Everyone has the right to education, from pre-school through college, for free or at low cost. Parents have the responsibility to enroll their children in school, unless they provide comparable schooling at home.
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Kirk: Your comment posted on 12/10/20 (72 year anniversary) covers a comment I intended to make about education; specifically, barriers to certain knowledge. Your comment is 18 months old and resonates even more now within the US.
Firstly, I would like to mention that writing “parents” leave unconventional families left out. So writing families instead of parents, which is a small change, can have a better effect. Then, education should be free; no one should have to pay, even if it is a low amount, to access such a basic service. And moreover, put the “quality” adjective and everyone should have access to free and quality education, given the fact that in many countries, free/public education is very poor and with no value in the labor market. Equality starts in the public schools. And to conclude, I would highlight the importance of receiving an education with gender and racial perspective, as well as sexual and reproductive education and LGTB-inclusive educations, even if their families do not want to. We should not leave alone kids with racist or homofob families.
I think that by stating the responsibility of parents to enroll their children to school, the article leaves orphan children unprotected.
I consider that if we want to ensure that everybody’s right to education is protected, article 6 cannot consider applying a low cost to education. In this sense, I believe that education must be free. Setting a low cost for this right is not acceptable, as putting a price to it may condition some people to enjoy this basic right. Education is not a privilege is a right.
Generally I agree with you and it would avoid a lot of administration. The risk is that sometimes people do not value something as highly when it is given to them for free. Also, putting a small amount helps raise the funds needed for the education of the person, and others who need that education.
I’m uncertain about this. It will be discussed and voted upon by the DC.
If you have specific wording to make this switch, please let us know. Thanks!
With regard to “free” or “low cost,” I think it matters whether we’re referring to children or adults. Primary and secondary education is a basic necessity of modern life, and attendance is not necessarily a matter of individual choice. Given those circumstances, every child should be provided a free and appropriate public education. Post-secondary education is more of a personal choice and an investment in one’s own future. It should be within the economic means of every adult who is willing to put in the work, but a college or vocational school graduate will typically earn more than a non-graduate. This provides a justification for placing an obligation on the individual to pay a portion of the cost, consistent with his or her means.
In terms of specific language, I would say:
Every child has a right to a free and appropriate education, as provided by law, at the pre-primary, primary, and secondary levels. Enrollment in government sponsored schools may be compulsory, subject to the right of parents to provide reasonably comparable schooling at home or in private educational settings. Every person has the right to pursue a post-secondary academic or vocational education at an affordable cost.
I like this. The DC will have to vote on it. Happy International Human Rights Day.
Thanks for being an outstanding example of how this process is intended to work.
On November 19, I added a comment at the following blog site describing a five-part test for determining, in a judicial manner, whether the legislative and executive branches of governance have met their obligation to provide for socio-economic rights deemed fundamental: https://eleanorlives.org/submit-an-article-essay-story-poem-book-photo-video-or-movie-related-to-an-ibor-article/#comments.
The point of the comment is that unlike traditional “positive” liberty interests that *restrain* governmental power, such as rights to procedural fairness, property, privacy, and security of person, socio-economic rights (like the right to education) depend upon the exercise of governmental power. Legislatures are in the best position to define the full contours of those rights and to determine how they will be implemented. Executive authorities then implement such legislation. The role of the judiciary should not be to make complex legislative decisions regarding the exact manner in which socio-economic rights are put into practice, but should instead limit their inquiry in appropriate cases and controversies to whether the coordinate branches have abrogated their responsibilities. The five-part test imposed is intended to set forth an approrpiate paradigm for exercising that power that both has real teeth, but that also confines judicial authorities to their proper role and the scope of their expertise.
The first prong of the five-part test proposed allows judicial intervention when a government has effectively failed to safeguard a socio-economic right at all. I use the term “effective failure” because something like “abject failure” is too deferential of a standard. Take the right to education, for example, which is the object of the present blog. One could imagine a jurisdiction in which schools exist, but they are woefully overcrowded, or the schools are rarely opened because teachers are not held accountable to show up to work, or schooling ends at age 10, or there are no textbooks or other supplies with which to instruct children. In these situations, reasonable people could agree without much resort to the kind of policy making judgment that should be reserved for legislators to make that children are not being effectively educated.
