The Right to Education Sandra Fredman Oxford Human Rights Hub. Moderated by Liora Lazarus

Transcription

1 The Right to Education Sandra Fredman Oxford Human Rights Hub Moderated by Liora Lazarus

2 The Right to Education Prof Sandra Fredman Oxford Human Rights Hub To Participate : Message our Facebook page: Oxford Human Rights Hub Blog oxfordhumanrightshub@law.ox.ac.uk

3 Key points Focus of today s webinar Human right or policy goal? Shape and content. Freedom right. Social right. Equality right. International human rights law. Jurisdictions where right has been explored. Role of courts and litigation.

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5 A closer look 1 in 10 children of primary school age still out of school. Global out-of-school rate stuck at 9% since More than 4 in 10 out-of-school children will never enter a classroom.

6 Poll one Education has been identified as a development goal. Do you think there is added value in a human right to education? 1A. Yes. 1B. No. 1C. Don t know.

7 From Development Goals to Human Right Development Goals Political commitments. Transfer of aid; charity. Focus on developing countries. Quantitative and aggregate outcomes. Human Rights Legally binding. Individuals as rights-bearers. All countries. 58m rights to education unfulfilled.

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9 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.

10 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. (Mohini Jain 1992.)

11 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.

12 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.

13 Shape of the Right Straddles traditional boundaries Civil and political: Duty not to interfere Socio-economic: Duty to protect and provide Multiplier right: The right to freedom of speech and other rights cannot be appreciated and fully enjoyed unless a citizen is educated (Mohini Jain)

14 Freedom Right: Education as propaganda

15 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.

16 From respect to provide Should State provide faith schools?

17 Poll two Should right to education require State to fund faith schools? 2A. Right to education requires State to fund faith schools. 2B. State must permit faith schools but no requirement of State funding. 2C. State should prohibit all faith schools.

18 Language disputes Belgian Linguistics case: French speaking parents living in Flemish area wanted their children educated in French. ECHR: No person shall be denied the right to education : Negative formulation. Therefore no duty to establish or subsidise education of any particular type. Duty to permit but not to fund.

19 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).

20 Duty to provide: Challenges A human right to buildings, furniture, teachers? A human right to quality education? Compulsory and available free to all. Role of courts in resource decisions.

21 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).

22 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 )

23 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 )

24 Poll three Should free compulsory education be free for all? 3A. Free for all. 3B. Free only for disadvantaged (means tested). 3C. All learners pay fees.

25 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.

26 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.

27 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?).

28 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)

29 Equality and Segregation Segregation amounts to indirect discrimination against Roma children (DH v Czech Republic, ECHR (2007).

30 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).

31 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.

32 Conclusion Human right or policy goal? Shape and content. Freedom Right. Social Right. Presented by Professor Sandra Fredman Moderated by Associate Professor Liora Lazarus Equality Right. Role of Courts and Litigation.

33 Acknowledgements The Bertha Foundation Gullan & Gullan The Knowledge Exchange Jennifer MacKay Jump Training and Development Francesca Hayhoe, Senior Marketing Executive at the ICAEW Steve Pierce, Oxford IT Services OxHRHub team: o Meghan Campbell o Laura Hilly o Liora Lazarus o Shreya Atrey o Heather McRobbie

34 The Right to Education Prof Sandra Fredman Oxford Human Rights Hub How to Participate in the Q & A Session: Tweet in #Right2Education Message a question to our Facebook page: Oxford Human Rights Hub Blog a question to oxfordhumanrightshub@law.ox.ac.uk