Education as a Basic Human Right: A Response to Special Education and the Charter

This article is a response to the article Special Education and the Charter: The Right to Equal Benefit of the Law , which surveyed the legislatures\u27 attempts at delivering education to students and highlighted the shortcomings in these attempts. That article then examines how a generous interpretation of the section 15 equality provision of the Charter of Rights and Freedoms might be used to correct deficiencies in educational statutes. Both the survey of the statutes and the commentary on its relationship to the equality provisions of the Charter provide a valuable addition to scholarly writing on the provision of appropriate education to the mentally disabled. However, there is some danger in assuming that the right to education derives solely from statute. Statutes are creations of legislatures. If the right to education exists only in these statutes, education may be viewed not as the right of every child, but as a privilege bestowed by the legislature, to be determined by administrators, and to be overseen only as a last resort by the courts. This article argues that it is preferable to view education as a human right, with the legislature providing the mechanism by which the right is exercised. This view of education would attract more activist stance by the courts, and would allow minority groups, particularly the mentally disabled, greater access to education as well as more input toward determining what is an appropriate education