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Specific learning disabilities and higher education: The Indian scenario and a comparative analysis

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Abstract

Learning is in itself an institute of life. The impact of disability, physical or otherwise, on daily activities is profound. In 2016, the Indian law on disabilities became more inclusive by broadening the categories of disabled persons and widened the rights of persons with disabilities. In the Rights of Persons with Disabilities Act 2016, besides revising the benefits for physically disabled persons, the recognition of equal rights to persons with Specific Learning Disabilities (SLDs) is historic. The paper, set in the context of higher education, explains the concessions and accommodations provided under the current legislative scheme for SLDs and explores how different jurisdictions have addressed SLDs. Secondly, to realise how the rights provided by these legislations are to be operationalised in higher education institutions; this step assumes significance because neither students with SLDs have access to trained personnel, nor the accommodations in the higher education has been well-articulated. The findings of the comparative study and understanding of the Indian legislative framework suggest measures to how higher educational institutions are to made more accessible to SLDs.

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Notes

  1. See Anna Lawson and Angharad E Beckett, ‘The Social and Human Rights Models of Disability: Towards a Complementarity Thesis’ (2021) 25(2) The International Journal of Human Rights 348.

  2. Charlene Andolina, ‘Syntactic Maturity and Vocabulary Richness of Learning Disabled Children

    at Four Age Levels’ (1980) 13(7) Journal of Learning Disabilities 27. The work explains and contrasts the changes observed in learning trends of learning disabled students and their peers.

  3. The Right of Children to Free and Compulsory Education Act 2009, Act No. 35 of 2009.

  4. The Rights of Persons with Disabilities Act 2016, Act No. 49 of 2016. (The Indian RPWD Act).

  5. The word in Hindi refers to the ‘specially-abled’ and is an attempt at reducing the social stigma around persons with disabilities. The Gazette Notification of the Indian RPWD Act, in its Hindi version, uses the said word in lieu of ‘person with disability.’ In the contemporary context of SLDs and mental health as well, the word is retained for its use known from the Indian RPWD Act.

  6. Abhilash Balakrishnan et al., ‘The Rights of Persons with Disabilities Act 2016: Mental Health Implications’ (2019) 41(2) Indian Journal of Psychological Medicine 119, 120-121.

  7. Vikash Kumar v Union Public Service Commission (2021) 5 SCC 370 [32].

  8. The Indian RPWD Act ss 60-73.

  9. Ibid. ss 74-83.

  10. Ibid. ss 84, 85.

  11. India signed the United Nations Convention on the Rights of Person with Disabilities (UNCRPD) and subsequently ratified the same on October 1 2007.

  12. The Indian RPWD Act, The Schedule entries 1-6.

  13. The Indian RPWD Act s 2(r) ‘person with benchmark disability’ means a person with not less than forty percent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority; The Indian RPWD Act s 2(s) ‘person with disability’ means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others; The Indian RPWD Act s 2(t) ‘person with disability having high support needs’ means a person with benchmark disability certified under clause (a) of sub-section (2) of Section 58 who needs high support.

  14. The Indian RPWD Act s 2(s).

  15. Balakrishnan et al., ‘The Rights of Persons with Disabilities Act 2016’ (n 6).

  16. Ibid. 123.

  17. Srikala Naraian and Poonam Natarajan, ‘Negotiating Normalcy with Peers in Contexts of Inclusion: Perceptions of Youth with Disabilities in India’ (2013) 60(2) International Journal of Disability, Development and Education 146.

  18. See Suresh Bada Math et al., ‘The Rights of Persons with Disability Act, 2016: Challenges and Opportunities’ (2019) 61(10) Indian Journal of Psychiatry 809.

  19. ‘India’ (UNESCO Institute for Statistics, 10 April 2021). uis.unesco.org/en/country/in. Accessed 29 September 2021. Data as of September 2020.

  20. Pramod Arora v Hon’ble Lt Governor of Delhi (2014) SCC OnLine Del 1402.

  21. Rajneesh Kumar Pandey v Union of India W P (C) 132/2016. [Order dated 4 December 2017].

  22. Ibid. [Order dated 8 March 2016].

  23. Nidhi Singal, ‘Inclusive Education in India: International Concept, National Interpretation’ (2006) 53(3) International Journal of Disability, Development and Education 351.

