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23 June 2016
by Delphine Dorsi - @RTEproject
This article was originally published on 23 June 2016 by Right to Education Project.
Non-State actors’ involvement in education has increased in many parts of the world over the past three decades, and private education is being promoted and explored by some education stakeholders as a solution to a lack of sufficient public provision of education or underperforming public schools. However, the rapid expansion of non-State actors in education, particularly profit driven companies, has raised concerns from a human rights perspective as highlighted by the UN Special Rapporteur on the right to education, UN human rights monitoring bodies and the Human Rights Council.
Since 2014, the Right to Education Project (RTE), the Global Initiative for Economic, Social and Cultural Rights (GI-ESCR), and partners at the national and international levels have been working together to try to clarify how the human rights framework applies to this complex issue.
The right to education, as it is laid out in international treaties, contains both a ‘social-equality’ dimension and a ‘freedom’ dimension. On one hand, international law guarantees the right to education of everyone on the basis of the principles of equality and non-discrimination, requiring States to adopt measures to ensure its full realisation. On the other hand, it recognises the liberty of private actors to establish and direct educational institutions, in connection with the liberty of parents to ensure the religious and moral education of their children in conformity with their own convictions - which includes the liberty to choose for their children schools other than public schools.
The challenge is then to find the right balance between educational freedom and the necessity to guarantee the social-equality dimension of the right to education.
Based on an analysis of international human rights law and on research in eleven countries, as well as several expert workshops, we have preliminarily identified five areas that allow us to assess the role of non-States actors in education against human rights standards.
The general principle is that whilst international human rights law recognises educational freedom, it clearly frames and limits its exercise. The five areas we have identified provide an initial understanding of the limitations of the role and the conditions under which non-State actors may provide education services. Accordingly, the involvement of non-State actors in education is compliant with human rights standards when their existence or growth:
The exercise of the freedom of education should not lead to any form of discrimination or segregation, or create or increase inequality. International human rights law clearly states that it should not exclude any group (1960 UNESCO Convention against Discrimination in Education, Article 2), and that the State has the obligation to ensure it does not lead to extreme disparities of educational opportunity for some groups in society (Committee on Economic Social and Cultural Rights (CESCR), General Comment (GC) 13, § 30; CESCR, GC 2, § 39). In addition, States must ensure that the provision of essential services – such as education – by private actors: “does not threaten children’s access to services on the basis of discriminatory criteria” (Committee on the Rights of the Child (CRC), GC 16, § 34).
Human rights treaties are clear on everyone’s entitlement to free education at primary level, and that free education should be progressively introduced at the secondary and higher levels (International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 13.2) Free education for all has been recognised as an essential element of the right to education (CESCR, GC 13, § 51). Human rights treaty bodies have repeatedly and consistently considered that fees should be eliminated as soon as possible, and that their introduction is contrary to the right to education, often also noting their discriminatory impact. Options where private schools, which are fee-charging and/or low-quality are, become, or threaten to become the only options available for some people, are therefore in violation of human rights law.
Further, the general principle laid out in treaties is that private fee-charging educational institutions should exist in addition to public schools (ICESCR, Article 13.3) and attendance at such institutions should be optional (1960 UNESCO Convention, Article 2.b). It has been further specified that States have the principal responsibility of direct provision of education in most circumstances and an enhanced obligation to fulfil the right to education, in particular at the primary level (CESCR, GC 13, § 48).
In any case, it is clear that ensuring the free provision of education for all necessarily implies the strong involvement of the State, either in direct provision, or through the financing education.
The humanistic nature of the right to education, recently highlighted in a paper published by UNESCO, must be preserved including when private actors are involved. According to international human rights law, education should be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms (ICESCR, Article 13.1 and Convention on the Rights of the Child (ConvRC), Article 29). The values imparted in educational processes, such as the curriculum, teaching methods and school environment, must promote the enjoyment of other rights (CRC, GC 1, §8).
