Failing the Test
In its recent concluding observations on Germany, the Committee on the Rights of Persons with Disabilities identified significant shortcomings in the implementation of Art. 24 Convention on the Rights of Persons with Disabilities (CRPD), the right to inclusive education (para. 53f.). This piece argues that these shortcomings are rooted in Germany’s history and the continued embrace of an outdated model of disability. Indeed, to the extent the latter remains the foundation for Germany’s approach to inclusive education, its current endeavours will remain insufficient not just in light of its international obligations, but also in light of its own constitution.
Inclusion Through Segregation?
In its concluding observations, the Committee condemns Germany for the ‘lack of full implementation of inclusive education throughout the education system, the prevalence of special schools and classes, as well as the various barriers children with disabilities and their families encounter to enroll in and complete studies at mainstream schools’. Similarly, the shadow report issued by the German Institute for Human Rights has ascribed Germany a ‘misguided understanding of inclusion’ which prevents the majority of children with disabilities from being schooled inclusively and forming contacts with non-disabled children (para. 82).  The practice of schooling students in predominantly segregated environments or integrating them into mainstream schools under the expectation of them adjusting to the standardized requirements does not meet the understanding of inclusion under the Convention. This clearly distinguishes between forms of segregation, integration and inclusion whereby the latter requires a process of systemic reform to overcome remaining barriers and create participatory learning experiences for everyone (General Comment No. 4, para. 11).  Germany’s reluctance to accept that Art. 24 CRPD requires the abolition of its segregated school system is thus rooted in a misguided understanding that inclusive education can be achieved by segregation. Thus, the majority of children with disabilities continue to be educated in special schools, despite the Committee’s condemnation of this fact already back in 2015 (para. 45).
While in theory every child nowadays has a right to be included in the ‘mainstream’ schools, the categorisation into children with or without special education needs is still decisive for a child’s academic path. This is exemplified by the fact that more than half of pupils diagnosed with a disability are being taught in ‘special schools’ (Förderschulen), more than 70% of which leave school without obtaining a recognised qualification. The Committee identified several factors that continue to uphold educational segregation in Germany, inter alia the lack of clear mechanism to promote inclusive education in the Länder and at the municipal level, prevailing misconception and negative perception about inclusive education, lack of accessibility and accommodation in public schools and insufficient training on inclusive education for teaching and non-teaching staff (para. 53).
However, as the Committee has emphasized on multiple occasions (see for example General Comment No. 4 on inclusive education, para. 40), such segregation impedes the full realisation of Art. 24 CRPD and several other rights of the CRPD in two regards: First, it is often the starting point of a life shaped by exclusion for the individual pupil who is prevented from forming networks with pupils without disabilities during classes and oftentimes also from entering the open labour market afterwards (shadow report, para. 80). Second, it impedes society itself from becoming more inclusive as it prevents students without disabilities from interacting on a regular basis with students with disabilities. It is the latter reason that arguably proves that Germany’s reluctance to fully commit towards an inclusive school system is rooted in a misconception of disability that focuses primarily on personal impairments as the main reason for exclusion.
By contrast, the human rights model of disability enshrined in the CRPD builds on the social model. As such, it views an insufficiently inclusive and adaptive society, not the disability itself, as the primary reason individuals with disabilities are limited in their enjoyment of human rights. In this regard, by maintaining its segregated school system, Germany prevents society from becoming more inclusive. This neglects that for an effective implementation of the CRPD, it is the society that has to change, not the individual. Accordingly, in its concluding observations the Committee also voiced concerns over Germany’s use of a medical model of disability in many areas of the law (para. 5), recalling the findings it already made in 2015 (para. 8). Under this outdated model, persons with disability were not recognized as right holders and disability was perceived only as a medical condition that justified interventions into their autonomy, exclusion and discriminatory treatment (General Comment No. 6, para. 7).
‘Special’ Education during Nazism
Germany’s reluctance in terms of abolishing its segregated school system and the prevalence of an outdated medical model of disability can be traced back to Germany’s darkest chapter – Nationalsozialismus (Nazism). During this period, persons with disabilities were categorized into three different categories: noch bildbar (still educatable), noch brauchbar (still of usage) and unbrauchbar (not of usage). While persons qualified as noch brauchbar were subjected to forced sterilization, the ones qualified as unbrauchbar were later euthanised by the Nazis. The ones considered to be noch bildbar were sent to the so-called Hilfsschule (Help-School), as they were considered a burden for the mainstream schools for requiring special attention in order to transform them into ‘full-functioning-members of society.’ The aim of the Hilfsschulen was threefold: First, securing the ideology of Rassenhygiene (race hygiene) by inter alia recommending pupils for forced sterilization. Second, transforming the pupils into economically valuable members of the society and third, relieve the ‘ordinary` schools. This system, based on a blatant disregard for human dignity, shaped not only the ‘special-school-system’ between 1933-1945; it still continues to influence the current educational system (for an overview, see here).
