When is state funding of private schools a violation of human rights?
23 June 2016
by Sylvain Aubry, Global Initiative for Economic, Social and Cultural Rights
This article was orignially published on 23 June 2016 by World Education Blog.
The announcement at the beginning of the year by the Ministry of Education of Liberia of its intention to outsource the management of all its pre-primary and primary schools to private providers has spurred vivid discussions on education public-private partnerships (ePPPs, understood here as State funding of private schools).
A perspective on ePPPs that is seldom considered in depth in this debate is the human rights legal angle. Yet, virtually all States in the world have ratified at least one treaty binding them to guarantee the right to education, and many also protect this right it in their domestic legal system, making it legally binding almost anywhere on the globe. Should an ePPP violate human rights, it would not only be unethical, creating a high reputational risk for both the States and the private contractor, but also illegal, which constitutes a significant legal risk for the parties involved. As the right to education is increasingly being claimed in courts and used by judges to review the legality of countries’ policies, PPPs that undermine it could even be struck down by courts.
The interpretation of the application of the human rights framework to PPPs is still emerging, and definitive conclusions cannot yet be drawn. However, a number of recent interpretative statements
made by quasi-judicial bodies have allowed for the development of a set of five initial areas
to assess private involvement in education against human rights, including through PPPs. These areas have been developed jointly by the Right to Education Project, the Global Initiative for Economic Social and Cultural Rights and several partners.
What appears from this work is that ePPPs are notin principle incompatible with human rights law. While States have the obligation to guarantee free quality basic education, human rights texts afford governments a certain degree of freedom as to how they achieve this aim. The question is then to determine under which conditions ePPPs can meet human rights requirements. It is clear that an ePPP must never negatively affect any of the five aforementioned areas listed, but what does this concretely mean in practice?
To kick off the discussion, we propose 6 possible guiding factors for determining the conditions necessary for ePPPs to follow human rights law:
- Consider whether the PPP is used to privatise or to publicise: ePPPs do not necessarily involve privatising education. In fact, in areas where private schools are already dominant, such as most informal settlements, or where the public sector is largely absent, as it is often the case in rural impoverished areas in developing countries, an ePPP could make education relatively more public, and lead the State to take more responsibility for the provision of education. They would need to be adequately designed as a delegation of public service (with existing or newly commissioned schools), by transferring the financing of education from the families to the State. Examples of this have been seen in several Northern countries throughout the 19th and 20th century, from France to the Netherlands.
- Structure ePPPs to reinforce the public system: Apart from instances of ePPPs specifically meant to support diversity or diversity in specific contexts (e.g. schools for minority groups), ePPPs must help realise the right to free quality education in cases where a State lacks the immediate capacity to do it well otherwise, and contribute to reinforce these capacities. Hence, ePPPs must be regularly re-assessed against the capacities of the State and assessed for their benefit in terms of realising the right to education – and stopped when not useful or when the State can do as well or better alone. There should be a plan to hand-over the schools under a PPP arrangement back to the State as soon as it is possible.
- Choose the right partners: different partners may cater for different situations and should be assessed accordingly. Commercially-motivated schools, such as for-profit charter schools demonstrated in the US, are highly unlikely to bring added value to an education system while protecting the humanistic vision of education guaranteed by the right to education.
- Regulate, monitor, and enforce: There must be a solid regulatory framework prior to any ePPP. The partnership must fit strictly within that framework, and it must guarantee the public interest. This can be a real challenge where well-resourced organisations such as multinational companies are negotiating with States with limited capacities or information. Crucially, States must also have the capacities to monitor and enforce the regulatory framework and the partnership agreement, and hold the partners accountable. This point is often overlooked, yet cases such as the ePPP in Haiti demonstrate how difficult and necessary this is. ePPPs cannot and should not be used as an easy way out: they require significant efforts.
- Establish a transparent process: Debates on the applicable regulatory framework and negotiations of all the terms of PPPs agreements must be public and transparent. In particular, human rights impact assessments of the agreement must be realised before and during the partnership by truly independent assessors, made public, and used to regularly re-evaluate and if necessary adjust the policy.
- Cap private schools’ involvement: To guarantee that ePPPs do not disincentive investments in public education, and to maintain democratic control over the education system, both the share of private schools under PPPS and the share of any single provider should be capped, at the national or regional level. There is no international standard on this, and again, it may vary from a context to another. Nevertheless, one example, to kick off the discussion could be the following: a limitation, protected in law, of nor more than 15% of schools under PPPs, together with a cap of 10% of for any single provider within this 15%, as is the practice (though not the law) in France. This would perhaps allow for the existence of ePPPs while guaranteeing democratic control.
Each of these points is connected to a human rights legal principle, which is not discussed here because of space limitations. That said, as the above is neither a definitive nor an exhaustive list of considerations. Rather, it aims to open a discussion with States, private actors, investors, CSOs and other stakeholders, that gives the necessary consideration to human rights. This should allow to develop a pragmatic reflection on ePPPs that also ensures human dignity and the rule of law.