The right to education is taken for granted in The Netherlands. But access to education can be denied in the Netherlands. The Dutch Council of State decided twice, in 1999 and in 2005, in my case that access to school can be denied not only on pedagogic-didactic grounds but also on organizational ground1. In 2011 16641 children in the compulsory school age did not attend school. 4000 children in the compulsory school age spend their days in a daycare centre because they are labeled as “non learnable” , vaguely defined in article 5 of Dutch Educational law. In my presentation I want to address 3 questions: 1) Why is it wrong to exclude certain children from education? 2) Is it possible for parents to go to international courts to get access to education and in this way to the status of belonging? 3) Is it possible to get access to mainstream education via these international courts and thus to the status of belonging to mainstream society ?
I analyzed the various international conventions and charters on the right to education and the caseloads of their courts.
In the HUDOC database for caseload of the ECHR on this subject I found three cases in which violation of the access to education has been stated by the ECHR. There are no cases were the access to education has been discussed for a person in the compulsory school age with identified disabilities. In one case (Cosans and Campbell versus UK) the ECHR was very adamant in valuating the right to education of the student over the right of schools to require certain conditions. In the 2 other cases it was clear that refusing a specific ethnic group to mainstream schools was severely condemned by the ECHR referring to free access to mainstream education for everyone. A more important fact though has been found: the reality that it is very difficult to get your case admitted, as long as it is politically too sensitive for the ECHR to rule very differently from the politics in the country of the applicant. Then the ECHR would risk a more negative attitude of that country towards the ECHR. In the case load of the European Committee of Social Rights I found a useful case : Autism-Europe versus France in which the European Committee stated that the State (France) had a positive obligation, as postulated in the European Convention to provide sufficient support for pupils with autism to profit from Education. Reading the Dutch court cases, one realizes that many people, even, or especially, the intellectual ones, agree with the current policy to exclude certain children from human rights
1. It is not ethical to exclude certain children from human rights as the right to education. Even as they apparently never will profit from education. 2. If a child, whose access to school has been denied by the Dutch Courts, will apply at the ECHR, the obstacle of admission will be harder to take than winning the case. Once admitted the chance to win is big, with the Cosans case offering important jurisprudence and with the growing requests for positive obligations for the states as postulated in the European Convention of Human Rights, the European Social Charter of the Council of Europe, the European Union Charter of Fundamental Rights and Freedoms, the UN International Convention of the Rights of Children and the Un International Convention of the Rights of Persons with Disabilities 3. From the caseload of the ECHR there is no jurisprudence for the right to mainstream education for children with disabilities, although it is strongly recommended by the UN ICRPD on ethical grounds and supported by growing scientific evidence as to the academic benefits for both students and society.