Leerplicht en recht op onderwijs : een onderzoek naar de legitimatie van de leerplichten aanverwante onderwijswetgeving de Graaf, J.H.

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1 UvA-DARE (Digital Academic Repository) Leerplicht en recht op onderwijs : een onderzoek naar de legitimatie van de leerplichten aanverwante onderwijswetgeving de Graaf, J.H. Link to publication Citation for published version (APA): de Graaf, J. H. (1999). Leerplicht en recht op onderwijs : een onderzoek naar de legitimatie van de leerplicht- en aanverwante onderwijswetgeving Nijmegen: Ars Aequi Libri General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. UvA-DARE is a service provided by the library of the University of Amsterdam ( Download date: 18 Nov 2017

2 Summary and conclusions The central issue of this study is how the fundamental principle of freedom, enshrined in the Universal Declaration on Human Rights and in constitutional law, has been treated in the legislation of compulsory education and associated legislation in the course of time. A century of legislation concerning compulsory education and related topics forces one to conclude that fundamental rights of freedom have been increasingly violated. The State's interference in this area has resulted in a significant loss of its authority and effectiveness. The right to education has consequently been undermined. Compulsory education legislation, initiated by the government to 'enforce' this right to education, has reached a critical turning point after a century's passage. Particularly for the group of most vulnerable pupils, for whom compulsory education was originally intended, the right of education has been overshadowed. The research in this study into the justification of the measures taken over this period reveals a number of factors contributing to the process which has led to this outcome. The historical analysis of the legislation here examined, based on the applied criteria of legitimacy, appropriateness and practicality, reveals important shifts in the interpretation of these criteria. The shifts involved not only interpreting the criteria in relation to each other but also interpreting the criteria themselves. Especially the content of the concept of legitimacy has changed significantly over time. The changed interpretation of the freedom concept illustrates this shift well. The waning of the concept of freedom seems to follow the order of the above-mentioned criteria. Broadly speaking, it can be said that the freedom perspective is displaced firstly by considerations of legitimacy, then by issues of appropriateness, and with the most recent measure of penalisation of truant youths, also in relation to practicality. The process begins with the Children's Act of Van Houten (1874) and the Compulsory Education Act (1900). Here the principal question of the lawfulness of state intervention was decided. The central issue was which criterion would be applied for intervention. The crux of the issue was the interpretation of the concept 'neglect'. Should this include insufficient care for the mental development of the child? In that case does the state have the right and the duty as the protector of the rights of the child to interfere with the autonomy of the parents, and to require the parents to provide for the necessary education of their children. It can be concluded that there has seldom been such fundamental discussion on the legal grounds for state intervention in the area of legislation concerning compulsory education and related legislation, as in the parliamentary debates around the turn of the century. Although in these debates the social importance of compulsory education as a tool of discipline played a significant role, it can also be argued that the individual right of education for children with social and often mental disability was the key factor. The demands made on education were modest. The learning of discipline and regularity, important social skills for the time, was considered more important than the transmission of knowledge. The most controversial point was the universal application of the compulsory education legislation, affecting

