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Committee on the Rights of Persons with Disabilities.
Adopted by the Committee at its 18th session. At its 18th session (14 Aug 2017 – 1 Sep 2017), the Committee decided that this report would be published after the expiry of the period provided for in Article 6, paragraph 4, of the Optional Protocol to the Convention on the Rights of Persons with Disabilities.

Index

• A. Establishment of the research.
• B. International human rights standards 3
• C. Cooperation of the State party.
• D. Visit to the State party.
• E. Sources of information and confidentiality of the procedure.
• F. Contextual background of the research.
• G. Summary of findings.
• H. Conclusions and recommendations.

A. Establishment of the research

1. The Committee on the Rights of Persons with Disabilities established at its 17th session (CRPD/C/17/2) that any draft document related to its activities under the Convention and its Optional Protocol that required its discussion and approval by the Committee should be translated into the Committee’s working languages. Activities related to the inquiry procedures, including the Committee’s report, are provided for in articles 6 and 7 of the Optional Protocol and article 89 of the Committee’s rules of procedure.

2. The present inquiry examines alleged grave or systematic violations of article 24 (right to education) of the Convention by the State party, namely the alleged structural exclusion and segregation of persons with disabilities from the general education system on the grounds of disability, from 2011 (date of the examination of the State party’s initial report) to the date of adoption of the present report.

3. In September 2014, the Committee received information from a disability persons’ organization alleging grave and systematic violations of article 24 of the Convention and requesting the Committee to conduct an inquiry into the matter. In January 2015, the Committee’s Working Group on Communications and Inquiries considered the information received to be reliable and indicative of possible grave or systematic violations of the right to education and decided to register the request. In accordance with article 6, para. 1, of the Optional Protocol and rule 83, para. 1, of its rules of procedure, the Committee, in plenary at its 14th session (17 August–4 September 2015), decided to transmit the information received to the State party and invite it to cooperate in the examination of the information and, to this end, to submit its observations by 1 November 2015. The State party submitted its observations on 13 November 2015.

4. During its 15th session (29 March to 21 April 2016), the Committee, in accordance with Article 6, paragraph 2, of the Optional Protocol and Rule 84, paragraph 1, of its rules of procedure, considered the observations submitted by the State party, as well as additional information from other sources, decided to institute an inquiry into the alleged violations and appointed three of its members to carry it out. On 24 May 2016, the Committee received a request from one of the bodies of the independent monitoring mechanism designated under Article 33, paragraph 2, of the Convention, requesting that an inquiry be instituted into alleged violations of the right to education of persons with disabilities. As this was information that had already been previously analyzed by the Committee, and given the reliability of the source, the Committee decided to add this request to the ongoing inquiry. The Committee communicated the aforementioned decisions to the State party on 30 June 2016.

B. International human rights standards 

5. The Convention does not establish new rights but clarifies and explicitly states for the first time that the right to education is the right to inclusive, quality education, thus completing a process of normative evolution that originates in various international human rights instruments. The right to education has been addressed in Article 26 of the Universal Declaration of Human Rights, which states that everyone has the right to education. The International Covenant on Economic, Social and Cultural Rights, in its Article 13, reaffirms the foregoing, adding that education shall enable all persons to participate effectively in a free society, and promote understanding and tolerance. The Convention on the Rights of the Child establishes, in its Article 23, the right of the child with a disability to effective access to education and training for the purpose of individual development and social inclusion. In its Article 28, it establishes the child’s right to education, a right to be exercised on the basis of equal opportunity, and in its Article 29, it stipulates that the child’s education shall be directed to the development of the child’s personality, talents and mental and physical abilities to their fullest potential.

6. Article 24 of the Convention enshrines that persons with disabilities have the right to education and that, correspondingly, States parties have the obligation to respect, protect, and guarantee inclusive and quality education for all persons without distinction. According to paragraph 1 of the same article, States parties must guarantee the right to education for persons with disabilities within an inclusive system at all levels, including preschool and tertiary education, vocational and continuing education, as well as extracurricular and social activities. According to its General Comment No. 4 (2016) on the right to inclusive education, the Committee considers that the right to education is the right of all persons to learn in an education system designed taking into account the needs of all persons, including persons with disabilities, where all educational centers welcome all students, regardless of their physical, intellectual, social, linguistic, or other conditions. It is not only about providing quality education, but also about changing discriminatory attitudes and discriminatory systems, to create inclusive societies that respect and value the differences and dignity of all persons equally. Inclusive education values diversity as an enriching element of the teaching and learning process and a facilitator of human development. To adequately address the diverse educational needs that students may present, so that they can develop their personality, aptitudes, and capacities to the fullest, the necessary supports and adjustments must be guaranteed. In accordance with Article 24, para. 2, subparagraph a), of the Convention, persons with disabilities must not be excluded from the general education system on the grounds of disability.

7. Article 4 of the Convention establishes the general obligations of States parties, which must ensure the implementation of the Convention by all their bodies, including regional governments to which powers have been transferred. States parties undertake to “ensure that public authorities and institutions act in accordance with the Convention” (para. 1, subpara. d)). Although States parties may delegate tasks or the provision of services to third parties, they must “take all appropriate measures to ensure that no person, organization or private enterprise discriminates on the basis of disability” (para. 1, subpara. e)). This delegation of tasks, as well as the decentralization of powers, does not reduce the responsibility of States parties to comply with their obligation to “ensure and promote the full enjoyment of all human rights and fundamental freedoms of persons with disabilities without any discrimination on the basis of disability” (para. 1).

8. The Committee recalls that, in accordance with Article 2 of the Convention and its general comments No. 2 (2014) on accessibility and No. 4 (2016), the denial of reasonable accommodation constitutes discrimination. States parties have the immediate obligation to make reasonable accommodations from the moment a person with disabilities requires them in a given situation, for example, at school, to enjoy their rights on an equal basis with others. Reasonable accommodations aim to ensure non-discrimination. It is the obligation of the State party to prove the proportionality of an accommodation, or if its realization constitutes an undue burden.

