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Rights Archives: Right to education

John Doe et al. v. Regional School Unit 26, No. 7455/2001, Decision 2014 ME 11

On 30/01/2014 in

Year: 2014 (Date of Decision: 30 January, 2014)

Forum, Country: Supreme Court; United States of America

Standards, Rights: Non-discrimination and equal protection of the law; Right to education; Rights to water and sanitation; LGBTI

Summary Background: Susan Doe is a transgender girl. Her identity as a girl is accepted by all parties and the diagnosis of her gender dysphoria is not disputed. The issue of her use of communal girl’s bathroom was not raised until September 2007, her fifth-grade year, when pressure started to come from other students and their families. As a response to this pressure, the school terminated Susan’s use of the girls’ bathroom and required her to use the single-stall, unisex staff bathroom. In her sixth-grade year at Orono Middle School, she was also denied use of the girl’s bathroom and instead required to use a separate, single-stall bathroom.

Holding: This case is an appeal by John and Jane Doe, the parents of Susan Doe, of a summary judgement from the Superior Court that was in favour of the Regional School Unit 26 against the Doe family. The family argued that the school’s decision to discontinue Susan’s use of a communal bathroom consistent with her gender identity was a violation of the prohibition of discrimination on the ground of sexual orientation and gender identity under the Maine Human Rights Act (MHRA) as amended in 2005. The Regional School Unit 26, for its part, argued that the nondiscrimination provision of the MHRA conflicts with the provisions regulating sanitary facilities in schools entailed in the Maine Revised Statute (20-A M.R.S. section 6501).

The Maine Supreme Judicial Court thus considered two issues: whether there was a conflict between the provisions of the two statutes; and whether the exclusion of Susan Doe from communal girl’s bathroom violated the Maine Human Rights Act.

In particular, the Court looked into the Public Accommodation section in the Maine Human Rights Act (section

The opportunity for every individual to have equal access to places of public accommodation without discrimination because of race, color, sex, sexual orientation, physical or mental disability, religion, ancestry or national origin is recognized as and declared to be a civil right.
and the Sanitary Facilities provision in Maine Revised Statute (20-A M.R.S. §6501). The former prohibited discrimination based on sexual orientation in public accommodations. The Court held that an elementary school is a place of public accommodation. The latter required a “school administrative unit shall provide clean toilets in all school buildings, which shall be…separated according to sex and accessible only by separate entrances and exits.” [paras. 14, 16 and 17 ].

The Court held that these statutes served different purposes and they were reconcilable by adopting a consistent reading. The public-accommodations and educational-opportunities provisions of the MHRA aimed to prohibit discrimination based on sexual orientation and to ensure equal enjoyment of and access to educational opportunities and public accommodations and facilities. The sanitary facilities provision on the other hand aimed to establish cleanliness and maintenance requirements for school bathrooms. It did not purport to establish guidelines for the use of school bathrooms and offered no guidance concerning how gender identity relates to the use of sex-separated facilities. It was the responsibility of each school to make its own policies concerning how to use these public accommodations and to ensure such policies comply with the MHRA [para. 19].

The Court held that the ban on Susan’s use of the girls’ bathroom constituted discrimination based on her sexual orientation. The Court refuted the defence of the School that it had to comply with the provision for sex segregation in sanitary facilities under the M.R.S. The Court asserted that the decision of the school to discontinue the use by Susan of the girl’s bathroom was not based on a change of her status, but solely on complaints by others. The decision was adversely affecting Susan’s psychological wellbeing and educational success. The Court established that this discrimination based on Susan’s sexual orientation violated the MHRA [para. 22].

Link to Full Case: http://www.maine.gov/mhrc/doe.pdf

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ADPF 186 (Arguição de Descumprimento de Preceito Fundamental n.186)

On 26/04/2012 in

Year: 2012 (Date of Decision: 26 April, 2012)

Forum, Country: Supreme Court; Brazil

Standards, Rights: Reasonableness; Proportionality; Non-discrimination and equal protection of the law; Right to education

Summary Background: The issue at stake in this case is the constitutionality of racial quotas in the admission process at the University of Brasilia.

Holding: In this case, the Brazilian Federal Supreme Court declared the racial quotas in University admission processes to be constitutionally lawful. The case referenced national constitutional law as well as the International Convention on the Elimination of All Forms of Racial Discrimination [p. 8]. The Court stated that these affirmative policies set a plural and diversified academic environment, and aimed at overcoming historically entrenched social distortions as well as to promote the principle of de facto equality as applied to racial discrimination in education [p. 47].

The Court addressed the issues of proportionality and reasonability as standards to evaluate the constitutionality of policies aimed at achieving racial equality. The decision concluded that the means employed by the University were distinguished by proportionality and reasonability to the ends pursued, particularly given the transient nature of their scope of application (with the inclusion of a periodic review of as to results) [p. 45].

