The submitting parties are concerned with the continuing exclusion of children and young people with disabilities from regular education and from adequate access to resources for supported learning in order to enjoy a qualitatively good education.
The right to education is ‘both a human right in itself and an indispensable means of realizing other rights’, and ‘an empowerment right’228 is especially important to children with a disability who when denied the opportunity of participating in mainstream education often remain marginalized for life. The right to education is not sufficiently anchored in the Dutch Constitution. Article 23 of the Dutch Constitution concerning education describes the responsibility of the national government to provide education as a ‘continuing responsibility’ but does not frame it as a right born by children and students themselves. The recently enacted Appropriate Education Act does not provide a right to be included in mainstream settings, nor does it provide a right to adequate support in order to receive a qualitatively good education. Recent research in the Netherlands demonstrates that many children with disabilities are almost automatically referred to schools for special education229 and that both mainstream and special schools are often unable to provide tailored educational support where necessary.230 15,000 children are not receiving education at all, as there is no adequate option for them in the educational system, or are considered ‘ineducable’ and are officially exempted from school attendance in favour of enrolment in day care settings in the care sector.231 Use of this exemption provision in the Mandatory School Attendance Act is on the increase232.
This is despite the adoption of the Appropriate Education Act (Wet Passend Onderwijs) referred to by the government in para. 32 of its submissions.233 In its submission the government fails to mention that the ‘duty to care’ of school to provide for education of children with disabilities is limited by law enabling schools to refuse children.234 Insufficient mainstream placements are available to ensure that all children attend a mainstream school. As a result many children are de facto excluded of the right of education. Schools are also insufficiently flexible in curriculum adaptation, resulting in a lack of adaptability and resulting exclusion from pupils who require more tailoring in order to succeed at school. The Children’s Ombudsman describes this lack of flexibility as a fundamental problem for children with disabilities.235
Schools are also insufficiently accessible. Norms for making schools accessible are provided in Bouwbesluit 2012 and the Wet Milieubeheer but contain no rules for existing buildings. Rules permitting municipal governments to order accessibility adaptations to existing buildings are discretionary and open-ended.236
Finally, full inclusion of children with disabilities is obstructed by the legal framework of the Equal treatment Act of persons with disabilities and chronic illness (WGBH/CZ). This Act considers special schools for children with disabilities an exception to the prohibition of discrimination (art. 3 subsection c WGBH/CZ).237 This legal exception to the prohibition of discrimination significantly reduces the scope of the prohibition of discrimination contrary to Article 2 paragraph ICESCR
(CESCR General Comment no. 5) and article 5 of the CRPD as well as the right to inclusive education which is also guaranteed by the UN Convention on Rights of Persons with Disabilities. This exception to the prohibition of discrimination not only prevents effective inclusion of persons with disabilities in society but limits their effective enjoyment of ESC-rights on equal footing in violation of the human
rights approach of disability.
The submitting parties recommend the Committee to:
call upon the Dutch government to abolish the legal practice of branding children as ‘ineducable’ and exclude them from the right of education;
The phenomenon of ‘black’ and ‘white’ schools in the Netherlands is persistent. In practice migrant children are often not welcome in ‘white’ schools: admission procedures are not always transparent school and directors fear low scores. Research found that school boards who actively counteract segregation have a positive effect on mixed student population. At the same time, researchers found that there is little interest with school boards for this issue, negatively influencing segregation.238 The government is no longer actively involved in the issue.239
The submitting parties recommend the Committee to urge the Dutch government to actively investigate and monitor discriminatory admittance practices with regard to ethnic segregation.
The submitting parties recommend the Committee to ask the Dutch government what measures it is taking to reduce segregation in education.