9. Likewise, article 4, para. 2, recognizes the progressive realization of economic, social and cultural rights, and the obligation of States parties to take measures to the maximum of the resources available to them, without prejudice to obligations of immediate application such as the elimination of discrimination and inequalities in the enjoyment of economic, social and cultural rights.

C. Cooperation of the State party 

10. In accordance with article 6 of the Optional Protocol and article 85 of the rules of procedure, the Committee requested the cooperation of the State party, which designated the head of the Human Rights Office, Directorate General of United Nations and Human Rights, of the Ministry of Foreign Affairs and Cooperation, as the focal point. The Committee appreciates that its request for a country visit has been granted by the State party and thanks it for the support provided throughout the procedure.

D. Visit to the State party

11. The visit took place from 30 January to 10 February 2017. Two Committee members visited Madrid, León, Valladolid, Barcelona, Seville and Málaga.

12. The members interviewed more than 165 people, including officials from the central Government and from the 17 autonomous communities, representatives of organizations of persons with disabilities and other civil society organizations, researchers, academics, judges and lawyers. The Committee commends the efforts of all stakeholders in providing valuable and up-to-date information.

E. Sources of information and confidentiality of the procedure

13. In accordance with article 83 of the Rules of Procedure, the Committee gathered additional information from various sources. The Committee collected voluminous documentary evidence, much of which was already in the public domain, such as the annual reports of the independent mechanism for monitoring the implementation of the Convention and statistics from various government departments and agencies. The Committee also received confidential documents. Some of the documents collected are based on surveys conducted by research institutes and academic sources.

14. Pursuant to paragraph 5 of article 6 of the Optional Protocol, the inquiry procedure is conducted confidentially. All persons contacted and invited to participate in meetings and interviews during the country visit signed the solemn declaration provided for in paragraph 3 of article 87 of the Rules of Procedure.

F. Contextual background of the research

The Convention in the national legal system, decentralization, and independent monitoring framework.

15. According to Article 96, paragraph 1, of the Spanish Constitution, international treaties validly concluded, once officially published, form part of the internal legal system. Furthermore, according to Article 10, paragraph 2, of the Constitution, the provisions relating to fundamental rights and freedoms recognized by the Constitution shall be interpreted in accordance with international treaties and agreements on the same matters ratified by Spain, including the Convention, as a human rights treaty.

16. According to Article 14 of the Constitution: “Spaniards are equal before the law, without any discrimination prevailing for reasons of birth, race, sex, religion, opinion, or any other personal or social condition or circumstance,” disability being implicitly included. Article 27 of the Constitution recognizes the right of all to education, including persons with disabilities.

17. Article 49 of the Constitution states that “[l] public authorities shall pursue a policy of prevention, treatment, rehabilitation, and integration of the physically, sensorially, and mentally impaired, to whom they shall provide the specialized attention they require and shall especially protect them for the enjoyment of the rights that this Title grants to all citizens.” In legislative matters, Law 26/2011 on the regulatory adaptation to the International Convention on the Rights of Persons with Disabilities was issued in 2011. All disability laws that had been enacted were compiled in 2013 in Royal Legislative Decree 1/2013, of November 29, approving the consolidated text of the General Law on the Rights of Persons with Disabilities and their Social Inclusion.

18. According to the information provided by the State party, the education system is organized as follows: educational competencies are distributed between the general administration of the State (Ministry of Education, Culture and Sport) and the autonomous communities (councils or departments of education). In Ceuta and Melilla, these are assumed by the Ministry itself. The work carried out between this Ministry and the autonomous communities is coordinated through institutional mechanisms, such as the Sectoral Conference on Education, which aim to achieve maximum coherence and integration of the education system. The Ministry and the education authorities of the autonomous communities meet periodically to discuss, deliberate on draft regulations to be established, and adopt the necessary territorial distribution criteria for subsidies for territorial educational programs. The Sectoral Conference or the various commissions established according to the subject matter allow for a joint examination of the problems encountered and the planned actions to address them.

19. The General Education Commission is made up of one representative, at least at the rank of Director General, appointed by each of the autonomous communities and by the Director General of Evaluation and Territorial Cooperation of the Ministry of Education, Culture and Sport, who serves as its president. This Commission acts as a body for active cooperation between the autonomous communities and the State and as a support body for the Education Conference. Among its main functions are the necessary collaboration and coordination for the proper functioning of the Conference, and of the various commissions, working groups, and panels.

• The panel on special educational needs, with the participation of autonomous communities, experts, various units of the Ministry of Education, Culture and Sport, other ministries, and the Spanish Committee of Representatives of Persons with Disabilities;
• The working group with the autonomous communities on special educational needs;
• The Forum for Educational Attention to Persons with Disabilities, a collegiate advisory body, chaired by the Minister of Education and composed of representatives from the Ministry of Education, Culture and Sport, the Spanish Committee of Representatives of Persons with Disabilities, the State School Council, the Sectoral Conference on Education, the General Conference on University Policy, the Council of University Students, and the University. 

20. Regarding the educational administrations in the autonomous communities, each has configured its own model of educational administration. There are also different collegiate bodies for participation whose functions are determined by the regulations of each autonomous community:

• Regional School Council: this is the highest body for consultation, advice, and social participation in non-university education. The types of school councils and their areas of action differ in each autonomous community; 
• Regional Vocational Training Councils: they perform planning, coordination, and evaluation functions for the education system regarding vocational training; 
• Regional Higher Artistic Education Councils: these are bodies for consultation and advice on these teachings; 
• University Councils: these are bodies for consultation and cooperation in university matters.

21. The State has exclusive competence over the regulation of the conditions for obtaining, issuing, and validating academic and professional qualifications and basic standards for the development of Article 27 of the Constitution, in order to guarantee the fulfillment of the obligations of public authorities in this matter.

