Can I get a critique summary for this article ( 2 pages) 

Social Inclusion (ISSN: 2183–2803)
2018, Volume 6, Issue 1, Pages 29–39

DOI: 10.17645/si.v6i1.1193

Article

Equality of What? The Capability Approach and the Right to Education for
Persons with Disabilities

Andrea Broderick

Department of International and European Law, Maastricht University, 6211 LH Maastricht, The Netherlands;
E-Mail: andrea.broderick@maastrichtuniversity.nl

Submitted: 29 September 2017 | Accepted: 27 December 2017 | Published: 26 March 2018

Abstract
The right to education is indispensable in unlocking other substantive human rights and in ensuring full and equal partici-
pation of persons with disabilities in mainstream society. The cornerstone of Article 24 of the United Nations Convention
on the Rights of Persons with Disabilities seeks to ensure access to inclusive education for persons with disabilities on
an equal basis with others as well as the full development of human potential. Since the adoption of the Convention,
there has been much theorising about inclusive education; however, there has been little focus on the meaning of equal-
ity in the context of the right to education for persons with disabilities. The capability approach, developed by Amartya
Sen and further refined by Martha Nussbaum, focuses on ensuring equality and developing human potential. It is of-
ten viewed as a tool that can be used to overcome the limitations of traditional equality assessments in the educational
sphere, which only measure resources and outcomes. This article explores whether the capability approach can offer new
insights into the vision of educational equality contained in the Convention and how that vision can be implemented at the
national level.

Keywords
capability approach; CRPD; disability; education; equality; inclusive education; United Nations

Issue
This article is part of the issue “Disability Equality: In Theory and Practice”, edited by Mark Priestley (University of Leeds,
UK) and Lisa Waddington (Maastricht University, The Netherlands).

© 2018 by the author; licensee Cogitatio (Lisbon, Portugal). This article is licensed under a Creative Commons Attribu-
tion 4.0 International License (CC BY).

1. Introduction

The question ‘equality of what?’ is often posed during
debates on political philosophy and interdisciplinary de-
bates on distributive justice. It concerns a decision as to
the elements which governmental policies and institu-
tional structures should aim to equalise. The same ques-
tion was posed by economist-philosopher Amartya Sen,
who first introduced his theory of ‘basic capability equal-
ity’ in his Tanner Lectures (Sen, 1979, p. 218):

I believe what is at issue is the interpretation of needs
in the form of basic capabilities. This interpretation of
needs and interests is often implicit in the demand for
equality. This type of equality I shall call “basic capa-
bility equality”.

The capability approach encompasses a ‘partial theory
of social justice’ (Nussbaum, 2009, p. 232) and a norma-
tive framework for the assessment of human develop-
ment. In the last decade, scholars in the field of educa-
tion studies have turned to the capability approach to
analyse the theory and provision of education for those
with special needs and/or disabilities (see, among others,
Ainscow & Farrell, 2002; Florian, Dee, & Devecchi, 2008;
Nind, Rix, Sheehy, & Simmons, 2005). Several scholars
have written about inclusive education, with a particu-
lar focus on capabilities (see, among others, Norwich,
2014; Robeyns, 2003, 2006; Rogers, 2013; Saito, 2003;
Sarojini Hart, 2012; Terzi, 2005, 2007, 2014; Toson, Bur-
rello, & Knollman, 2013; Trani, Bakhshi, Ballanca, Biggeri,
& Marchetta, 2011; Walker, 2006a; Walker & Unterhal-
ter, 2007). Other scholars (Arnardóttir, 2011; Broderick,

Social Inclusion, 2018, Volume 6, Issue 1, Pages 29–39 29

2014; Broderick & Quinlivan, 2017; De Beco, 2014, 2016;
Della Fina, 2017; Waddington & Toepke, 2014) have ad-
dressed the right to education in Article 24 of the United
Nations Convention on the Rights of Persons with Dis-
abilities (CRPD or Convention). However, to date, there
is scant research on the parallels between the capability
approach and Article 24 CRPD (see, De Beco, 2017).

This article demonstrates that many of the under-
lying premises of the capability approach correlate to
those contained in Article 24 CRPD. As a result, this ar-
ticle proposes a four-part framework, detailing insights
into the vision of educational equality contained in the
Convention through focussing on ‘the what’; ‘the why’;
‘the who’ and ‘the how’ of inclusive education. The first
limb of the framework (‘the what’) outlines how capabil-
ity equality can be invoked to shed light on the meaning
of equality espoused by Article 24 CRPD. The second limb
of the framework (‘the why’) draws on the underlying
goals of inclusive education to outline the most relevant
capabilities to be developed through inclusive education.
The third limb of the framework (‘the who’) is drawn on
to extract information on where to set the focus lens
of inclusion. This can reveal invaluable lessons regarding
pedagogical and assessment processes. The fourth limb
of the framework (‘the how’) reveals how the inclusion
of all learners can potentially be achieved through the
mechanism of Universal Design for Learning (UDL). Af-
ter outlining the aforementioned four-part framework,
attention is paid to how that framework can be imple-
mented at the national level.

This article is divided into seven sections. Following
this first introductory section, the second section of the
article outlines the key elements of the capability ap-
proach. The third section introduces Article 24 CRPD, fo-
cussing on the goals of inclusive education as well as
the measures required to achieve inclusion. In section
four of the article, a four-part framework is put forward,
which outlines the vision of educational equality con-
tained in Article 24 CRPD and highlights essential fo-
cal points for achieving inclusive education. Section five
traces the theory of that framework into practice, while
section six analyses whether the capability approach pro-
vides a complete guide to CRPD implementation. Finally,
section seven presents concluding remarks.