The President of the Court asserted that the Constitution has given legitimation to every public policy promoting historically and culturally marginalized social sections: “[t]hose are affirmative policies entitling every human being the right to an equal and respectful treatment. This is the way we build up a nation”.[254] During the Court session, the Ministers (the title given to Supreme Court Judges in Brazil) stated that the quotas were compatible with the Constitutional mandate to establish a free, fair and united society and the eradication of social marginalization and inequality.

Additional Comments: The decision confirmed the constitutionality of racially-based affirmative action programs adopted by other universities in Brazil. Brazilian universities who have adopted affirmative action can now preserve these programs.

Link to Full Case: http://www.acoes.ufscar.br/admin/legislacao/arquivos/arquivo13.pdf

Footnotes    (↵ returns to text)

  1. 254. See the information provided by the Federal Tribunal, accessible at: http://www2.stf.jus.br/portalStfInternacional/cms/destaquesClipping.php?sigla=portalStfDestaque_en_us&idConteudo=207138↵
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Control of constitutionality – interlocutory action (Giudizio di legittimità costituzionale in via incidentale)

On 12/12/2011 in

Year: 2011 (Date of Decision: 12 December, 2011)

Forum, Country: Constitutional Court; Italy

Standards, Rights: Non-discrimination and equal protection of the law; Right to health; Right to education; Right to social security; Children; Persons with disabilities; Migrants

Summary Background: Juveniles of non-European Union origin with disabilities and without a long-term resident permit, which can be acquired only after five years of permanent residency, and their families were excluded from the benefits of financial assistance (indennità di frequenza). The allowance aims at helping disabled juveniles and their families who face economic difficulties in covering the medical needs, as well as other special needs they may have, in the area of education and vocational training to promote their integration in society. The Genoa Court of Appeal referred the case to the Constitutional Court for the review of the constitutionality of this discrimination in the assignment of this social benefit (article 80.19 of Law no. 388 of 23 December 2000).

Holding: Pursuant to article 117.1 of the Constitution, which requires legislation to comply with international obligations, the Constitutional Court considered that the exclusion from the assistance scheme of non EU disabled juveniles and their families to be in breach of the right to non-discrimination as guaranteed under article 14 of the ECHR and of article 3 of the Constitution providing for equality of treatment [Considerato in diritto, para. 5]. The Court also found violations of article 32 of the Constitution, protecting the right to health; article 34, protecting the right to education; and article 38, protecting the right to social assistance [Considerato in diritto, para. 1].

Additional Comments: The Court makes an implicit distinction between documented and undocumented migrants. This decision is thus limited to the discrimination between citizens and documented migrants based on the long-term nature of the permit. The Court alludes to the possibility of a different outcome in respect of undocumented migrants, considering the existing ECtHR jurisprudence.

Link to Full Case: http://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2011&numero=329

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Decision of T-051/11 Julio David Perez v. Mayor’s Office of Monteria. File T-2650185

On 04/02/2011 in

Year: 2011 (Date of Decision: 4 February, 2011)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Non-discrimination and equal protection of the law; Right to education; Persons with disabilities

Summary Background: Issue at stake in this case: whether the right to education was violated by denial of availability of a sign interpreter in College due to less than ten hearing impaired students in class. The complainant was a student with hearing disabilities who was adversely affected by the aforementioned denial.

Holding: Referencing elements of the UN and regional human rights law framework (including General Comment 5 by the Committee on Economic, Social and Cultural Rights, the Inter-American Convention of Elimination of all forms of Discrimination Against Person with Disabilities, article

1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community. 2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child. 3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development. 4. States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.
of the Convention on the Right of the Child) [para. IV. 4.2.] as well as articles of the Colombian Constitution [para. IV. 4.1.] and national case law [para. IV. 4.4.], the Constitutional Court held that the complainant’s right to education had been violated.

In addition, the Court concluded that the law that decreed appointing sign language interpreters only in the case of minimum enrolment of hearing-impaired students was unconstitutional, as the mandated requirements were discriminatory and served to deepen the stigmatization and exclusion of students with hearing disabilities [para. V].

The Court required Monteria to make appropriate amendments to the budgets, planning, curricula and organization of its educational institutions to effectively realize the right to education for people with hearing disabilities [para. V]

Link to Full Case: http://www.corteconstitucional.gov.co/relatoria/2011/t-051-11.htm

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Decision T-974/10

On 30/11/2010 in

Year: 2010 (Date of Decision: 30 November, 2010)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Non-discrimination and equal protection of the law; Human dignity; Right to health; Right to education; Children; Persons with disabilities

Summary Background: This case was filed by a mother, on behalf of her intellectually disabled daughter, against EPS Coomeva, a State health care provider in Colombia. The child required an integrated program of therapy and special education and the mother asserted that EPS Coomeva violated her daughter’s fundamental rights to health, development, and bodily integrity in denying a disabled child the comprehensive care she needed. EPS Coomeva argued that it was the State’s obligation to provide educational services, that special education is not a health service but an educational one and that the applicant was required to pay in accordance with her means.

