In a judgment released on September 10, 2020, the European Court of Human Rights (ECtHR) held that Italy had violated an autistic girl’s rights to non-discrimination and education when it failed to provide her the tailored learning assistance required by domestic law. [ECtHR Press Release] Italian authorities said they lacked the financial resources to pay for a support teacher. See ECtHR, G.L. v. Italy, no. 59751/15, Judgment of 10 Sept. 2020 (French). The judgment is currently available in French only, but the Court has provided a legal summary in English. See ECtHR, Information Note on the Court’s case-law 243 (Aug-Sept. 2020). The case apparently marks the first time that the ECtHR has found a violation of the right to inclusive primary education for children with disabilities, although its ruling is based in part on the fact that G.L. was entitled to specific support under Italian law.
Facts of the Case
G.L., the applicant, was born in 2004 and has non-verbal autism. Italian law guarantees the right to inclusive education, in mainstream public schools, for children with disabilities; it requires the presence of a learning-support teacher and the possibility of other assistants as individually needed for children with disabilities. However, after G.L. entered primary school in 2010, the school discontinued the specialized assistance she had been receiving. Her parents paid for private support. The authorities told the parents that the specialized assistance was not likely to be renewed. Before the ECtHR, the State argued it had spent the available funds to help children with amyotrophic lateral sclerosis (ALS). In 2012, the Italian Administrative Court rejected the parents’ request for compensation for violation of their daughter’s right to receive specialized assistance; their appeal was dismissed in 2015. G.L. went without specialized support for two school years. [ECtHR Press Release]
G.L. argued that Italy had violated her rights under articles 14 (non-discrimination) and 8 (respect for private life) of the European Convention on Human Rights and Article 2 (right to education) of its Protocol No. 1.
The Court’s Analysis
At the start of its analysis, the ECtHR emphasized the importance of education and reiterated that Article 2 of Protocol No. 1 must be interpreted in line with other international standards, including the European Social Charter and United Nations Convention on the Rights of Persons with Disabilities. See G.L. v. Italy, Judgment of 10 Sept. 2020, para. 51.
While the ECtHR considered that States enjoy a margin of appreciation in securing the right to education, it noted that Italy had exercised that discretion to legislate a right to inclusive, mainstream education for children with disabilities. See ECtHR, Information Note on the Court’s case-law 243 (Aug-Sept. 2020). Under Italian law, G.L. had a right to specialized support.
The Court agreed that G.L. had “been unable to continue to attend primary school in conditions equivalent to those enjoyed by non-disabled pupils, and this difference in treatment was due to her disability.” See id. The Court reiterated that it interprets Article 14 in light of the Convention on the Rights of Persons with Disabilities, which requires “reasonable accommodation” for persons with disabilities as “necessary and appropriate” to ensure their enjoyment of human rights, on the basis of equality with others, and without disproportionately or unduly burdening the State. See G.L. v. Italy, Judgment of 10 Sept. 2020, para. 62.
The ECtHR rejected the State’s argument that its lack of adequate funding justified the lack of assistance to G.L. In particular, the Court concluded that the administrative court should have considered whether the authorities had appropriately balanced G.L.’s educational needs and the school’s capacity, and should have assessed whether the funding shortfall had similarly impacted non-disabled children. Further, the Court held that the authorities should have evaluated other options for distributing its limited resources, distributing the impact equally between children with and without disabilities, as previously recommended by the Italian Court of Cassation. The ECtHR also noted Italy’s obligation under the European Social Charter to promote the full integration and participation of people with disabilities, including through assistance. See G.L. v. Italy, Judgment of 10 Sept. 2020, para. 69.
Because Italy had not evaluated G.L.’s needs or explored non-discriminatory solutions that would have allowed her to attend school in conditions equivalent to those of other students, the Court held it had failed to act “with the requisite diligence to guarantee [G.L.’s] right to education on an equal footing with other pupils.” See ECtHR, Information Note on the Court’s case-law 243 (Aug-Sept. 2020). The ECtHR found this discrimination was particularly serious because if affected G.L.’s primary schooling, where students first experience education and social integration. Accordingly, it held Italy responsible for violating Article 14 of the European Convention, taken together with Article 2 of Protocol No. 1. See G.L. v. Italy, Judgment of 10 Sept. 2020, para. 72.
The ECtHR declined to separately analyze G.L.’s allegations under Article 2 of Protocol No. 1 on its own, or under Article 8 (respect for private life) of the Convention in connection with Article 14 (non-discrimination). See id. at paras. 73, 74.
The Court awarded G.L. 10,000 euros for non-pecuniary damage and 2,520 euros for pecuniary damage, as well as 4,175 for costs and expenses.