The methodology used to highlight the salient fea-
tures of the capability approach consists of descriptive
desk-based research based on secondary sources. In
analysing the obligations contained in Article 24 CRPD
and inspiring the aforementioned four-part framework,
legal doctrinal research is conducted. Recourse is had to
the rules of treaty interpretation contained in the Vienna
Convention on the Law of Treaties (VCLT). The interpreta-
tive tools in Articles 31 and 32 VCLT are as follows: literal
interpretation according to the words contained in the
text of the CRPD; systematic interpretation of the Con-
vention’s text in its overall context, including subsequent
practice—namely, General Comments of the UN Com-
mittee on the Rights of Persons with Disabilities (CRPD

Committee); teleological interpretation according to the
object and purpose of the Convention; and supplemen-
tary means of interpretation in line with the drafting his-
tory of the Convention (Ad-Hoc CRPD Committee, 2005).
A comparative normative approach is used in drawing
out the aspects of convergence between Article 24 CRPD
and the capability approach. It is worth noting that the
selection of capabilities for the above-mentioned four-
part framework is inspired by the norms and general prin-
ciples underlying the CRPD as a whole and, in particular,
those contained in Article 24. The case study examples
that are used to illustrate the translation of inclusive ed-
ucation into practice are drawn from a selection of sec-
ondary sources highlighting best practice in the field.

2. The Capability Approach

In outlining his capability approach, Sen argued that
neither utilitarian equality nor total utility equality nor
Rawlsian equality sufficiently capture real differences
amongst human beings (Sen, 1979, pp. 215–219), since
the agents in such theories are generally deemed to be
free, equal and independent beings. The capability ap-
proach, on the other hand, acknowledges that society is
made up of individuals with unequal abilities and needs
and, therefore, its basic underlying premise facilitates
its application to disability studies. Sen’s capability ap-
proach has been refined by philosopher Martha Nuss-
baum, among others. The relevant distinctions between
Sen and Nussbaum’s approaches are highlighted below.

The first basic conceptual distinction within the
framework of the capability approach is between capa-
bilities, on the one hand, and functionings and resources,
on the other hand. Capabilities represent not the actual
physical or mental ability of individuals but rather the in-
nate potential of each individual to achieve various out-
comes, defined as ‘what people are actually able to do
and to be’ (Nussbaum, 2000, p. 5) when given real op-
portunities. Functionings represent various states of ‘do-
ings and beings’ (Sen, 1992, p. 40), resulting in a particu-
lar outcome or achievement (reading, writing, communi-
cation, etc.), while ‘resources’ are the means by which
to achieve the outcome. The capability approach high-
lights several ‘conversion factors’ (Sen, 1992, p. 100),
such as environmental factors and social norms. These
‘contribute to the determination of the individual capa-
bility set’ (Trani et al., 2011, p. 152) and may affect the
rate of conversion of resources into functionings. In the
disability context, this mirrors the social-contextual per-
spective on disability, whereby disability is viewed as
an interaction between individual impairments and the
environment, attitudinal barriers, etc. (preamble, para.
e CRPD).

Human diversity plays a key role in the capability ap-
proach since, according to Sen, it is ‘a fundamental as-
pect of our interest in equality’ (Sen, 1992, p. xi). Each
individual forms a focal point of capability equality, ac-
cording to Nussbaum (Nussbaum, 2000, p. 69). In that

Social Inclusion, 2018, Volume 6, Issue 1, Pages 29–39 30

vein, Reindal asserts that ‘it is not the group or changes
of systems that are the primary subject of political jus-
tice’ (Reindal, 2016, p. 8).

Central to Sen’s capability approach are concepts of
‘agency freedom’ and ‘wellbeing freedom’. The former
refers to ‘one’s freedom to bring about achievements
one values’, while the latter relates to ‘one’s freedom to
achieve those things that are constitutive of one’s well
being’ (Sen, 1992, p. 57). According to Sen, the space
within which to evaluate equality is that of capabilities,
where an individual can decide what kind of life he/she
values (Sen, 1992, p. 66).

Unlike Sen, who did not define universal capabilities,
Nussbaum drafted a list of ‘central human capabilities’ as
a benchmark for setting a ‘social minimum’ (Nussbaum,
2009, p. 232), a threshold level below which a just society
seeking to guarantee the key principle of human dignity
should not fall. Nussbaum’s list of central human capa-
bilities includes: life; bodily health; bodily integrity; the
senses, imagination and thought; emotions; play; other
species; and control (political and material) over one’s
environment (Nussbaum, 2000, pp. 78-80). Nussbaum
points to two further capabilities, which she argues ‘suf-
fuse all the other capabilities’ (Nussbaum, 2000, p. 89):
i) ‘practical reason’, which involves ‘being able to form a
conception of the good and to engage in critical reflec-
tion about the planning of one’s life’; and ii) affiliation,
which means being able ‘to engage in various forms of
social interactions [and] being able to be treated as [a]
dignified being whose worth is equal to that of others’
(Nussbaum, 2000, pp. 79–80).

Norwich states that the fundamental distinction be-
tween Sen and Nussbaum’s approaches lies in the fact
that ‘for Sen, agency is the key aspect of a capability’,
while for Nussbaum, ‘the central capabilities are more an
entitlement than something actively chosen’ (Norwich,
2014, p. 19). Despite these differences, one can conclude
that the pivotal assessment of equality under the capa-
bility approach lies not necessarily in an assessment of
the means provided to an individual or the functionings
achieved by that individual but in the equalisation of op-
portunities to develop one’s innate capabilities. In the
disability sphere, the equality metric is based on coun-
teracting the impact of impairment in individualised sit-
uations and nurturing whatever capabilities each individ-
ual has in order to enable human flourishing.

