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