22. Royal Decree 1276/2011, of September 16, designated the Spanish Committee of Representatives of Persons with Disabilities as the independent mechanism for monitoring the implementation of the Convention for the purposes of Article 33, paragraph 2, thereof. The Ombudsman of Spain is also part of the monitoring framework.

G. Summary of findings

23. The Committee considers that the available information reveals violations of the right to inclusive and quality education, mainly linked to the perpetuation, despite the reforms developed, of the characteristics of an education system that continues to exclude from general education, particularly persons with intellectual or psychosocial disabilities and multiple disabilities, based on an assessment anchored in a medical model of disability that results in educational segregation and the denial of reasonable accommodations necessary for inclusion without discrimination in the general education system. This situation of segregation, to which the Committee referred in its 2011 concluding observations on Spain, continues to affect, as then, around 20% of persons with disabilities, with adverse repercussions for their inclusion in society.

24. The Committee took note of initiatives to transition towards inclusive education, which have been added to existing mechanisms and practices without a profound transformation of the education system. It observes that the difficulties faced by students with disabilities are resolved on an ad hoc basis, and the fate of the student with a disability depends in most cases on the will of their parents, and the administrative, educational, and inspection staff involved, rather than on the realization of their right to inclusive and quality education.

1. Main characteristics of the normative framework regarding the right to education in the State party.

25. In the Spanish legal system, state laws, enacted by the Cortes Generales, coexist with regional laws, enacted by the legislative assemblies of the autonomous communities. According to the information provided by the State party, at the state level, Organic Law 2/2006, of May 3, on Education, amended by Organic Law 8/2013, of December 9, for the improvement of educational quality, establishes the basic legislation in educational matters. The Organic Law for the improvement of educational quality complements the provisions of the Organic Law on Education, which establishes, among other principles of the education system, the quality of education for all students, regardless of their conditions and circumstances, equity, equal opportunities, inclusive education, and non-discrimination. The Organic Law for the improvement of educational quality is supplemented by regulations “for the attention to students with special educational needs.”

26. Although internal regulations proclaim inclusive education, they contain provisions that allow for exclusion based on disability. Current legislation uses the same language that already existed in the 1982 regulations. Law 13/1982 on the social integration of disabled people established in Article 23, para. 2, that “[l]special education shall be provided temporarily or definitively to those disabled people for whom integration into the ordinary education system is impossible.” More recently, Royal Legislative Decree 1/2013, of November 29, establishes in Article 18, para. 3, that “the schooling of these students [estudiantes que requieren atención especial para su aprendizaje o necesidades inclusivas] in special education centers or substitute units thereof shall only be carried out when exceptionally their needs
cannot be met within the framework of the diversity support measures of ordinary centers and taking into account the opinion of parents or legal guardians.”

27. Secondly, the Organic Law on Education, in its Article 74, paragraph 1, stipulates that “[l]he schooling of students with special educational needs shall be governed by the principles of normalization and inclusion and shall ensure their non-discrimination and effective equality in access and permanence in the education system, and measures for the flexibility of the different educational stages may be introduced when deemed necessary. The schooling of these students in special education units or centers, which may extend up to the age of twenty-one, shall only be carried out when their needs cannot be met within the framework of the diversity support measures of mainstream centers.” This article remains in the Organic Law for the Improvement of Educational Quality, which addresses the situation of children with disabilities in its Title II (Equity in Education).

28. Through the exception of Article 74, paragraph 1, of the Organic Law for the Improvement of Educational Quality, legislation perpetuates discriminatory exclusion based on disability. The Committee observed that the practical application of this legislation results in the exclusion of students with disabilities from the general education system, in addition to the separation of students with disabilities from their immediate community in most cases, due to the location of special education centers. The Committee observed that the regulatory framework allows for the coexistence of two education systems, regular and special, with different educational standards, leaving students with disabilities in an environment of very low or lower expectations of students with disabilities and their performance by teachers and administration. Exclusion includes segregative practices where students with disabilities transferred to the special education system are perceived as “second-class” individuals, “without many opportunities,” excluded from the rest of society. 3

29. The Organic Law for the Improvement of Educational Quality establishes that the requirements of students “with specific learning difficulties” will be identified and evaluated “as early as possible” (Art. 79 bis). The Order of March 18, 2010 regulates the procedures for carrying out psycho-educational evaluations and has established the criteria for the schooling of “students with special educational needs,” still based on the medical model of disability. In practice, it is observed that the identification and assessment of students’ educational needs are left to the initiative of the professional involved. According to Article 2 of the Organic Law for the Improvement of Educational Quality, personnel with the appropriate qualifications and under terms determined by the educational administrations must carry out the identification of educational needs. This broad conception has led to diverse practices regarding the profile of the professionals involved and the practices applied. There are no clear guidelines on how to conduct an evaluation (including the evaluations applied, the number of times the child has been observed, the contexts, and the objectives). This disparity has serious consequences for the children concerned: it is generally very difficult to question or obtain a review of an initial diagnosis. If a review is obtained, there is no guarantee that it will be carried out thoroughly, objectively, and periodically. In the course of the research, several cases were pointed out in which the supposed reviews of the initial diagnosis consisted of a repetition, word for word, of the first conclusions, without the affected children being attended to with the necessary time, thoroughness, and objectivity.

30. According to Article 74, paragraph 4, of the Organic Law for the Improvement of Educational Quality, it is the responsibility of the educational administrations of each autonomous community to promote education among “children with special educational needs.” It also establishes in Article 71, paragraph 2, that “[c]educational administrations are responsible for ensuring the necessary resources for […] students who require educational attention different from the ordinary one.” However, there are no guidelines on the implementation of these general principles. Each autonomous community can decide whether or not to develop its own legislative framework regarding the basic state law on education: a group of autonomous communities apply the Organic Law for the Improvement of Educational Quality, while others have drafted their own regulations. Although certain autonomous communities are updating their educational decrees in 2017, with some opting for inclusion, the majority practically reflect the general principles of the Organic Law for the Improvement of Educational Quality and maintain the same language as Articles 71 and 74. In this way, national legislation does not guarantee a uniform interpretation and application in harmony with the obligations and rights proclaimed in the Convention.

