Italy, Council of State, 27 April 2021, A.A. c/ Ministry of education, n. 780/2021
Case overview
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Link to the full text of the decision
General Summary
The question involves the right to education of a disabled student who needs an effective protection in order to obtain an individual educational learning plan as prescribed in the legislative and secondary acts enacted to regulate teaching instruments for disabled students during the pandemic and, what is more relevant, on the ground of several international and European legislative instruments (CoE European Social Charter, rev. 1996; UN Convention on the Rights of Persons with Disabilities, CRPD – 2006).
The subject matter of litigation concerns the necessity to modify and adapt a personalized teaching plan considering the specificities of distance teaching for disabled students.
The question is even more relevant in pandemic time, that is in a particular period in which it is in general very difficult to strike the balance between the different rights involved; nevertheless, it is necessary to take into account the individual needs in term of educational and learning supplementary tools for persons with disabilities, especially since they are a vulnerable group in society.
The failure by the school to provide individual protective compensatory measures adapted to distance teaching determines the substantial illegitimacy of the negative evaluation of the disabled person at the end of a scholastic term.
Facts of the case
The case originates from the appeal proposed by the parents of a disabled student, who has dyslexia, dysorthography, dyscalculia, marked short-term memory and anxiety and despite the adoption of a specific personalized teaching plan before the pandemic, on February 21, 2020, at the end of the school year, reports showed deficiencies in four subjects, Latin, Languages, Philosophy and Physics.
The Applicants complain that, (1) a learning integration plan, which is an integral part of the teaching plan, was not prepared despite these requirements being provided for under the law (Law n. 17/2010 and Ministerial order n. 10/2020), and (2) on the occasion of the final exam, the teachers did not take into account what was established in the personalized teaching plan.
These regulatory tools allow students who suffer from specific learning disabilities or present other educational needs to benefit from supportive educational and other didactic measures, such as individualized and personalized learning tools that lead to the deployment of compensatory and /or dispensative instruments.
According to the Ministerial Order enacted to regulate teaching instruments for disabled students during the pandemic these tools must be available within the first quarter of the school year.
Following the COVID-19 emergency, the Ministry of Education regulated the assessment of the final outcome of school learning ordering it take into account the actual school time due to the pandemic and the specific situation of the students with a personalized teaching plan.
In this case, the negative evaluation did not consider the personalized teaching plan and was founded on the same criteria as that for the students without disabilities.
Type of measure challenged
- Participation of several levels of government
- Administrative individual act concerning a disabled student and the Ministerial regulation on teaching and evaluation methodologies during pandemic. Measure taken with the participation of several levels of government., a local school measure
Measures, actions, remedies claimed
Individual / collective enforcement
Type of procedure
Reasoning of the deciding body
The Court (Council of State in the consultative session) issued an opinion, equivalent to a judgment, quashing the negative evaluation and ordering the administration to adopt a personalized plan, considering the specific needs of the disabled student during the pandemic. In relation to the final exam the Court stated that the student must be evaluated according to the personalized plan and not to the general criteria established for non-disabled students. The Advice states that in the event of approval of an individual personalized plan for a disabled person, he/she should be evaluated on the basis of that specific program and not on the basis of the ordinary criteria. Furthermore, the individual plan has to be implemented with other specific tools, such as compensatory instruments provided for in the personalized learning plan to be used during the school term; only at the outcome of this examination it is possible to determine the final grade and the reasons for the result.
First, the Court finds that the right to education of people with disabilities includes the right to inclusive education, based on Art. 34, connected with Art. 2 of the Italian Constitution, since school integration of people with disabilities in an essential factor in the development of their personality.
Also, in light of the European provisions (European Social Charter, Convention on the rights of persons with disabilities, Strategic plan for disabilities of the Council of Europe), the right to education of disabled people is especially protected, according to an approach based on capabilities and skills rather than disabilities.
As a consequence, the Court states that the adoption of a learning integration plan during the pandemic constitutes a positive obligation for the State as defined by the European Court of Human rights, not a mere option, and concerns all students, with special reference to those with specific learning disorders.
Furthermore, the individual teaching plan must involve not only teachers but also students and families in an integrated approach similar to a “contract” between the State and the people, in the light of the general duty of solidarity, considering also the pandemic situation and the role to be played by parents in this context.
In this perspective, the supplementary plan for students with disabilities is a “reinforced obligation” and the lack of it constitutes a violation of their right to education, mostly in a general context where distance learning has strongly reduced the opportunities for socialization making the management of learning disabilities more complex.
From this point of view, however, the pandemic has not weakened the right to education for disabled people, on the contrary, it has strengthened the right, increasing the scope and intensity of State’s positive obligations.
Conclusions of the deciding body
The Court upheld the claim and annulled the school administrative decision that failed the disabled student.
Implementation of the ruling
The Court quashed the negative evaluation. The school must re-evaluate the student considering the pandemic context and the criteria that would have been used had a personalized plan been adopted.
Nevertheless, given the limits of the judicial review required, it remains problematic to fully cope with the consequences of the violation of the legal obligation, that the Court individuates in the annulment of the negative evaluation (final outcome of the scholastic term) without any effect on the future behavior of the school in order to make effective the right to a personalized learning plan, connected with specific compensative educational tools for disadvantages and eventually to reduce the negative effects of disabilities.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Protection of fundamental right, art. 2, Italian Constitution Equality, art. 3, Italian Constitution
- Right to education, art. 34, Italian Constitution
- Rights of education for persons with disabilities, art. 38, Italian Constitution
- CoE European Social Charter, rev. 1996, art. 15
- UN Convention on the Rights of Persons with Disabilities, CRPD – 2006
- Council of Europe, Strategic Plan for disabilities 2017-2023
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- Equality
- Non-discrimination
- Due process
- Effective (judicial) protection
- Reasonableness
Balancing techniques and principles (proportionality, reasonableness, others)
Since the obligation of an individualized learning plan for students with disabilities is provided by law, there is no balance with other rights, because the scope and intensity of the right to education are determined by legislation.
Impact on national case law
The solution highlights, that during the emergency, the positive obligation of the State to protect the right to education of disabled people, increases in scope and intensity.
Other notes
In time of emergency for COVID-19 pandemic, several measures have been taken to protect the right of disable people and, among them, the derogation for disabled people from the general provisions on distance learning which have been considered generally incompatible with the specific training needs of persons with disabilities.
