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The Capability Approach and the Right to Education for Persons with Disabilities

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The Capability Approach and the Right to Education for Persons with Disabilities Social Inclusion (ISSN: 2183–2803) 2018, Volume 6, Issue 1, Pages 29–39 DOI: 10.17645/si.v6i1.1193 Article Equality of What? The Capability Approach and the Right to Education for Persons with Disabilities Andrea Broderick Department of International and European Law, Maastricht University, 6211 LH Maastricht, The Netherlands; E-Mail: [email protected] Submitted: 29 September 2017 | Accepted: 27 December 2017 | Published: 26 March 2018 Abstract The right to education is indispensable in unlocking other substantive human rights and in ensuring full and equal partici- pation of persons with disabilities in mainstream society. The cornerstone of Article 24 of the United Nations Convention on the Rights of Persons with Disabilities seeks to ensure access to inclusive education for persons with disabilities on an equal basis with others as well as the full development of human potential. Since the adoption of the Convention, there has been much theorising about inclusive education; however, there has been little focus on the meaning of equal- ity in the context of the right to education for persons with disabilities. The capability approach, developed by Amartya Sen and further refined by Martha Nussbaum, focuses on ensuring equality and developing human potential. It is of- ten viewed as a tool that can be used to overcome the limitations of traditional equality assessments in the educational sphere, which only measure resources and outcomes. This article explores whether the capability approach can offer new insights into the vision of educational equality contained in the Convention and how that vision can be implemented at the national level. Keywords capability approach; CRPD; disability; education; equality; inclusive education; United Nations Issue This article is part of the issue “Disability Equality: In Theory and Practice”, edited by Mark Priestley (University of Leeds, UK) and Lisa Waddington (Maastricht University, The Netherlands). © 2018 by the author; licensee Cogitatio (Lisbon, Portugal). This article is licensed under a Creative Commons Attribu- tion 4.0 International License (CC BY). 1. Introduction The capability approach encompasses a ‘partial theory of social justice’ (Nussbaum, 2009, p. 232) and a norma- The question ‘equality of what?’ is often posed during tive framework for the assessment of human develop- debates on political philosophy and interdisciplinary de- ment. In the last decade, scholars in the field of educa- bates on distributive justice. It concerns a decision as to tion studies have turned to the capability approach to the elements which governmental policies and institu- analyse the theory and provision of education for those tional structures should aim to equalise. The same ques- with special needs and/or disabilities (see, among others, tion was posed by economist-philosopher Amartya Sen, Ainscow & Farrell, 2002; Florian, Dee, & Devecchi, 2008; who first introduced his theory of ‘basic capability equal- Nind, Rix, Sheehy, & Simmons, 2005). Several scholars ity’ in his Tanner Lectures (Sen, 1979, p. 218): have written about inclusive education, with a particu- lar focus on capabilities (see, among others, Norwich, I believe what is at issue is the interpretation of needs 2014; Robeyns, 2003, 2006; Rogers, 2013; Saito, 2003; in the form of basic capabilities. This interpretation of Sarojini Hart, 2012; Terzi, 2005, 2007, 2014; Toson, Bur- needs and interests is often implicit in the demand for rello, & Knollman, 2013; Trani, Bakhshi, Ballanca, Biggeri, equality. This type of equality I shall call “basic capa- & Marchetta, 2011; Walker, 2006a; Walker & Unterhal- bility equality”. ter, 2007). Other scholars (Arnardóttir, 2011; Broderick, Social Inclusion, 2018, Volume 6, Issue 1, Pages 29–39 29 2014; Broderick & Quinlivan, 2017; De Beco, 2014, 2016; Committee); teleological interpretation according to the Della Fina, 2017; Waddington & Toepke, 2014) have ad- object and purpose of the Convention; and supplemen- dressed the right to education in Article 24 of the United tary means of interpretation in line with the drafting his- Nations Convention on the Rights of Persons with Dis- tory of the Convention (Ad-Hoc CRPD Committee, 2005). abilities (CRPD or Convention). However, to date, there A comparative normative approach is used in drawing is scant research on the parallels between the capability out the aspects of convergence between Article 24 CRPD approach and Article 24 CRPD (see, De Beco, 2017). and the capability approach. It is worth noting that the This article demonstrates that many of the under- selection of capabilities for the above-mentioned four- lying