After the end of national socialism, significant investment in and the expansion of the special school system (Sonderschulen) was perceived as a form of reparation towards the population with disabilities.  However, in reality, it only served to solidify the financial and structural segregation of Germany’s school system, while also entrenching a misguided understanding of inclusion and disability that perceived education of persons with disability as a welfare project. Thus, even though the ideology of race hygiene as removed from the educational agenda and a formal restructuring of the system during the 1950s, the ‘special school system,’ including its personnel, remained similar in form to the one in place during Nazism. In particular, Sonderschulen for pupils with ‘learning disabilities’ (Lernbehinderung) remained the core element of special education, while their teachers (Sonderpädagogen) continue to this day to be educated separately from teachers at mainstream schools. Importantly, the dark history of the Hilfsschulen has for several decades not been adequately researched and processed, arguably because many of the persons who remained involved in the system contributed to the crimes committed against the pupils of such schools. While indeed there have been several reforms (p. 8f.) of the system in the past decades (Sonderschulen were renamed to Förderschulen) and the current approach clearly distances itself from the system during Nazism, the general perception of segregation as a means of inclusion remains.
Looking beyond the CRPD
In Germany, education falls within the responsibility of the Länder (the federal states) and accordingly the right to education is enshrined explicitly only in the text of the respective constitutions of (most of) the Länder. However, in 2021 the German Constitutional Court  recognised a fundamental right to education to be enshrined also within the German Basic Law (Arts. 2(1), 7 GG; BVerfGE 159, 355 [430]). Three arguments can be made to establish that this right entails the positive obligation of the German state to adhere to the Committee’s observation and take measures to end the segregated school system.
First, the Constitution must be interpreted in compliance with Germany’s international obligations (Völkerrechtsfreundlichkeit des GG, see for example BVerfGE 111, 307 [317f.]). This requires consideration of the CRPD when interpreting the rights and guarantees enshrined in the Basic Law. However, Germany’s Federal Constitutional Court has highlighted that the Committee’s work is not binding in terms of interpretation and has deviated from its findings where it found them ‘unconvincing’ (BVerfGE 151, 1 [34]). In the context at hand, it matters that the interpretation provided by the Committee of Art. 24 CRPD is based on the fundamental human rights model enshrined in the CRPD. By contrast, Germany’s reluctance to further inclusion is rooted in the medical model, which is widely considered to be both outdated and capable of leading to harmful results (General Comment No. 6, para. 7f). As the recent jurisprudence of the Constitutional Court seems increasingly to mirror the human rights model of disability (see particularly BVerfGE 160, 79 [102ff.]), there is hope that the Constitutional Court would find the Committee’s observations on segregated school systems indeed ‘convincing’.
Second, the Constitution must also be interpreted in light of its nature as an antithesis against the terror regime of Nazism (BVerfGE 124, 300 [328]). Thus, the right to education arguably entails a right to an inclusive school system as envisaged by the CRPD and the Committee, contrasting the segregation established during the Third Reich.
Lastly, Art. 3(3 s. 2) GG states prominently that no one shall be subjected to discrimination based on disability. This entails the obligation to refrain from discriminatory treatment and a right to equal participation and equal development opportunities (BVerfGE 96, 288 [302f.]). As demonstrated, achieving sustainable equality and the full enjoyment of rights is severely impeded by the segregated school system. Notably, the German Constitutional Court found in 1997 that placing pupils in special schools against the parents’ will violates Art. 3(3 s. 2) GG if their education at a mainstream school actually corresponds to their abilities or can be made possible with reasonable use of special educational support (BVerfGE 96, 288 [303]). To be sure, this argument grants the authorities wide discretion in terms of feasibility and is grounded in the same misguided focus on the individual’s abilities rather than the society’s need to become more inclusive. However, it offers a solid basis to prospectively go beyond this approach and to declare Germany’s efforts to inclusive education insufficient and discriminatory under Art. 3(3 s. 2) GG.
While none of these arguments alone might suffice, together they support a construal of the right to education enshrined in the GG that entails an obligation to follow the Committees recent recommendation to accelerate the transition from special schooling to inclusive education (para. 54(a)).
Conclusion
Germany has been falling short of what is required by Art. 24 CRPD for a while. Its failure to fully address its shameful history with regards to the treatment of persons with disability during Nazism and its continued embrace of an outdated model of disability play an essential role in this regard. To this end, Germany must ensure that its history does not continue to prevent the full implementation of the CRPD and that the human rights model of disability serves as the yardstick for every decision taken when implementing the Convention. Only if Germany learns the lessons from its pasts instead of continuing its legacy can it ensure inclusive education for everyone and build a future based on equality.