3 202 LEERPLICHT EN RECHT OP ONDERWIJS both the socially deprived, for whom the legislation was primarily designed, and the 'well-to-do', for whom the legislation was unnecessary. While some argued that the latter would not practically be affected, since they already voluntarily met the regulations, others objected on principle to state intervention where it was not needed. With the extension of compulsory education in the period of postwar reconstruction and the expansion of the welfare state, the emphasis in governmental justification for the legislation shifts almost exclusively in the direction of considerations of appropriateness. Compulsory education as a tool of discipline, and more general social requirements demanded of education, begin to play a greater role. World War Two exercises an important influence on these developments. In the justification of the post-war proposals for the extension of compulsory education, firstly in 1946 to eight years, and in the Bill for Compulsory Education 1968, to nine years, social interests play a dominant role. 'Neglect' remains a deciding criterion for state intervention, albeit that the interpretation of this concept has clearly developed with the demands of the time. In parliament, 'neglect' as criterion is no longer debated, but is simply accepted. The improvement of the position of the socially and intellectually weak pupils remains central. The conflict with the freedom perspective is not at stake: it is assumed that individual interest is fully compatible with social interest. The legitimacy and appropriateness of the proposed legislation go hand in hand here. The practicality of the proposals are now central to the debate. One is generally of the opinion that the measures can only be applied when the necessary and suitable educational resources are made available. Such extended education needs to be tailored to the group of less-gifted pupils who as a result of the legislated extension of compulsory education are obliged to attend school. The general consensus concerning the measures to be taken is seen as an important source of justification. Consequently the application of these measures is seen as a point of social concern and not of punitive action. An exception to this development is the Bill for Secondary Education, introduced to parliament in This bill for the first time introduces another interpretation of the principle of legitimacy. The legal ground for state intervention concerning education is considerably extended in this bill. Instead of a countermeasure for 'neglect', concern for the general well-being is now introduced as criterion for state intervention. A proposal for a general review of the system of higher education follows. Uniformity and centralisation form important key concepts in this system review. In the 60's and the 70's developments take place that have an important influence on later education legislation. The vision of the state's role changes radically. The welfare state is at its peak and it is assumed that the state has the task and the capacity to bring welfare within everyone's reach. The desirability of the individual's own sphere is as such not felt. There is a total absence of any critical questioning of the competence and scope of the state. The legitimacy criterion for state intervention thus undergoes a fundamental change. It is now defined in terms of justice; and what is just, is: 'giving everyone maximum opportunity to realise their personal plans and ambitions'. The concept of appropriateness is also applied in a different way. The question is not

4 SUMMARY AND CONCLUSIONS 203 so much if the proposals are appropriate, but if they are desired. The contemporary optimistic climate concerning human progress promotes the assumption that human shortcoming, in this case a shortage of natural talent and lack of motivation, can be compensated for by appropriate education. Despite this broadening of the criterion for legitimacy and appropriateness, both these concepts harmonise within the welfare vision of the state. This is also reflected in the specific objectives of education. The classic functions of education, individual development and social preparation, also go hand in hand. There is a general consensus. Following the oil crisis (1973) there is a serious disruption of the development of the welfare state. The appropriateness of the measures, which is actually more problematic than expected - enthusiasm for participating in the partial compulsory education is low - comes under further pressure. The vision of the state's role remains the same and, under the influence of the political creed of the Den Uyl cabinet, is even expanded. The negative effects of the measures prepare the way for even more fundamental changes. The liberal-orientated criterion of legitimacy, that everyone be given maximum chance for personal development, gives way to the socialistically-tinted criterion that everyone would receive equal chances. Legitimacy becomes identified with equality. Legitimacy and appropriateness now begin to separate. The content of both concepts also changes in meaning. A highpoint in this development is the presentation of the proposals in the Contouren Memorandum of a future educational system (1975). With the proposed adoption of the legitimacy criterion used in this memorandum, a radical change of perspective occurs in the principle of freedom applied thus far. In this view, education is not seen from the focus of the individual and his/her place in society, but in the first place is viewed as a means of social change. This means a disruption with the previous period of construction and expansion of the welfare state, when indeed the emphasis was laid on society but it was assumed that this was also for the good of the individual. But the appropriateness of the proposals is also dubious. As argued by the Wetenschappelijke Raad voor het Regeringsbeleid, it is even doubtful if the social strata can be changed through education. Research shows that social mobility decreases as participation in general education increases, according to the Raad. There is even the danger, as indicated by the Board of Education, that the opposite effect can happen. At a generally higher education level a selection mechanism can be expected to come into play that is more directed at personal qualities of talent, creativity and character. This will tend to benefit those children whose home background already equips them with the necessary social and life skills. Formal egalitarianism would thus appear to be mainly a facade of equality, masking an actual situation of inequality. The Board of Education also issued an urgent warning concerning the content matter of education, asking: 'where are such concepts as solidarity, belonging or 'servanthood', alongside those of emancipation and social assertiveness?' Their question as to 'if the sort of education proposed by the Contouren Memorandum would encourage a confrontation mentality, to the detriment of tolerance and the general social climate' appears to have accurately foreseen later possible developments. The board also criticises the one-sided education vision of the Contouren Memorandum: the utilitarian approach dominates, with the result that 'participation in a long cultural