premises of the capability approach correlate to part framework is inspired by the norms and general prin- those contained in Article 24 CRPD. As a result, this ar- ciples underlying the CRPD as a whole and, in particular, ticle proposes a four-part framework, detailing insights those contained in Article 24. The case study examples into the vision of educational equality contained in the that are used to illustrate the translation of inclusive ed- Convention through focussing on ‘the what’; ‘the why’; ucation into practice are drawn from a selection of sec- ‘the who’ and ‘the how’ of inclusive education. The first ondary sources highlighting best practice in the field. limb of the framework (‘the what’) outlines how capabil- ity equality can be invoked to shed light on the meaning 2. The Capability Approach of equality espoused by Article 24 CRPD. The second limb of the framework (‘the why’) draws on the underlying In outlining his capability approach, Sen argued that goals of inclusive education to outline the most relevant neither utilitarian equality nor total utility equality nor capabilities to be developed through inclusive education. Rawlsian equality sufficiently capture real differences The third limb of the framework (‘the who’) is drawn on amongst human beings (Sen, 1979, pp. 215–219), since to extract information on where to set the focus lens the agents in such theories are generally deemed to be of inclusion. This can reveal invaluable lessons regarding free, equal and independent beings. The capability ap- pedagogical and assessment processes. The fourth limb proach, on the other hand, acknowledges that society is of the framework (‘the how’) reveals how the inclusion made up of individuals with unequal abilities and needs of all learners can potentially be achieved through the and, therefore, its basic underlying premise facilitates mechanism of Universal Design for Learning (UDL). Af- its application to disability studies. Sen’s capability ap- ter outlining the aforementioned four-part framework, proach has been refined by philosopher Martha Nuss- attention is paid to how that framework can be imple- baum, among others. The relevant distinctions between mented at the national level. Sen and Nussbaum’s approaches are highlighted below. This article is divided into seven sections. Following The first basic conceptual distinction within the this first introductory section, the second section of the framework of the capability approach is between capa- article outlines the key elements of the capability ap- bilities, on the one hand, and functionings and resources, proach. The third section introduces Article 24 CRPD, fo- on the other hand. Capabilities represent not the actual cussing on the goals of inclusive education as well as physical or mental ability of individuals but rather the in- the measures required to achieve inclusion. In section nate potential of each individual to achieve various out- four of the article, a four-part framework is put forward, comes, defined as ‘what people are actually able to do which outlines the vision of educational equality con- and to be’ (Nussbaum, 2000, p. 5) when given real op- tained in Article 24 CRPD and highlights essential fo- portunities. Functionings represent various states of ‘do- cal points for achieving inclusive education. Section five ings and beings’ (Sen, 1992, p. 40), resulting in a particu- traces the theory of that framework into practice, while lar outcome or achievement (reading, writing, communi- section six analyses whether the capability approach pro- cation, etc.), while ‘resources’ are the means by which vides a complete guide to CRPD implementation. Finally, to achieve the outcome. The capability approach high- section seven presents concluding remarks. lights several ‘conversion factors’ (Sen, 1992, p. 100), The methodology used to highlight the salient fea- such as environmental factors and social norms. These tures of the capability approach consists of descriptive ‘contribute to the determination of the individual capa- desk-based research based on secondary sources. In bility set’ (Trani et al., 2011, p. 152) and may affect the analysing the obligations contained in Article 24 CRPD rate of conversion of resources into functionings. In the and inspiring the aforementioned four-part framework, disability context, this mirrors the social-contextual per- legal doctrinal research is conducted. Recourse is had to spective on disability, whereby disability is viewed as the rules of treaty interpretation contained in the Vienna an interaction between individual impairments and the Convention on the Law of Treaties (VCLT). The interpreta- environment, attitudinal barriers, etc. (preamble, para. tive tools in Articles 31 and 32 VCLT are as follows: literal e CRPD). interpretation according to the words contained in the Human
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