Saito points to the ‘potentially strong and mutu-
ally enhancing relationship’ between the capability ap-
proach and education (Saito, 2003, p. 17). Several au-
thors appear to pick up on that potential. For instance,
Sarojini Hart contends that the capability approach ‘of-
fers an alternative paradigm for thinking beyond access
to education and for considering the potential for indi-
vidual freedoms both in and through education’ (Sarojini
Hart, 2012, p. 276; see also, De Beco, 2017; Rajapakse,
2016; Reindal, 2016, p. 6).

There is an absence of scholarship on the overlapping
elements of the capability approach and Article 24 CRPD

(see De Beco, 2017). Thus, it is an opportune time to ex-
plore whether the tenets of the capability approach align
with the fundamental premises of inclusive education set
out in Article 24 and whether the capability approach
can be drawn on to reveal specific lessons regarding the
norms contained in Article 24.

3. Article 24 CRPD: A Holistic Vision of Inclusive
Education

Article 24 CRPD enshrines the first legal enunciation of
inclusive education for all learners. The following sub-
sections elaborate on the goals of inclusive education
and the measures required to achieve inclusion.

3.1. The Goals of Inclusive Education

On a textual reading of the CRPD, the overarching theme
of Article 24 is that education must be effective. Article
24(2)(d) provides that States Parties must ensure that
‘persons with disabilities receive the support required,
within the general education system, to facilitate their
effective education’. This begs the question as to what
effectiveness means as a metric in this context?

According to the text of Article 24(1), inclusive edu-
cation systems should ensure ‘the full development of
human potential and sense of dignity and self-worth’
and ‘the strengthening of respect for…human diversity’.
Furthermore, education systems must aim at the ‘de-
velopment by persons with disabilities of their person-
ality, talents and creativity, as well as their mental and
physical abilities, to their fullest potential’. These stated
goals of inclusive education clearly overlap, to a signifi-
cant extent, with the fundamental tenets of the capabil-
ity approach.

The third goal to be achieved by inclusive education,
as laid down in Article 24(1), is to enable ‘persons with
disabilities to participate effectively in a free society’. This
defines the ultimate purpose of inclusive education and
seeks to ensure that all measures adopted by States Par-
ties to the Convention contribute to facilitating that pur-
pose. Terzi contends that a capability perspective on edu-
cational equality can be defined ‘in terms of equal effec-
tive opportunities to levels of functionings that are nec-
essary to participate in society’ (Terzi, 2007, p. 765). In a
similar vein, one can deduce from the text of Article 24
that States Parties are required to create real opportuni-
ties for persons with disabilities to foster their capabili-
ties in order to enable them to take an active role in so-
ciety, where possible.

3.2. The Measures Required to Achieve Inclusion

In order to achieve the foregoing goals, Article 24 CRPD
sets down an extensive list of obligations to be complied
with by States Parties, the most relevant of which are out-
lined below. The measures required under Article 24 are
based on the social-contextual model of disability, which

Social Inclusion, 2018, Volume 6, Issue 1, Pages 29–39 31

targets disadvantages arising from the interaction be-
tween learners’ impairments and external factors caused
by environmental or attitudinal barriers to learning. Ar-
ticle 24 is also built on the human rights-based model
of disability, according to which persons with disabilities
are viewed as individual ‘holders of rights, entitled to ex-
ercise all human rights and fundamental freedoms on an
equal basis with others, entailing the provision of mate-
rial support where necessary’ (Broderick, 2015, p. 1).

Article 24 seeks to ensure equality of access to all lev-
els of education (primary, secondary and tertiary educa-
tion as well as vocational training, adult education and
lifelong learning) and the provision of equal opportuni-
ties. Maintaining a similar focus on individualisation as
the capability approach does, Article 24 CRPD seeks to
address the wide diversity of needs of individual learn-
ers through requiring States Parties to take various pos-
itive measures. In that regard, Article 24(2)(c) requires
States Parties to ensure that reasonable accommodation
of the individual learner’s requirements is provided. Rea-
sonable accommodation, as defined in Article 2 CRPD, re-
quires public and private parties to make ‘necessary and
appropriate modification and adjustments’ to the envi-
ronment, where requested by an individual with a disabil-
ity in a particular case. An unjustified failure to provide
a reasonable accommodation constitutes a form of dis-
crimination, unless a disproportionate or undue burden
can be proven by the duty-bearer.

Further individualised support measures are envis-
aged under Article 24(2)(e) CRPD. The latter measures
are not the same as those requested in a particular,
individualised case; conversely, they aim to alter the
mainstream education system to ensure inclusion over a
longer period of time (de Beco, 2014, p. 281). This does
not mean that these measures do not have to be tai-
lored to cater for the individual needs of each learner
(de Beco, 2014, p. 281). Such individualised support mea-
sures may include personal assistance as well as the
types of measures outlined in Article 24(3) CRPD, namely,
facilitating the learning of Braille; providing alternative
script; augmentative and alternative modes, means and
formats of communication; and facilitating peer support
and mentoring.

Akin to Nussbaum’s list of central capabilities (en-
dorsing practical reason and affiliation as well as emo-
tions and play), Articles 24(2)(e) and 24(3), respectively,
acknowledge the fact that education is not merely an
academic tool. Rather, education should ‘enable persons
with disabilities to learn life and social development skills
to facilitate their full and equal participation in education
and as members of the community’. To that end, States
Parties must take appropriate measures to ensure that
the education of persons with disabilities (and, in partic-
ular, individuals who are blind, deaf or deaf-blind) is de-
livered in the most appropriate languages and means of
communication for the individual, and in environments
which maximise academic and social development.

