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Guarantee of Individualized Education Right for Children with Disabilities in China: A Study on the Compulsory Education Stage
February 07,2018   By:CSHRS
Guarantee of Individualized Education Right for Children with Disabilities in China: A Study on the Compulsory Education Stage
 
LIU Xuebin
 
Abstract: The Regulation on the Education of Persons with Disabilities, which came into effect in 2017, stipulates for the first time disabled children’s right to individualized education, clarifies the subjects who determine and influence the individualized education that disabled children receive, and determines the procedures for disabled children to receive individualized education. However, compared to the subjects that determine disabled children’s right to individualized education and procedural provisions as stipulated in the U.S. laws such as the Individuals with Disabilities Education Act of 1990, the Regulation on the Education of Persons with Disabilities in China has some problems, including inadequate participation of disabled children and their parents and incomplete relief settlement mechanism. China should further improve the legal provisions relating to disabled children’s right to individualized education, and safeguard the right of participation and the right to relief of disabled children and their parents.
 
Keywords: right to individualized education, disabled children, compulsory education
 
The right of disabled children to receive education individually adapted to their physical and mental characters is one of their core education rights. It is also the foundation of their equal access to social life at present and in the future. To this end, China’s Regulations on Education for the Disabled, which took effect on May 1, 2017, guarantees disabled people’s right to education “according to their needs as well as physical and mental characters”, and further specifies the implementation of classified teaching “according to students’ disability status and compensation degree”; “when necessary, opinions from the disabled child’s parents or other guardians should be taken into account, in order to develop a suitable personalized education plan and then conduct individual teaching”. Considering the significance of individualized education for children with disabilities, it is time to study and draw lessons from relevant legal provisions in the United States. By doing this, we can further consider the feasible path to improve the legal provisions for individualized education for disabled children.
 
I. Basic Elements of the Right to Individualized Education for Children with Disabilities
 
Individualized education rights for children with disabilities is a compound concept of disability, children, education rights and personalization, therefore, to clarify the elements of this concept is the logical premise to discuss its legal protection. This paper will analyze the concept from the viewpoints of children with disabilities, personalized education and education rights as below.
 
A. Children with disabilities
 
1. Disability
 
According to the UN Convention on The Rights of Persons with Disabilities, disability is “an evolving concept” and “disability results from the interaction between persons with impairments and attitudinal and environmental barriers which hinders their full and effective participation in society on an equal basis with others”. It differs with other definitions of individuals, mainly by presenting a kind of “social-contextual” understanding, or the “social model” of disability.  This suggests that the reason that the disabled are not fully integrated into society, besides their physical and mental disabilities, is because the notion is not widespread that disability should not be seen as problem of individuals, but of the whole of society.  The understanding of disability with a social model betters our understanding of education for children with disabilities.
 
2. Children
 
Article 1 of the UN Convention on the Rights of the Child and Article 2 of China’s Law of the Protection of Juveniles refer to “children” generally as the individuals under the age of 18 years who are nationals of the People's Republic of China. According to Article 2 and Article 11 of the Compulsory Education Law of the People’s Republic of China, the State adopts “a system of 9-year compulsory education” and the parents or other statutory guardians of any child who has attained the age of 6 shall have the child enrolled in school to finish compulsory education. At the same time, the Regulation on the Education of the Disabled stipulates in Article 14 that children and adolescents with disabilities should receive compulsory education shall be the same as that of all local children and adolescents. 
 
When this paper refers to children with disabilities, it refers to disabled school-age children and adolescents with long-term physical, mental, intellectual or sensory disabilities that may hinder their adequate participation in social life on the basis of equality. The age of these children and juveniles usually ranges between 6 and 14 years old, which may be appropriately raised when necessary.
 