31. In general terms, regional legislation specifies three modalities of “attention to diversity”, namely: a) mainstream schools. In Castilla y León, the reference is to students “with special needs associated with physical or hearing disabilities”, but establishing certain mainstream schools as reference points; b) special education schools; c) special education units in mainstream schools for combined education, where the objective is not inclusion, but “more integration and socio-educational insertion”. The Committee notes that the education system also provides for home and hospital-based education and care, which was not the subject of this research.

32. In addition to these educational modalities for students with disabilities, the school system comprises: a) public schools; b) private schools; and c) state-subsidized schools (private schools receiving public funding). The latter receive public funds but have their own regulations.

33. Diversity of practices is also observed in relation to assessments. Some autonomous communities have made amendments to replace the uniform examination, which serves as the final assessment of compulsory secondary education, with individualized assessments and reasonable adjustments. Others maintain a single assessment system, which does not take into account the abilities and needs of the students.

34. Regarding post-compulsory education, Article 74, paragraph 5, of the Organic Law for the Improvement of Educational Quality establishes that educational administrations must facilitate the adequate continuation of schooling for “students with special educational needs” and adapt the conditions under which the evaluations established by that Law are carried out. Little attention has been paid to this issue, as the vast majority of persons with disabilities are forced to abandon their studies after secondary education. School dropout rates for children, and particularly girls, with disabilities are higher than other national averages.

35. The Committee observed that the measures adopted in post-secondary educational institutions were taken on an ad hoc basis and are not systematized, and that the post-compulsory education system is not sufficiently adapted for persons with disabilities. A significant number of persons with disabilities therefore decide to pursue post-compulsory studies remotely, to avoid the accessibility and inclusion difficulties of face-to-face universities. Figures from the National University of Distance Education, which combines virtual and face-to-face teaching, show that 40% of its students have a disability.

36. In this context of shared responsibilities between the state and autonomous levels, the Committee notes the significant disparities in the implementation of initiatives to promote inclusive education. These are generally individual initiatives developed through the educational projects provided for by the Organic Law for the Improvement of Educational Quality, the results of which are rarely systematized and have little sustainability.

37. National and autonomous legislation maintains provisions that do not ensure their harmonization with the Convention. The Committee observes that the State party has not taken advantage of the legislative changes since the dialogue with the Committee in 2011 to allow for such harmonization.

2. The system of psycho-pedagogical reports that result in a school assessment and determine that certain persons with disabilities, particularly those with psychosocial or intellectual disabilities, are placed in segregated education, and the regime of administrative and judicial remedies and appeals for persons with disabilities in relation to the assessment..

38. There is a separate procedure for students with disabilities who undergo a psycho-educational assessment to determine their cognitive ability. This assessment is applied at least at ages 6 and 12, when students begin compulsory schooling cycles, or from age 3 in the second cycle of early childhood education (which is voluntary). The assessment results in a schooling report, which summarizes the conclusions of the assessment and determines whether the child’s education will take place in a mainstream educational system center, a special education center or unit, or a combination of both. Once this report is reviewed by the corresponding educational inspectorates, a resolution is issued regarding the school and the resources available to the child. In theory, the psycho-educational assessment and the report are conceived as tools to guarantee equity in educational decisions and determine the reasonable adjustments that the student with disabilities requires. In practice, the system focuses on the student’s deficits and deficiencies, and results in the stigmatization of the student as uneducable within the general education system. Instead of exploring all possibilities for the student’s inclusion, the diagnoses prevent mainstream educational centers from providing support measures and reasonable adjustments.

39. The Committee noted that the techniques and modalities of assessment are left to the initiative of professionals, resulting in dissimilar practices regarding assessment and schooling processes, in which a functional diagnosis incompatible with the Convention predominates. The barriers in mainstream educational centers are not identified, and there are no suggestions on how they can be removed to accommodate the student.

40. The Committee observed the persistence of processes that lack a comprehensive development approach for the person. The assessment committee’s recommendations do not include measures related to the development and adaptation of the curriculum to adjust it to the individual progress of the student in the mainstream classroom. The Committee also noted the prevailing lack of assessment of the student’s level of inclusion in relation to their socialization with peers during meal times and/or in extracurricular activities. The student’s reasonable adjustments regarding transportation and other accessibility requirements are not regularly clearly defined. In most of the educational centers visited, it was observed that separate school transportation is organized for students with disabilities, sometimes at different times, on the grounds that an ordinary school vehicle cannot be adapted to the requirements of students with disabilities.

41. Based on these functional assessments, the educational administration generally decides to assign the child with a disability to a special education center, arguing that it has the necessary resources, regardless of the distance to their home.

42. The Committee noted that, although current regulations allow parents to participate in the schooling decision, their opinion is disregarded in practice. In several autonomous communities, the Committee observed that the possibility of having a decision reviewed is minimal (with the exception of the expert assessment observed in León, a recent procedure and far from being generalized). When parents disagree with the decision, they have the right to appeal to the administrative litigation jurisdiction. The administrative appeal procedure is lengthy, and while awaiting a response, the student must attend the assigned unit or center. Otherwise, an education inspector may initiate proceedings against the parents for “family abandonment” for refusing to send their son or daughter to school, which is mandatory until the age of 16 (Articles 226 et seq. of the Criminal Code). The Committee received testimonies from parents against whom criminal proceedings were initiated, or parents who were warned that, if they attempted to challenge a decision to educate in a special unit in general classrooms or combined education, their son or daughter would be assigned to a special center.

43. If the administrative appeal is unsuccessful, parents have a final recourse in the justice system, and can request interim measures before the court rules on the case. Support organizations report that the number of such cases is increasing.

44. The Committee observes as a pattern that seeking justice in the courts represents a terrible battle, which is both long, costly, and without any guarantee of success. Judicial decisions are still highly variable due to the lack of sufficiently clear jurisprudence in the matter, and the process is lengthy. The final determination of the case commonly takes a minimum of three years, causing irreversible harm to students with disabilities, and their families.