4. Inclusive Education Viewed through the Lens of the
Capability Approach

It is evident that there are prima facie similarities be-
tween the capability approach and the vision of inclu-
sive education set forth in Article 24 CRPD. This section
of the article investigates whether, beyond those prima
facie similarities, the capability approach can serve to
teach States Parties to the CRPD specific lessons regard-
ing the norms embodied in Article 24. The key observa-
tions emerging from the analysis conducted in this sec-
tion are set out in a four-part framework and are aligned
with ‘the what’, ‘the why’, ‘the who’ and ‘the how’ of in-
clusive education. These four parts of the framework re-
late back to the understanding of equality enshrined in
Article 24 CRPD (as interpreted according to the method-
ological tools set out in the first section of this article).

4.1. ‘The What’ of Inclusion: Equality of Capabilities

The first limb of the four-part framework concerns ‘the
what’ of inclusion. The capability approach purports that
equality is measured in the realm of capabilities, such
that the central factor in the search for justice relates to
equalising opportunities for expanding an individual’s ca-
pabilities (but not necessarily equalising outcomes). Ca-
pability equality lays down human diversity as the key
equalising element in the evaluation of relative disad-
vantages and the fight against inequalities. Due to the
fact that the capability approach is underpinned by re-
spect for human diversity, it is equipped to deal with ‘the
complexity of disability’ (Terzi, 2005, p. 452). This justi-
fies invoking it to shed light on the meaning of equality
espoused by Article 24 CRPD. The fact that the capabil-
ity approach also adopts a social-contextual approach,
much like the CRPD, means that it endorses a similar
egalitarian perspective, according to which entitlement
to equal opportunities arises regardless of the fact that
disadvantage may accrue from impairment or external
factors (Terzi, 2005, p. 452). Overall, it can be said that
there is ‘general agreement on the essential underly-
ing ideas’ of the capability approach and the CRPD (Har-
nacke, 2013, p. 777). Notwithstanding this, many ques-
tions remain unanswered as to whether the capability ap-
proach can act as a guide to CRPD implementation. These
questions will be highlighted and answered in turn in the
sub-sections that follow.

4.2. ‘The Why’ of Inclusion: The Purpose of Article 24
and Equalisation of Capabilities

One naturally wonders which capabilities should be
equalised in the educational context? In order to answer
that question and to build on the equality metric, it is
important to take into account the underlying goals of
inclusive education, highlighted above. This leads us to
reflect on ‘the why’ of inclusion, the second limb of the
four-part framework proposed in this paper.

Social Inclusion, 2018, Volume 6, Issue 1, Pages 29–39 32

Various authors have followed Nussbaum’s example
and have devised lists of ‘basic capabilities’ in the edu-
cational context (Mutanga & Walker, 2015, pp. 505–506;
Walker, 2006b, pp. 128–129). Others have devised lists of
basic capabilities which are not tailored to education but
which overlap with educational capabilities (Robeyns,
2003). However, none of these lists have been tailored
specifically towards inclusive education and learners
with disabilities. Drawing on CRPD-specific values and
informed by the principles underlying the capability ap-
proach, it is submitted that the following capabilities
encapsulate the most relevant ones to be developed
through inclusive education for all learners:

i. Academic skills (knowledge): Article 24 CRPD re-
quires that school systems foster academic devel-
opment. In this context, academic skills would take
into account critical thinking and problem-solving
skills, promoting the knowledge required for par-
ticipation in society and the economy. Depending
on the severity of disability, the level of function-
ing following from this capability of knowledge will,
inevitably, vary. However, the basic capability for
knowledge should be fostered in all students. In-
deed, evidence suggests that students with psy-
chosocial and developmental disabilities can learn
to problem-solve in an inclusive setting through
modifications to social and communication pro-
cesses (Agran, Blanchard, Wehmeyer, & Hughes,
2002, p. 279).

ii. Life and social development skills: The CRPD also
requires the development of life and social skills.
The capability approach requires that informal
learning should be taken into consideration. This
has been defined as a space where ‘relationships
and encounters’ occur, ‘with all the opportuni-
ties that are planned and unplanned’ (European
Agency for Development in Special Needs Educa-
tion, 2011, p. 104).

iii. Individual autonomy, including the freedom to
make one’s own choices, and independence: Article
3(a) CRPD contains the cross-cutting general prin-
ciple of individual autonomy, including the free-
dom to make one’s own choices, and indepen-
dence. Drawing on that Article, it is submitted that
learner agency and autonomy should be promoted
in all individuals. This autonomy capability does
not find support in Nussbaum’s account of capabil-
ity equality. As Stein points out, Nussbaum’s ear-
lier work ‘excludes certain persons with intellec-
tual disabilities from full participation in society’
(Stein, 2007, p. 102), as she ‘fails to recognize those
who fall below her ten central capabilities’ (Stein,
2007, p. 101). According to Stein, Nussbaum’s ca-
pability approach only includes persons with intel-
lectual disabilities who are able to achieve base-
line functions ‘by proxy through their respective
guardians’ and this ‘denies their individual auton-

omy’ (Stein, 2007, pp. 109–110). In her later work,
Nussbaum appears to adopt a similar perspective
in the realm of cognitive disabilities (see, Nuss-
baum, 2009, pp. 345–350). To overcome these
issues, Stein proposes a ‘disability human rights
paradigm’, which ‘emphasizes the equal dignity
of all persons, and acknowledges their autonomy
in directing their own development’. (Stein, 2007,
p. 75). Stein’s approach fits well to the autonomy
capability proposed in this article. Although, when
it comes to operationalising the autonomy capabil-
ity in the context of young learners, this will natu-
rally depend on support from adults. With regard
to individuals with multiple disabilities or severe
intellectual/learning/behavioural disabilities, pro-
moting independence and autonomy becomes a
more complex task. This point is dealt with below.

