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«Human Rights Watch defends the rights of people worldwide. We scrupulously investigate abuses, expose the facts widely, and pressure those with power ...»

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HUMAN

“Complicit in Exclusion”

RIGHTS

South Africa’s Failure to Guarantee an Inclusive Education

for Children with Disabilities

WATCH

“Complicit in Exclusion”

South Africa’s Failure to Guarantee an Inclusive Education for

Children with Disabilities

Copyright © 2015 Human Rights Watch

All rights reserved.

Printed in the United States of America

ISBN: 978-1-6231-32644

Cover design by Rafael Jimenez

Human Rights Watch defends the rights of people worldwide. We scrupulously investigate abuses, expose the facts widely, and pressure those with power to respect rights and secure justice. Human Rights Watch is an independent, international organization that works as part of a vibrant movement to uphold human dignity and advance the cause of human rights for all.

Human Rights Watch is an international organization with staff in more than 40 countries, and offices in Amsterdam, Beirut, Berlin, Brussels, Chicago, Geneva, Goma, Johannesburg, London, Los Angeles, Moscow, Nairobi, New York, Paris, San Francisco, Sydney, Tokyo, Toronto, Tunis, Washington DC, and Zurich.

For more information, please visit our website: http://www.hrw.org AUGUST 2015 978-1-6231-32644 “Complicit in Exclusion” South Africa’s Failure to Guarantee an Inclusive Education for Children with Disabilities Map

Glossary

Summary

Key Findings

Necessary Steps

Key Recommendations

To the Government and National Assembly of South Africa

Methodology

I. Overview: Inclusive Education

Schools Act, 1996

Education White Paper 6, 2001

Western Cape Ruling, 2010

II. International Standards

a. Right to Free and Compulsory Primary Education

b. Right to Access Inclusive, Quality Education

c. Right to Education on an Equal Basis

d. Duty to Ensure Reasonable Accommodation

III. Discriminatory Fees and Expenses

IV. Discrimination in Access to Education

Problematic Referrals

Arbitrary and Unchecked School Decision-Making

Waiting Lists

V. Discrimination due to Lack of Reasonable Accommodation in School

Lack of Appropriate Learning Material and Subjects

VI. Violence, Abuse, and Neglect in Schools

VII. Lack of Quality Education

Lack of Teacher Knowledge, Training, Skills

Lack of Teacher Motivation, Incentives

Lack of Individualized Learning and Planning

Inappropriate Grade Transition

VIII. Lack of Preparation for Life After Basic Education

IX. Other Factors Limiting Inclusive Education

Data Inconsistencies

Inadequate Funding

Lack of Adequate Information and Support Services

Recommendations

Guarantee Right to Inclusive Quality Education for Children and Adults with Disabilities.. 85 Comply with Existing National Laws and Political Commitments

Adopt Stronger Policies and Laws on Inclusive Education

Increase Accountability in the Education System

Allocate Resources and Safeguards to Guarantee Inclusive Education

Increase Global Accountability for the Right to Education for Children with Disabilities.... 93 Acknowledgments

Annex 1: Letters Sent to the Government of South Africa

Annex 2: Response from the Department of Basic Education

Map

–  –  –

Autism spectrum disorder: A lifelong, complex condition that occurs due to disordered brain growth, structure and development. Autism is believed to stem from a genetic predisposition triggered by environmental factors and affects four to five times more boys than girls. Since a person can manifest their autism in a vast number of ways, this condition is now often referred to as "Autism Spectrum Disorders."

Cerebral palsy: A condition that affects movement, posture, and coordination. These problems may be seen at or around birth and mean part of the brain is either not working properly or has not developed normally. This may be due to problems during the first weeks of development in the womb (such as an infection) or the result of a difficult or premature birth. Sometimes there is no obvious cause.

Developmental disability: An umbrella term that refers to any disability starting before the age of 22 and continuing indefinitely (likely lifelong). It limits one or more major life activities such as self-care, language, learning, mobility, self-direction, independent living, or economic self-sufficiency. While this includes intellectual disabilities such as Down Syndrome, it also includes conditions that do not necessarily have a cognitive impairment component, such as cerebral palsy, autism, epilepsy, and other seizure disorders.

Epilepsy: The most common neurological condition, impacting on the body’s nervous system, characterized by unusual electrical activity in the brain, causing unprovoked seizures and sudden, uncontrolled movements. Epilepsy, however, is not a psychological disorder, disease, or illness, and not all cases of epilepsy are lifelong. About 80 percent of people can effectively control their seizures with medication and a healthy lifestyle.

Fetal alcohol syndrome disorder: A group of conditions that can occur in a person whose mother drank alcohol during pregnancy. Fetal alcohol syndrome causes brain damage and growth problems. These effects can include physical problems, behavior and learning problems, or an intellectual disability. Often, a person with this disorder has a combination of these problems.





“COMPLICIT IN EXCLUSION” II Intellectual disability: Characterized by significant limitations in intellectual functioning (reasoning, learning, problem solving) and adaptive behavior, covering a range of everyday social and practical skills. “Intellectual disability” forms a subset of “developmental disability,” but the boundaries are often blurred as many individuals fall into both categories to differing degrees and for different reasons.

Learning disability: Difficulties in learning specific skills, such as reading, language, or math. They affect people's ability to either interpret what they see and hear, or to link information. Children with learning disabilities may also have trouble paying attention and getting along with peers. Learning disabilities are not related to intelligence or educational opportunity.