B. Individualized education
 
Individualized education, or personalized education, is designed to address the diversity and complexity of the disabled. According to the General Comment No. 4 (2016) on the right to inclusive education of the UN Committee on the Rights of Persons with Disabilities, the basic content of Individualized education is: for each person with disabilities, “the education system must provide a personalized educational response”,  rather than expect students to adapt to the existing education system, the social system and the faculty, etc. One case in point is that, the PRC’s Regulations on the Education of the Disabled stipulates in Article 25, “the curriculum for children and juveniles with disabilities in special education schools (courses) should cater to the physical and mental characteristics and needs of their recipients”.
 
In this paper, individualized education specifically refers to education for those children and adolescents with disabilities in the compulsory education stage, who receive their compulsory education under personalized education plans with regard to their physical state and competence. Individualized compulsory education, first of all, refers to classified teaching in accordance with the overall ability and the degree of compensation of disabled students. Second, it refers to the individualized teaching of one particular disabled student if necessary.
 
C. Rights to compulsory education
 
“Education is both a human right in itself and an indispensable means of realizing other human rights.”  Therefore, the right to education has gained widespread recognition and declaration as the basic human rights in many human rights laws, including many international human rights treaties and national constitutions.  In the education rights system recognized by the human rights treaty, free and obligatory education rights have a core and basic status. To this end, Article 13.2 (a) of the International Covenant on Economic, Social and Cultural Rights, stipulates that, in order to guarantee the right to education, “primary education shall be compulsory and available free to all”.
 
In this paper, the right to compulsory education refers to the right of children and teenagers to enjoy their basic education interests during the education stage. Accordingly, as the UN Committee on the Rights of Persons with Disabilities states in the General Comment No. 4 (2016) on the Right to Inclusive Education, “state parties should respect, protect and fulfill each of the essential features of the right to inclusive education: availability, accessibility, acceptability and adaptability,”  and “must take all appropriate measures to guarantee that right, on the basis of inclusion, to all children and youth with disabilities”.  Of course, in terms of personalized education, the state is mainly responsible for the implementation.
 
To sum up, during compulsory education, the right of children with disabilities to individualized education refers to the rights of children with disabilities generally between 6 to 14 years old to obtain personalized compulsory education plans in accordance of their physical state and ability, to meet their basic educational interests.
 
II. Major Legal Provisions in China to Protect the Right of Children with Disabilities to Individualized Education 
 
The main laws and regulations in China on the rights to education for children with disabilities are: The Compulsory Education Law, the Law of the People’s Republic of China on the Protection of Disabled Persons and the Regulation on Education for the Disabled, etc.. Considering the latest revision of the Regulations on Education for the Disabled has the most comprehensive and detailed rules about children with disabilities receiving personalized compulsory education, this paper is mainly based on its contents, and illustrates from the aspect of the decision-makers and influencers of the personalized education for children with disabilities, and the aspect of the procedures that children with disabilities go through before receiving individualized education.
 
A. Subjects of individualized education for children with disabilities
 
According to the Regulations on Education for the Disabled, China resolves that the education administrative departments of governments at the county level shall be the core subject of the implementation of personalized education for children with disabilities. At the same time, committees of education experts for the disabled in the people's governments at county level, schools and parents of children with disabilities all have influence to different degrees on the implementation of the children with disabilities’ rights to personalized education.
 
1. Education administrative departments of the people's governments at county level 
 
According to Articles 20 and 21 of the Regulations on Education for the Disabled, education administrative departments of the people's government at the county level should authorize personalized education for children with disabilities. This to include assessment of the ability of disabled students to receive education by a committee of education experts, the conciliation of disputes between schools and parents of disabled students over the admission and transfer, and arrangements for the admission and transfer of school-aged disabled students, etc. 
 
2. Committees of education experts for the disabled 
 
Aligned with Article 20 of the Regulations on Education for the Disabled, the education administrative department of the people's government at the county level shall, in conjunction with the administrative department of public health, and civil administration departments and the Disabled Persons' Federation, set up committees of education experts for the disabled to include representatives of education, psychology, rehabilitation and social work. The committees are responsible for evaluating the ability of children with disabilities to receive education, and advising on relevant education issues.
 
