Stating the rights of specific groups can be seen as a motor for developing policies regarding those rights. In the case of inclusive education the UNESCO Salamanca Statement and subsequent statements as well as the Convention on the Rights of Persons with Disabilities (CRPD) emphasize the right of children to be educated in an inclusive education system. As Dyson (1999) argues for the discussion on inclusive education in advance of the Salamanca Statement, referring to individual rights is one strategy to justify the claim for inclusive education. At the same time the parental right of school choice has been emphasized in many school systems and discussed in terms of social justice as well as governance (Belfield & Levin, 2015).

The concurrence of emphasizing children’s and parental rights might be no problem in school systems that actually correspond to the idea of an inclusive education system in the sense of the UNESCO and the CRPD. But for example in the case of the German school system and several other states one can consider, that those have at best started to develop inclusive structures in school systems. In Germany, for example, there still exists a highly developed special education systems next to the regular school systems (Meijer, 2010). In a nutshell the challenge to develop an inclusive education system seems to be decided depending on the question of whether it is possible to supersede or transform this special school system in a support structure for inclusive education (Pijl & Frissen, 2009). The right of children to access an inclusive education system and the parental right of school choice seem to be hardly compatible in those systems. It is the aim of this paper, to discuss, how the rights of children and/or parents matter in the process of developing an inclusive education system on a policy level.

The discussion is rooted in a broader research project, which focuses on how education policy tries to meet the stipulations of the CRPD and how this process is embedded in specific modes of governance (Rhodes, 2007). To answer these questions the research design follows the Situational Analysis (Clarke, 2005), which can be understood as a development of classic Grounded Theory Methodology (GTM) (Strauss & Corbin, 1990) by focusing the complexity of situations. The Situational Analysis is conceptualized as a theory-method-package, which combines concepts of social worlds and arenas, discourse and power and non-human agents with the GTM. With this approach it is possible to analyze the complex situation of governance and policy making to develop inclusive education systems regarding questions for example about involved and silenced actors, elements of the discourse about inclusion, subjectivisation of students and (special education) teachers and the processes of governance as negations in this situations.

Although the project is located in the German context by comparing the situation in two federal states, there is a clear European perspective. Both federal states can be seen as examples for different ‘education regimes’, which West and Nikolai (2013) proposed as a typology for European countries regarding the dimensions of (in)equality of opportunity and public expenditure: One federal state can be understood as a example for the Continental regime while the second is oriented towards the Nordic regime. While in the Continental regime the reproduction of social stratification including early selection is characteristic, in the Nordic regime equality of opportunity is structurally embedded. This situation for developing inclusive education as an individual right to participate in school and the right of parents to choose school is highly different and servese as a background for discussing the reference to those rights by policy makers.

The project is following the Situational Analysis and the GTM. The sampling strategy is based on assumptions laying on the existing literature, as well as on a first analysis of the school law in the federal states in Germany with focus on regulations about inclusive or special education organizations and on school statistics regarding the exclusion of students from the general school systems in special schools. It is aim of the design to follow the perspectives of actors involved in the process of developing inclusive educations systems on different levels in government. In both federal states interviews were conducted with actors of administration at state, regional and school level. Those interview partners were addressed as experts for the institutional or organizational level in administration following the conception of theory-generating expert interviews by Bogner and Menz (2009). This interview style focuses specific knowledge of individuals as representatives for institutional or organizational settings without denying the biographical and situative components of knowledge and the specific construction of knowledge in those settings between individual actors. Especially the “(implicit) stores of knowledge, conceptions of the world and routines, which experts develop in their activities and which are constitutive for the functioning of social systems” (Bogner & Menz, 2009, p. 48) are of interest and central for later analyzing the interviews. With this in mind the interviews as well as a number of relevant documents have been analyzed with strategies of the GTM and the mapping strategies proposed by Clarke. Those mapping strategies help to focus the process of coding on the complexity of situations by forcing the researcher to question their own perspective on the data. They help to reconstruct social worlds as collective actors and arenas as continual processes of negotiations as well as elements of discourses and non-human agents in situations.

In the paper I`m going to discuss the findings with focus on the question, how policy makers refer to children`s and/or parents rights in the process of policy making for inclusive education. I´m going to discuss this question in the light of the specific understanding of equity or equality in both situations (Espinoza, 2007). In federal state a, the more Continental governance regime, policy makers use, on the one hand, the parental right of school choice as an argument to legitimize the structural decision to maintain special schools for children categorized as having special educational needs. This argumentation is embedded in a discourse about inclusive education that understands inclusive education as the schooling of children with special educational needs in mainstream schools. In situation b, the more Nordic governance regime, policy maker argue with the right of the child in the sense of the CPRD. The parental right of school choice is also relevant, but within the aspired inclusive education systems. In this situation the discourse about inclusion is close to the idea of a school for all. The right of children is used to argue for changes in the education systems. The specific regulations of the CRPD are used to argue for a stabilization of special education support systems to provide reasonable accommodations. In both situations either the parental or the children’s rights are used to legitimize the understanding of inclusive education and policy decisions regarding this. In both cases the construction of the other as disabled or as having SEN is essential to allocate special education, although in situation b forms of discrimination by excluding those children from regular schools are in decrease. As explanation for the very different references to the rights of children and parents the notion of justice in both situation will be discussed.

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