5 204 LEERPLICHT EN RECHT OP ONDERWIJS tradition and development of the individual as an independent-thinking and critical being' is squeezed out. The practicality of the measures and the consensus principle both become casualties in the battle for the ideal of equality. Although the plans of the Contouren Memorandum as such do not proceed, these greatly influence later events. Developments that occur in the 80's with the introduction of the Primary Education Law (basisonderwijs) and the Intermediate Education Law (basisvorming) closely follow the plans of this memorandum. A basic education phase for 4-12 year olds and a broad, general, early secondary education, are given place in this legislation. Both of these radical operations are carried out despite the loss of the ideal and financial basis. How can this be accounted for? An important factor is clearly the far-reaching standardisation that closely accompanied the general revision of both elementary and secondary education. Uniformity, applied as an educational concept for promoting equal opportunity, appears to fit well in the market- orientated thinking of the 80's. The tone of the Bill for Secondary Education is here continued and, just as with the process around this bill in 1958, criticism is also expressed about the general character of the regulation and the related tendency towards uniformity. Once again the dangers this can have for both the least and most talented pupils are pointed out. Even though this danger is real, the effects of this approach are reinforced through the emphasis on the greatest possible efficiency in education. These objectives, expressed in the 'raising of the standard of youth education' form the second leg on which the proposed law stands. This combination of equality and efficiency leads to uniformity, as an educational concept, being further cast adrift from the ideal out of which it was born: equal opportunity for all. This approach relegates the individual pupil to a secondary role. Further it seems just a small step from ensuring equal opportunities for all to imposing the obligation to use these opportunities. In this vision pupils are no longer 'insufficiently gifted' but are at fault for being incompetent. After all, had they not become more 'emancipated and socially assertive'? Instead of serving the needs of the recipients of education, the formalisation of the principle of equality in a uniform educational system degenerates here into a dictate that works against them. The last steps in this process are the measures taken in the 90's to reach at a better compliance with the compulsory education legislation. In order to counter truancy more effectively it is proposed that not only parents but also pupils are held responsible. The proposal is elaborated in the amendment Compulsory Education Act 1969 (1992). This pressure for better compliance at the end of the chain (legitimacy-appropriateness-practicality) appears to be the ultimate result of a development in which considerations of legitimacy and appropriateness have been continually eroded. The fact that the very group for whom compulsory education was meant in the first place - the most vulnerable pupils - has become the victim of this development, is a painful paradox. The length of the mandatory schooling, and especially the related obligatory intermediate education, has resulted in the right of education being oversha-

6 SUMMARY AND CONCLUSIONS 205 dowed for the very group for whom this right was intended and who needed it the most. For this right to be exercised, it is necessary for the pupil to be able to realise his/her full potential. And that means that the educational system should not ignore the possibilities for the development of those who receive the education. Article 29, first paragraph, under a, of the Convention on the Rights of the Child, speaks in this regard about 'the fullest possible development of the personality, talents, and mental and physical abilities of the child.' The creation of the right conditions is hereby a primary requirement. Obligations can only serve the right of education to a certain level and are counterproductive if these are not in harmony with the abilities of the recipients of education and with the resources provided by the state. As Berlin says: 'We can only do what we are able to, but that at least we have to do, against all oppression.' This applies for the individual human being but even more for the state. When the state reaches too far it is not able any more to fulfil its primary task, that is to say, to guarantee people fundamental rights. The right to education is essential here. It is not only a fundamental right of freedom as such; it is the springboard for the realisation of the other fundamental rights and of the fundamental rights of others.

UvA-DARE (Digital Academic Repository) Orde en discipline Sanders, R. Link to publication

UvA-DARE (Digital Academic Repository) Orde en discipline Sanders, R. Link to publication Citation for published version (APA): Sanders, R. (2017). Orde en discipline: Een onderzoek naar de ontwikkeling