Human Rights Watch welcomes the opportunity to address Brazil’s Supreme Federal Court to present oral arguments concerning direct action of unconstitutionality nº 6590 of Decree 10.502 which establishes a national policy on special education.
Human Rights Watch is a nongovernmental organization with headquarters in New York City and with offices around the world, including in São Paulo. We conduct research on human rights issues in countries around the world, including the rights of people with disabilities. Human Rights Watch has produced numerous reports highlighting barriers for children and people with disabilities to access their right to education in general and mainstream education systems. We have done work on inclusive education in Italy, Iran, Lebanon, Russia, and South Africa, among other countries.
In 2017 and 2018 we conducted research on the situation of people with disabilities living in institutions in four federal states in Brazil and published a report documenting the obstacles people with disabilities in institutions face in accessing education. We found that most residential institutions do not provide people with high support requirements the opportunity to attend school in the general education system, or in some cases at all.
Throughout the interviews Human Rights Watch conducted with institution staff and government officials, there was a clear tendency to classify persons according to what staff believed was a child’s “level of disability,” which ranged from moderate to severe. Staff working in residential institutions told us that they believed some residents should not receive any education at all because they had so-called “severe disabilities” (muito comprometidos), meaning those who had higher support requirements.
The consequence of this mindset and the lack of general policies to include people with disabilities in the general education system is that thousands of persons with disabilities living in marginalized areas or in residential institutions are left behind with very little or no education. As an example, I met an 18-year-old blind woman in Bahía who was not able to read and write and was yet to learn braille, which can be an important tool for blind people. I also met people with intellectual and developmental disabilities, including people with autism, and people with physical disabilities with high support needs who were also denied education.
Rather than developing policies to remove obstacles to quality, inclusive education for people with disabilities, Decree 10.502 establishing the national policy on special education reinforces the mistaken belief that some people with disabilities would not benefit from an inclusive education and instead should attend segregated programs of education for people with disabilities.
Decree 10.502 is is inconsistent with Brazil’s commitments under the Convention on the Rights of Persons with Disabilities. Brazil has ratified the CRPD and since 2009 all rights established by the CRPD were incorporated in its legal system as constitutional rights. These include the right of people with disabilities to participation through their representative organizations, including close consultations with people with disabilities in the development of policies relating to them, ; the right to a quality, inclusive education; and the right to be free from discrimination and to reasonable accommodation in all education settings.
Decree 10.502 should be considered unconstitutional given it violates rights guaranteed under the CRPD and the CRPD has constitutional status in Brazil.
The CRPD is grounded in respect for the individual autonomy of people with disabilities, and the principle that people with disabilities should be included, on an equal basis with others, in every domain of social life.1 This includes consultation on policies and laws affecting them. According to CRPD article 4.3: “In the development and implementation of legislation and policies to implement the Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.”2 The obligation to consult extends to children as well, through age-appropriate procedures.3 Consultation should also target people who are more marginalized, including those living in institutions or other facilities.4
Close consultation and active involvement of persons with disabilities in issues related to them lies at the core of the CRPD and all policies stemming from it. For years, people with disabilities have been excluded from decision-making processes on issues that have specific impact and relevance for them and considered, at best, as subjects of care, instead of rights holders. Very often, persons with disabilities are still not consulted in the decision-making about matters relating to or affecting their lives, with decisions continuing to be made on their behalf.
Human Rights Watch requested through the access to information law the “explanatory memorandum” from the General Secretariat of the Presidency, the Ministry of Education and the Ministry of Women, Family and Human Rights, all of which participated in drafting Decree No. 10.502. The responses make clear that the government did not comply with its international obligation to consult with people with disabilities, including children with disabilities, about the decree. The only public “consultation” that the government claims to have done was in 2018, through an online poll presenting the drafts of the policy. And even that poll did not meaningfully seek out the views of people with disabilities. Out of 8,329 respondents, only 47 (0.6%) were students who benefited from inclusive education. Responses by 47 persons can in no way be understood as representative of the approximately 1.3 million students in inclusive education in the country.
Decree 10.502 is also inconsistent with Brazil’s obligations to ensure equality and nondiscrimination in education for people with disabilities. The CRPD requires that states guarantee education for children with disabilities in the general education system.5 Article 24 of the CRPD requires that states guarantee persons with disabilities the right to access education on an equal basis with others, meaning without discrimination.6 This includes the right of children with disabilities to access to inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live.7 Governments should ensure that “people with disabilities are not excluded from the general education system on the basis of disability.”8 That right extends to the provision of all education, public and private.9
In implementing the right to education for people with disabilities, the CRPD Committee notes that states should refrain from implementing any legislative or regulatory provision that limits inclusion of people with disabilities on the basis of their impairment or the “degree” of impairment.10
Exclusion can be direct or indirect. Direct exclusion includes any system to classify certain students as “non-educable.”11 It can also mean conditioning inclusion of people with disabilities in general education based on the so-called “extent of the potential of the individual.”12 An example of indirect exclusion would be “imposing a requirement to pass a common test as a condition for school entry without reasonable accommodations and support.”13
Decree 10.502 contains a number of provisions that appear to discriminate against children with disabilities and exclude them from the general education system. These include article 2, sections VI and VII, which appear to encourage authorities to establish specialized schools for students with disabilities who “do not benefit” from inclusive education or create separate classes within mainstream schools for people with disabilities. Also, article 9, sec. III requires the development of guidelines with criteria to identify “students who do not benefit from inclusive mainstream schools.” This opens the door to authorities using the decree to categorize some children as “non-educable” or unfit for inclusive education and seek to exclude them from mainstream schools, requiring them to attend special schools or classrooms, in violation of the Brazilian law on inclusion and international law.
By creating segregated settings for education for children with disabilities, the decree also is inconsistent with Brazil’s international obligations. The right to non-discrimination includes the right not to be segregated.14 The CRPD committee has stated that obligation on states to realize the right to education for people with disabilities “is not compatible with sustaining two systems of education: a mainstream education system and a special/segregated education system.”15 The Committee also notes that “the whole environment of students with disabilities must be designed in a way that fosters inclusion and guarantees their equality.”16
Decree 10.502 develops a system whereby children with disabilities can be placed in a segregated educational setting, rather than ensuring the right to non-discrimination, including the obligation to ensure children have reasonable, individualized accommodations and support to ensure their inclusive education in the mainstream school system.
To realize the right to inclusive education, the CRPD requires states to ensure “reasonable accommodation,” defined as the “necessary and appropriate modification and adjustments” that would ensure people with disabilities the enjoyment of all human rights and freedoms on an equal basis with others. In education, governments should provide reasonable accommodation in the form of supports based on an individual’s requirements to ensure students can access an effective education and maximize academic and social development, consistent with the goal of full inclusion.17 Denial of reasonable accommodation constitutes discrimination.18
In recent years, Brazil has been making significant progress in fulfilling the rights of people with disabilities under its law for inclusion of people with disabilities, which has required that all schools provide high quality inclusive education for people with disabilities, ending the previous ghettoization of students with disabilities in a parallel system of special schools. But the new decree appears to be a direct attack on this effort.
Based on the above, Human Rights Watch requests the Federal Supreme Court of Brazil to declare Decree 10.502 inconsistent with Brazil’s constitutional obligations, above all the failure of the policy to comply with the rights of people with disabilities to a quality, inclusive education in the mainstream school system without discrimination.
