A contentious-administrative court in Valencia overturned and annulled the ban on a preschool and primary education center in the province, dependent on the Ministry of Education, which prevents school support from a therapeutic assistance professional infant (PATI) to a student at the center with severe autism during the school day.
This judicial body determined that this school measure “violates the child’s fundamental right to equal access to education.”
This is reflected in the judgment rendered by this court after having partially accepted the contentious-administrative appeal filed, for the protection of the fundamental rights of individuals, by the family of the minor – defended by the disability lawyer Sandra Casas – against the said ban.
The sentence does not order the accused to pay the costs requested by the family and specifies that the decision is subject to appeal, which, if filed, must be filed in the same court.
The lawsuit asked him to consider that the ban issued by the Early Childhood and Primary Education Center violated “the fundamental right to equality of article 14 of the Spanish Constitution with regard to the exercise of the right to education of minors included in article 27 of the Spanish Constitution.
Likewise, he called for the recognition of “the fundamental right of the student to have his or her child supported by a therapeutic personal assistance professional throughout the school day for an inclusive education.”
In addition, he proposed to declare null “point 5 of the third resolution of the Resolution of December 10, 2020 of the Director General of Educational Inclusion, by which the instructions for the participation of external staff and community agents in educational centers. . of property of the Generalitat, declaring the educational support of personal assistance included in point 2 of the third resolution, for violation of the principles of equality. This request was not met given that on this occasion it does not fall within the scope of this resolution.
The contentious-administrative court which heard this case concluded that “the appeal must be allowed” with regard to “the violation of the fundamental rights invoked by the contested administrative act”, because “it violates the fundamental right to equality in access to education”, which in addition to collecting the Magna Carta is developed in the “Organic Law 2/2006, of May 3, on Education (LOE)”.
In its conclusion, the court cites the Constitutional Court and emphasizes that, as it underlines in a judgment, “to analyze this question, we must keep in mind the regulatory framework specific to the right to education of people with disabilities, constituted by article 27 of the Constitution”, and “which recognizes the right of everyone to education; and article 14 of the Magna Carta, “which prohibits any discrimination due to personal circumstances or conditions.”
This judgment also mentions article 49 of this document, “which, without recognizing fundamental rights, orders public authorities to pursue a policy of integration of disabled people”.
“More intense support”
The contentious-administrative court also refers in its conclusion to “the Convention on the Rights of Persons with Disabilities of December 13, 2006, ratified by the Spanish State”, emphasizing that in this case “it is of particular importance” and specifies that “ begins as a principle the need to promote and protect the human rights of all people with disabilities, including those who need more intensive support.
In this context, he emphasizes regarding the right to education that it is “expressly recognized same for disabled people» and which indicates that to “make this right effective without discrimination and on the basis of equal opportunities”, States “will ensure an inclusive education system at all levels”.
Thus, it specifies that it is necessary to guarantee, “among other measures, that people with disabilities are not excluded from the general education system”, that “reasonable adjustments are made according to individual needs” and that “the necessary support is provided to people.” persons with disabilities, within the general education system, to facilitate their effective training.
“Necessary modifications and adaptations”
Likewise, it argues that “personalized and effective supports must be provided in environments that maximize academic and social development” for “full inclusion” and adds that the Convention also prohibits “any form of discrimination against of these persons, including the refusal of reasonable accommodation. .
By this it means “necessary and appropriate modifications and adaptations which do not impose a disproportionate or undue burden, where required in a particular case, to ensure to persons with disabilities the enjoyment or exercise, on an equal footing with others, of all human rights and fundamental freedoms.
The court again cites the Education Act in this article and states that “the education of students with special educational needs will be governed by the principles of standardization and inclusion and will guarantee non-discrimination and equality in access and permanence in the education system.