45. While legal aid exists, parents normally finance the costs of the proceedings. Families usually seek the support of specialized organizations. However, the resources of these organizations are scarce, and they are not in a position to ensure the necessary follow-up.

3. Characteristics, including the type of disability of the persons, and especially boys and girls, covered by the implementation of existing laws and measures

46. The Committee noted that discriminatory exclusion, segregation and/or the lack of reasonable accommodation primarily affects persons with intellectual or psychosocial disabilities, autism spectrum disorders, hyperactivity and attention deficit, or multiple disabilities. These students generally enter special education centers, or projects that separate them from their peers, with few opportunities to leave this system that segregates them from society.

47. The Committee received written information from the State party stating that 99.6% of the total student population at the state level would be studying in mainstream schools, with the remaining 0.4% “in special schools with the ultimate goal of enabling them to be integrated into mainstream schools”. However, the Committee observed that these figures conceal a pattern of cases in which the education system continues to operate with the segregated education model, which assumes that the education of certain students with specific disabilities is only possible in segregated education settings. Statistics on students in mainstream schools include those students in special classrooms within mainstream schools or in combined modalities. Nevertheless, cases were observed of children with intellectual disabilities in special classrooms within mainstream schools where segregation continued in fact, as they spent more time in the support unit or special classroom than in the mainstream classroom. One example is the statistics from Catalonia, where 88% of students with disabilities would spend 100% of their time in a special education center; 6% more than 50%; 4% less than 50%; and only 2% would spend 100% of their time in a mainstream school. The Committee observed that on repeated occasions it was misinterpreted, including in official statistics, that the incorporation of students with disabilities into mainstream schools, but without the required reasonable adjustments, constituted inclusive education.

48. Students with disabilities, mainly intellectual or psychosocial, who attend mainstream educational centers remain separated from their peers, who perceive their presence as an exception. In most of the other observed cases, when a student with a disability is in the same classroom in a mainstream educational center, they typically do something different from the rest of the students, not necessarily related to the class, reinforcing the exclusion and denial of the right to inclusive, quality education and denying all students the opportunities to become sensitive to respect for difference and diversity. Mainstream centers with very encouraging projects were also visited. However, these are isolated projects or in an experimental phase, which as such, are fragile in their sustainability. In this way, the system of discriminatory exclusion is perpetuated, despite clear examples demonstrating that the inclusion of persons with disabilities, including intellectual or psychosocial disabilities, can be a reality.

49. The situation of persons with visual disabilities requires specific mention. Persons who are members of the National Organization of Spanish Blind People (ONCE), a non-profit social entity, receive the support they require from the organization in mainstream schools or in educational centers that depend on private funding. This entity provides specialized support, in the form of braille support teachers, material adaptation, rehabilitation technicians, as well as advice to students during extracurricular hours. The Committee observed, however, that teachers and other staff in educational centers have not received the necessary training in inclusive education and human rights to create, together with external professionals and advisors, inclusive learning environments that foster collaborative work and eliminate barriers to inclusion. For example, the ONCE’s recommendations in one case to facilitate the student’s learning were not incorporated by the teaching staff of a mainstream school, in addition to having been ignored by administrative staff, who on several occasions removed the tactile markings placed on the student’s desk and chair for cleaning purposes.

4. The human, technical, and financial resources in the budgets at the central and autonomous levels dedicated in recent years to the right to education for persons with disabilities, especially girls and boys.

50. The Committee notes that funding is determined at the regional level, resulting in significant disparities between autonomous communities. The economic crisis coincided with the beginning of the Convention’s implementation, and financial resources for implementing inclusive education were reduced. The general trend observed is that funds are focused on maintaining special schools and units. Neither the central government nor the autonomous communities have conducted a budgetary exercise that would allow for a detailed identification of the resources needed for the effective implementation of inclusive education. Nor has research been conducted on the socioeconomic, political, and cultural benefits of inclusive education, and there is no national policy or action plan for the implementation of Article 24.

51. Technical support resources or means are not allocated to the specific requirements of an individual but to educational centers, and their reallocation has limited flexibility. This situation has a serious impact on resource management. Although assistive devices are reviewed periodically, depending on demand, they are kept at the center even when the student leaves. Once funds are allocated to a center, they cannot be reallocated. As a consequence, students with disabilities cannot attend the school corresponding to their area of residence but must study where the support resources are located. Repeated instances were observed where the education of persons with disabilities takes place in segregated and remote environments, where the education received is of lower quality.

52. There are differences among the autonomous communities, however, the interlocutors met during the visit highlighted the generalized lack of human resources:

1. Tutors: lack of training in inclusive education and the rights of persons with disabilities, and stereotypes among teachers according to whom inclusive education is “the pedagogical trend of the moment”. The online training available nationally, despite being free, is not mandatory, and there are no incentives to undertake it. Some interviewees highlighted that they feel “abandoned”, having received no guidance; 
2. Personal assistance and support: families of students with disabilities normally have to identify and pay for support, which is provided through private services or organizations and has additional and, in repeated instances, high costs. Support for extracurricular activities is often subcontracted to external associations. Cases were reported where the student’s personal assistant has not been able to access the classroom because they have not been hired by the public administration. Situations like these reveal a lack of understanding of the reasonable adjustments that a person with a disability might require to enjoy the right to education on equal terms; 
3. Specialized teaching staff: they are assigned to one or more educational centers, without the capacity to ensure that the student receives the necessary support. As each center has a fixed allocation of resources, this impacts the reception capacity of each center. Educational centers choose how to distribute resources. Planning is done based on the needs of different centers, the available professionals are insufficient, and the hourly organization of each specialist is done on a fixed basis, without taking into account the specific requirements of each student.