It will not typically be difficult to determine when children are not being effectively educated. Policymakers will often admit that there is an unmet socio-economic need. The issue is that they will not accord the particular need the status of a human right, will instead treat it as one social problem among many that requires prioritization. The decision of the Canadian Supreme Court in Doucet-Bourdeau v. Nova Scotia (2003) 3 S.C.R. 3 illustrates this point and describes an appropriate remedy to apply in “effective failure” cases.
Section 23 of the Canadian Charter of Rights and Freedoms, which forms part of the Canadian constitution, requires provinces to provide for minority language schools when the number of minority language speakers in a particular community so warrants. The purpose of this right is to protect the equal dignity of the French and English speaking communities and to maintain a pluralistic society rather than forcing assimilation of minority language communities. In Doucet-Bourdeau, sixteen years after the Charter came into force, five school districts in Nova Scotia still failed to provide French language secondary education facilities. The government did not dispute that the numbers in those communities warranted provision of French language educational facilities at the secondary level, or that assimilation was occuring because of the failure to do so. Instead, the issue was that the government delayed implementation of the right. Instead of treating the provision of French langauge facilities as a constitutional right, the government treated it as a demand for services subject to prioritization in the government’s discretion.
Since it was undisputed that the government effectively failed to provide for a constitutional right, there was no need for the court to inquire into liability. The question was the appropriate remedy. The trial court had ordered the province to make “best efforts” to provide facilities by specified dates, and retained jurisdiction to receive regular progress updates. The court did not make complex policy decisions regarding the amounts that should be expended to construct schools, how many students each school should serve, exactly where the schools should be located, or the types of programs and services that should be offered. That was all left to the other branches of government. The trial court’s role was limited to identifying a violation of constitutional rights, ordering the government to fix the problem, and retaining jurisdiction to ensure that its order was followed.
The court of appeal overturned the decision of the trial court, finding that the court had exceeded its authority. The Supreme Court disagreed, however, finding that the trial court’s order struck the right balance of power between the judiciary and coordinate branches of governance. I agree with this decision. In my view, the trial court gave real teeth to a constitutional right that the framers of the Charter of Rights and Freedoms intended to be enforceable, but the court avoided acting like a legislature. I think the case stands as a good example of the kinds of orders a regional court should be allowed to make in enforcing an IBOR.
Erik has made an important point. As a starting point, economic and social rights have the same stature as civil and political rights. Still, it is important that with a right such as education that judges do not decide specifically what kinds of school books and lesson plans are used unless it is clear that these lessons are contrary to science or the rights set forth in IBOR.
The details of education should be left to the legislatures to define. However, if the provision of education is grossly inadequate, or contrary to IBOR rights or to science, then judges should be able to order legislatures to make corrections to educational teaching and opportunities.
One way to strike this balance is to insert the works “as defined by law” into the text of the Article. These three words will create more deference to the legislature with respect to defining the scope of education, yet still allow judges to issue orders if education become grossly inadequate, contrary to science, or contrary to the rights in IBOR in one or more areas.
After the sentence ending in “at low cost”, I recommend removing the period and replacing it with a comma, then adding the words. “as defined by law.”
If Erik has some specific change in the wording of the Article, I look forward to reading it.
This article includes an obligation that would be imposed on rights-holders (the obligation of parents to enroll their children in schools). That may be controversial. Could the statement of the right of children to education, without the addition of the obligation of parents, suffice in this article?
This is a point well taken and I’d like to understand it better. What would be controversial about requiring parents to enroll their children in school? Should parents have some responsibility? How would you word the Article differently?
Thanks for contributing!
A key part of Article 6 is that it recognizes that in the modern age college is just as important as middle school or high school. There will always be private schools, and that is fine, but this Article requires that there will always be exceptional public schools from pre-school to college, for free, or at low cost.
Free, exceptional education is the best way to bring out the best qualities in human beings and the cost of education is more than off set by there productivity and quality of life within a democratic process.