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Its constitution protects the right to a basic education,3 and protects individuals from any discrimination, including on the grounds of race and disability.4 Schools Act, 1996 The 1996 Schools Act guides the government’s obligations related to basic education and stipulates the compulsory nature of basic education for all students aged 7 to 15. All children should be in school by 5 to 6 years old for grade R or pre-school.5 All public schools must admit students and “serve their educational requirements without unfairly discriminating in any way.”6 All of South Africa’s nine provinces must also “ensure that there are enough school places so that every child who lives in his or her province can attend school.”7 The government must undertake “all reasonable measures to ensure that the physical facilities at public schools are accessible to disabled persons.”8 1 Department of Social Development, Department of Women, Children and People with Disabilities and United Nations Children's Fund (UNICEF), “Children with Disabilities in South Africa: A Situation Analysis: 2001-2011,” 2012, http://www.unicef.org/southafrica/SAF_resources_sitandisability.pdf (accessed August 5, 2015); Gerison Lansdown, “Disabled Children in South Africa: Progress in Implementing the Convention on the Rights of the Child,” Rights for Disabled Children, (2002), http://www.daa.org.uk/uploads/pdf/SA%20Childrens%20report%20.pdf (accessed August 5, 2015).
2 Dana Donahue and Juan Bornman, “The challenges of realizing inclusive education in South Africa,” South African Journal of Education, vol. 34 (2) (2014), pp. 2-4.
3 Constitution of the Republic of South Africa, Act No.108 of 1996, http://www.gov.za/sites/www.gov.za/files/images/a108pdf, s.29(1)(a).
4 Ibid., s.9(3).
5 South African Schools Act, 1996, Department of Basic Education, Act No 84 of 1996, http://www.education.gov.za/LinkClick.aspx?fileticket=aIolZ6UsZ5U%3D&tabid=185&mid=1828, s. 3 (1).
6 Ibid., s. 5(1).
7 Ibid., s. 3(3).
8 Ibid., s. 12(5).
11 HUMAN RIGHTS WATCH | AUGUST 2015 When determining the admission of a learner with disabilities in a public school, education officials must take into account “the rights and wishes of learners with special education needs,”9 as well as “the rights and wishes of the parents of such learner.”10 The Schools Act also mandates that people with disabilities and experts on “special education needs of learners” be represented in governing bodies of ordinary public schools.11 Education White Paper 6, 2001 In 2001, the government gave itself 20 years to realize the right to inclusive education across the country, via a national policy known as “Education White Paper 6: Special Needs Education.” 12 At the time, the government estimated that more than 280,000 children and youth with disabilities were not in school, although most nongovernmental accounts put the number much higher.13 It pledged to run awareness and enrollment campaigns to boost enrollment of out-of-school children and youth with disabilities of school-going age.14 The policy recognizes that “all children and youth can learn” and outlines key steps to ensure educational opportunities for students who experience or have experienced learning and development barriers, or who have dropped out of learning because of “the inability of the education and training system to accommodate their learning needs.”15 Although the white paper’s subtitle indicates a focus on “Special Needs Education,” the government’s policy made an attempt to move away from a special education and disability-focused model to a system that focused primarily on securing access to education for all children and respecting the importance of inclusion, thereby placing children in three types of “public ordinary schools,” according to their level of needs.
9 Ibid., s. 23.
10 South African Schools Act, s. 5(6).
11Admission Policy for Ordinary Public Schools, Department of Education, General Notice 2432 of 1998, http://www.education.gov.za/LinkClick.aspx?fileticket=12uDPCW6hsg=, s. 23(5), s. 24(1) – (4).
12 Department of Basic Education, “Education White Paper 6: Special Needs Education, Building an inclusive education and training system,” July 2001, http://www.education.gov.za/LinkClick.aspx?fileticket=gVFccZLi/tI= (accessed August 5, 2015).
13 Department of Basic Education, “Education White Paper 6,” p. 9: “The submissions suggested that many disabled children are outside of any learning institution… policy should target approximately 400,000 disabled [sic] children who receive no education and training,” p. 54.
14 Ibid., p. 8, para. 14.
15 Ibid., p. 6, para. 9.
“COMPLICIT IN EXCLUSION” 12 Contradictorily, the policy retained a strong focus on special needs education. To address parents’ and special needs practitioners’ concerns, the government clarified it would strengthen, rather than abolish, special schools for children needing more support.16 The
policy reinforced that:
Following the completion of our audit of special schools, we will develop investment plans to improve the quality of education across all of them… learners with severe disabilities will be accommodated in these vastly improved special schools, as part of an inclusive system.17 On paper, all government schools would offer children the same curriculum, while guaranteeing individual learners adequate assessments and support to ensure their “maximum participation in the education system as a whole.”18 The three types of public
• Mainstream:19 Meant to accommodate students with mild to moderate disabilities who require limited support, where the priority should focus on multi-level classroom instructions to respond to individual learner needs.20 “Education White Paper 6” assumes that mainstream schools would be unable to provide for students requiring intense levels of support, who would need to be accommodated in special schools.21 In 2013, 76,993 students with disabilities were registered in 3,884 mainstream schools.22
• Full-service: Introduced as a new form of ‘neighborhood’ mainstream schools, promoted as schools that would be adapted or built to accommodate children with disabilities and provide children with specialized services and attention in a mainstream environment. According to governmental policy, every district should have at least one full-service school. To cater to children with disabilities, these schools would receive support and expertise from special schools. In 2014, 793 schools were 16 Department of Basic Education, “Education White Paper 6,” p. 3.
