A group of civil society organizations filed a collective petition against the Argentine State (in particular against the Ministry of Education) to stop its omission of collecting essential information on the educational status of persons with disabilities. The case focuses on the legal and constitutional obligation of the Argentine State to produce information on the educational system and its close link to the right to education, equality and non-discrimination.
The Asociación Civil por la Igualdad y la Justicia (ACIJ), the Asociación por los Derechos Civiles (ADC), the Asociación Síndrome de Down de la República Argentina (ASDRA) and the Red por los Derechos de las Personas con Discapacidad (REDI) filed a collective action for protection with the aim of having the National State (Ministry of Education – National Directorate for Information and Evaluation of Educational Quality) take the necessary measures to produce sufficient and appropriate information on the educational trajectories of students with disabilities. To this end, they requested that various questions be included in the annual survey conducted by this Directorate in order to obtain more complete information on persons with disabilities. In particular, they were requested to include: the number of students with disabilities attending regular schools (taking into account the percentage of the school day they effectively attend such schools), which was not being collected, despite the fact that this is considered basic data for assessing compliance with the right to inclusive education, established in article 24 of the Convention on the Rights of Persons with Disabilities (CRPD); and data collection on the educational trajectories of those who attended special schools -a population composed almost exclusively of persons with disabilities-, since the records devoted to this category collected less information than that gathered for students attending ordinary schools: (i) four-year-olds and five-year-olds who have never attended school; (ii) indigenous people and/or speakers of indigenous languages; (iii) students attending full/extended school day; (iv) students receiving language instruction; (v) students enrolled and repeating students by section/division; (vi) graduates according to degree/certification and curriculum level; and (vii) dropouts. The petitioning organizations argued that this information was essential for evaluating the education system and consequently for designing public policies that would guarantee the right to education, and that the lack of adequate and reliable data violated the right to equality (constituting an act of discrimination on the basis of disability that needed to be subject to strict scrutiny), the right to seek and receive information, and the right to education, all of which are established in national and international standards. In particular, the petitioner expressed that the State has a legal and constitutional obligation to produce data and information on the educational system and educational trajectories of all its students without discrimination on the basis of disability, in accordance with the CRPD (article 31), the National Education Act No. 26.206 (articles 94 et seq.), and the Education Financing Act No. 26.075 (article 2), among others.
The Court of First Instance No. 4 in Administrative Federal Disputes rejected the claim on the view that the protective action was not the appropriate channel for resolving the dispute. This decision was appealed by the petitioning organizations. Chamber I of the National Court of Appeals for Federal Administrative Disputes ruled to revoke the decision of the Court of First Instance, endorsing the terms of the ruling issued by the Attorney General for Federal Civil and Commercial Matters and Federal Administrative Disputes (dated 29 September 2016), and thus ordered the respondent to take the necessary administrative actions and steps (within its competence) to ensure the provision of the required information.
The aforementioned ruling specified, firstly, that the protective action was admissible, since the claim was directed against the State’s omission to provide information it was legally obliged to produce and which was necessary to evaluate and design educational policies aimed at protecting the fundamental rights of a group of persons under specific constitutional protection (article 75, paragraph 23 of the National Constitution), which constituted a prima facie case of manifest illegality or arbitrariness, a requirement for the applicability of this proceeding. It also stated that the National State establishes an unjustified distinction between information considered relevant to the educational trajectories of students with and without disabilities, which constitutes discriminatory treatment prohibited by the CRPD (articles 2 and 5), and held that this omission violates the right to information in relation to the satisfaction of fundamental rights of a group that deserves specific protection (such as persons with disabilities and mostly children). The Court reviewed all the regulations that obligate the State -particularly the Ministry of Education, given its main responsibility for developing and implementing the educational system’s information and evaluation policy- to collect adequate data in order to formulate policies that respect the right to education, affirming that at no time shall distinctions be made between students with and without disabilities. This is consistent with the CRPD, which in addition to establishing the duty of State Parties to produce adequate information to ensure the rights protected by the CRPD (article 31), expressly prohibits discrimination on the basis of disability and provides that the right to education must be provided without discrimination (article 24). In conclusion, the Court argued that the failure of the Ministry of Education to provide the necessary mechanisms to ensure the provision of comprehensive data on the educational trajectory of students with disabilities curtails the right of access to public information and hinders the fulfilment of the rights to education and equality of persons with disabilities.
The respondent filed an extraordinary appeal against the decision of the appellate court, which was dismissed by the Argentine Supreme Court of Justice on October 3, 2017.
The Appeals Court’s ruling ordered the respondent to place on the record the measures taken to comply with the ruling within 90 days, which began to accrue once the extraordinary appeal was rejected and the ruling became final. After a series of injunctions and extensions to comply with the order, on 30 July 2018, the respondent submitted a memo indicating the measures adopted to prove partial compliance with the order, detailing the modifications made to the educational system’s annual survey records. Subsequently, a series of meetings and out-of-court consultations were held between representatives of the petitioner and the Directorate of Educational Information and Statistics of the Ministry of Education, in order to discuss appropriate ways to fully implement the court ruling by incorporating the remaining questions in the annual surveys.
The changes were then submitted by the respondent to the Federal Network of Educational Information (RedIE), composed of the 24 jurisdictions of the Argentine State, which approved their inclusion in the 2019 reports. Consequently, the remaining categories were included in those documents, thus complying with the provisions of the judgement.
This case constitutes a fundamental precedent in determining the obligation of States to produce, collect and systematize adequate, sufficient and duly disaggregated information as a key input for the design and implementation of public policies that ensure the right to education of persons with disabilities without discrimination.
For their contributions to the summary, special thanks to ESCR-Net member: Asociación Civil por la Igualdad y la Justicia.
