This series of blog posts discusses some of the terms used in human rights law. Reasonable accommodation, Wikipedia says, is adjustments that are made to a system to make the system fairer for a person with disability (PWD). It is defined by the United Nations Convention on the Rights of Persons with Disabilities (CRPD) as:
"Reasonable accommodation" means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.Refusal to make an accommodation is discrimination. The CRPD defines reasonable accommodation in relation to discrimination in the following way:
“Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.The Ugandan Paul Emong in his 2014 thesis The Realisation of Human Rights for Disabled People in Higher Education in Uganda: A Critical Analysis Drawing on the UNConvention on the Rights of Persons with Disabilities presents an understanding of the CRPD from the Ugandan point of view. Emong says:
Under international human rights law, the concept reasonable accommodation appears new, to have been introduced by the CRPD. This is not the case, prior to the CRPD, the concept reasonable accommodation had already been recognised and applied in some equality laws, for example in the British, US, Canada and South Africa equality laws. Generally, reasonable accommodation means an essential practice to alleviate the disadvantage that arises for disabled people in the application of conventional requirements or systems. Therefore, a duty to provide reasonable accommodation is triggered where application of such a conventional requirements or systems put a disabled person at a substantial disadvantage in comparison with persons who are not disabled. In this case, the duty bearer is to take necessary and appropriate steps to ensure specific needs of a disabled person are taken care of, with aim of enabling that person equally participate like others. However, the reasonable steps should not impose a disproportionate or undue burden to the duty bearer.
Commentaries on reasonable accommodation seem to have categorised it into two, i.e. reactive reasonable accommodation and proactive (anticipatory) reasonable accommodation. The difference between the two lies on how each is triggered and the effects each has in removing disabling barriers in an institution. Reactive approach means responding to the immediate barriers facing the particular disabled person– providing that doing so would be reasonable.
In the field of education, in light of the different ways different impairments require different approaches in accommodating disabled people in the institution, reactive reasonable accommodation is very much needed in order to provide effective individualised support measures to any disabled person for whom a need is found. For case of higher education for example, if the lecture room is inaccessible for a wheelchair user, then the lecture where such a person attends should be reallocated to an accessible room. Reactive reasonable accommodation is very much recognised by the CRPD. The CRPD requires States parties to ensure that, reasonable accommodation of the individual‘s requirements is provided.
The proactive approach requires institutions to plan in advance for disabled people even if they have not yet received them. An institution is to anticipate barriers which will create difficulties for broad groups of disabled students relating to the institution's practices, provision, or criterion or the physical features of the premises and take steps to remove or reduce those barriers, whether or not they have disabled people. Therefore, proactive reasonable accommodation is fundamental in removing discrimination that arises from the systemic, structural, architectural or physical barriers. The proactive reasonable accommodation underlines the social model of disability as its focus is removing barriers rather than addressing an individual situation. Also, as noted in the discussion of indirect discrimination, these barriers often are source of discrimination against disabled people but they are often not easily detected and take time to remove. But it should be noted that proactive reasonable accommodation alone are not sufficient in effectively accommodating disabled people in the institutions. There is always room to take steps to undertake reactive accommodation as well. Therefore, the medical model understanding of disability is also useful in meeting a duty to provide reasonable accommodation.
Drawing from the GB equality law, for purposes explaining this concept better in relation to higher education, reasonable accommodation is triggered where a higher education provider‘s practices, provisions or criteria, physical feature or absence of auxiliary aid or service put a disabled person at a substantial disadvantage in comparison with persons who are not disabled. In that case, it is required that, the higher education (provider) is to take such steps as it is reasonable to have to take to avoid the disadvantage. For practices, criterion or provision, the institution is expected to change them, waive the criterion or adopt flexibility in the individual approach while maintaining a competence standard. A reasonable step might include removing the physical feature, altering it, or providing a reasonable means of avoiding it. It might be a reasonable step is to provide an auxiliary aid or service. Where the duty relates to the provision of information, the reasonable step might be to provide the information in an accessible format. For the costs of providing the adjustments, a duty bearer is not to pass the costs of complying with the duty to the disabled person.