  24. 20 USC Ch 33: Education of Individuals with Disabilities.

  25. Ibid. s 1401 (3)(A).

  26. Ibid. s 1401 (9)(c).

  27. Americans with Disabilities Act 1990, 42 USC Ch 126 s 12101 et seq.

  28. Ibid. s 12102 (1), (2).

  29. Ibid. s 12102 (2)(A).

  30. Defined in Section 8 of Title 1 of the USC to mean a child born alive at any stage of development.

  31. 20 USC s 1414 on evaluations, eligibility determinations, individualised education programs, and educational placements of children with disabilities; 20 USC ss 1431-1444 on eligibility, authorisation, and allocation of funds for infants with disabilities.

  32. 29 USC s 794 (a).

  33. House of Representatives Report No. 485, 101st Congress, 2nd Session, part 2 (1990), 50; House of Representatives Report No. 485, 101st Congress, 2nd Session, part 3 (1990) 27; Senate Report No. 116, 101st Congress, 1st Session (1989) 21-22. Also see 29 Code of Federal Regulations (CFR) s 1630.2 (h)(1-2) (1998) which contains a similar definition.

  34. The Equality Act 2010, c 15 (UK) s 6(1) (The Equality Act).

  35. Ibid. Schedule 1.

  36. The Education Act, Original Enactment: Ordinance 45 of 1957 (Singapore); The Compulsory Education Act, Original Enactment: Act 27 of 2000 (Singapore).

  37. Ministry of Social and Family Development, First Enabling Masterplan (EMP 1) 2007–2011. https://www.msf.gov.sg/policies/Disabilities-and-Special-Needs/Pages/EM%201.pdf. Accessed 6 September 2021. Ch 1.

  38. Definition Of ‘Disability’ For Social Policies. (Ministry of Social and Family Development, 8 July 2019). https://www.msf.gov.sg/media-room/Pages/Definition-of-'Disability'-for-Social-Policies.aspx. Accessed April 10, 2021.

  39. Ministry of Social and Family Development, First Enabling Masterplan (n 37).

  40. Federal Law No. 29 of 2006 (UAE), art 1 (Federal Law No. 29).

  41. 29 USC s 794 (a).

  42. 42 USC s 2000e-4.

  43. See e.g., McGuinness v New Mexico School of Medicine 170 F 3d 974, 977-78 (10th Circuit 1998); Price v National Board of Medical Examiners 966 F Supp 419, 425-26 (S D W Va 1997).

  44. Bragdon v Abbott 524 US 624 (1998).

  45. The Equality Act Schedule 1, para 12, sub-para (1).

  46. Federal Law No. 29 art 11.

  47. 42 USC Ch 21, sub-chapters V and VI.

  48. 34 CFR Part 104 (2000).

  49. Ibid. Part 104.44 (b), (d) (2000).

  50. 29 USC s 794.

  51. Laura F Rothstein, ‘Higher Education and the Future of Disability Policy’ (2000) 52(1) Alabama Law Review 241.

  52. Susan M Denbo, ‘Disability Lessons in Higher Education: Accommodating Learning-Disabled Students and Student-Athletes under the Rehabilitation Act and the Americans with Disabilities Act’ (2003) 41(1) American Business Law Journal 145.

  53. See Laura F Rothstein, ‘Students Staff and Faculty with Disabilities: Current Issues for Colleges and Universities’ (1991) 17(4) Journal of College and University Law, 471; Donald Stone, ‘The Impact of the Americans with Disabilities Act on Legal Education and Academic Modifications for Disabled Law Students: An Empirical Study’ (1996) 44(3) University of Kansas Law Review 567; Bonnie Poitras Tucker, ‘Application of the Americans with Disabilities Act (ADA) and Section 504 to Colleges and Universities: An Overview and Discussion of Special Issues Relating to Students’ (1996) 23(1) Journal of College and University Law 1.

  54. The Equality Act ss 11, 19.

  55. Ibid. s 20(3), (4), (5). Section 20 of the Equality Act 2010 mandates that institutes be responsible for 3 requirements that might cause a substantial disadvantage: provision, criterion, or practice (in academic institutions this broad requirement might manifest in respect of any additional teaching that might be necessary for a specially disabled student); physical feature; substantial disadvantage ‘but for the provision of an auxiliary aid.’