3. Schools 
 
In accordance with Articles 18 and 24 of the Regulations on Education for the Disabled, when deciding on personalized education for children with disabilities, the school shall mainly the following two rights. First, offering advice on transfers and admissions. When children with disabilities enter an ordinary school and experience difficulties adapting to a normal school life, schools can suggest the parents or guardians of children and juveniles with disabilities transfer them to specified or special education schools to receive compulsory education. Second, making individualized teaching plans. Special education schools (classes) for children and juveniles with disabilities, for example, shall hear from disabled students’ parents or other guardians and formulate individualized education plans to meets the needs of their physical and mental characteristics, if necessary. 
 
4. Parents or other guardians of children with disabilities
 
Articles 8 and 13 of the Regulations on Education for the Disabled provide that, parents or other guardians of children and juveniles with disabilities shall assist them in receiving education, and shall have their children or persons under guardianship receive compulsory education in accordance with the law. In this way, of course, participants in individualized education plans for children with disabilities include the parents or guardians.
 
Also, Articles 21 and 24 of the Regulations on Education for the Disabled, parents or other guardians of children and juveniles with disabilities enjoy the following rights: First, the right to participate in the choice of teaching mode. If necessary, parents or other guardians can suggest or require schools to make individualized education plans with regard to students’ physical and mental characteristics, and to carry out individual teaching. Second, the right to redress, which means they have the right to seek administrative or judicial remedies when the right to individualized education for children with disabilities is infringed or disputed. When there are disputes over the admission and transfer between schools and parents or other guardians of disabled students, for instance, parents or other guardians shall have the right to apply to the education administrative department of the people's government at the county level to handle the disputes. 
 
Considering the above regulations, to guarantee the individualized education for children with disabilities, the education administrative departments of China are the decision-makers, and the schools have to ensure their decisions are implemented. That means parents or other guardians of children with disabilities play a relatively supporting role in assisting and cooperating with education administrations and schools. Therefore, the existing provisions fail to provide the parents or other guardians who are the representatives and protectors of children with disabilities, with subject status, equality and proper functions in this matter.
 
B. Procedures for determining individualized education for children with disabilities
 
1. Preschool registration procedures
 
Preschool registration is the starting point for children with disabilities receiving individualized compulsory education. According to Article 10 of the Regulations on Education for the Disabled, registration should be conducted jointly by the education administrative department, health administrative department, civil affairs department and the disabled persons’ federation at the county level.
 
2. Ability assessment procedure
 
Articles 20 and 21 of the Regulations on Education for the Disabled prescribe that if entrusted by the county-level education administrative department, the expert committee on education for the disabled assess the physical condition, the ability to receive education and other aspects of the disabled children who have completed registration. 
 
3. Dispute settlement procedure
 
For children with disabilities to receive individualized education, the dispute is mainly concerned with the disabled children and their parents or other guardians as one party, as well as the school and education administrative department. Disputes may fall into the following three scenarios:
 
First, disputes between the parents or other guardians of disabled children and schools. According to the Article 21, the procedures for dealing with such disputes are as follows: the parents or guardians of children with disabilities have the right to submit a treatment application to county-level education administrations, which will be responsible for organizing the expert committee on education for the disabled to conduct assessments. The committee will submit the assessment report and offer suggestions on how to resolve the dispute. Then, the county-level education administration will make decisions after considering the conditions of school running and the opinions off the disabled children, their parents or other guardians comprehensively, on the basis of the assessment report and suggestions from the committee.
 
Second, disputes over the teaching model and teaching plan for disabled children, their parents or other guardians and schools. At present, when such a dispute occurs, there is no provision for the disabled children, parents and other guardians to seek relief.
 