Prior ECtHR Decisions
The ECtHR has previously decided cases involving primary schools, including with regard to the right to education under Article 2 of Protocol No. 1 to the European Convention of Human Rights, See ECtHR, Factsheet: Children’s Rights (July 2020), p. 18. Those cases include an inadmissibility decision on a complaint brought by the mother of an autistic child, who alleged that French authorities did not allow her child to attend a mainstream school and failed to provide accommodations and adequate resources for children with disabilities. The Court held that the complaint was inadmissible as manifestly ill-founded for multiple reasons, including that the State had made an individualized assessment of the child’s needs when placing him in a specialized school and had provided him with effective educational support. See ECtHR, Dupin v. France, no. 2282/17, Decision of 19 Dec. 2018 (French).
In 2019, the European Court issued a committee judgment finding no violation, on the merits, in a case involving the alleged lack of support in school for a child with quadriplegia. See ECtHR, Stoian v. Romania, no. 289/14, Judgment of 25 June 2019. The Court found that the child was “never completely deprived of education” and the authorities “did not turn a blind eye to [his] needs” and had made various attempts to provide accommodation. See id. at paras. 105-09. That decision generated controversy. [Strasbourg Observers] The Court cites to the Stoian judgment in G.L. v. Italy, distinguishing it based on the fact that Romanian authorities had allocated resources to that applicant, in order to meet his particular needs. See G.L. v. Italy, no. 59751/15, Judgment of 10 Sept. 2020para. 70.
Access to Education for Children with Disabilities: Other Interpretations
European Committee of Social Rights
The European Social Charter also protects the right to primary education, including access for persons with disabilities, in Europe. See European Social Charter, arts. 15(1), 17; European Committee of Social Rights, Digest of the Case Law of the European Committee of Social Rights (December 2018), p. 173. The European Committee of Social Rights (ECSR) has previously held that States must guarantee the right to education of children with autism. See ECSR, European Action of the Disabled (AEH) v. France, Complaint No. 81/2012, Merits Decision of 11 Sept. 2013, para. 78. Where realizing that right is complex and expensive, the State’s efforts must be carried out within “a reasonable timeframe,” with “measurable progress,” and making “maximum use of available resources.” See id. at para. 79.
Italy has ratified the European Social Charter, and has accepted all provisions except Article 25 (protection of worker claims against employer insolvency). See ECSR, Italy and the European Social Charter (July 2020).
United Nations Mechanisms
United Nations human rights mechanisms have established a right, under specific UN treaties, to supported, mainstream primary education for children with disabilities. For example, the UN Committee on the Rights of the Child (CRC), in its General Comment No. 9, identified States parties’ obligations to budget their resources in a way that meet the educational needs of children with disabilities and ensures their inclusion in the general education system, with the necessary support. See CRC, General Comment No. 9: The rights of children with disabilities, UN Doc. CRC/C/GC/9, 27 Feb. 2007, paras. 20, 66.
The UN Committee on the Rights of Persons with Disabilities (CRPD) has interpreted the right to inclusive education contained in Article 24(1) of the Convention on the Rights of Persons with Disabilities to prohibit segregation of students with disabilities and require reasonable accommodations and individualized support for them. See CRPD, General Comment No. 4: Right to Inclusive Education, UN Doc. CRPD/C/GC/4, 25 Nov. 2016, paras. 13, 17.
In its General Comment No. 5 and General Comment No. 13, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) has fleshed out States’ obligations to ensure the right to education of children with disabilities and to secure the right to education generally, respectively. The Committee has emphasized the importance of equal educational opportunities for persons with disabilities “within regular schools” and with “the necessary equipment and support…to bring persons with disabilities up to the same level of education as their non-disabled peers.” See CESCR, General Comment No. 5: Persons with Disabilities, UN Doc. E/1995/22, 9 Dec. 1994, para. 35.
Former UN Special Rapporteur on the right to education Vernor Muñoz issued a report on the right to education of persons with disabilities. See Report of the Special Rapporteur on the right to education, Vernor Muñoz: The right to education of persons with disabilities, UN Doc. A/HRC/4/29, 19 Feb. 2007. He identified “minimum standards” for ensuring the right to inclusive education, including “the provision of individualized student support, where necessary.” See id. at para. 28.
The UN Office of the High Commissioner for Human Rights, in 2013, also issued a report on the right to education of persons with disabilities. See OHCHR, Thematic study on the right of persons with disabilities to education, UN Doc. A/HRC/25/29, 18 Dec. 2013. Sections of the study address reasonable accommodations and support for students with disabilities, identifying “the use of a learning support assistance” as “[o]ne of the most important measures” of support. See id. at paras. 41-49, 48.
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