iv. Respect for evolving capacities: Drawing on key
CRPD principles, in particular General Principle
3(h), which recognises the evolving capacities of
children with disabilities, it is essential to nurture
the preferences of persons with disabilities and
to foster in them the capacity to make informed
and reflexive choices, wherever possible. When it
comes to individuals with severe or multiple dis-
abilities, one of the main challenges lies in over-
coming the perception that such individuals can-
not exercise self-determination on account of the
nature or extent of their impairment (Wehmeyer,
1998). The CRPD Committee urges States Parties to
avoid this ‘deficit approach’, which focuses on the
‘actual or perceived impairment’ of a person with
a disability and which limits opportunities ‘to pre-
defined and negative assumptions of their poten-
tial’ (CRPD Committee, 2016, para. 16). Assessing
the preferences of students with severe learning
difficulties through alternative modes, means and
formats of communication is something which Ar-
ticle 24(3)(a) CRPD expressly urges. Several strate-
gies have been identified to determine the pref-
erences of students with severe disabilities, such
as, using micro-switch technology to enable stu-
dents to indicate preferences; observing whether
students approach an object when it is presented
to them; and recording the amount of free time
a student spends engaged in particular activities
(Hughes, Pitkin, & Lorden, 1998).

v. Respect for inherent dignity: Nussbaum’s later
work claims that ‘the touchstone’ of capabil-
ity equality is human dignity (Nussbaum, 2009,
p. 335). Pursuant to Articles 3(a), 3(d) and 8(2)(b)
CRPD, States Parties should foster in all children,
from an early age, respect for the inherent dignity
of all learners and the acceptance of difference.

vi. Voice and participation in learning: In accordance
with Articles 4(3) and 7(3) CRPD, States Parties
should ensure that all learners, particularly those
with disabilities, are enabled to develop the capa-

Social Inclusion, 2018, Volume 6, Issue 1, Pages 29–39 33

bility to express their views freely on educational
matters affecting them and to participate actively
in knowledge acquisition.

vii. Identity preservation: Drawing on Articles 24(3)(b)
and 24(4)(4) CRPD, inclusive education systems
should prioritise the capability for learners with
disabilities to preserve their individual identities
and to develop them in whatever way suits their
learning style. This is particularly important for stu-
dents who are deaf, blind and/or deaf-blind.

viii. Self-worth: Nussbaum claims that capability equal-
ity guarantees the ‘social bases of self-respect and
non-humiliation’ (Nussbaum, 2000, p. 79). In ac-
cordance with Article 24(1)(a) CRPD, inclusive ed-
ucation systems should foster capabilities of self-
esteem in all learners in order to avoid the issue
of what Nussbaum terms ‘adaptive preferences’
(Nussbaum, 2000, p. 139), whereby individuals
adapt their preferences according to what they be-
lieve is feasible for their ‘perceived’ capabilities.

While the above list does not constitute an exhaustive
enumeration of inclusive education capabilities, it does
provide a good starting point in seeking to ensure equal-
ity of educational opportunities for all and in framing ed-
ucation systems which facilitate the underlying principles
and goals of the CRPD.

4.3. ‘The Who’ of Inclusion: Individuals as an End

The capability approach also informs us about where to
set the focus lens of inclusion – in other words, the third
limb of the proposed framework, which centres on ‘the
who’ of inclusion. This can reveal invaluable lessons re-
garding pedagogical and assessment processes.

Since capability equality targets individuals, the goal,
in educational terms, is to produce capabilities for each
and every learner. Nussbaum refers, in this connection,
to the fact that each person is ‘an end’ (Nussbaum, 2011,
p. 35). While capability equality focuses pivotally on hu-
man individuality, it also focuses on interdependency
(Nussbaum’s criterion of affiliation). This vision of inclu-
sion matches that set forth in Article 24 CRPD, which not
only focuses on system changes but mandates the adop-
tion of reasonable accommodations and effective indi-
vidualised supports for persons with disabilities.

The person-centred approach underpinning Arti-
cle 24 has been remarked upon by the CRPD Committee:

Inclusive education must aim at promoting mutual re-
spect and value for all persons and at building educa-
tional environments in which the approach to learn-
ing, the culture of the educational institution and the
curriculum itself reflect the value of diversity (CRPD
Committee, 2012, para. 41).

This requires both the recognition of difference and of-
fering general mainstream provision for all learners. The

next sub-section of this article elaborates on how to
achieve this delicate balance by elaborating on the fourth
limb of the proposed framework—‘the how’ of inclusion,
that is, its processes and practices.

4.4. ‘The How’ of Inclusion: The Dilemma of Difference
Re-Visited through UDL

Several educational scholars are divided by the ‘dilemma
of difference’ (Minow, 1990, p. 20) and tend to focus al-
most exclusively on either impairment (Mac Kay, 2002)
or social processes (Armstrong, Armstrong, & Barton,
2000). The ‘dilemma of difference’ is a term used to de-
scribe the tensions inherent in focusing, on the one hand,
on differential characteristics, with the attendant risks of
stereotyping and labelling, and, on the other hand, ignor-
ing differences in an attempt to provide common edu-
cational provision, bearing the risk that not all learners’
needs are accommodated.

