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A mother with her 3-year-old adoptive daughter, who has developmental disabilities. © 2017 Human Rights Watch

(São Paulo) – A recent Brazilian presidential decree risks undermining the right of children with disabilities to a quality, inclusive education, Human Rights Watch said today. Human Rights Watch submitted two amicus briefs to Brazil’s Supreme Court, which is reviewing two separate lawsuits challenging the decree.

Decree 10.502/2020 establishing a National Policy of Special Education, adopted on September 30, threatens to undermine existing laws and policies guaranteeing that people with disabilities can study in Brazil’s mainstream system of education. The decree appears designed to promote the establishment of a separate system of special schools. It also allows for authorities to direct children with disabilities to special schools if children are labeled as not able to “benefit in their development when included in regular inclusive schools and need multiple and continuous supports.”

“People should not be prevented or discouraged from attending school in their communities because they have a disability,” said Carlos Ríos Espinosa, senior disability rights researcher and advocate for Human Rights Watch. “This new decree risks undermining Brazil’s important progress to ensure inclusive education.”

Two challenges to the decree are pending before Brazil’s Supreme Court. In a 17-page amicus brief submitted to the tribunal in each of the cases, Human Rights Watch explains why the decree threatens the rights of people with disabilities to quality, inclusive education on an equal basis with others. The decree contains several provisions that could allow for discrimination and exclusion of children with disabilities from the general education system. Instead of strengthening accommodations to ensure that inclusive education is effective, the decree encourages state and city authorities to establish specialized schools or separate classes in mainstream schools for students with disabilities.

The decree also requires the development of criteria to identify “students who do not benefit from inclusive mainstream schools.” This opens the door to authorities using the decree to justify excluding some children from mainstream schools and requiring or pressuring them to attend special schools or classrooms.

The Brazilian government failed to consult with people with disabilities before issuing this decree. The government is required under Brazilian and international law to hold close consultations with people with disabilities in the development of policies relating to them and the protection of their rights.

Through Brazil’s access to information law, Human Rights Watch obtained the “explanatory memorandum” for the decree. The General Secretariat of the Presidency, the Ministry of Education, and the Ministry of Women, Family and Human Rights participated in drafting the decree. The explanatory memorandum makes clear that the government did not consult with people with disabilities, including children with disabilities, about the decree.

The government claims only to have conducted an online poll in 2018. But that poll did not meaningfully seek out the specific views of people with disabilities. Out of 8,329 respondents, only 47 (0.6 percent) were students with disabilities. And the respondents did not say they wanted to go back to segregated education.

Brazil ratified the UN Convention on the Rights of Persons of Disabilities (CRPD) in 2008. The treaty has constitutional status in Brazil, meaning all the rights it guarantees should also be guaranteed by national law. This includes the right to quality, inclusive education on an equal basis with others and to reasonable accommodations, or support, to facilitate their meaningful education.

An inclusive education system supports the full and effective participation, accessibility, attendance, and achievement of all students, especially those who are at risk of being excluded or marginalized. The education system should provide an individualized educational response, rather than expecting the student to fit the system.

The right to nondiscrimination in education includes the right not to be segregated. Segregation occurs when education for students with disabilities is provided in separate environments, such as special schools, in isolation from students without disabilities. Segregation can also take the form of placing children with disabilities in separate classrooms within mainstream schools.

“The new decree risks segregation of children with disabilities by encouraging separate schools and classrooms, and it goes so far as to allow the authorities to label children with disabilities as unfit for general education,” Ríos Espinosa said. “This decree is a major step in the wrong direction for the rights of people with disabilities.”

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