  56. Ibid. Part 9.

  57. ‘Resources for Students: Academic Support, Non-Academic Support, Community and Peer Support’ (National University of Singapore). https://nus.edu.sg/osa/student-services/student-accessibility-unit/resources-for-students/. Accessed 12 October 2021.

  58. ‘Disability Services’ (Singapore Management University). https://www.smu.edu.sg/campus-life/disability-services. Accessed 10 April 2021.

  59. Federal Law No. 29 art 13.

  60. Law 4485/2017 (Greece) art 8, 13, 34. The said provisions elaborate on the mandatory internal regulatory mechanisms to be provided by higher educational institutions, followed by the measures to be taken by institutions for the benefit of students with disabilities.

  61. ‘Validation of Non-formal and Informal Learning’ (European Commission). https://eacea.ec.europa.eu/national-policies/eurydice/content/validation-non-formal-and-informal-learning-32_en. Accessed 10 April 2021.

  62. ‘Country Information for Greece-Legislation and Policy’ (European Agency for Special Needs and Inclusive Education). https://www.european-agency.org/country-information/greece/legislation-and-policy. Accessed 10 April 2021.

  63. Law 4547/2008 (Greece) art 4-7.

  64. 20 USC s 1414(a).

  65. Ibid. s 1414(a)(B).

  66. Ibid. s 1414(a).

  67. Ibid.

  68. Ibid. s 1414.

  69. Ibid. s 1414(c)(5).

  70. Ibid. s 1414(d)(1)(B).

  71. Ibid. s 1415(b)(1).

  72. Ibid. s 1415(b)(2).

  73. Ibid. s 1415(b)(5) and (b)(6).

  74. Ibid. s 1415(e)(2)(B).

  75. 34 CFR s 104.36.

  76. The provision currently available as 20 USC s 1415, as amended by Public Law 101-476.

  77. See 29 USC Ch 16: Vocational Rehabilitation and other Rehabilitation Services.

  78. Ibid. s 794a.

  79. 34 CFR s 104.7.

  80. On public services, see 42 USC s 12133; On public accommodations and services operated by private entities, see 42 USC s 12188.

  81. 34 CFR Part 104.

  82. Ministry of Social and Family Development, First Enabling Masterplan (n 37).

  83. Federal Law No. 29 art 11.

  84. Ibid. Although Article 11 empowers the committee to work on programs for early detection and diagnostics, the Committee has not yet provided any particular standards for determination of specific learning disabilities as was realised in Singapore. For reference to the Singaporean provisions, see Ministry of Social and Family Development, First Enabling Masterplan (n 37).

  85. See National Research Centre on Learning Disabilities, SLD Identification Overview. https://files.eric.ed.gov/fulltext/ED543737.pdf. Accessed 10 April 2021.

  86. Ibid. 2.

  87. Ibid. 2-4.

  88. Lee J Cronbach, ‘The Two Disciplines of Scientific Psychology’ (1957) 12(11) American Psychologist 671; Lee J Cronbach, ‘Beyond the Two Disciplines of Scientific Psychology’ (1975) 30(2) American Psychologist 116.

  89. F M Gresham, ‘Responsiveness to Intervention: An Alternative Approach to the Identification of Learning Disabilities’ in R Bradley, L Donaldson, and D Hallahan (eds) Identification of Learning Disabilities: Research to Practice (2002) 467; K A Kavale and S R Forness, ‘Substance Over Style: A Quantitative Synthesis Assessing the Efficacy of Modality Testing and Teaching’ (1987) 54(3) Exceptional Children 228.

  90. Albert F Restori, Gary S Katz, and Howard B Lee, ‘A Critique of the IQ/Achievement Discrepancy Model for Identifying Specific Learning Disabilities’ (2009) 5(4) Europe’s Journal of Psychology 128, 136.

  91. National Council for Special Education, Procedures used to Diagnose a Disability and to Assess Special Educational Needs: An International Review. 133-150. https://ncse.ie/wp-content/uploads/2014/10/5_NCSE_Diag_Ass.pdf. Accessed 10 April 2021.

  92. The Indian RPWD Act s 56.

  93. For the amendment made in 2020, see Ministry of Social Justice and Empowerment, Guidelines for Assessment of Various Specified Disabilities (9 December 2020). https://upload.indiacode.nic.in/showfile?actid=AC_CEN_25_54_00002_201649_1517807328299&type=notification&filename=amendment_guidelines__09.09.2020.pdf. Accessed 31 September 2021.

