Substantive Equality for Disabled Learners in State Provision of Basic Education: A Commentary on Western Cape Forum for Intellectual Disability V Government of the Republic of South Africa

Abstract

Disabled learners are a protected group with rights to equality and basic education under the Constitution. Taking substantive equality and the right to basic education seriously requires the state, especially, to commit significant resources and take positive measures to ensure that the education system adequately accommodates the needs of disabled learners. However, the historical exclusion and marginalisation of disabled people from the education system, the finite nature of economic resources and the fact that socio-economic rights are generally realisable incrementally, can easily provide the state with excuses rather than valid justifications for not meeting the learning needs of disabled learners. This is even more so, if disability is understood as something intrinsic to the disabled learner rather than something that also implicates the larger education system and socio-economic environment. The aim of this article is two-fold. Firstly, it uses the decision of the Western Cape High Court in Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa (2010) as an opportunity for interrogating the relationship between substantive equality and socio-economic rights as well as the relationship between the state and its obligations towards private ‘partners’ in the discharge of its socio-economic obligations through the use of so-called state ‘subsidies’. Secondly, and more broadly, the article uses the education policy that was challenged in Western Cape Forum to highlight that disability is a severe site of discrimination. Even in post-apartheid South Africa, where the Constitution protects the equality rights of disabled people, it is easy for state policy that claims to be advancing a transformative agenda to paradoxically become an instrument for giving legitimacy to a disabling discourse. Ultimately, it is argued that when dealing with disability, equality jurisprudence needs a transformative theory of difference in order to guarantee inclusive citizenship.

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