15 The Right to Education in Comparative Perspective

Prof. Rehan Abeyratne

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Introduction

The right to education is a widely recognized and broadly protected human right under international law. It is also protected in regional treaties and in the domestic laws of various countries. Constitutional courts and regional human rights courts around the world have adopted different approaches to the right to education.

This chapter seeks to introduce students to the approaches of three jurisdictions in enforcing the right to education. It looks at cases from the United States, the European Union, and South Africa and examines the differences between them.

Learning Outcomes:

After completing this chapter, students should know and understand:

  • The American approach to enforcing the right to education. The European approach to enforcing the right to education.
  • The South African approach to enforcing the right to education.

The American Approach

The United States Constitution does not explicitly recognize economic, social and cultural rights. The right to education therefore does not appear in the constitutioanl text. However, in the 1930s and 1940s, the U.S. began to give legal recognition to basic socioeconomic needs as “constitutive commitments”, not enumerated constitutional rights. These commitments are implemented through legislation, but are so deeply engrained in the public consciousness today that it is very unlikely that they will be overturned. One such commitment is free public education provided to all U.S. residents without discrimination.

The most important case establishing equality in educational opportunities was Brown v. Board of Education (1954). The case was filed on behalf of African-American schoolchildren in four American states – Kansas, South Carolina, Virginia and Delaware – who asked the courts to be admitted into public schools without being segregated on the basis of race. Ever since the U.S. Supreme Court’s judgment in Plessy v. Ferguson (1896),3 the doctrine of “separate but equal” had been upheld in the United States. This allowed for racial segregation in various aspects of public life, including transport (separate railcars for white and black citizens), bathrooms, and public schools. The plaintiffs challenged this doctrine, claiming that it violated their right to equal protection of the laws under the Fourteenth Amendment to the U.S. Constitution.

The Supreme Court overturned the “separate but equal” doctrine in a sweeping and powerful judgment. Writing for the Court, Chief Justice Warren held that this doctrine was unconstitutional per se, meaning that racial segregation was not permissible even in circumstances where schools for black children were of comparable quality to those for white children. This is because the psychological impacts of segregation are too severe to be countenanced by the Fourteenth Amendment. As the Chief Justice put it, “To separate [black children] 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.”4 He therefore held that “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

In subsequent cases, the U.S. Supreme Court has upheld a minimal right to education without involving itself in more complex questions pertaining to the substantive fairness of education-related laws and policies. In Plyer v. Doe (1982), the Supreme Court struck down a Texas law that required undocumented immigrants to pay a tuition fee to attend public school. The Court therefore appeared to endorse a constitutive commitment to free public education for all children, even children who were in the United States illegally. However, in San Antonio Independent School District v. Rodriguez (1973), the Court upheld a public school funding system that led to large disparities in educational quality. The case challenged the Texas system for financing public schools, which was based partly on the taxable income of local communities. As a result, schools in wealthy districts received substantially more funding than those in poor districts. This system was challenged on the basis that it violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Supreme Court rejected this challenge, holding that a disparity in funding did not deprive children in poorer districts equal protection of the law. Such a violation would only occur, the Court noted, if children were absolutely deprived of education.

In Papasan v. Allain (1986), however, the Supreme Court moved away from its holding in Rodiguez to a significant degree. In this case, local school officials and schoolchildren from the Chickasaw Indian Nation filed suit against Mississippi state officials, challenging the constitutionality of a large disparity in school funding. In particular, they showed that schools attended by certain Native American children received funding that amounted to only $ 0.63 per student, while the average expenditure for all other students was $ 73.34. The Supreme Court held that this disparity violated the Equal Protection Clause of the Fourteenth Amendment and struck down the Mississsippi school funding law. It distinguished this case from Rodriguez by noting that while Rodriguez involved a system for local control of school funding, the facts in this case pointed to an intentional decision by the state to divide educational resources unequally.

The European Approach

The principal European regional human rights instrument is the European Convention on Human Rights (ECHR) (1950). But the ECHR only sets forth civil and political rights and contains no provision recognizing or protecting the right to education. Protocol 1 to the ECHR for the Protection of Human Rights and Fundamental Freedoms attempts to fill this gap. Article 2 of the Protocol provides that no person shall be denied the right to education and requires states to respect the right of parents to educate their children in consonance with their own religious and philosophical beliefs.

Recently, the European Union adopted the E.U. Charter of Fundamental Rights, which has binding effect on all member states since 2009. Article 14 of the Charter establishes a right to education, which unlike Article 2 of the Protocol, places affirmative obligations on European states to provide education to all citizens. For instance, Article 14 (1) states, “Everyone has the right to education and to have access to vocational and continuing training”, while Article 14(2) provides, “This right includes the possibility to receive free compulsory education.”

