Segregation of Georgia Schoolchildren With Disabilities: a Violation of International Law?

• Jurisdiction: United States,Federal
• Citation: Vol. 46 No. 3
• Publication year: 2018
• topic: Civil Rights,Constitutional Law

SEGREGATION OF GEORGIA SCHOOLCHILDREN WITH DISABILITIES: A VIOLATION OF INTERNATIONAL LAW?

Kaitlyn Claire Fain^*

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Table of Contents

I. Introduction...............................................................................717

II. Segregationist Practices as a Case Study in U.S. Law on Schoolchildren with Disabilities.....................................718

A. State Practices Followed in GNETS, the Georgia Network for Educational and Therapeutic Support................................718
B. The Department of Justice Sues the State of Georgia for Non-Compliance......................................................................722
C. Relevant Law Within the United States....................................724

1. The Americans with Disabilities Act of 1990....................725

a. Background and Overview..........................................725
b. Key Provisions............................................................726
c. Jurisprudence Interpreting Provisions.......................727

III. International Law Pertaining to Children with Disabilities and the Right to Education...............................728

A. 1996 International Covenant on Civil and Political Rights.....728

1. Background and Overview................................................729
2. Compliance Mechanism....................................................729
3. Status in the United States.................................................731

a. Charming Betsy Canon of Statutory Construction......734
b. Use of External Legal Norms as Aids of Interpretation..............................................................735

4. Key Provisions...................................................................737

a. Article 24: Non-Discriminatory Protection of the Child............................................................................ 738

i. Text of Article 24..................................................738

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ii. Jurisprudence Interpreting Article 24: General Comment No. 17 (Rights of the Child)....................................................................739

b. Article 26: Rights to Equal Protection........................739

i. Text of Article 26..................................................740
ii. Jurisprudence Interpreting Article 26: General Comment No. 18 (Non-Discrimination) ....................................................741

B. 2007 Convention on the Rights of Persons with Disabilities ............................................................................... 743

1. Background, Overview, and Compliance Mechanism....... 743
2. Key Provisions................................................................... 744

a. Article 2: Definition of "Discrimination on the Basis of Disability".....................................................744

i. Text of Article 2....................................................744

b. Article 24: Right to Inclusive Education..................... 745

i. Text of Article 24..................................................745
ii. Jurisprudence: General Comment No. 4 (Right to Inclusive Education)..............................746

IV. Existence and Extent of Violation........................................748

A. Is There a Violation Under International Law?......................748
B. Equality Violation Under Article 26 of the ICCPR..................748
C. The Limits and Scope on Enforceability .................................. 752

V. Conclusion..................................................................................752

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I. Introduction

Do you expect your government to treat you equally? More importantly, do you expect your government to treat your children equally in the context of education? If your child has an emotional or behavioral disability, does this entitle the state to segregate your child away from other students, providing him or her with an education that is unequal in comparison to general education? Children and young adults with behavioral and emotional disabilities are entitled to education that is equivalent to the education other students receive. It is important to examine local systems of education to ensure that students with disabilities are being treated equally.

On August 23, 2016, the U.S. Department of Justice filed suit against the State of Georgia, a constituent state of the United States. The complaint in the suit, captioned United States v. Georgia, targeted the Georgia Network for Educational and Therapeutic Support (GNETS), a state funded program that provides education to students with emotional and behavioral disabilities. It alleged GNETS impermissibly segregates and discriminates against students with behavioral and emotional disabilities.¹

The case stems from an incident in 2004, when a thirteen-year-old boy, Jonathan King, hanged himself in an isolation room in a GNETS facility. An investigation was launched.² The Department of Justice decided to file a civil action after federal-state negotiations failed. In the complaint, the United States alleged that the manner in which GNETS is currently being administered is a violation of Title II of the Americans with Disabilities Act because it unnecessarily segregates students with disabilities from their peers.³

What does the United Nations Human Rights Committee think about segregating schoolchildren with disabilities in a manner that makes their education unequal to the education of other students? The International Covenant on Civil and Political Rights⁴ is considered by many to be the leading authority on human rights standards in the international sphere.⁵ What does this mean for the problem at hand? The Covenant sets forth obligations that must be followed by the party states. The United States

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ratified the Covenant in 1992, which means that U.S. practices and procedures must meet the Covenant's human rights standards, including its standards in the education of children with disabilities.

This Note aims to provide a deeper understanding of the current lawsuit between the United States and the State of Georgia and the applicability of international law to the problem. By analyzing the applicable provisions of the Covenant and its jurisprudence, this Note explores whether GNETS practices are discriminatory under international law standards. Part II of this Note will discuss the recent complaint that has been filed and the factual findings that were made by the DOJ in its 2015 investigation report. Part III will provide an overview of the International Covenant on Civil and Political Rights, the specific provisions that are applicable to the problem, and the status of the Covenant in the United States. Part IV provides an analysis of the manner in which the practices of GNETS violates international law standards and a discussion of the scope and limits of the Covenant in the United States.

II. Segregationist Practices as a Case Study in U.S. Law on Schoolchildren with Disabilities

The United States filed a civil action against the State of Georgia. The United States alleged that Georgia's GNETS Program is a violation of the Americans with Disabilities Act because it unnecessarily segregates students with disabilities from their peers and provides them with unequal opportunities compared to those provided to students who are not in the program.⁶

A. State Practices Followed in GNETS, the Georgia Network for Educational and Therapeutic Support

The Georgia Network for Educational and Therapeutic Support (GNETS) consists of twenty-four state-funded programs throughout the State of Georgia that provide comprehensive and therapeutic support to students with disabilities between the ages of three and twenty-one.⁷ In the United States' Complaint, GNETS is described as a program that the State, through the

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Georgia Department of Education, "plans, funds, administers, licenses, manages, and oversees," and it determines which mental health and therapeutic services will be provided, who will provide them, what settings they will be provided in, and how to allocate state and federal funds.⁸ Students in the program have one or more of the severe characteristics within the disability category of emotional and behavioral disorders.⁹ Local schools throughout the state refer students to receive services from GNETS through the Individual Education Program, a process that evaluates students' emotional and behavioral disorders based on the severity, frequency, and duration of the disorder.¹⁰ The State sets not only the criteria for students' eligibility but also the entry and exit standards.¹¹ Even though many of these students could be educated in an environment that is more integrated with other students, the State has chosen to provide services for students with behavioral-related disabilities almost exclusively in a segregated GNETS center or classroom.¹²

The U.S. Department of Justice launched an investigation into Georgia after Jonathan King hanged himself at the Alpine center located in Gainesville, Georgia in 2004.¹³ The media attention that surrounded the incident, coupled with a lawsuit that the child's parents filed against the Georgia Department of Education (DOE), prompted the federal investigation.¹⁴ Following a Georgia trial court's grant of the DOE's motion for summary judgment, the parents appealed to the Georgia Court of Appeals on grounds that "questions of material fact remain as to whether the Pioneer RESA [local school system managing Alpine] violated Jonathan's substantive due process rights and further arguing that their claims against DOE were not barred by sovereign immunity."¹⁵ In a unanimous decision issued in 2009, a three-member panel of the Georgia Court of Appeals held that there was not a substantive due process violation because there was no evidence that the two school employees who placed Jonathan in the seclusion room had acted with deliberate indifference; in particular...