Public school: South Africa’s Schools Act regulates public schools and lists three types:

public ordinary schools, referred to as “mainstream schools” in the report, schools for students with special education needs, referred to as “special schools” in the report, and schools focused on music and the creative arts, among others. Public schools are not automatically free of charge. School-governing bodies and provincial governments have discretion to charge fees.

Severe and profound disability: A range of intellectual functioning extending from partial self-maintenance under close supervision and limited self-protection skills in a controlled environment, to limited self-care and requiring constant aid and supervision, to severely restricted sensory and motor functioning and requiring nursing care. Children with an intelligence quotient (IQ) of less than 35 are considered to be severely (IQ levels of 20-35) or profoundly (IQ levels of less than 20) intellectually disabled.

–  –  –

Schools are complicit in [the] exclusion. There isn’t really a culture of accessibility institutionalized in the school because we [people with disabilities] have to make it work.

—Edward Ndopu, activist, Johannesburg, November 2014 I can’t imagine him at age 15 unable to write his name. He’s supposed to have [a] life, to be independent. That is why I fought for education for him. I hope one day he will be a doctor…. He is able to do [many] things.

—Maria Mashimbaye, mother of an 11-year-old boy with spina bifida, Johannesburg, October 2014 All children, including those with disabilities, have a right to free and compulsory primary education, and to secondary education and further education or training. All people with disabilities have the right to continue learning and to learn and progress on an equal basis with all people.

South Africa was one of the first countries to ratify the Convention on the Rights of Persons with Disabilities (CRPD) in 2007, and is a party to five key international human rights treaties and two African treaties protecting and guaranteeing children economic and social rights. Since 1996, the government has also introduced strong constitutional protections and legal and policy measures to safeguard every child’s right to education free from discrimination.

In 2015, the government declared it had reached universal enrollment in primary education and achieved the United Nations Millennium Development Goal on education, requiring it to ensure that all girls and boys were in school and had completed a full course of primary education by that year.

This report casts doubt on that assertion.

Building on two previous investigations carried out by Human Rights Watch in 2001 and 2004—Scared at School: Sexual Violence against Girls in South African Schools and

–  –  –

It questions whether the government of South Africa has prioritized children with disabilities’ access to a quality, inclusive education—as it committed to do 13 years ago in its “Education White Paper 6”—and highlights numerous forms of discrimination and obstacles that children with disabilities face in trying to access such education that fosters inclusion, not segregation or integration.

Moreover, evidence in this report suggests the government has not reached “universal” education because it has left over half a million children with disabilities out of school, and hundreds of thousands of children with disabilities, who are presently in school, behind.

Key Findings

Among this report’s key findings:

• Discrimination accessing education: children with disabilities continue to face discrimination when accessing all types of public schools. Schools often decide whether they are willing or able to accommodate students with particular disabilities or needs. In many cases, children with intellectual disabilities, multiple disabilities, and autism or fetal alcohol syndromes are particularly disadvantaged.

In most cases, schools make the ultimate decision—often arbitrary and unchecked— as to who can enroll.

• Discrimination due to a lack of reasonable accommodation in school: many students in mainstream schools face discriminatory physical and attitudinal barriers they need to overcome in order to receive an education. Many students in special schools for children with sensory disabilities do not have access to the same subjects as children in mainstream schools, jeopardizing their access to a full curriculum.

• Discriminatory fees and expenses: children with disabilities who attend special schools pay school fees that children without disabilities do not, and many who attend mainstream schools are asked to pay for their own class assistants as a condition of “COMPLICIT IN EXCLUSION” 2 staying in mainstream classes. Additionally, parents often pay burdensome transport and boarding costs if special schools are far from families and communities, and, in some cases, they must also pay for special food and diapers.

• Violence, abuse, and neglect in schools: students are exposed to violence and abuse in many of South Africa’s schools, but children with disabilities are more vulnerable to such unlawful and abusive practices.

• Lack of quality education: children with disabilities in many public schools receive low quality education in poor learning environments. They continue to be significantly affected by a lack of teacher training and awareness about inclusive education methodologies and the diversity of disabilities, a dearth of understanding and practical training about children’s needs according to their disabilities, and an absence of incentives for teachers to instruct children with disabilities.

• Lack of preparation for life after basic education: the consequences of a lack of inclusive quality learning are particularly visible when adolescents and young adults with disabilities leave school. While a small number of children with disabilities successfully pass the secondary school certificate, or matric, many adolescents and young adults with disabilities stay at home after finishing compulsory education; many lack basic life skills. Their progression into skills-based work, employment, or further education is affected by the type and quality of education available in the special schools they attend.

Segregation and lack of inclusion permeates all levels of South Africa’s education system and reflect fundamental breaches of the Convention on the Rights of Persons with Disabilities. Barriers to inclusive education begin in the very early stages of children’s lives because children are classified according to their disabilities.

Several factors underpin these problems, including undercounting children with disabilities in governmental data, inadequate funding for inclusive education, and lack of adequate information and support services for parents, families, and children with disabilities. For example, Human Rights Watch found many parents faced uncertainty and navigated a complex system without information about their children’s disabilities, abilities, or the best type of education for them. In many cases, nongovernmental organizations (NGOs) plug considerable gaps in the delivery of public services for children who have been left out of the education system.

3 HUMAN RIGHTS WATCH | AUGUST 2015 Necessary Steps Inclusive education focuses on ensuring the whole school environment is designed to foster inclusion, not segregation or integration. It benefits all children. Children with disabilities should be guaranteed equality in the entire process of their education, including by having meaningful choices and opportunities to be accommodated in mainstream schools if they choose, and to receive quality education on an equal basis with, and alongside, children without disabilities.



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