The European Court of Human Rights (ECtHR) has issued several judgments on the obligations of European states under Article 2 of Protocol 1 to the ECHR. In Kjeldsen, Busk Madsen and Pedersen v. Denmark, a group of Danish parents objected to the integrated sex education curriculum in state primary schools. They claimed that this curriculum violated their right to choose the religious and moral education of their children under Article 2 of Protocol No. 1. The state, for its part, noted that it allows for the establishment of private schools, which may choose not to teach sex education. Moreover, these private schools receive state financial support as long as they meet certain minimum requirements.

The ECtHR held that the state’s duty to respect parents’ moral convictions under Article 2 of the Protocol is not satisfied merely by permitting the establishment of private schools. The state must ensure respect for parents’ convictions throughout the entire state education programme. The Court further noted that in fulfilling this obligation, the state is not prevented from “imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind.” However, the state “must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The state is forbidden to pursue an aim of indoctrination.” Nonetheless, the ECtHR ruled that there had been no violation of Article 2 in this case. It found that in Denmark private schools co-exist with a system of public education in a manner that sufficiently respected parents’ right to ensure their children receive an education in line with their religious and philosophical convictions.

In Campbell and Cosans v. United Kingdom, two applicants from Scotland filed a complaint against the use of corporal punishment in state schools. Both applicants had children in state schools. The son of one of the applicants, Jeffrey Cosans, had been suspended from school for refusing to receive corporal punishment.

The ECtHR had to determine whether the use of corporal punishment violated Article 2 of Protocol 1. That provision, in relevant part, states, “In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” The Court held that the U.K. had failed to respect the parents’ philosophical convictions and that Jeffrey Cosans had been denied his right to education when he was suspended from his school. It further specified that only certain “philosophical convictions” must be respected by the state. These are convictions that are are worthy of respect in a democratic society and are not incompatible with human dignity. They must also not conflict with the fundamental right to education.

In Leyla Sahin v. Turkey, a Turkish citizen filed a complaint against the state of Turkey alleging that several of her rights under the ECHR had been violated. These include the freedom of thought, conscience and religion, the prohibition on discirmination, the right to free expression, and the right to privacy. She was a fifth-year medical student at Istanbul University, who had been prevented from taking two different exams and attending a lecture because she wore an Islamic headscarf. The ECtHR, however, found that the Turkish law preventing her from attending these sessions did not violate any of her rights under the ECHR. With respect to Article 2 of Protocol 1, the Court held that it extends to higher education and was therefore applicable here, but held that the right to education is not absolute and the state regulations in this case were foreseeable and “pursued the legitimate aims of protecting the rights and freedoms of others and maintaining public order.”

Overall, the European Union’s approach to the right to education is similar in important respects to the American approach. The E.U., unlike the U.S., recognizes a fundamental right to education under Article 2 to Protocol 1 of the ECHR and in Article 14 of the E.U. Charter of Fundamental Rights. Like the U.S., however, it does not view any right or commitment to education as absolute and is willing to defer to state regulations unless they clearly violate an individual right. This explains why both American and European courts were willing to rule in favor of the petitioners/applicants in Brown v. Board of Education and Campbell and Cosans, but deferred to government authorities in Rodriguez and Layla Sahin, respectively.

The South African Approach

Unlike the U.S. Constitution and the ECHR, the South African Constitution sets forth a range of economic, social and cultural rights. Section 29 consists of a cluster of education rights and has been called a “hybrid” right. Section 29(1) is akin to an economic and social right, Section 29 (2) is a cultural right, and Section 29 (3) is a civil right. Section 29(1)(a) gives everyone a right to basic education, while Section 29(1)(b) requires the government to take reasonable measures to progressively realize this right. Section 29(2) grants everyone the right to education in the official language/s of their choice as far as is reasonably practicable. In fulfilling this provision, the state must be guided by principles of equity, practicability and “the need to redress past racially discriminatory laws and policies”. Section 29 (3) sets forth the right of private individuals to establish and maintain educational institutions, but these institutions must be registered with the state, maintain comparable educational standards to state schools, are prohibited from discriminating on the basis of race.

The South African Constitutional Court has not fully adjudicated upon the content of the right to education. However, it has issued some important judgments on this issue, particularly with respect to Section 29(1). In Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995, the Constitutional Court issued an important ruling on the scope of the right to education. It stated that the Constitution “creates a positive right that basic education be provided for every person and not merely a negative right that such a person should not be obstructed in pursuing his or her basic education.” Therefore, the state is prohibited from impairing access to education and must also take positive steps to ensure that basic education is provided.

In the Juma Masjid case (2011), the Juma Musjid Trust owned land on which the state operated a a public school – the Juma Musjid Primary School. The Trust made an application to the KwaZulu-Natal High Court (High Court) to evict the school from its premises. The Trust alleged that the Member of the Executive Council (MEC) for Education for KwaZulu-Natal, who was responsible for operating the school, had not paid the Trust for rent or out-of-pocket expenses since 1998. The High Court ruled against the Trust, leading the School Governing Body of the Juma Musjid Primary School as well as parents and guardians of children in the school to appeal this decision to the Constitutional Court.