Third, disputes over the decisions regarding the enrolment and transfer of disabled children, between their parents or other guardians and county-level education administrative departments. Disabled children and their parents or guardians have the right to initiate administrative reconsiderations, or to raise administrative litigation to the people’s court, both in accordance with the law.
 
To sum up, with regard to protecting the right of children with disabilities to individualized education, the Regulations on Education for the Disabled highlight the legal obligations and rights of the state and schools; however, they do not fully reflect the rights of the disabled children, their parents and other guardians. Moreover, concerning the relief procedure for disabled children to receive individualized education, there is no adequate provisions on the rights of children with disabilities and their parents.
 
III. Legal Provisions in the US for Individualized Education for Children with Disabilities
 
The United States attaches great importance to the right of disabled children to receive individualized, free appropriate public education. If a child qualifies for special services in the compulsory education stage prescribed by the Individuals with Disabilities Education Act (IDEA, also known as Education Act for People with Physical or Mental Disabilities, or Education Act for the Disabled) , “the school district must design an individualized education program in writing for him/her, and choose appropriate ways to educate the student.” 
 
The first federal law in the United States relating to the Individualized Education Program (IEP) was the Education for All Handicapped Children Act in 1975. In 1990, the Act was revised and became the Individuals with Disabilities Education Act. This in turn was revised in 1997 and 2004.  In fact, the problem of disabled children’s access to individualized education itself was one of the major causes and important contents for the United States introducing the Education for All Handicapped Children Act in 1975.  At present, a law system has formed at the federal level, whose core is the Individuals with Disabilities Education Act, which aims to secure access to individualized education “according to the unique needs of every child”.  In addition, through the adjudication of Board of Education of the Hendrick Hudson Central School District v. Rowley,458 U.S.176(1982)and other cases, the judicial organs represented by the Supreme Court of the United States have supplemented the provisions of the Individuals with Disabilities Education Act in the areas of funding, types of school and so on, concerning the individualized education for children with disabilities. 
 
In order to make a better comparative analysis, the following part also briefly introduces the legal norms of individualized compulsory education for children with disabilities in the United States from two aspects: subjects of the Individualized Education Program, and the procedure for determining whether disabled children receive personalized education.
 
A. Subjects of the individualized education program for children with disabilities
 
According to the relevant provisions of the Individuals with the Disabilities Education Act, besides children with disabilities themselves, eligible subjects of IEP include mainly states and school districts, district IEP teams and the parents of those children.
 
1. States and school districts
 
First, Individuals with the Disabilities Education Act prescribes that states and school districts have the obligation to look for, identify and assess all the disabled children within their districts. 
 
Second, if there are children within a school district that require special education services, school districts have the obligation to evaluate various factors of the disabled children such as health, eyesight, hearing, general intelligence etc., in order to decide the specific mode for them to receive individualized education. 
 
2. District individualized education program teams 
 
As prescribed in the Individuals with the Disabilities Education Act, district IEP teams and other qualified professionals are responsible for reviewing various evaluation data generated around specific children with disabilities, and determine the corresponding individualized education plans.
 
First, the composition of the school district IEP team. The members of the IEP team are normally: parents of the children with disabilities;  eligible disabled students themselves; at least one teacher offering general education services; at least one teacher offering special education; school district representatives who are entitled to offer or manage special education so as to meet the unique needs of children; other individuals who understand disable students’ needs or have professional skills. 
 
Second, the responsibilities of the school district IEP team. The main responsibilities are: to set clear annul goals and short-term goals for children with disabilities; as a requirement for states or school districts, to evaluate the students’ achievements in order to make clear what adjustment measures should be taken; etc. 
 
3. Parents
 
The United States attaches great importance to the role of parents in helping disabled children get individualized education, and sets out parents’ rights in many ways. 
 
First, the right to informed consent. For example, parents shall have the right to informed consent when the school district proposes initiating or modifying the evaluation, assessment and placement of disabled children.
 