Terzi argues cogently that the capability approach
manages to erase the tensions inherent in the dilemma
of difference, since it allows overcoming ‘the duality be-
tween individual and social models of disability and sees
disability instead as inherently relational’ (Terzi, 2005,
p. 451). It is here that the capability approach finds par-
ticular resonance with the CRPD, which also overcomes
these tensions (Broderick, 2015, p. 72).

From an equality perspective, both the capability ap-
proach and the CRPD seek to widen the ‘norm’ in order to
reflect human diversity and individual difference, whilst
also ensuring education in the mainstream. This widened
norm can be given concrete formulation in the mech-
anism of UDL, a curriculum-based method designed to
achieve maximum accessibility of educational processes
for all. While implementing UDL is not without significant
challenges, the ideas of differentiated instruction and ‘al-
ternative functionings’ (Terzi, 2005, p. 456), or of doing
the same thing in different ways, takes on increased rele-
vance in this context. According to the CRPD Committee,
this involves ‘flexible curricula and teaching and learning
methods adapted to different strengths, requirements
and learning styles’ (CRPD Committee, 2016, para. 12.c).
It also entails ‘maintaining high expectations for all stu-
dents while allowing for multiple ways to meet expecta-
tions’ (CRPD Committee, 2016, para. 26).

Since diversity in education refers not only to the di-
versity of needs exhibited by persons with disabilities
but to the entire range of different learning abilities,
needs, talents, learning styles and personalities, it is vi-
tal to link these wide-ranging considerations to key goals
and outcomes to be achieved by the educational curricu-
lum. Knowelton (1998) suggests three levels of curricular
modification necessary to enhance access for all to main-
stream curricula: i) curriculum adaptation (modifying the
presentation and representation of content); ii) curric-
ular augmentation (teaching students to use student-
directed learning strategies); and iii) curriculum alter-
ation (changing the curriculum to address students’ spe-

Social Inclusion, 2018, Volume 6, Issue 1, Pages 29–39 34

cific needs). In that regard, the CRPD Committee recom-
mends the use of individual educational plans (IEPs) to
support specific learning requirements and the introduc-
tion of a pedagogy centred on students’ educational ob-
jectives. (CRPD Committee, 2016, para. 71).

Authors, such as De Beco, acknowledge the fact that
there are ‘practical limits to differentiation in the school
curriculum’ and that ‘education systems may never be
completely adaptable to the needs of all disabled chil-
dren’ (De Beco, 2017, p. 10). These concerns regarding
the implementation of inclusive education and universal
design in learning are entirely valid, and it may be the
case that a fully universal design is simply not achievable
due to wide variations in impairments. Nonetheless, the
ideal of inclusive education remains a worthy goal, and
the capability approach certainly lends itself to teaching
us valuable lessons in the quest to realise inclusion.

5. Capability Equality: From Theory to Practice in
Inclusive Education

Having outlined the four-part framework above, a frame-
work that may be used to guide pedagogical and assess-
ment process in implementing the CRPD, it is important
to reflect on the practical relevance of the above frame-
work in the provision of public inclusive education.

In rejecting a de minimus standard for the educa-
tion of persons with disabilities, the Supreme Court of
the United States recently held, in Endrew F. v. Douglas
County School District, that every child’s educational pro-
gram must be ‘appropriately ambitious in light of his cir-
cumstances’ and that children with disabilities should
have the chance to ‘meet challenging objectives’ (En-
drew, 2017, p. 3). One might wonder how this can be
achieved in the light of the framework outlined above?

As a preliminary step, the CRPD’s vision of educa-
tional equality should be enshrined in States Parties’ laws
and policies in order to guide educational processes. Ital-
ian law specifically includes the development of the po-
tential of persons with disabilities ‘in learning, in com-
munication, in relationships and in socialisation’ in Ar-
ticles 12 and 13 of Law 104/19921 (Ferri, in press). De-
cree 378/2017, implementing Law 107/2015,2 which is
aimed at reforming the Italian educational system follow-
ing ratification of the CRPD, also promotes ‘educational
and teaching strategies aimed at developing the poten-
tial of each individual’, according to Ferri (in press).

Practical changes to school systems are also required
in order to promote the key capabilities outlined above
in the context of the four-part framework. Ensuring that
persons with disabilities are appropriately challenged in
public education and, furthermore, balancing that with
the needs of children without disabilities requires a recip-
rocal approach. Jorgensen et al. advocate peer supports,
whereby students have the opportunity to provide sup-

port and assistance to others as well as to receive sup-
port (Jorgensen, Mc Sheehan, Schuh, & Sonnenmeier,
2012, p. 7). The European Agency for Development in
Special Needs Education advocates such co-operative
learning or peer tutoring as an effective method in cogni-
tive and affective (social-emotional) learning and devel-
opment for all students (European Agency for Develop-
ment in Special Needs Education, 2003, p. 5). As well as
enhancing academic and social development skills, this
type of approach can serve to enhance the capabilities of
respect for diversity, evolving capacities of persons with
disabilities and self-worth. Mixed-age classes (the joint
education of children with heterogeneous abilities from
pre-school to the fourth grade) have been advocated in
certain countries, such as Austria and Finland, as a means
to incorporate diverse learning rates in primary school
classes. While there are certainly many challenges inher-
ent in effectuating such an approach (Hyry-Beihammer
& Hascher, 2015), it has been promoted as one that can
have ‘obvious’ benefits at the cognitive, emotional and
social levels (European Agency for Development in Spe-
cial Needs Education, 2003, p. 29).