53. The Committee also noted that the rationalization of public spending resulting from the economic crisis has led to the allocation of a greater number of students per assistant (in some cases up to seven more children than stipulated by law), as well as a reduction in the number of professionals to carry out a correct identification of the requirements of students with disabilities and the number of substitute teachers and specialized professionals. The capacity to support students with disabilities has diminished, as they only receive qualified support for a few hours a week or depending on the availability or willingness of the teaching staff. In many cases, there is a high level of discrepancy between the support designated through evaluation processes and the support actually provided. In some cases, the educational centers assigned for persons with disabilities did not even have resources to support them. Another consequence of the rationalization of spending has been the centralization of resources in special education centers.

54. The Committee noted the work of associations in promoting access to educational services through resources and support. Some of these associations perform functions delegated by the State party or receive public subsidies and resources. In some autonomous communities, there are associations with extensive experience in the education of students with disabilities. However, the Committee notes that they generally operate within segregated systems and that support from associations is sometimes exclusively accessible to families who can afford it.

5. Granting and regulation of reasonable adjustments for children with disabilities in mainstream schools.

55. The Committee notes that the education system organizes the implementation of adjustments and the provision of resources not based on the individual requirements of students, but on the existence of a predetermined number of students with “special educational needs” in schools. It also notes the general lack of understanding that denying a reasonable adjustment constitutes discrimination, as well as that the duty to provide reasonable adjustment is immediate and not subject to progressive fulfillment. The “curricular adaptations” currently made lead to a parallel education system where the student does not obtain the mandatory certificate from the educational center. In cases where the reasonable adjustment is requested by the student in the form of personalized support, it is only provided if a minimum number of students require similar support. The inadequacy of the support network hinders the achievement of inclusive and quality education. The assistive devices required by students with disabilities are not available in every context, which greatly diminishes the impact for which they are intended.

56. Personalized support is not always available when the student enters an educational center and is determined based on disability categories, without any flexibility. For example, sign language would only be offered to people with hearing disabilities, but not to people with other types of disabilities such as people with intellectual disabilities, cerebral palsy, or autism spectrum disorder, who could also benefit from its use and for whom, in particular cases, it could constitute a reasonable adjustment.

6. The accessibility regime governing mainstream educational centers.

57. Royal Decree 132/2010, of February 12, establishes the minimum accessibility requirements for centers that provide early childhood education, primary education, and secondary education. The Committee notes that the efforts made to implement accessibility are still not sufficient to ensure the minimum requirements in educational centers. The quality and accessibility of facilities vary greatly among the establishments visited. Once physical accessibility is achieved, deficiencies are observed in terms of accessibility to communication tools, assessments, and educational content. The education inspector does not have the legal mandate to analyze the implementation of accessibility legislation in educational centers.

58. The environments of the centers, cafeterias, sports fields and artistic facilities, school trips and camps, as well as extracurricular activities, are generally not accessible and therefore not inclusive. The Committee received repeated testimonies that children with disabilities receive less attention. A teenager without a disability also pointed out that there were no extracurricular activities in their class “because we have children with disabilities who cannot do them, so they were eliminated for everyone.” This concept fuels stereotypes and negative perceptions of people with disabilities.

59. The Committee notes the general lack of accessibility of the evaluation system. Students with disabilities with “curricular adaptation” do not normally obtain the same educational titles or certificates as other students. Those who wish to obtain the compulsory secondary education graduate title, necessary to access post-compulsory education, including university, can only do so through free examinations. No adaptations are provided for the uniform examination of compulsory and post-compulsory education that respond to individual needs. The only exception was found at the National University of Distance Education, which has taken measures such as adapting the time available to the student to take the exam, organizing home-based tests, or the possibility of using audio materials.

7. Implementation of the “best interests of the child” standard in the education system and the impact of existing laws and measures regarding the right to education on the physical and psychological integrity of children with disabilities.

60. The Committee notes that there is no clear notion of the best interests of the child in the context of inclusive education. Generally, the medical conceptualization of disability remains the most common, and therefore, educational administrations continue to consider that the best interests of a child with a disability lie in accessing “specialized education” in “special centers.” In contrast to this reasoning, the child is not taken into account as a rights-holder, nor is their opinion considered. Cases were observed where the child was made to change educational centers every year, while others divide their week by attending two different schools far from their home, sometimes on opposite sides of the city. In these cases, little consideration is given to the impact on the child of the absence of a support provider, a group, or a reference educational center.

8. Opportunities provided for children with disabilities to express their opinion on matters related to their education and the relevance given to their opinion.

61. The Committee observes that, ordinarily, the child with a disability is not heard, even when an assessment is conducted to determine a reasonable accommodation. In these cases, the child is observed in the classroom, but no questions are asked. The interviewed evaluators insisted that they always listen to the children. However, according to the information gathered, the child’s opinion is only taken into account on very rare occasions when they express interest in something other than what has been suggested to them, and their disability becomes the justification for the administration’s position.

9. The educational quality available to persons with disabilities, particularly boys and girls, assigned to special education units or centers, as well as the educational quality in mainstream schools, including the curriculum, educational methodologies, means, and formats of educational materials; the awareness-raising and training of students, educators, and other educational system personnel on the rights of persons with disabilities..

62. The persistence of two educational systems (mainstream schools and special units and centers) becomes two parallel paths in school life, work, and later, residence. The Committee has repeatedly observed that inclusive education is apparently guaranteed in mainstream schools, but the cycle culminating in the respective qualification is not fulfilled. In the few cases where students with intellectual, psychosocial, or multiple disabilities manage to complete compulsory secondary education, they do not progress to high school and much less to university level. Generally, they complete their education in vocational training courses.

63. Encouraging initiatives were observed, where teaching and learning materials are adapted so that all students can learn and interact on the same topics. However, in other cases, activities proposed to children with disabilities were not adapted to their age and maturity. Globally, there is no evidence of a personalized education plan for each student, with specific learning and development objectives. The inclusive perspective is absent from educational plans.