Second, the right to make decisions. For example, when parents have disputes with school districts over whether the children should take the evaluation test and their propositions are not supported, they can transfer their children and leave public schools. It should be stressed that the exercise of parental decision-making must be in line with the state compulsory education laws. 
 
Third, the right to participate. For example, members of IEP teams usually include the parents of children with disabilities. If an IEP team plans to hold a meeting at a certain time and place, they must get the consent of parents; at the same time, school districts should ensure that parents are given the opportunity to fully participate in these meetings.  If schools fail to offer valued chances for parents to take part in the formulation and procedure requirements of the individualized education, the court will reject the IEP proposed by the school. 
 
Fourth, the right of hearing. For example, parents may apply for a hearing if they are unsatisfied with the proposal brought forward by the school district IEP team.
 
Fifth, the right to legal redress. Parents shall have the right to seek redress in accordance with the law, for the violation of their rights by school districts or states. For example, in the Florence County School District Four v. Carter case, the US Supreme Court supported parents placing their children in private schools. 
 
B. Procedures for determining individualized education for children with disabilities
 
In the United States, the procedures for determining individualized education for children with disabilities are mainly the qualification confirmation procedure, ability evaluation procedure and dispute settlement procedure.
 
1. Qualification confirmation procedure 
 
Confirmation of qualification for individualized education is the starting point of the whole IEP for children with disabilities, directly determining which children in a school district are covered by the Individuals with the Disabilities Education Act and thus are eligible to receive individualized education.
 
 Since Individuals with the Disabilities Education Act does not offer specific provisions on how the confirmation procedure should be conducted, state governments and school districts could take “virtual and well-intentioned”  methods to complete the preliminary investigation and review of children with disabilities in the district, including population surveys, community surveys, kindergarten and preschool children screening.
 
2. Ability evaluation procedure 
 
According to the relevant provisions of the Individuals with the Disabilities Education Act, the core of the ability evaluation is to conduct initial evaluation or reassessment by the school district IEP team. The panel’s evaluation mainly focuses on the review of various assessment data about the children. 
 
3. Individualized education plan determination procedure 
 
The IEP team will finally determine the individualized education plan by holding one or more meetings.  Under the premise of fully guaranteeing the rights of children with disabilities and parents, usually all subjects can establish a personalized education plan for specific kids.
 
The individualized education program should be reviewed at least once a year by the same procedures, so that the newly revised education plan can be implemented in the next school year. This review is aimed primarily at helping those disabled children who have not achieved the expected progress after receiving the designed education. 
 
4. Dispute settlement procedure
 
The Individuals with the Disabilities Education Act suggests that parents of the disabled children and schools should be given more chances to settle disputes in more active and constructive ways.  At present, parents and school districts can resort to the following resolution mechanisms when have disputes.
 
To begin with, mediation.  Each party concerned may initiate conciliation proceedings. It should be noted that the participation in conciliation depends on parents’ willingness, and the proceedings should not affect other legitimate rights of the children and parents afforded under the Individuals with the Disabilities Education Act, such as the right to a hearing. 
 
Next, impartial due process hearing.  Major disputes between parents and school districts can be resolved through holding a hearing based on due process. One such dispute is when parents and school districts differ over the evaluation or placement of children with disabilities. In this regard, parents shall have the right to request an independent evaluation of their children, and school districts should conduct an independent evaluation by holding a hearing. If the decision of a fair hearing is in favor of the school district and the decision is not appealed, parents may request a second independent evaluation. Another is the controversy between parents and school districts over changes in the educational placement. Parents can request a fair hearing when unsatisfied with the school district’s proposal of substantial changes in educational security measures. 
 
States organize their due process systems in two different ways, one-tier or two-tier. In a one-tier system, state-level officials are responsible for conducting the hearing, after which all administrative redress procedures will come to an end. In a two-tier system, local officials are responsible conducting the hearing, and the due process hearing decision will go to a state-level review. After the state-level review, similarly, all administrative redress procedures come to an end. 
 