18 Department of Basic Education, “Guidelines for Inclusive Learning Programmes,” June 2005, p. 6.
19 Officially referred to as ‘ordinary schools’ in the South African Schools Act. See Department of Basic Education, “Report on the Implementation of Education White Paper 6 on Inclusive Education, An Overview for the Period: 2013-2015,” May 2015, pp. 10-11, 26-27.
20 Department of Basic Education, “Education White Paper 6,” p. 18.
21 Department of Basic Education, “Education White Paper 6,” p. 21.
22 Department of Basic Education, “Report on the Implementation of Education White Paper 6 on Inclusive Education, An Overview for the Period 2013-2015,” May 2015, pp. 13-14.
• Special schools: Meant to accommodate children with high levels of support and needs; many existed prior to the government adopting an inclusive education policy.
According to the government’s policy, most of these schools would turn into “resource centers” to provide assistance and expertise to full-service schools.24 In 2012, the government reported strengthening 295 special schools, converting 98 special schools into resource centers, and building 25 new special schools.25 In 2014, 117,477 students, out of the 231,52126 enrolled in public schools, were enrolled in 453 special schools.27 Within the special schools model, the government introduced a weighting system to respond to the diversity of disabilities in a classroom. The government introduced a method to calculate a maximum student-to-teacher ratio per classroom, weighted according to the type of disability.28 To date, there is no equivalent weighting in mainstream schools. This means mainstream schools do not have applicable regulations to adjust their student-to-teacher ratio to accommodate children with disabilities’ needs in larger classrooms.29 In 2015, the Department of Basic Education admitted it faces very significant challenges in implementing an inclusive education system, particularly ensuring provincial governments comply with Education White Paper 6. In its progress report, released in May 2015, the 23 Ibid., pp. 14-17.
24 Department of Basic Education, “Education White Paper 6,” p. 47.
25 Department of Basic Education, “Progress in the Implementation of Inclusive Education,” presentation to the Portfolio Committee on Basic Education, September 9, 2014.
26 The Department of Basic Education provides two separate enrollment figures in its progress report: 320,399 of “7 to 15 year old children with disabilities attended education institutions” in 2013, and 231,521 of “total number of learners with disabilities enrolled in school (Ord. and SNE).” Department of Basic Education, “Report on the Implementation of Education White Paper 6 on Inclusive Education, An Overview for the Period 2013-2015,” May 2015, p. 20.
27 Department of Basic Education, “Report on the Implementation of Education White Paper 6 on Inclusive Education, An Overview for the Period 2013-2015,” May 2015, pp. 20-22. The Department of Social Development reported 111, 598 learners were enrolled in 444 special schools in 2014. See Department of Social Development, “Draft First Periodic Country Report on the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD),” Notice 445 of 2015, p. 38.
28 According to the weighting system, specific disabilities carry a weight of 1: number of ordinary children. If classes respect the 30-40 children/classroom allocation, this requires smaller classrooms per teacher. Children with autism spectrum disorder have the highest weight, with schools required to follow a 1:6 allocation.
29 Campaign to Promote the Right to Education of Children with Disabilities, 2011, “Factsheet 6: Systemic barriers to inclusive education.” “COMPLICIT IN EXCLUSION” 14 Department of Basic Education advised the government to take “urgent and radical steps” to ensure it is able to reach some of the policy’s milestones by 2019.30 Inter-Departmental Obligations While the Department of Basic Education is responsible for delivering inclusive education in schools, other departments play a key role in implementing this policy.
30 Department of Basic Education, “Progress Report on Inclusive Education and Special Schools,” presentation to Portfolio Committee on Basic Education, June 23, 2015.
15 HUMAN RIGHTS WATCH | AUGUST 2015 Western Cape Ruling, 2010 In 2011, disability associations representing children with severe and profound intellectual disabilities31 in the Western Cape brought a case against the national and provincial Department of Basic Education for failing to accommodate these children in public schools.
Members of the Western Cape Forum for Intellectual Disability had advocated for the right to education of over 1,000 children in their care for over 13 years, to no avail.32 The presiding judge of the High Court of the Western Cape, the superior judicial body in the province, concluded that the government was “infringing the rights of the affected children” by failing to provide them with a basic education and “by not admitting the children concerned to special or other schools.…”33 Moreover, the judge declared that the Western Cape’s Department of Basic Education had failed to “take reasonable measures to make provision for the educational needs of severely and profoundly intellectually disabled children in the Western Cape,” thus breaching their constitutional rights to a basic education, protection from neglect or degradation, equality, and human dignity.34 The court directed South Africa’s government to ensure that every child with severe or profound intellectual disabilities in Western Cape “has affordable access to a basic education of an adequate quality.”35 31 The Mental Health Care Act (Act No. 17 of 2002) defines “severe and profound intellectual disability” as a range of intellectual functioning extending from partial self-maintenance under close supervision, together with limited selfprotection skills in a controlled environment through limited self-care and requiring constant aid and supervision, to severely restricted sensory and motor functioning and requiring nursing care,” as used in Department of Basic Education, “Report on Actions Taken by the Department of Basic Education to Develop a Framework for the Provision of Services to Children with Severe and Profound Intellectual Disability,” July 31, 2012, http://www.saaled.org.za/R2ECWD/docs/Report_on_Services_to_Children_With_SPID_DBE_31_July_2012_(2).pdf (accessed June 9, 2015).
32 Western Cape Forum for Intellectual Disability, “Annual Report 2013-2014: Support through Collaboration and Response to Identified Needs”; Human Rights Watch interview with Tessa Wood, director, and Fatima Shaboodien, chairperson, Western Cape Forum for Intellectual Disability, Cape Town, October 2014.
33 Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa and Government of the Province of the Western Cape, (2011 (5) SA 87 (WCC))  ZAWCHC 544; 18678/2007 (11 November 2010).
34 Ibid., p. 31,para. 52.1.