Demand for injunctive relief permitting attendance in kindergarten
Tokushima District Court
June 7, 2005
Article 2: Non-discrimination
School Education Act, Article 78
Constitution, Articles 14, 28
The local board of education denied a physically disabled child full-time enrolment in a public kindergarten for reasons related to her disability, including her inability to walk on her own. The child's mother then sought a court order requiring the board to admit her daughter to the kindergarten on a full-time basis with immediate effect, as any delay would result in irreparable harm to the child. The mother asserted that the board of education's decision not to permit her child to attend the kindergarten was a breach of Article 2 of the CRC.
Issue and resolution:
Disability; non-discrimination; education. The Court found that even though the board of education has the authority to determine whether or not to admit a child to the kindergartens for which it is responsible, there were no reasonable grounds to deny the child full-time enrolment in kindergarten. As such, the Court ordered that the child be admitted to the kindergarten on a full-time basis with immediate effect.
Although the child was not immediately able to participate in all school activities, medical experts indicated that there was nothing to prevent her from attending kindergarten and that there was a reasonable expectation that she would be able to walk in the near future. Furthermore, even though she would require a certain degree of personal attention and accommodation, her mother was willing to accompany her to school every day and tend to her special needs. Hence, the child's attendance would not result in an undue burden on the kindergarten, its staff, or the board of education.
Excerpts citing CRC and other relevant human rights instruments
as translated by CRIN:
The assertion of the mother:
(a) Duty of the kindergarten to permit attendance
Articles 14 and 26-1 of the Constitution, Article 78 of the School Education Act - the provision in the Kindergarten Educational Guidance stating that "[the kindergarten] shall, in cooperation with the family and specialists, aim to promote the general development of a child with a disability in a group environment, and take necessary measures in accordance with the type and level of disability" - and Article 2 of the Convention on the Rights of Children entitle the child to attend kindergarten and receive appropriate education, and require the kindergarten to take measures to ensure this right.
CRIN believes this decision is consistent with the CRC. Children with disabilities have the right to receive an education, and governments have an obligation to provide this. As further recognised by the Court, it would be discriminatory to deny a child admission to a school based solely on the fact that he or she has a disability. This is especially so where minimal accommodation is required, but public schools must make every effort to offer children with disabilities whatever accommodations are necessary to ensure that these children receive an appropriate education in as inclusive a setting as possible.
2005(Gyo-Ku) No. 4
Link to Full Judgment:
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