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The Federal Constitution lays down access to education by disabled people in article 208, quoted below, which instructs the State to ensure appropriate care for them. The provisions are as follows:
“Art. 208. The duty of the State towards education will be made effective on account of guaranteed:
(...)
III – special education available for disabled people, preferentially within the framework of regular education”.
This rule is repeated in article 54, paragraph III, of the Child and Adolescent Statute.
In fact, people with disabilities must receive education that is as close as possible to that which is available to other people, only being removed from this if impeded by the impairment: a person with a hearing impairment will not be given a task that depends on hearing, a person with a sight impairment will not be asked to carry out tasks that require sight, a paralyzed person will not be made to carry out physical activities that require exerting force on the limb that is deficient, and so forth.
To this effect, the regular education framework must be made use of, (and for this reason preferentially), while focusing on specialization, so that people with disabilities amongst themselves (with their various limitations) and with relation to non-disabled people, are not harmed so much, which is what tends to happen, when relating the former with the latter, in physical education classes when practicing the various sports and games: for instance, wheelchair basketball, in which not everyone can take part. Getting along well together wholesomely is essential in order for everyone to be ensured education that is appropriate and equal by where there is no difference among them, – with the necessary assistance always available, and enabling the inclusion of people with disabilities in the community in which they live together with non-disabled people, without causing any kind of reverberations of a psychological nature or of any other type.
Education is also a social right – the first, in fact, that article 6 of the Brazilian Federal Constitution deals with.
There are higher education courses that, through their training centres, offer educators specialization in teaching people with disabilities.
This initiative must be applauded and encouraged. However, these courses are normally paid for and are chosen as perfection courses, and this attracts only those people who are interested in dedicating themselves to teaching disabled people, while, more importantly, it is essential that all students, through the educators, should be aware of these rights in order to respect them naturally, or even as a duty, but not out of piety; or rather, people with disabilities should be aware of their rights as much as they should make the whole society aware, and this comes from suitable education given to all, stemming from the lessons given and the examples absorbed in daily life. Disabled people have the right to their own education and to the education of others with regard to their disabilities.
In São Paulo, Law number 9.167, of May 18 1995, set up the State Program for Special Education, the aim of which is to provide education for disabled people by applying special methods, techniques, contents and equipment that meet the specific needs of these people, thus preparing them for work and the conscious carrying out of daily activities, by inserting disciplines that are relative to special education into the curricula of teacher training courses and by setting up courses for people who are specialized in education linked to the different areas of disability, among other measures.
It is the wish of the Constitution that the education of people with disabilities, although specialized, is preferentially given within the framework of regular education, the purpose of this being that the daily contact of students makes them realize that most people have some kind of disability and that so-called disabled people very often surprise us by carrying out tasks that they are assumed to be unable to do. In this way, feelings of sympathy and (quite often) fear are replace by admiration and friendship.
People with disabilities do not form a group apart, isolated, made up in accordance with the similarities of the disabilities each member may have. But this is what is generally seen and, what is worse, not infrequently thought of as being right.
This is why it is important that, from as early as possible, everybody is given an equal opportunity to grow (this verb being used in its widest sense) and to live together with the respect that is owed to a Democratic State of Law in which one of its fundamental values, among others, is “the dignity of the individual”. (Federal Constitution, article 1, paragraph III).
It must be made clear that, when the 1988 Constitution uses the word preferentially, it is not stating that there should be means for such preference. What it is imposing is that, in order to be productive, special education should be done free within the framework of regular teaching, mainly within the framework of public schooling, only allowing special education to be given separately when there is just motive not to recommend the situation by decision from specialists or if, in exceptional cases, it is unfeasible to reach the sought-after goal by this means.
Aware of the problem, the Constitution of the State of Sao Paulo, in article 279, paragraph I, delegated to the State and Municipality the power to ensure the social integration of disabled people by setting up training centres that offer the means by which these aims may be achieved for those who are unable to attend school within the regular teaching framework.
In order to bring the right to education into effect, it is necessary to act in a way that makes it possible for people with disabilities to have access to the lessons given by teachers, together with collaboration from Psychologists (for all the pupils), from interpreters who translate into sign language (which everyone should be taught to), from books that have been specially written for mentally disabled people, and books (not only teaching books) written in Braille, which is compulsory, at least in the percentage established by law (with which everyone should have contact.
Incidentally, the Copyright Law (law no. 9.610, of February 19 1998) sets forth, in article 46, paragraph I, that it is not a copyright offence – therefore excluding authors’ royalties – to reproduce literary, artistic or scientific works into the Braille system for the exclusive use of visually disabled people, if it is done non-commercially, or any other support procedures for these people.
But the legislator grants this task to men of good will, as it does not enforce it even within free education, by intervention from the public power, and it shall be remembered that paper in this case is not taxable, and there are jurisprudence and doctrine extending such tax exemption to other components necessary to publish books... Reading is absolutely essential for people’s education, and must be encouraged, as the government advertises. However the necessary means must be supplied so that everyone can reach this target. It is common knowledge that the man who reads is worth more.
Finally, let us relate the right to education with the right to work.
The question of work is linked to that of education – the aim of which is to prepare people for the job market that, as it is already saturated, is very selective, the opportunities are not the same for everyone. People with disabilities usually have specific needs in order to overcome common difficulties in learning, and the disability also requires individual, economic investments, which consist of expenses on specialists, apparatus, etc, which are not required by those who are not disabled people. In this perspective in this way, the difficulties of people with disabilities who do not have any resources become worse.
1.This article can be found in extended form in Chapter VIII – ‘Direito à Educação Especializada’, from the book, “Pessoas Portadoras de Deficiência no Direito Brasileiro”, published by Juarez de Oliveira in 2003, written by the authors.
2.Luciana Toledo Távora Niess is a lawyer, majoring in International Economic Relations Law at the Pontifical Catholic University of São Paulo – PUC/SP - and is a member of the São Paulo Disabled Rights Defense Commission of the Order of Lawyers of Brazil .
3.Pedro Henrique Távora Niess is a General Sub-attorney of the Republic, and has studied Masters and Doctorate at the University of São Paulo – USP/SP.
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09/08/2005