International Comparative Study of Educational Laws of the Persons with Disabilities:An Observation on Regulations on the Education of Persons with Disabilities
February 07,2018   By:CSHRS
International Comparative Study of Educational Laws of the Persons with Disabilities:An Observation on  Regulations on the Education of Persons with Disabilities
Abstract:The issue of education for people with disabilities has become of increasing concern. How can we effectively guarantee the basic right to education for persons with disabilities? Will the revised Regulation on Education for the Disabled meet their needs? This article takes the Regulation on Education for the Disabled as the core and compares it with the related special educational laws of the United States, Britain and Japan. The following conclusions were drawn from this study: In terms of educational concept, the three countries follow the concept of inclusive education, and pursue equity and educational justice. They not only pay attention to inclusive education but also focus on improving the quality of education for students with disabilities. All three countries focus on accommodating children with special needs, but each implements its programs in a different way. These practices can be used as reference for the development of a special needs education law in China.
Keywords: children with disabilities, right to education, regulation on the education of persons with disabilities, international law, special needs
China began to implement its newly revised Regulation on the Education of the Disabled  (hereafter the Regulation) in 2017, signifying that the legal guarantees for the right to education of disabled people has entered a new historical era in China. Guided by the Education Act, the Compulsory Education Law and the Law on the Protection of the Disabled, and on the basis of the Regulation of 1994, the Regulation was comprehensively revised in combination with the current reform and development of special education in China.  The promulgation of the newly revised Regulation will play an essential role in constructing the legal system covering education for disabled people in China in the years ahead. First, the Regulation clearly defines that it covers all types of disability. Second, the Regulation emphasizes the government’s responsibilities including establishing resource centers and classrooms for special needs education, supplying the facilities for special needs education, setting up a professional committee on education for the disabled as well as allocating funds in accordance with average per capita public funds within the budget. Third, the Regulation further defines the guiding ideology of inclusive education and stipulates that it should be first arranged that children with disabilities attend regular schools, for the first time defining such an idea with legal provisions. This paper, taking the Regulation as the core, aims to do a comparative study on the laws for special needs education in the United States, Britain and Japan in terms of educational concepts, views on disability, types of disability as well as special education needs in order to explore the developmental direction for the legal construction of China’s special needs education.
I. Understanding Equality: From Inclusive Education to High Quality Education
As far as right to education of the disabled is concerned, equality is the logical starting point for legal provisions. No matter how we understand and implement equality, it is the fundamental concern in international laws on special needs education.
In 1993 the United Nations passed the Standard Rules for the Equalization of Opportunities for Persons with Disabilities,  stipulating the right to education of the disabled from the perspective of “equalization of opportunities”. It requires that regular schools should provide appropriate services in order to create a barrier-free and supportive environment to meet the demands of persons with different types of disability. Therefore, it requires every country to introduce polices, adjust curriculums, provide high-quality textbooks and use the method of community education to provide “equality of education” for the disabled. In 1994, the World Convention on Education for Special Needs was held in Salamanca, Spain, and the Salamanca Declaration and Programme of Action for Special Needs Education was passed,  further clarifying the understanding of equality. It holds that equality means “inclusive education”, that is, “schools should accept all the children without considering their physical, mental, social, affective, linguistic or any other conditions”. In addition, the Declaration and Programme emphasize “effectiveness”, implying the recognition that “every child has his unique characteristics, interest, ability and needs for learning”, therefore, “these differences must be taken into account in the design of an educational system and implementation of a teaching program”, and “the appropriate environment and conditions should be constructed in order to accept these children and offer effective education for them”. 
In 2007, China became one of the first batch of contracting states and performing countries of United Nations Convention on the Rights of Persons with Disabilities and promised to practice the educational ideology of “equality” in education with regard to disabled persons together with all the other contracting states.  For instance, Article 2 concerning the basic rules in equality was particularly added to the general rules of the Regulation, stating that, “the government guarantees that persons with disability enjoy equal rights of education and prohibits any educational discrimination based on disabilities”. It also stipulates that, “favorable conditions should be constructed for disabled persons to participate in social life equally based on their physical and mental development and special needs”.  In terms of equality in admission to school, Article 7 stipulates that “refusal of persons with disability is prohibited when they apply for admission to a school as long as they meet the requirements of law and other regulations”.   In terms of equality in process, measures such as teacher training, a small number of students in each class and tailoring plans for individual education should be taken to guarantee the equality for the disabled students to participate in the educating and teaching activities as well as other activities organized by schools, in order to improve educational quality and promote outcome fairness.
The United States issued the Education Law for the Handicapped in 1970, and for the first time made an independent law concerning the education of physically or intellectually disabled people, asserting that appropriate educational support and services should be provided for children with special needs. In 1975 the United States issued the Education Law for All Children with Disabilities, known as 94-142 Public Law. It was successively amended later and finally became the Individuals with Disabilities Education Act, more commonly known as the IDEA Act.  It stresses the educational principle of zero refusal and that free and appropriate public education should be offered to all children and no child should be excluded from education. With the promulgation of the Law on the Promotion of Education for Disabled Persons issued in 2004 and Law on Promoting Success for All Students issued in 2002, revised in 2015, the United States changed its focus from educational equality to the educational outcomes of “high quality” and ensuring that all the students have chances to reach a high academic level.