Person-centred planning aids greatly in achieving the
key capabilities of self-determination, learner autonomy
and participation. A Danish project, entitled ‘Children’s
Voice’, consults with parents and children to elicit their
views on the well-being and experiences of each learner
(UNESCO, 2017, p. 28). Involving students in the formula-
tion of learning objectives is an effective means by which
to include all students in their own learning processes.
In that regard, Jorgensen et al. promote the teaching of
self-advocacy skills—‘how to be assertive, how to effec-
tively communicate their perspective, how to negotiate,
how to compromise, and how to deal with systems and
bureaucracies’ (Jorgensen et al., 2012, p. 11).

Evaluation and assessment processes should also be
a key focus for States Parties. The framework outlined
in section four of this article sheds light on four vital
aspects of the inclusion process (‘the what’; ‘the why’;
‘the who’ and ‘the how’ of inclusion) and allows for the
assessment of inequalities in a space other than that
used for traditional equality measurements in the edu-
cational sphere, which often focus on resources and out-
comes. That space is the realm of capabilities. The mea-
surement that is used to determine whether each individ-
ual is granted equal opportunity to flourish stems from
an assessment of the starting point of the individual and
his/her progress towards defined and overarching goals
within the mainstream curriculum, combined with the
individualised goals set out in his/her IEP, designed to
map personal successes. The CRPD Committee appears to
agree with this perspective on how human potential can
be facilitated through assessment processes. The Com-
mittee has stated that ‘traditional systems of assessment,
which use standardized achievement test scores as the

1 Law of 5 February 1992 No. 104, ‘Legge-quadro per l’assistenza, l’integrazione sociale e i diritti delle persone handicappate’ in O.J. of 17 February 1992
No. 39.

2 In O.J. No.162 of 15 July 2015.

Social Inclusion, 2018, Volume 6, Issue 1, Pages 29–39 35

sole indicator of success for both students and schools’
(CRPD Committee, 2016, para. 74), ‘must be replaced with
flexible and multiple forms of assessments and the recog-
nition of individual progress towards broad goals that pro-
vide alternative routes for learning’ (CRPD Committee,
2016, para. 26). Jorgensen et al. recommend implement-
ing an evaluation system whereby students receive grades
that are reflective of ‘personal best’ achievements.

Connecting education systems more closely to the
key capability of life development skills is also essential
for ensuring real inclusion. In Spain, the project Your Ed-
ucation Has No Limits: Develop Your Future advocates
awareness-raising campaigns targeted at promoting the
active participation of secondary school-level individu-
als with disabilities in universities and in the workforce.
Jorgensen et al. encourage the incorporation of annual
goals in students’ IEPs that not only reflect common core
state standards but ‘functional skills necessary for full
participation in school and life in the community after
high school’ (Jorgensen et al., 2012, p. 3). Portuguese De-
cree Law 3/20083 goes even further than that to estab-
lish a framework for the transition process from school to
employment for learners with severe intellectual disabili-
ties (aged 15 or over). According to the European Agency
for Special Needs and Inclusive Education (n.d.), the first
phase of each Individual Transition Plan (ITP) is to reveal
‘the wishes, interests, aspirations and competencies’ of
each individual. A subsequent phase of the ITP includes
an assessment of the gaps in the local job market and the
identification of training opportunities or internships for
the individual. These are then matched to the academic,
personal and social competencies of the individual, and
required adjustments and special equipment are docu-
mented. Agreements are then set up with the relevant in-
stitutions, defining the competencies required for the po-
sition, the tasks to be carried out and the support needed
to achieve those tasks.

Having reflected on how the capability approach in-
spires a four-part framework to guide educational pro-
cesses and how it can teach States Parties lessons in im-
plementing the vision of equal educational opportunities
set out in Article 24 CRPD, it is apt to consider whether
the capability approach can provide a complete guide to
CRPD implementation?

6. The Capability Approach: A Complete Guide to CRPD
Implementation?

Given that it is not possible to realise all rights at once,
a complete guide to CRPD implementation should also
guide States Parties on issues of prioritisation and dis-
tribution of resources. Harnacke argues that, ‘due to an
insufficient grounding of the capabilities which makes
a hierarchy among the various capabilities impossible’,
the capability approach cannot fulfil this role (Harnacke,
2013, p. 777). Terzi (2007, p. 770) claims that other the-
ories, such as Rawlsian theories on ‘justice as fairness’

(Rawls, 2001), need to be drawn on in order to guide this
element of CRPD implementation.

Other limitations to the capability model have been
identified by scholars. According to Nussbaum herself,
the capability approach is a ‘social-minimum approach’
(Nussbaum, 2011, p. 40). Therefore, it is incomplete,
since it does not make any ‘commitment about how
inequalities above the minimum ought to be handled’
(Nussbaum, 2011, p. 40). Additionally, Norwich ques-
tions whether it is really possible to determine what
counts as adequate functioning (Norwich, 2014, p. 19).

The four-part framework set out in section four of
this article does not claim to solve these (arguably sub-
stantial) limitations and does not constitute a full the-
ory of educational equality. It simply focuses on the de-
velopment of capabilities as a key to guiding processes
and practices in education rather than measuring func-
tioning as the sole end goal. The effectiveness of educa-
tional systems is often measured relative to means and
result. In view of the constraints associated with focus-
ing only on resources and outcomes, this article has ar-
gued that it is pivotal to redefine the values underpin-
ning education systems and the capability sets that are
developed through education, not only for persons with
disabilities but for all learners. A list of educational ca-
pabilities has, therefore, been extrapolated in this arti-
cle and is set out as the second limb of the proposed
framework above. It is based on key CRPD values. The
proposed list of educational capabilities and the four-
part framework may prove useful in answering a range
of equality-related questions, including whether certain
individuals are accorded more opportunities than oth-
ers to convert resources into functionings. In that sense,
this article demonstrates the human and social develop-
ment aspect of education rather than simply the ‘domi-
nant neoliberal human capital interpretations of educa-
tion as only for economic productivity and employment’
(Walker, 2006a, p. 164).