Therefore, it can be seen that, an obligation to undertake reasonable accommodation provides a wide ranging of scope of removing barriers to disability inclusion in higher education. As the obligation entails eliminating disadvantage arising from practices, provisions or criteria, physical features and absence of auxiliary aids or services and to provide disabled students access to higher education as close as reasonably possible to the standard normally offered to students at large. In conclusion, to an institution of higher education a duty to provide reasonable accommodation entails an institution ensuring that learning, teaching and assessment of disabled students measure the true academic achievement of disabled students regardless of impairment. It also aims at developing higher education institutions which include every category of disability- an inclusive education approach. However, fulfilling the duty to reasonable accommodation can pose a challenge to institutions especially in the developing countries as meeting these duties are costly, for example meeting accessibility requirements. Even knowledge about disability requirements can also be another challenge as this can also lacking in some institutions.
Proactive Approach to Equality
Fredman identifies two approaches that an equality law should enforce in order to effectively develop an inclusive society or bring about genuine equality -non-discrimination. These approaches are individual remedies approach and proactive model of eliminating discrimination. The individual remedies approach is dealing with discrimination through litigation or conciliation, triggered by a breach by an institution of any of the equality formulations such as direct discrimination, indirect discrimination and failure to provide reactive reasonable accommodation.
The proactive approach means that the equality law should mandate the strategic approaches to address the institutionalized and structural dynamics of exclusion, and inequality. Thus, the proactive model of eliminating discrimination recognises the fact that societal discrimination extends well beyond individual acts and therefore, requires scrutiny of public and private decision making and institutional processes that create and reproduce exclusion. In this way, the proactive model mandates the involvement of both the institutions (source of discrimination) and the marginalised (victim of discrimination) in the process of removing inequality. This approach, in essence brings about consultation, empowerment and recognition of the individual or group facing marginalization in society in the process of addressing their discrimination.
Compared to proactive model of discrimination, it can therefore be stated that, while individual remedies approach is an essential tool to protect the rights of individuals or groups of disabled people, it is not an effective means of developing a culture of human rights for disabled people in society. In relation to disability, individual remedies approach has serious shortfalls of bringing genuine equality, grounded on the difficulty related to most disabled people getting justice through courts and its limitations of addressing critical barriers to disability discrimination. Litigation is both a technical and an expensive matter that most individuals would otherwise shy to take. Yet, the enforcement of the legislation relies on the willingness and the capacity of the individuals to raise complaints to the courts. Even if they there are bodies willing to assist facing discrimination in litigation, these bodies also do not support all possible cases of discrimination. Literature suggests that these bodies are mainly interested in supporting litigation of strategic cases. Those cases for which they feel its judicial interpretation can bring broad social and policy changes, extend or strengthen human rights and protection from discrimination, clarify an important point of law or have significant impact on a particular sector. The reason for prioritising strategic litigation is possibly as a way of maximising resources.
Most often the remedy an individual claimant receives if he/she succeeds in court is either compensation, or sometimes the alleged discriminator is forced to stop the act or restrain that person from committing the offence. Arguably, both remedies may not necessarily lead to an institution removing systemic discrimination. Moreover, the claimant needs to prove that they faced discrimination in order to be compensated. For disabled people, this is even more problematic on grounds of proving a disability and getting a suitable comparator as discussed before. Such hurdles make it rather unpredictable whether a disabled person is protected by an equality law or not.
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| It's unfair that I am going to miss exams because we don't have roads and good transport systems |
The idea of integrating children with disabilities (CWDs) with their non disabled counterparts is important for reducing stigma and prejudice. In Uganda this is called inclusive education. This 2012 article, Inclusive education: a right not a privilege, introduces the concept. The newspaper article makes the point that under article 24 of the CRPD, education should be about developing personality and character to take part in a free society. Reasonable accommodation is providing personalised support programmes in a fully inclusive education system. This article shows where reasonable accommodation fits into human rights law:
Millennium Development Goal 2 requires that, by 2015, all children everywhere are able to complete a full course of primary education. The long-term effects of the 2008-09 economic crisis, and the subsequent financial instability, have meant this target will not be reached as many families are forced into greater poverty and can no longer afford the ‘luxury’ of sending their children to school. This is particularly true for children with disabilities.
Even before 2009, when progress was being made in increasing the numbers of children enrolling in primary schools, in countries attaining 90-95 percent enrolment, upwards of 40 percent of those not in school were children with disabilities. UNICEF estimates that over 90 percent of disabled children in the Global South do not attend school – this figure is even higher if they are also girls. On top of this, children with disabilities have a high drop-out rate because schools fail to adapt their teaching so they can achieve. As a result, relatively few disabled pupils transfer to secondary and higher education, and the life cycles of poverty are reinforced as large numbers of young people with disabilities fail to make a decent living.