Britain introduced the Education Law in 1944 and for the first time confirmed the establishment of schools providing special education for disabled children in the form of legislation. The law was revised in 1976, supporting the practice of placing the disabled children in regular schools and for the first time clearly guaranteeing in legislation the equal right of disabled children to be admitted to the regular schools to receive education.  Britain again issued a Special Education Needs Report (known as the Warnock Report) in 1978 and for the first time proposed the concept of “special education needs”, asserting that integrated education starting from integration in schools to social integration and further functional integration should be available to all the children, which challenged the educational placement model for children with disabilities.  Both the Green Book for Special Education issued in 1997 and the Special Education Needs and Disability Act issued in 2001 stress anti-discriminatory education for people with disabilities and stipulate the standard of improving the learning ability and academic achievements of all children.
The School Education Law promulgated in Japan in 1947 and revised in 1988, the School Education Law Enforcement Order promulgated in 1953 and revised in 1989, as well as the Education Basic Law newly revised in 2006, stipulate that all people have equal access to educational opportunities, which should be adapted to their abilities.  The Basic Law for Disabled Persons issued in 1970 and revised in 2004 stipulates that in order to improve the quality of education of the disabled, the state and local governments should enrich the content of education, improve teaching methods, and carry out communication and learning activities between regular students and disabled students to help the disabled students obtain high quality and education. 
II. Differences in the Understanding of Persons with Disabilities and Special Needs Education
The United Nations Convention on the Rights of Persons with Disabilities states that “disability is an evolving concept ”, reflecting people’ s different understanding and reconstruction of the identifying features of disabled persons in different social environments and cultural contexts. As Colin Low pointed out, “disability is just one of a human being’s features”.  Besides, disability not only refers to the physical disabilities, more importantly, it refers to a functional disorder in social integration. Therefore, people’s understanding of disability has become enriched and this richness and diversity have been gradually embodied in the making of laws and regulations in countries around the world.
Article 2 of China’s Law on the Protection of Disabled Persons stipulates that “disability refers to those whose tissues or functions have been lost or become abnormal in psychology, physiology or physical structure and as a result they have lost or partly lost the ability to participate in certain activities in normal ways”,  and accordingly defines the right to education for children with eight types of disability. Due to historical reasons and the limitations of current conditions, in the process of promoting special needs education in different parts of China, we have mainly guaranteed the compulsory education of the three types of disabled children, namely blind children, deaf children and children with intellectual disabilities, at the same time taking into account the education of children with other disabilities. The IDEA Act of the United States issued in 2004 defines disabled children as those “who have intelligence disability, hearing impairment (including deafness), speech or language impairment, visual impairment (including blindness), severe emotional disturbances, limb disorders, autism, brain injuries, other health impairments, or special learning disabilities, and as a result need special education and service.”  They are subdivided into 13 categories. Accordingly, the special education that they need is “free and carefully designed teaching that meets their unique needs”. In Britain, from the 10 categories of disabled children defined in the Education Law of 1944 to the use of the concept of “special education needs” in the Warnock Report, “special education needs” was finally confirmed in the Education Law of 1981. This was defined as “providing special educational facilities for children who have learning disabilities and need special education”.  Japan defines the objective of special education in its School Education Law as schools for the blind, deaf or mentally disabled should provide the blind (including those with severe amblyopia), the deaf (including those with severe hearing impairment), physically disabled or the weakling (including the physically sick or weak ), and those with a learning disability with similar education as provided in regular kindergarten, elementary school, junior high school and senior high school, and award them the knowledge and skills needed to remedy the impairment.  Details are shown in Table 1.
Table 1: Categories of Disability in Different Countries


We can see from Table 1 that although there are big differences in the names of the disability categories in different countries, basically these categories cover the following major types of disabilities: visual, hearing, intellectual, and physical, as well as children that are sick and weak. There has been a great change in the understanding of special needs education with the changes in disability classification.
III. The Developmental Tendency with Special Needs as the Core
The United Nations Convention on the Rights of Persons with Disabilities points out that education for special needs means, “Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.”  This convention has produced far-reaching influence on all the contracting states, among which the United States, Britain and Japan all have their different characteristics in the practice of providing “special education”.
Taking “special needs” and protecting the best interests of the children as the core, the United States has made detailed stipulations in various aspects such as appraisal and assessment, least restrictive environment, curriculum and teaching. The IDEA Act stipulates that in terms of appraisal and assessment, the assessment must be implemented in the mother tongue of the child, the tests and other assessment tools must be able to measure the educational needs in different special fields rather than being just an assessment tool for IQ, and it is prohibited to use one test standard as the only foundation and basis for the design of educational program for children with disabilities. In terms of curriculum and teaching, individual educational programs should be made and effective teaching strategies should be employed for the disabled.  As for the principle of least restrictive environment, the IDEA Act requires that all students with disabilities should obtain to the utmost extent an appropriate educational environment. 