The fundamental principle of the best interests of the child should be at the heart of all education systems and processes. As indicated by the CRC: “the overall objective of education is to maximise the child’s ability and opportunity to participate fully and responsibly in a free society. […] the type of teaching that is focused primarily on accumulation of knowledge, prompting competition and leading to an excessive burden of work on children, may seriously hamper the harmonious development of the child to the fullest potential of his or her abilities and talents. […]. Schools should foster a humane atmosphere and allow children to develop according to their evolving capacities” (CRC, GC 1, §12).
The UN Special Rapporteur on the right to education, referred to the “humanistic mission of education” in the particular context of privatised education which according to him entails at least: (1) “preserving the social interest in education” and “giving primacy to common human values and the public character of education”; (2) preserving “cultural diversity”, (3) “not allowing the pursuit of material values to the detriment of a humanist mission of education” and (4) to not allowing “the propagation by private schools of a value system solely conducive to the market economy”. A growth of private actors that undermines these dimensions would thus be contrary to the human rights framework.
Private educational institutions should conform to minimum educational standards established or approved by States (ICESCR, Articles 13. 3 and 13.4; ConvRC, Article 29.2.), which relate to issues such as admission, curricula and the recognition of certificates, and must be consistent with the educational objectives set out by international law (ICESCR, Article 13.1 and CESCR, GC 13, § 4 and ConvRC, Article 29).
This implies a strong regulatory role for the State, which corresponds to its obligation to protect the right to education from third parties’ abuses. Therefore, States must adopt adequate laws and policies, implement them, and put in place monitoring and legal mechanisms to ensure that private educational institutions provide an education of good quality, with respect to adequate infrastructure, school environment, education contents and methods, and teachers’ status among other aspects. For instance, the CRC has indicated that States must adopt specific measures that take account of the involvement of the private sector in education delivery to ensure the right to education is not compromised (CRC, GC 16, § 34).
The liberty to establish and direct educational institutions should be subject to democratic scrutiny and respect the human rights principles of transparency and participation (Universal Declaration of Human Rights, Article 21.1; International Covenant on Civil and Political Rights, Article 25.a). This means that decisions and developments in relation to the education system, including the involvement of private providers of education, must be done in consultation with, and the participation of, various groups of society, including the poorest. This obligation has been highlighted in particular by the CRC which recommends that: “States Parties, when considering contracting out services to a non-state provider – either for-profit or non-profit, or international or local – undertake a comprehensive and transparent assessment of the political, financial and economic implications and the possible limitation on the rights of beneficiaries in general, and children in particular. The Committee also emphasised “the role of national-level monitoring which seeks to ensure that children, parents and teachers can have an input in decisions relevant to education” (CRC, GC 1).
These five areas have been developed within the framework of research carried out in eleven countries aiming to assess to what extent the existence or growth of private education providers is in line with States’ human rights obligations. Consequently, this initial framework has been designed as a tool to assess which situations are not compatible with the human rights framework. But key human rights questions have come up from this work that need to be addressed further.
Therefore, RTE, GI-ESCR, and the Open Society Foundations, in collaboration with a wide range of partners, are currently working on the development of more comprehensive set of human rights Guiding Principles on the role of private actors in the delivery of education, which aim to be completed by early 2018. If you are interested in this process, please get in touch with me ([email protected]) or Sylvain Aubry ([email protected]).
Delphine Dorsi is the the Executive Coordinator of the Right to Education Project. She initially joined the organisation in 2012 as a legal and communication officer. She previously worked at UNESCO Headquarters for the Right to Education Programme. She has also worked with a number of NGOs in Europe and Africa, including Amnesty International, Save the Children and Defense for Children International. She studied law both in France (University of Montpellier) and Spain (University Complutense of Madrid) and holds a Research Master's in Human Rights from the University of Strasbourg. She also has a specialisation in children's rights from the International Institute for the Rights of the Child (Switzerland).