Yet Article 24 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which came into force on 3 May 2008, requires that signatory nations ensure that all children with disabilities can fully participate in the state education. So far, 115 countries have ratified this treaty. While education for all is an obligation subject to progressive realisation and dependent on the resources available, countries that have signed up to the convention need to be planning to transform their school systems to meet the needs of all learners.
Article 24 also stipulates that education for children and young people with disabilities should be directed towards developing “their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential” thereby “enabling persons with disabilities to participate effectively in a free society”. “Reasonable accommodation” of an individual’s requirements should be provided, including the implementation of personalised support programmes. All this is to be delivered within an education system that is inclusive at all levels – primary, secondary and tertiary.
In addition, Article 9 of the UNCRPD states that school buildings, transportation, information and communications must be made fully accessible on an equal basis. According to Article 8, which deals with awareness-raising, the education system should instil in all pupils from an early age a positive attitude towards people with disabilities in order to combat stereotypes and prejudices. Signatories are obliged to ensure that teachers are trained in the relevant means and methods to make the above possible.
That the implementation of this basic right to education for people with disabilities presents a major challenge was highlighted by the World Health Organization (WHO). In June 2011, WHO published the ‘World Report on Disability’, revising upwards its estimate of the number of people with disabilities in the world from 10 to 15 percent, meaning that there are now more than 1 billion disabled people in the world. What this also indicates is that, in the Global South, where 70 percent of the population is under 30, there are some 300-400 million children with disabilities. According to the Washington Group on Disability Statistics, a number of recent door-to-door surveys in Zambia and Uganda found that 14 percent of children have disabilities. Many states such as India and Pakistan officially record only 2 to 3 percent of children with disabilities. This under-representation of the true figure leads to insufficient resources being set aside and inadequate planning to implement the inclusion of children with disabilities in mainstream schools.
Another issue is lack of clarity about what constitutes inclusive education. Inclusion should not be confused with integration in which the disabled child has to manage in a largely unadapted mainstream school, without adjustments and support, and with teachers and peers not prepared to welcome and support them. Because integration tends not to be successful, some posit that children with disabilities need to be educated in special schools, which are very resource intensive and can only ever be available to the very few. These types of institutions do not prepare disabled students for life in society, and have been shown to mainly provide an inferior education when compared to good inclusive mainstream schools.
UNESCO defines inclusive education as “a process of addressing and responding to the diversity of needs of all learners through increasing participation in learning, cultures and communities, and reducing exclusion within and from education. It involves changes and modifications in content, approaches, structures and strategies, with a common vision which covers all children of appropriate age range and a conviction that it is the responsibility of the regular system to educate all children.” While this serves as a good overall definition, a twin-track approach to include children with disabilities that identifies the specific barriers they face and prepares teachers to deal with them is also needed.
Throughout the world there are examples of good practice in which inclusive education has taken root in schools, districts or whole countries. A number of lessons can be drawn from their success to help develop inclusive education elsewhere. For example, involving parents of children with disabilities and disabled people’s organisations (DPOs), as they have a greater understanding of what is required to challenge widespread prejudices. There also needs to be more training for parents and disabled people, as well as improved instruction for teachers on inclusive education and how to incorporate child-centred approaches in the classroom. Rallying local communities to campaign for improved resources can also help, for example, to make local buildings more accessible and ‘disabled-friendly’. While all the above are important, peer support has been shown to be the biggest and most effective resource for inclusion, so mobilising peers is an essential requirement.
Funding is another area that needs overhauling. Corruption needs to be challenged and eradicated. There must be an increase in aid and donations from the international community, with control of these funds handed over to DPOs and parents. Furthermore, available funding should be targeted for low-tech solutions to help disabled people improve their quality of life.
And what of the role of governments and policy-makers? They have the power to ensure that there is one ministry for all children’s education; that there is a flexible grade system and child-centred curriculum; that incentives for families to enrol their disabled children are provided; that disabled teachers receive adequate training and are recruited by schools; and that inclusive education is effectively promoted.
Developing inclusive education for children with disabilities has the potential to improve the school system for all. Fundamentally, inclusive education is a question of attitudinal change at every level of society. Without this transformation, human rights will continue to be trampled on and a great deal of human potential will go to waste.
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