Holding: The holding of the Court was that EPS Coomeva has violated the child’s right to health by refusing to provide comprehensive treatment and was obligated to provide the child with the treatment she needed. The court thus ordered EPS Coomeva to coordinate with local education agencies to attain a comprehensive medical assessment of the minor, as well as to ascertain the medical and educational services required for her disability [paras. 6.4 and 7].

The Court cited Colombia’s obligations under the ICESCR and the Convention on the Rights of Persons with Disabilities, requiring the State to ensure that persons with disabilities are not denied educational opportunities on the basis of disability, as well as the obligation to ensure reasonable accommodation based on each individual’s requirements [paras. 5.6.1. and 5.6.2.2.2]. On the issue of State’s obligation to provide education, the Court affirmed that the local governments have to guarantee availability, access, permanence, and quality while providing education [para. 5.5]. The Court held that education for people with disabilities should preferably be inclusive and special education should be a last resort, but necessary if the same level of education cannot be provided at regular institutions [para. 5.6.2.2].

The Court also highlighted that children are subject to a special constitutional protection and that this is particularly enhanced with regards to children with disabilities [para. 5.3]. For vulnerable populations, such as persons with disabilities, health providers needed to provide comprehensive care comprising services not included in the State’s mandatory plans. The existence of specialized educational institutions should not be an excuse to deny access to comprehensive medical treatment for children with intellectual disabilities.

As per the Court’s analysis, in the case of a person with intellectual disabilities, State obligations related to health and education must be analyzed in a holistic manner to ensure dignity and equality. The Court observed that there were gaps in the cooperation between health and education agencies as regards protection of disabled people. Therefore, the Court ordered the Ministry of Education and the Ministry of Social Protection to collaborate and in the process thereof, invite the participation of civil society, so as to define their areas of work, create better synergy and plan appropriate mechanisms to meet the needs of the population with disabilities [paras. 6 and 7].

Link to Full Case: http://www.corteconstitucional.gov.co/relatoria/2010/t-974-10.htm

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Western Cape Forum for Intellectual Disability v. Government of the Republic of South Africa, Government of the Province of Western Cape, Case no: 18678/2007

On 11/11/2010 in

Year: 2010 (Date of Decision: 11 November, 2010)

Forum, Country: High Court; South Africa

Standards, Rights: Reasonableness; Non-discrimination and equal protection of the law; Human dignity; Negligence; Right to education; Persons with disabilities

SummaryBackground: This case concerned the rights of severely and profoundly intellectually disabled children in the Western Cape and allegations that their educational needs were not being adequately met by the South African national and Western Cape Governments. Children with such disabilities were unable to receive care except at limited places in centres run by NGOs, which were insufficient in number. Children who could not obtain access to these centres received no education at all. It was contended that State educational provisions made for these children were very much reduced as compared to other children and any provisions made were inadequate to cater to the educational needs of the affected children.

Holding: The Court held that the respondents (the South African and West Cape Governments) had failed to take reasonable measures to make provision for the educational needs of severely and profoundly intellectually disabled children in the Western Cape, in breach of the rights of children to a basic education, protection from neglect or degradation, equality, human dignity [para. 52 (1)].

On the right to education, the Court found that the State had violated this right, both in respect of the positive dimension of the right, by failing to provide the affected children with a basic education and also in respect of the negative dimension of the right, by not admitting the children concerned to special or other schools [para. 45]. The Court found no justification for this violation. The State failed to establish that their policies were reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom [para. 42].

The Court additionally held that the children’s rights to dignity had been violated as the discrimination they have faced had in effect caused them to be marginalized and ignored [para. 46]. The failure to provide the children with education placed them at the risk of neglect, as it meant that they often had to be educated by parents who did not have the skills to do so and are already under strain. The inability of the children to develop to their own potential, however limited that may be, is a form of degradation. This unjustifiably violated their right of protection from neglect and degradation [paras. 46 and 47].

In light of these findings, the judgement required the State to take reasonable measures (including interim steps) to ensure access to education for every child in the Western Cape who was severely and profoundly intellectually disabled, provide necessary funds for special care centres and transportation of the children to these centres and to develop a plan of action to remedy the aforementioned violations [para. 52].

Additional Comments: The national Government chose not to appeal this decision.

Link to Full Case: http://www.saflii.org/za/cases/ZAWCHC/2010/544.html

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