The Constitutional Court had to determine the nature and scope of the rights to education and children’s rights when confronted with the right of a property owner to evict a school from its premises. The Court noted that the right to a basic education under section 29(1)(a) differs in an important respect from other economic and social rights. Unlike some other socioeconomic rights in the South African Constitution, the Court noted that this right can be immediately relized. There is no limitation in the constitutional text requiring that the right be “progressively realised” within “available resources” subject to “reasonable legislative measures”. Rather, the right to a basic education may be limited only by laws of general application that are “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. The Court ruled that the Trust had a constitutional duty to respect the students’ right to a basic education under Section 29 It noted that while the Trustees had acted reasonably in approaching the High Court for an eviction order, the High Court failed to properly consider the rights of the students under Section 29 and therefore erred in granting the eviction order.

The Court further held the MEC had a positive obligation to provide access to schools in respecting the right to a basic education and the Trustees had a negative obligation under Section 8 of the Constitution not to infringe that right. Section 8 provides that the South African Bill of Rights applies to all persons in South Africa. The Court issued a provisional order directing the MEC to enter into negotiations with the Trustees and the SGB to resolve the payment dispute, which would allow the school to continue operating. If these discussions failed, the Court ordered the MEC to take steps to secure alternative placements for the students. The MEC was also required to file a report setting out, inter alia, the steps taken to ensure that the right to basic education was respected.

 

South Africa therefore guarantees a broader right to education than either the U.S. or the E.U. This right is enshrined in Section 29 of the South African Constitution, which includes economic, social, cultural, and civil rights dimensions. Still, the Constitutional Court confirmed in the Juma Masjid case that the right to basic education is subject to limitations based on generally applicable laws that are “reasonable and justifiable” in a democratic society. Thus, as in the U.S. and the E.U., the right to education is not an absolute right.

Summary

The right to education is recognized as a fundamental human right throughout the world, but its enforcement varies among jurisdictions. In the United States, the right to education is not a constitutional right, but rather a “constitutive commitment”. It does not appear in the text of the U.S. Constitution, yet is so firmly entrenched in the laws and political culture of the United States that most Americans consider free public education to a be a fundamental right. The U.S. Supreme Court has largely upheld the right to education, particularly against claims of discrimination. In Brown v. Board of Education, the Court invalidated the “separate but equal” doctrine that permitted separate schools for White and African-American children. In Papasan v. Allain, it struck down a state law that created an enormous disparity in educational funding between Native American and other children in the state of Mississippi. However, in San Antonio Independent School District v. Rodriguez, the Court declined to strike down the Texas system of public school funding, which was based on local income taxes. Despite large disparities in funding among Texas school districts, the Court held that the U.S. Constitution only protects against absolute deprivation in education, and is not concerned with neutral policies that lead to unequal educational outcomes.

In the European Union, the right to education receives more explicit protection. While the ECHR does not enumerate this right, Article 2 of Protocol 1 to the ECHR states that no one shall be denied the right to education and also requires states to respect the right of parents to educate their children in line with their religious and philosophical convictions. Article 14 of the EU Charter of Fundamental Rights reaffirms this right and expands its scope to include access to vocational and continuing education as well as free, compulsory education. The European Court of Human Rights, like the U.S. Supreme Court, has been cautious in its interpretation of the right to education. In Campbell and Cosans v. United Kingdom, it held that the U.K. violated Article 2 of Protocol 1 by requiring students to receive corporal punishment in state schools. However, in Kjeldsen, Busk Madsen and Pedersen v. Denmark and Leyla Sehin v. Turkey, the Court held in favor of the state, noting that the right to education is not absolute and reasonable state regulations that impinge upon this right are permissible.

 

In South Africa, the right to education receives robust constitutional protection. Section 29(a) of the South African Constitution gives everyone the right to basic education in the language/s of their choice (where practicable). It also grants a right to establish and maintain private educational institutions. In the Juma Masjid case, the South African Constitutional Court provided some guidance on the scope of the right to education. It held that a Trust, which privately owned the land on which a public school operated, could not simply evict the school from its property without considering the educational interests of the students. It noted that unlike other social and economic rights in the South African Constitution, the right to education is not subject to progressive realization within “available resources” and subject to “reasonable legislative measures”. This right can, however, be limited by laws of general application that are “reasonable and justifiable” in a democratic society. The Court ruled that the Trust had a constitutional duty to respect the students’ right to a basic education under Section 29 of the Constitution.

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Reference

  • Cass R. Sunstein, The Second Bill of Rights (New York: Basic Book, 2004), at 61. See chapter 8 for more information about the U.S. constitutional approach to economic, social and cultural rights.
  • Official Journal of the European Union, Charter of the Fundamental Rights of the European Union, (2010/C 83/02), 30 March 2010.
  • This case description draws from the summary on the website of the South African Legal information Institute, available at http://www.saflii.org/za/cases/ZACC/2011/13media.pdf.