodate people who were deaf. This museum also had new “multisensory stations” at an allotted time which would allow those with a range of disabilities to experience exhibits though scent, touch, music and verbal imaging, or describing things for people with vision impairment. Another museum provided a wheelchair to accommodate those with mobility impairments. There are newer programs which allow families with children on the autism spectrum and cognitive disabilities to arrive early and receive materials in advance to get familiar with the building and exhibits. A different museum stressed to accommodate persons with disabilities and those without to have access to the same devices and content. Technology has played a huge role in helping to accommodate a larger variety of people with disabilities. Museum efforts to accommodate persons with disabilities are thought to increase due to the increase in the amount of people who have disabilities here in the U.S..

Under the Americans with Disabilities Act, museums must make reasonable modifications in its policies, practices, and procedures in order to accommodate individuals with disabilities.  Theses modifications are not required if it would “fundamentally alter” the goods, services, or operations of the public accommodation.  Furthermore, they must provide auxiliary aids and services when they are necessary to ensure effective communication with individuals with hearing, vision, or speech impairments.  “Auxiliary aids” include such services or devices as qualified interpreters, assistive listening headsets, television captioning and decoders, telecommunications devices for deaf persons (TDD’s), videotext displays, readers, taped texts, brailled materials, and large print materials.  Auxiliary aids that would result in an undue burden, (i.e., “significant difficulty or expense”) or in a fundamental alteration in the nature of the goods or services are not required by the regulation. However, a public accommodation must still furnish another auxiliary aid, if available, that does not result in a fundamental alteration or an undue burden.

Here, the museums have been offering modifications through auxiliary aids.  These are wonderful improvements for accommodations. The current drawbacks are that as it stands each museum is only accommodating certain individuals with certain disabilities.  Is it enough to accommodate only certain disabilities, and say that they have been compliant with the Americans with Disabilities Act?

Senate Hearing on Federal Disability Insurance Program

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There is a hearing today on the Federal Disability Insurance Program, which could become the first government benefits program to run out of money. CBS’s 60 Minutes devoted its first segment last night to the upcoming hearing.  The segment features Administrative Law Judges and Senator Tom Coburn of Oklahoma. The Administrative Law Judges stated that attorneys represent many more people now than in the past, and implied this is part of the reason that those people are able to “scam” the system. However, what she failed to mention was that for an unrepresented person, it would be extremely difficult to understand what was needed to show disability. These lawyers are helping people with disabilities, which need this Program to survive, receive benefits that are provided to help them under this Program. Noticeably, absent are people who would have benefited under this program.

 
Furthermore, Senator Coburn stated, “If there’s any job in the economy you can perform, you are not eligible for disability.” However, the statute actually states that disability is the “inability to engage in any substantial activity.” There are many situations (especially for those 50 or older) in which the law itself indicates that they are “disabled” even though they can perform certain jobs. A person 50 years old often can perform work of certain types and still be found “disabled,” because it takes into account many factors, including age, education, and work experience. Furthermore, CBS seemed particularly to sneer at a diagnosis of fibromyalgia because there are not any tests. What they fail to say is that there are criteria for diagnosing it. Specifically, there are 18 trigger points, that when pressed can cause excruciating pain in someone with fibromyalgia. To be diagnosed, you must have that pain in 11 of the 18 spots over a 3 month period, and you have to be diagnosed by an acceptable medical source (an M.D., Psy. D., Ph. D., or a D.O.). Additionally, you must prove that you are no longer capable of doing the work that you used to do because of the fibromyalgia.
There is clearly a problem, not that there is fraud in the system, but that there may not be enough money to continue the system. How should we cover the deficiency?

 

Video of the (three plus hour) hearing, provocatively titled: “Social Security Disability Benefits: Did a Group of Judges, Doctors, and Lawyers Abuse Programs for the Country’s Most Vulnerable?”,can be found here.

For an article criticizing the 60 Minutes segment, see the Los Angeles Times article entitled, “‘60 Minutes’ Shameful Attack on the Disabled.”

For more on the supposed “disability boom,” here is a link to a SLACE Archive post about a This American Life episode titled “Trends with Benefits” and a preview of the episode  from the Planet Money podcast.