  94. Ministry of Social Justice and Empowerment, Guidelines for the Purpose of Assessing the Extent of Specified Disability in a Person Included Under the Rights of Persons with Disabilities Act, 2016 (49 of 2016) (4 January 2018, as amended on 9 December 2020). Annexure II. https://upload.indiacode.nic.in/showfile?actid=AC_CEN_25_54_00002_201649_1517807328299&type=notification&filename=Guidelines%20notification_04.01.2018.pdf. Accessed 12 October 2021.

  95. See Rights of Persons with Disabilities Rules 2017, Rule 14A.

  96. The law by laying down a framework for certification as an aspect of disability rights and also making it imperative for different institutions to provide appropriate benefit based on said certification, has created a dichotomy of recognition of eligibility of the benefit and grant of benefit.

  97. See the Indian RPWD Act s 6(2). There is no provision of a legislative instrument deals exclusively with sensitised and trained human resources.

  98. Geoff Lindsay, ‘Educational Psychology and the Effectiveness of Inclusive Education/Main-streaming’ (2007) 77(1) British Journal of Educational Psychology 1, 9, 15-18.

  99. See A Llewellyn and K Hogan, ‘The Use and Abuse of Models of Disability’, (2000) 15(1) Disability & Society 157, for an overview of different models of disability including the transactional and ecological model.

  100. Aakash Johry and Ravi Poovaiah, ‘Playfulness Through the Lens of Toy Design: A Study with Indian Preschool Children with Intellectual Disability’ (2019) 8(3) International Journal of Play 255, 258-259. The dimensionality of playfulness in children with SLDs replicates more than a mere physical/organ impairment. Mere physical impairment in many senses is inadequate for working with SLDs.

  101. The Indian RPWD Act s 32.

  102. Council for Science and Technology, Current Understanding, Support Systems, and Technology-led Interventions for Specific Learning Difficulties: Evidence Reviews Commissioned for Work by the Council for Science and Technology, 23. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/926052/specific-learning-difficulties-spld-cst-report.pdf. Accessed 10 April 2021.

  103. Refers to the requirement of certification as laid down in the Indian RPWD Act for the student to avail reservation in an educational institution. See The Indian RPWD Act ss 56-59.

  104. See e.g., The Equality Act s 91, lays down positive obligations of the responsible body of the higher education institute.

  105. Sadananda Reddy Annapally et al., ‘Development of a Supported Education Program for Students with Severe Mental Disorders in India’ (2020) 43(3) Indian Journal of Psychological Medicine 217.

  106. See The Indian RPWD Act s 2(s). (Emphasis added).

  107. Ibid. Para 2 of the Schedule.

  108. Ministry of Social and Family Development, Definition Of ‘Disability’ For Social Policies. https://www.msf.gov.sg/media-room/Pages/Definition-of-'Disability'-for-Social-Policies.aspx. Accessed 10 April 2021; Ministry of Social and Family Development, First Enabling Masterplan (n 37).

  109. Adrian Higgins, ‘Intellectual Disability or Learning Disability? Let’s Talk Some More’ (2014) 1(2) Research and Practice in Intellectual and Developmental Disabilities 142, 145.

  110. Ibid.

  111. See Varsha Vidyadharan and Harish M Tharayil, ‘Learning Disorder or Learning Disability: Time to Rethink’ (2019) 41(3) Indian Journal of Psychological Medicine 276.

  112. Office of the Deputy Director of Education, Instructions for Preparing Individualised Education Plan, (Circular No F.150 /DDE(IEDSS)/Admn.Cell/2016-17/1125, 17 August 2016).

  113. Ministry of Social Justice and Empowerment, Guidelines for the Purpose of Assessing the Extent of Specified Disability in a Person Included Under the Rights of Persons with Disabilities Act, 2016 (49 of 2016) (n 94).

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  1. Hidayatullah National Law University, Raipur, India

    Uday Shankar

  2. Utrecht University, Utrecht, The Netherlands

    Ashok Vardhan Adipudi

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Shankar, U., Adipudi, A.V. Specific learning disabilities and higher education: The Indian scenario and a comparative analysis. Jindal Global Law Review 12, 395–415 (2021). https://doi.org/10.1007/s41020-021-00155-4

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