Reconstructing Legal Protection for Children with Special Needs through Non-Discriminatory Education: A Capability Approach

Abstract

The fulfillment of the right to education for Children with Special Needs (CSN) constitutes part of the State’s obligation to uphold human rights and the principle of non-discrimination. Although Indonesia has enacted various legal instruments governing inclusive education and the protection of the rights of persons with disabilities, their implementation continues to face significant challenges, including limited access to inclusive educational services, inadequate reasonable accommodation, and the lack of effective legal protection capable of ensuring equal educational opportunities for children with special needs. These conditions demonstrate a gap between normative legal protection and the substantive realization of the right to education. This study aims to analyze the weaknesses of the existing legal framework governing the protection of children with special needs in the provision of non-discriminatory education in Indonesia and to reconstruct a legal protection model based on the Capability Approach. The study employs a normative legal research method using statutory, conceptual, and philosophical approaches. Legal materials are analyzed qualitatively through a prescriptive analytical method. The findings indicate that the current legal protection framework remains primarily oriented toward the formal recognition of rights and has not fully ensured the actual capabilities of children with special needs to access, participate in, and benefit from education on an equal basis with others. From the perspective of the Capability Approach, legal protection should be reconstructed by placing the development of individual capabilities, the provision of reasonable accommodation, the strengthening of State responsibility, and the creation of an inclusive educational environment at the core of the legal framework. The novelty of this study lies in the development of a reconstructed model of legal protection that extends beyond the fulfillment of normative rights to emphasize the expansion of the actual capabilities of children with special needs to obtain equitable, inclusive, and non-discriminatory education.