the right to education sandy fredman © oxford human rights hub

The Right to EducationSandy Fredman © Oxford Human Rights Hub

A closer look

• 1 in 10 children of primary school age still out of school.

• Global out-of-school rate stuck at 9% since 2007.

• More than 4 in 10 out-of-school children will never enter a classroom.

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Sustainable Development Goals (SDG)


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Indicators and goals: By 2030

• Ensure all girls and boys complete free, equitable and quality primary and secondary education leading to relevant and effective learning outcomes

• access to quality early childhood development, care and pre-primary education …

• Affordable quality technical, vocational and tertiary education, including university

• Eliminate gender disparities in education;• Equal access for persons with disabilities, indigenous

peoples, and children in vulnerable situations• Literacy and numeracy• Build and upgrade education facilities that are child,

disability and gender sensitive ..• Increase supply of qualified teachers

From Development Goals to Human Right

Development Goals

• Political commitments.

Human Rights

Legally binding: States (and others?) as duty bearers

• Transfer of aid; charity.

• Focus on developing countries.

• Quantitative and aggregate outcomes.

Individuals as rights-bearers.

All countries.

58m rights to education unfulfilled: Every individual counts

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Resources

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India: from Directive Principles…

• Article 45: The State ‘shall endeavour to provide’ free and compulsory education for all children under 14 within 10 years.

• Article 41: The State shall, ‘within the limits of its economic capacity and development,’ make effective provision for securing the right …education.


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To Fundamental Rights

• Not ‘mere pious declarations’.

• The directive principles must be read into the fundamental rights.

• ‘The right to life and the dignity of an individual cannot be assured unless it is accompanied by the right to education.’

• Multiplier right: The right to freedom of speech and other rights…cannot be appreciated and fully enjoyed unless a citizen is educated (Mohini Jain)

Indian Constitutional Amendment

• 21A. ‘The State shall provide free and compulsory education to all children of the age of six to fourteen years.’ (2002)

• Right of Children to Free and Compulsory Education Act 2009.


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Role of Human Rights

• Freedom right: restraining State intrusion – education as propaganda.

• Social right: provision of buildings, furniture, teachers, quality of education.

• Equality right: segregation, gender, poverty.

• At the very least: accountability, transparency,

participation.


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Freedom Right: Education as propaganda


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Freedom right: Duty to respect

• ICCPR: State should not interfere in parent’s choice of religion of instruction.

• ICESCR: Respect for the liberty of parents… to ensure the religious and moral education of their children in conformity with their convictions.’

• ECHR: State shall respect the right of parents to ensure education is in conformity with their political and religious convictions.’


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From Respect to Provide

Should right to education require State to permit faith schools? To fund?

.


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From respect to provide: Language disputes

• Belgian Linguistics case: French speaking parents wanted their children educated in French.

• ECHR: ‘No person shall be denied the right to education’: Negative formulation.

• Duty to permit but not to fund.• Everyone has the right to receive education in the official

language or languages of their choice in public educational institutions where that education is reasonably practicable. (s.29(2) SA Const)

• Clash with social right? Ermelo Hoerskool


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Social Right: Duty to provide

ICESCR: Ratified by 162 States:

(a) Primary education: compulsory and available free to all.

(b) Secondary education: progressive introduction of free education (Art 13).


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Duty to provide: Challenges

• A human right to buildings, furniture, teachers?

• A human right to quality education?

• ‘Compulsory and available free to all.’

• Progressive or immediately realisable?

• Can State fulfil duty through private provision?

• Role of courts in resource decisions: Effective remedies

Buildings and Furniture

• Respondents are in breach of right to basic education by failing to provide adequate furniture.

• Respondents are ordered to ensure that all schools identified as having furniture shortages shall receive adequate furniture to enable each child to have his or her own reading and writing space (Modzozo, SA High Court 2014).


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Adjudicating minimum standards

• Basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.

• ‘Minimally adequate’ physical facilities, teaching by adequately trained teachers (New York: (Campaign for Fiscal Equity )


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Role of courts

• Legitimacy and competence especially around budgetary policy.

• ‘The State, in enacting a budget … must appropriate the constitutionally required funding for the New York City schools’. (Campaign for Fiscal Equity )

• Remedies: Class actions (Linkside); interim mandamus (Right to Food case); personal liability; contempt; Court appointed administrators; Commissions


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Free and compulsory

Free for all or only the poorest (means-tested)?

Should fees be prohibited in public schools? Associated expenses?

Should a private sector be permitted? Should it be subsidised (Joint Liaison Committee case)?


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Free compulsory education

• New York State Constitution: ‘The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.’

• SA Constitution: ‘Everyone has the right to a basic education, including adult basic education.’

• Indian Constitution: ‘The State shall provide free and compulsory education to all children of the age of six to fourteen years.’

Litigating the right to free education: Colombia

• Until 2010, Colombia was the only Latin American country permitting local governments to charge for primary education in public schools.

• On 31 May 2010, the Colombian Constitutional Court held that all public primary schools must cease

charging students tuition fees.


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The Colombian outcome

• In Dec 2011, the Colombian national Government issued National Decree 4807/2011 establishing that education shall be free in public institutions at the primary and secondary levels.

• Article 2: Free education includes not charging for complementary services (indirect costs such as books and uniforms?).


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Private provision?

Everyone has the right to establish and maintain, at their own expense, independent educational institutions that

a. do not discriminate on the basis of race;

b. are registered with the state; and

c. maintain standards that are not inferior to standards at comparable public educational institutions. (SA Constitution, s29(3)

State subsidies: KZN Liaison

Equality and Segregation

Brown v Board of Education:

‘To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’ (US SCt 1954)


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Equality and Segregation

Segregation amounts to indirect discrimination against Roma children

(DH v Czech Republic, ECHR (2007).


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Education as an equality right: Gender

Equality and Gender

• Pregnancy exclusion: Welkom case (SA)

• Violence at school

• Ending stereotypes: (c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods (CEDAW Article 10(c))

Equality and Poverty: A clash of rights?

• India: 25% of places at unaided private schools must be put aside for disadvantaged learners. Fees at public level paid by State.

• Challenge: Breaches right to to establish and administer educational institution (Art19)?

• Court: Upheld law for non-minority schools (Society for Un-aided Private Schools of Rajasthan vs. Union of India 2012).


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A reasonable limitation

• A child denied right to access education is not only deprived of right to live with dignity -

• Also deprived of right to freedom of speech and expression.

• Aim: To remove all barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission.

• Reasonable restriction on freedom of occupation.


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the right to education sandy fredman © oxford human rights hub

Documents

right education

quality of education

right of children

fundamental rights

tertiary education

secondary education

education unfulfilled

role of human rights