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10 - Strategic Litigation and Inclusive Education

from A - Strategies

Published online by Cambridge University Press:  15 April 2019

Gauthier de Beco
Affiliation:
University of Huddersfield
Shivaun Quinlivan
Affiliation:
National University of Ireland, Galway
Janet E. Lord
Affiliation:
Harvard Law School Project on Disability
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Summary

Strategic litigation has played a visible and occasionally instrumental role in implementing the right to education of children with disabilities. The reported decisions range from challenges to their outright exclusion or segregation to more recent efforts at court-driven structural education reform. The body of case law speaks both to the benefits and limitations of litigation as a mechanism for advancing the right to education. While strategic litigation has often proved a catalyst for change, its ultimate impact has turned more on community-led advocacy and mobilisation than courtroom successes. The case law also highlights the tension that may arise between the institutional limits of courts in adjudicating matters of social policy and the need for courts to act as effective guardians of substantive rights. Against this background, Article 24 of the CRPD marks an important development both in recognising a specific and actionable legal right to inclusive education and further elucidating its content. This will aid judicial enforcement of that right in international and national fora. This chapter concludes that strategic litigation has played and can continue to play a meaningful role in advancing the right to inclusive education. Ultimately, however, its efficacy will depend heavily upon its relationship with broader disability rights advocacy and mobilisation strategies.
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Publisher: Cambridge University Press
Print publication year: 2019

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