The capability approach inspires a normative ethical
framework and rationale for the provision of inclusive ed-
ucation, while the CRPD fleshes out the legal framework
associated with ensuring that the goals of inclusive edu-
cation are met. Reading them together provides a key to
unlocking equality of opportunities for many students.

Outcomes cannot be ignored, of course, and the use
of indicators for monitoring CRPD rights is an essential
compliment to any approach based on capabilities. The
CRPD Committee requires States Parties to develop mon-
itoring frameworks with structural indicators (to mea-
sure barriers) and process indictors (to measure changes
to the accessibility of physical environments, curriculum
adaptations and teacher training), with specific bench-
marks and targets attached to each indicator (CRPD Com-
mittee, 2016, para. 75). The four-part framework out-
lined in this article can go some way towards highlight-
ing and solving structural and process issues in educa-
tion. Nonetheless, the individualised focus of the ca-

3 Decreto-Lei n.º 3/2008, de 7 de Janeiro.

Social Inclusion, 2018, Volume 6, Issue 1, Pages 29–39 36

pability approach proves ineffective in addressing the
broader issues related to CRPD implementation, as high-
lighted above.

During the drafting process of General Comment 4
of the CRPD Committee (on inclusive education), it was
acknowledged that ‘no reliable and comparable data is
available’ on access to education and learning outcomes
for children and adult learners with intellectual disabili-
ties, in particular (Inclusion Netherlands, 2016). In view
of such deficiencies, the Committee requires States Par-
ties to develop outcome indicators, measuring the per-
centage of students with disabilities in inclusive learn-
ing environments obtaining final official certification or
diplomas (CRPD Committee, 2016, para. 75). Since effec-
tive participation in society is the end goal to be achieved
in implementing Article 24 CRPD, and since some individ-
uals with disabilities never manage to attain even a basic
level of functioning in society, these elements of CRPD
implementation certainly cannot be neglected. The capa-
bility approach does not provide much guidance in that
respect. Indeed, De Beco argues that the capability ap-
proach ‘does not explain whether…participation is a goal
in itself or just a means to enhance capabilities’ (De Beco,
2017, p. 14).

7. Conclusion

According to Sen, the question ‘equality of what?’ is piv-
otal in the search for justice. As demonstrated in this ar-
ticle, the capability approach inspires a four-part frame-
work based upon justice and equality of capabilities. It
advocates that social structures should respond to hu-
man diversity and allow for human flourishing.

In a similar vein to capability equality, the CRPD is
based on respect for the inherent dignity of persons
with disabilities, individual autonomy, including the free-
dom to make one’s own choices; respect for difference
and acceptance of persons with disabilities as part of
human diversity. All of these values underpin the vi-
sion of educational equality of opportunity that Article
24 CRPD sets forth. Article 24 seeks to ensure accessi-
ble, individualised educational systems, tailored to the
wide diversity of needs and innate capabilities of learn-
ers with disabilities.

In attempting to theorise equality in education, this
article has drawn on the parallels between the values es-
poused by Article 24 CRPD and the capability approach
in order to delineate a four-part framework for inclusion.
In doing so, this article demonstrates how the capability
approach provides a useful metric for examining inequal-
ities. This can teach us invaluable lessons regarding the
processes and practices of inclusive education. It is sub-
mitted that the vision of equality set forth in Article 24
can be strengthened if a focus is maintained in the im-
plementation process on the ‘the what’, ‘the why’, ‘the
who’ and ‘the how’ of inclusion.

These four limbs of the proposed framework shed
light on learning processes, on the social value of educa-

tion, on the key focal points of inclusion as well as on the
role of educational structures in perpetuating or mitigat-
ing inequalities. While the capability approach has sev-
eral limitations in terms of guiding inclusion and can only
inspire a partial framework for CRPD implementation,
this partial framework is nonetheless useful in guiding
educational processes, policies and institutions towards
a more holistic definition of equal opportunities.

The language of capabilities is not exclusive to disabil-
ity studies, and the lessons learned from the interface be-
tween Article 24 CRPD and the capability approach can
be applied to the provision of inclusive education for all
individuals. This can help to ensure that each individual
reaches his/her full potential and can go some way to-
wards ensuring full and equal participation in education
for persons with disabilities and as members of the com-
munity, just as Article 24 itself requires.

Acknowledgments

The author would like to thank the two anonymous re-
viewers who provided most helpful and insightful com-
ments on the draft of this article.

Conflict of Interests

The author declares no conflict of interests.

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About the Author

Andrea Broderick (PhD) is a tenured Assistant Professor in the Department of International and Eu-
ropean Law at the Faculty of Law, Maastricht University. Andrea previously completed a Marie Curie
fellowship at Maastricht University in the DREAM (Disability Rights Expanding Accessible Markets) net-
work of researchers. Her doctoral thesis on the CRPD’s equality norm was nominated for the Max van
der Stoel Human Rights Award (2016) and has been published as a monograph with Intersentia.

Social Inclusion, 2018, Volume 6, Issue 1, Pages 29–39 39