CRPD/C/23/D/41/2017
special education assistant, a hearing and language specialist and a therapeutic education
specialist. A separate matter, however, is that a point has been reached in the child’s
educational and behavioural development at which his inclusion can no longer be ensured
with the resources available to the administration which, as stated in the 2009 ruling of the
Burgos Chamber of the High Court of Justice of Castile and León, ‘are what they are’.”
2.12 On 24 September 2012, Rubén’s parents filed an appeal with the Administrative
Chamber of the High Court of Justice of Castile and León against the ruling of
Administrative Court No. 1 of León. They asked that the ruling be quashed and again
requested that Rubén’s right to be educated in a mainstream public school be respected. The
parents stressed that the ruling ignored the abuse suffered by Rubén and the
administration’s duty to provide reasonable accommodation at the mainstream public
school that he attended. They also claimed that the judgment omitted any mention of the
inconsistency between the schooling report and the social worker’s report. Lastly, they
claimed that the ruling ignored the expert evidence that they had submitted, namely the
report of clinical psychologist G.C., according to which Rubén’s difficulties in adjusting to
schooling in the mainstream public school were due to a lack of educational support and the
discriminatory, hostile environment that he experienced there. They reiterated that, contrary
to what is stated in the ruling, Rubén did not have a special education assistant at the
beginning of the 2010/11 school year, and that when such an assistant was later assigned, in
the words of the assistant herself, the teacher “completely ignored and gave up teaching”
Rubén. The authors argued that the Court’s statement to the effect that Rubén could no
longer be educated in a mainstream school because the resources available to the
administration “are what they are” was “untenable and completely unfounded”. They
reiterated the point that Rubén had had the necessary support until the events described
above unfolded and that, given Rubén’s characteristics as a child with Down syndrome,
such resources could perfectly well have been provided in a mainstream school. This is
evidenced by the fact that the vast majority of children with Down syndrome attend
mainstream public schools, as the expert G.C. pointed out, a claim that has never been
denied.
2.13 On 22 March 2013, the High Court of Justice of Castile and León rejected the appeal,
claiming that there had been no violation of the right to equality (Constitution, art. 14) in
relation to the right to education and the principle of human dignity (Constitution, arts. 27
and 10 (1)).5 The Court, in line with the ruling of Administrative Court No. 1 of León,
concluded that there can be no valid comparison between children with disabilities and
children without disabilities, and that, as a result, the enrolment of children with disabilities
in special education centres cannot be considered to constitute discrimination. In its ruling,
the Court recognized that “in fact, the situation in the school in recent years was not
appropriate to [Rubén’s] needs, the attitude of part of the teaching staff was not at all
cooperative; moreover, the school’s reaction to the teaching staff’s actions was not what
was immediately required of it (admitting, at least for the purposes of the argument, the
serious accusations made against several teachers […]), there could even have been some
abnormal functioning, but such was the climate in the school where the child was receiving
assistance and an education”. This notwithstanding, the Court reiterated its view that the
administrative decision was justified because, as indicated in the two schooling reports
issued on 17 December 2010 and 21 March 2011 respectively, the child demonstrated
“considerably delayed educational and cognitive development, in addition to some
behavioural problems of particular relevance, including psychotic outbreaks involving
disruptive behaviour”. It considered that the report of the expert G.C. failed to provide
sufficient guarantees of accuracy and independence that could nullify the two reports
written by the administration. It also considered Rubén’s specific support needs to fall into
both the area of special education and the area of behaviour modification. According to the
Court, this circumstance, coupled with the fact that Rubén only responds acceptably to
learning activities when they involve individual attention from specialist teachers who have
a long-term relationship with him, mean that he should no longer attend a mainstream
school.
2.14 On 30 April 2013, Rubén’s parents filed an appeal for amparo with the
Constitutional Court against the ruling of the High Court of Justice of Castile and León.
5
4
The authors provided a copy of ruling No. 00491/2013 of the High Court of Justice of Castile and
León, dated 22 March 2013.
GE.20-12764