64. According to the information gathered, there are no indicators or evaluations of the number of children with disabilities who have moved from a special system to a general one, and to the open employment system. The frequent perception is that “socio-sanitary needs are above the student’s educational needs.” Special educational centers are usually presented as “already inclusive” centers for students with “severe disabilities.”

65. In general, stereotypes towards people with disabilities still exist in society, including in educational settings. In some cases, this translates into absolute rejection and hostility. Thus, parents of children with disabilities informed the Committee that their children were “more prone to accidents,” and that they were victims of violence and school bullying in mainstream schools. The Committee noted the perception that students with disabilities, and mainly girls, are better “protected” against these types of violence in special educational centers. Testimonies were also received of cases where parents of students without disabilities have not allowed their children to attend school until the child with a disability who was in the class is removed, arguing that it delayed the course’s performance. These discriminatory practices have not been counteracted by the adoption and implementation of awareness-raising, information, and training campaigns on the rights of people with disabilities for society as a whole, starting with educational staff, the administration, and parents of children without disabilities.

10. Support for the responsibilities of parents of girls and boys with disabilities.

66. Financial, material, emotional, or time support for families of children with disabilities has become impoverished. Parents who have decided to fight for a student with a disability’s access to inclusive education quickly reach high levels of pressure, exhaustion, and even despair. Although they receive support from other parents (support groups), organizations, and specialized networks, this support is very limited and insufficient. 

11. Educational inclusion and its impact on social inclusion.

67. The Committee found that after the compulsory schooling stage (21 years of age), there are few opportunities for students with disabilities to exercise their right to social participation and inclusion. The paths available to these students, especially those with greater support needs, repeatedly consist of segregated routes such as sheltered workshops, day centers, or remaining at home or in a day center, which serves people with disabilities between 17 and 70 years of age. The Committee noted that among the professionals interviewed, there is a common perception that long-term institutional care is the only future for certain people with disabilities entering adulthood.

68. The Committee notes that a student who has followed the curriculum of a special educational center, special classroom, or combined education, does not obtain the same diploma as their peers, but rather a certificate to be able to work and access segregated vocational training for persons with disabilities. It also notes the information received according to which students would not have access to the educational programs available to adults without disabilities. The programs in special educational centers do not provide for students to access an adapted curriculum with reasonable adjustments, recognizing individual progress, but rather aim to prepare them for attending sheltered workshops.

69. The Committee noted the perception of several of the parents interviewed to the effect that a sheltered workshop is the best-case scenario, as administration representatives have recommended them “not to have high expectations,” and that their son or daughter might “stay at home for the rest of their life.” These sheltered workshops are not conceived as a transition to the open labor market, and there are no strategies to facilitate the social and labor inclusion of students with disabilities. Nor do educational administrations systematically consult persons with disabilities before involving them in these programs. Additionally, persons with disabilities who work in public administration still require regular medical evaluations to confirm their fitness for work, which is not required of persons without disabilities, and is never used to provide a reasonable adjustment.

12. Domestic jurisprudence related to the right to education of persons with disabilities.

70. Decisions of the Constitutional Court, the highest internal judicial instance, on inclusive education reflect a lack of knowledge of the meaning and purpose of the Convention’s principles on inclusive education.

71. On January 27, 2014, the Constitutional Court, resolving appeal for protection 6868/2012, conceived inclusive education as a principle, but not as a right. It rejected the appeal of the parents of a child with a disability who opposed his placement in a special education center on the grounds that, once the educational administration proves that respecting the child’s best interest requires his schooling in a special education center, it is not necessary to weigh whether the adjustments he needs can or cannot be provided in a mainstream school. The Court considered that such a placement decision implies, given the child’s severe disability and the individualized attention required, that his unique educational needs were better met in a special education center than within the framework of general education.

72. The Court concluded that, in the current system, the involuntary segregation of a child with a disability was legal and non-discriminatory and corresponded to his best interest.

73. The Committee noted that other lower-level jurisdictions have recognized educational exclusion as discrimination in specific cases, issuing decisions that consider, for example, that the failure to exhaust “all possibilities for the student’s inclusion” constitutes a violation of the right to equality (Article 14 of the Constitution), in relation to the right to education (Article 27).

74. In another case, concerning the decision to enroll a ten-year-old child with autism in special education, the High Court of Justice of Catalonia considered that the administration’s assessments focused on highlighting the student’s difficulty in integrating into the mainstream classroom, but without examining whether adjustments were possible in this situation. The Court concluded that there was a violation of the right to equality in the exercise of the right to education. The Committee notes that although in several of the rulings the courts referred to the Convention as a legal basis, these are decisions in specific cases, with a predominant lack of knowledge of the Convention’s standards, as revealed by the Constitutional Court’s decision.

H. Conclusions and recommendations

75. The Committee notes that, despite available statistics indicating a high percentage of educational inclusion for persons with disabilities, a structural pattern of discriminatory educational exclusion and segregation based on disability, through a medical model, has been perpetuated, disproportionately and particularly affecting persons with intellectual or psychosocial disabilities and persons with multiple disabilities.

76. The Committee notes that, despite available statistics indicating a high percentage of educational inclusion for persons with disabilities, a structural pattern of discriminatory educational exclusion and segregation based on disability, through a medical model, has been perpetuated, disproportionately and particularly affecting persons with intellectual or psychosocial disabilities and persons with multiple disabilities.

77. These practices persist despite their inconsistency with the Convention and perpetuate a discriminatory system of segregation for persons with disabilities. One effect of the existing system is the invisibility of persons with disabilities, leaving them outside the general system, identifying them from their early years of life as ‘people who cannot achieve like others’. Their educational trajectory confines them to a primarily medical-rehabilitative system, which limits or prevents their access to the tools they need for an independent life in the community and their contribution to the social and work world.

78. The research findings reveal the inadequacy of the measures adopted to promote the inclusive education of persons with disabilities, and the low predictability of the system for promoting and protecting the rights of persons with disabilities. The Committee constantly notes the lack of clarity from the responsible authorities regarding the right to inclusive and quality education.

