n Comparative and International Law Journal of Southern Africa - Inclusion of learners with severe intellectual disabilities in basic education under a transformative constitution : a critical analysis




The 1996 South African Constitution is transformative. It was adopted to address the injustices of the past by establishing an egalitarian society characterised by non-discrimination, respect for human rights, dignity and equality for all. This paper critically explores the extent to which the Constitution had been transformative for learners with severe intellectual disabilities. Answering this question will entail addressing the extent to which legal and education policies and practices are in line with article 24 of the Convention on the Rights of Persons with Disabilities (CRPD) which compels state parties to provide the right to inclusive education for persons with disabilities (PWDs). This paper will distinguish between a segregated education system and an inclusive education system. These models will provide the context of the paper's analysis. Based on the social constructionism theory, a segregated education system gathers all learners with disabilities in one school (for special needs learners) away from 'able bodied' learners. This approach is also informed by an essentialist theory which regards disability as pathology. It is the medical model of disability. On the other hand an inclusive education system recognises that children have different abilities and are all gathered in the same classroom where there is a universal learning design (ULD) to ensure the success of all. This model is characterised by support to all learners, teachers and the system as a whole, to cater for various learning needs in the classroom. Informed by neurological science, the ULD method seeks to understand how people learn through memory, language, perception, problem solving and thinking. Nevertheless, the concept of inclusive education (anchored in the ULD) is evolving with numerous schools of thought advocating for the implementation of various approaches including the rule of 'separate but equal' as an appropriate exception. This entails the placement of learners with severe disabilities in special schools for their own interest. Given the evolving nature of inclusive education, the paper also examines how inclusive education is responsive to a human rights model of disability especially in the case of learners with severe intellectual disabilities. As part of assessing the inclusion of learners with severe intellectual disabilities in the South African basic education, the paper critically examines legal and policy documents as well as state practice. Among the criteria used when determining whether education is inclusive is whether it is discriminatory and whether it provides learners who have severe intellectual disabilities with adequate resources for learning as their counterparts with mild or with no disabilities. The paper relies on local and foreign jurisprudence on equality and inclusive education to inform the discussion. Ultimately, it argues that the South African basic education system is yet to be inclusive of learners with severe intellectual disabilities.


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