Since Britain proposed “special education needs” in the Warnock Report, a new paradigm was formed in the field of special education. In the third part of the report, “A New Placement System for Disabled Persons”, it claims that the dimension of disability classification can easily mark children with various labels, consequently the factual “disability” may lead to more “disabilities” in social functions. Thus Britain proposed the concept of “special needs”, using the concept of “children with learning difficulties” to indicate all types of disabilities and “mild”, “moderate” and “severe” to indicate the degree of disability. In this paradigm, we should see the advantages of the children and provide them with various resources and support to remedy their weakness including the offering of special facilities or teaching methods as well as the special or adapted curriculum. We should also attach importance to social structure and educational situations. 
Japan also has its own understanding of special needs. It takes into account the schooling of the children with severe and extremely severe disabilities. First, it has established schools for blind children, deaf children and intellectually disabled children which are targeted at those who cannot take care of themselves and need the help of others in their daily life. Second, it has also drawn up elementary and high school curriculum guidelines for disabled children going to special education schools to help them obtain more appropriate education. Third, it has made special stipulations on the “exemption from school attendance” and “graduation evaluation” for the severely handicapped, extremely severely handicapped and multi-handicapped children. 
Relevant provisions in Article 2, Article 24 and Article 25 have been added in China’s newly revised Regulation, emphasizing the education for special needs children. For instance, the design of individual education programs, curriculums and textbooks must be “in conformity with the physical and mental characteristics and the needs of students with disabilities”. Their “special needs” should be satisfied via various measures such as the establishment of an educational committee for the disabled, the creation of barrier-free environments and the offering of reasonable and accessible facilities.  But the stipulations on “special needs” in these provisions are relatively simple.
We can see from the above that special needs have become the new international tendency for the future development of special education and all countries are active in the transformation, but different countries have different understandings of special needs. The United States provides a more targeted intervention program and resource support by means of enriching and refining types of disability in order to satisfy the special needs of disabled children. Britain places children with special needs in regular education fields and establishes learning communities and partnerships for mutual help and the promotion of academic achievement. Japan has made careful consideration of the education of the children with severe disabilities or extremely severe disabilities and not only set up special schools for them but also applies the special channel of home schooling for them. China’s legislation is also actively advocating the concept of “special needs”.
IV. The Implications to Legislation of China
Currently and in the years ahead, China is at a crucial stage in strengthening the legal support for education for children with disabilities. The comparative analyses on the laws and regulations of the United States, Britain and Japan and the analyses of their experiences will have implications for the further revision and perfection of the regulations of China as well as the making of the Education Law for the Disabled in the future.
First, the basic thought, framework and core concepts for the legislation need to be determined.
In terms of basic thought, China is in line with international standards and it has confirmed the orientation is inclusive education. In terms of the framework, it is necessary to discuss whether we should adopt the model of integrating special education into regular education or implementing the current model of separate education. The model of integration is favorable for the integration of children with disabilities in society, but seems insufficient to protect their right to education. While the model of separate legislation still involves the separation between “regular” and “special”, it can highlight the government’s attention to it and increase its investment in it. In terms of core concepts, it is necessary to define such basic concepts as the type of disability, special education, special needs, individual educational programs, and resource classrooms, etc. so as to build the foundation for the Education Law for the Disabled.
Second, we should clarify the legal level of the Regulation and research and draft an Education Law for the Disabled.
In terms of the legal level, the Regulation is below the level of the Law for the Disabled rather than the Education Law and the Law of Compulsory Education, therefore it is necessary to accelerate the research for and drafting of an Education Law for the Disabled. This law should cover a variety of aspects, including school education, identification and evaluation of disabilities, curriculum and instruction, barrier-free environments and assistive technology support. Hence, it is suggested that we should take the Regulation as the core of the law, actively research and draft the law, as well as its implementation details and relevant policies, so as to accelerate the construction and perfection of the legal system for special education.
Third, we should take special needs as the core and actively explore a new legislative mode.
Special needs are the developmental tendency for international special education. The revised Regulation has also included relevant content, but there is still much room for expansion. When the international society gradually uses the term “children with special needs” to indicate the children with various needs, the meaning of “special” has been changed. It does not only refer to the children with disabilities, but also refers to the children with learning difficulties as well as supernormal children. In this framework, should we bring the children with learning difficulties and the supernormal children into the domain of special education law? With the continuous development of special education, the chances for children with learning difficulties and the supernormal children to be brought into the domain of special education will be greater, thus further discussion is needed in the process of making related laws and policies. “Special needs” cover a wide range of aspects and with the continuous development of special education, they will extend to more fields.
(Translated by ZHANG Wenhong)