79. There are encouraging administrative and judicial decisions. There are also successful projects that have yielded positive results. However, these are isolated decisions and projects, dependent on individual initiatives or sensitivity, and as such, are not systematized. The Committee highlights that cases of rejection of persons with disabilities from the general education system continue to cause a great level of frustration, isolation, and suffering for persons with disabilities and their families, affecting all levels of their lives. The Committee considers that this discrimination based on disability has significant consequences for the personal development, independent living, and participation and inclusion in the community of persons with disabilities on an equal basis with others.

80. In view of the breadth, continuity and diversity of the violations found, which are permanently and continuously interrelated, but also taking into account that these violations result in large part from the system established through legislation, adopted policies, and the practices of the institutions involved, the Committee concludes that the findings in the present investigation reach the level of seriousness and systematicity established by Article 6 of the Optional Protocol and Article 83 of the Rules of Procedure. In this regard, the Committee emphasizes that the denial of equal rights for persons with disabilities can occur deliberately, i.e., with the intention of the State party to commit such acts, or as a result of discriminatory laws or policies, with or without such purpose.

81. The Committee considers that a comprehensive analysis of the issue at the national level and at the level of each of the autonomous communities, on the basis of which a national action plan developed in collaboration with the concerned persons and institutions would be established, would make it possible to address many of the violations highlighted in the report.

82. In accordance with its case law and its general comment No. 4 (2016), the Committee recalls that an inclusive system based on the right to non-discrimination and equal opportunities requires the abolition of the separate education system for students with disabilities. The inclusive education system must provide education to all students and be based on quality education by providing each student with the support they require. To achieve inclusive education in practice, a transfer of resources from special education centres to the general education system is necessary, allowing students with disabilities to access it on equal terms with other students, recalling that non-discrimination includes the right not to be segregated and to be provided with reasonable accommodation and must be understood as the duty to provide accessible learning environments and reasonable adjustments. The Committee, recalling its previous concluding observations (CRPD/C/ESP/CO/1), makes a series of recommendations to the State party to be read in conjunction with its general comment No. 4 (2016).

1. Institutional and legal framework.

83. The Committee urges the State party to:

1. Give the Convention the value it has in domestic law in accordance with Article 96, paragraph 1, of the Constitution, and which, according to Article 10, paragraph 2, of the Constitution, constitutes an element of mandatory interpretation of the rules relating to the fundamental rights of persons with disabilities; 
2. Conclude, without delay and according to a precise timetable, the regulatory adaptation to the Convention, as required by Law 26/2011.

2. Right to education.

84. Particularly regarding article 24, the Committee recommends legislative reform in accordance with the Convention which implies, among other things:

1. Clearly define inclusion and its specific objectives at each level of education; 
2. Consider inclusive education as a right and not just a principle, and that all students with disabilities have the right to access inclusive learning opportunities in the general education system, regardless of their personal characteristics, with access to the support services required;
3. Eliminate the exception of segregated education in educational legislation, including psycho-pedagogical evaluation and schooling reports;
4. Include a non-rejection clause for students due to disability, clearly establishing that the denial of reasonable accommodation constitutes discrimination; 
5. Eliminate the educational segregation of students with disabilities, whether in a unit within the same school or in special centers; 
6. Ensure that persons with disabilities have the right to be heard and have their opinions taken into account through effective consultations with organizations representing them, as well as an age and gender perspective;  
7. Approve the necessary regulatory framework for the effective implementation of legislation and the harmonization of the education system with the Convention at all levels, including in areas such as the development of new training programs for all teaching staff, the availability of accessible school materials for all, the transformation of existing educational environments into inclusive and accessible environments, the promotion of the transfer of resources from segregated to inclusive settings, and the provision of adequate support to students who require it. 

85. Taking into account the distribution of educational competencies in the autonomous communities, the Committee urges the State party to:

1. Establish effective monitoring and review mechanisms to ensure that legislation, strategies and policies relating to the implementation of Article 24 comply with the State party’s obligations throughout its territory; 
2. Ensure that regional education administrations are informed of their responsibilities regarding the rights of persons with disabilities and to this end: 
   • Promote regulatory and budgetary actions and measures that guarantee the right to inclusive education in terms consistent with the Convention; 
   • Ensure the admission of students with disabilities on an equal footing with others to the general education system, without it depending on their current resources or means; 
   • Adopt the necessary practical measures, including an education sector plan with sufficient human and financial resources, to eliminate all economic and structural obstacles, and to support the implementation process of an inclusive education system with an initial starting point, a timetable and measurable objectives, and monitoring and rectification measures; 
   • Adopt mandatory continuous training and professional development measures that prepare teaching staff to work in inclusive educational settings, including best practices in responding to students’ individual requirements. 
   • Ensure the provision of supports and resources for teachers, support staff, and other personnel of the education system; 
3. Increase awareness and measures to combat discrimination, stereotypes, prejudice, and harmful practices, including bullying, against persons with disabilities, and develop appropriate responses that foster an attitude of respect for their rights;
4. Promote promptness and accessibility in complaint and legal redress processes in cases of disability-based discrimination, increasing knowledge of the Convention’s standards among members of the judicial system;
5. Ensure that parents of students with disabilities cannot be prosecuted for the crime of family abandonment for demanding their children’s right to inclusive education on equal terms; 
6. Develop systems for evaluating and monitoring individualized progress with reasonable adjustments;
7. Improve the collection of disaggregated information and data, including the development of indicators in line with Sustainable Development Goal 4, in collaboration with representative organizations of persons with disabilities. 

86. The Committee requests the State party to respond to the present report within the time limit prescribed by the Optional Protocol, to widely disseminate the Committee’s conclusions and recommendations and to adequately follow up on the recommendations of the present report.

Notes

1. SOLCOM Association for community solidarity of people with functional diversity and social inclusion.
2. Spanish Committee of Representatives of Persons with Disabilities (CERMI).
3. Expressions used by the interviewees in the course of the interviews conducted.