Finally, civil actions.  After resorting to all administrative procedures, parties in dispute shall have the right, afforded under the Individuals with the Disabilities Education Act, to bring a civil action to a state or federal court with jurisdiction. Most courts provide that the party which is unsatisfied with the final administrative hearing decision and brings civil action bears the burden of proof. 
 
From the above-mentioned American legal provisions on individualized education for children with disabilities, one can see that the status of parents of disabled children are highly valued in the United States, and parents are given many substantive and procedural rights. One can also find that this country emphasizes very much procedural justice, providing impartial mechanisms for redress to all parties in dispute.
 
IV. Suggestions on Improving the Law on Individualized Education for Children with Disabilities in China
 
Compared with the United States, China’s legal protection of individualized education for children with disabilities has two disadvantages: first, the importance of children’s parents or guardians in determining the individualized education for disabled children is undervalued; second, the dispute settlement procedures are not regulated enough. Therefore, the author thinks that the following could be considered to improve the legal provisions in China.
 
A. Clarification of the rights for children with disabilities and their parents or other guardians
 
China should further stipulate the following rights of parents or other guardians of the disabled children in Regulations on the Education for the Disabled: the right to know, the right to fully participate, and the right to redress.
 
First, the right to know. For example, the evaluation results toward children with disabilities from the committee of education experts for the disabled is the basis for deciding their enrolment, transfer and other events by the county-level education administrative department. Therefore, parents of children with disabilities should be informed of the evaluation reports by the Committee in a suitable manner.
 
Second, the right to fully participate. Parents of the disabled children or at least a certain percentage of them shall be members of the committee of education experts for the disabled. In particular, when evaluating the individualized education of a child with disabilities, the committees should ensure that his/her parents or other guardians have the chance to fully participate.
 
Last, the right to redress. According to Article 6 of the Administrative Reconsideration Law and Article 12 of Administrative Procedure Law, parents or guardians of the disabled children shall have the right to apply for administrative reconsideration or bring an administrative lawsuit, if they find anything objectionable about the decision made by county-level education administrative departments on the basis of the expert committees’ suggestions.
 
B. Improvement of the settlement procedures of disputes over individualized education for children with disabilities
 
Drawing on the experience of the United States, the following suggestions could be considered to improve the process of resolving disputes over individualized education for children with disabilities:
 
First, amending Article 21 of the Regulations on the Education for the Disabled, specifying that when parents and schools are in dispute over the enrolment and transfer of children with disabilities each party has the right to apply for a decision by the county-level education administrative departments.
 
Second, amending Article 24 of Regulations on the Education for the Disabled, adding one paragraph after the current content about the settlement of disputes between parents and schools over the individualized education program for disabled children, the content of the paragraph should be: when parents and schools are in dispute over a specific individualized education plan for children with disabilities, each party shall have the right to apply for a decision by the county-level education administrative departments. Entrusted by county-level education administrative departments, committees of education experts for the disabled should conduct corresponding ability evaluations and offer suggestions on whether the plan should be adjusted or not. Then the education administration will give a solution after considering the committees’ evaluation and suggestions, as well as the opinions of the schools and parents.
 
Third, clearly stipulates that the parents or guardians of disabled children have the right to apply for administrative reconsideration or bring an administrative lawsuit, if they find anything objectionable about the decision made by county-level education administrative departments on the basis of the expert committees’ suggestions.
 
To sum up, Regulations on the Education for the Disabled in China guarantee the right of disabled children to receive individualized education to some extent, but there are still deficiencies in entities and procedures. By learning from Individuals with Disabilities Education Act of the United States and relevant provisions concerning an Individualized Education Program, Education for the Disabled or other laws and regulations in China can further empower children with disabilities and their parents or other guardians, and improve the settlement procedures of disputes over individualized education for disabled children.
 
(Translated by LU Yanzhen)