Calling the farce on minority schools

This chapter looks at the Indian Supreme Court's exemption of minority schools from the requirements of the Right of Children to Free and Compulsory Education Act 2009 (RTE Act). It argues that the consequences of the minority school exemptions from the RTE Act by the Supreme Court have led to the unfortunate result of a large number of private schools falsely appealing for minority status. This is made possible by the ambiguous definition of what constitutes a minority institution and also the lack of clarity as to who is the authority that would declare schools to be minority schools. There is therefore an urgent need to review the definition of what constitutes a minority institution. More importantly, it is crucial to argue that minority schools should not be exempted from the norms and standards prescribed in the RTE Act that are necessary for quality education.

The dynamics of regulating low-fee private schools in Kenya

This chapter examines Kenya's current approach to the regulation of low-fee private schools amid the tension between conceiving of education as a commodity provided for profit — where rules of the market determine growth and development — and conceiving of education as a fundamental right that the state must fulfil for every person in its jurisdiction. In Kenya, the contextual term for ‘low-fee’ private schools is ‘APBET’ schools (Alternative Provision of Basic Education and Training), after the 2009 APBET Policy. The Kenyan government still does not know exactly how many APBET schools operate in the country and therefore cannot adequately regulate them. As demonstrated by the fragmentation in the regulation of these schools, it reveals that there is a need to consolidate the incorporation, registration, licensing, and taxation regimes to ensure a uniform approach to law and policy on low-fee private schools. As such, a comprehensive overhaul of the regulation of APBET schools is required.

Conceptualising and enforcing the right to quality education for minorities and disadvantaged groups: reflections on the Campaign for Fiscal Equity litigation

This chapter examines how the focus on ensuring quality education for all can strengthen both the conceptualisation and enforcement of the right to education for minorities and disadvantaged groups, considering the Campaign for Fiscal Equity litigation in the New York State courts as a case study. The Campaign for Fiscal Equity litigation, which dealt with the constitutionality of New York State's education financing scheme, clearly demonstrates the strategic value that a human rights-based assessment of quality holds for ensuring equality in education provision. While the plaintiffs' argument based on education equality failed, their successful claim based on education adequacy indirectly helped to ensure a more equitable allocation of funding to public schools in New York City. The litigation also shows the close link and challenges between the conceptualisation of the right to quality education and the court's role when enforcing it.

Education at the margins: the potential benefits of private educational initiatives for disadvantaged groups

This chapter assesses how non-profit private providers can positively contribute to upholding the right to education by looking at the following: the equality of individuals; overcoming the legacies of racism, sexism, and colonialism; pedagogical innovations; and collaborative and cost-effective investment in education. Re-imagining education provision is essential for realising the equal right to education for all children. Education initiatives at the margins have found ways to empower, innovate, and re-imagine existing educational paradigms to better fit the lives and aspirations of those who have been excluded from formal education systems, from disadvantaged groups to poor communities. These systems have the ability to imagine and implement innovative learning strategies where states either lack the vision or the political will or capacity to implement those initiatives.

Equality and the right to education: let’s talk about sex education

This chapter addresses the challenges girls face in accessing human rights-based sex education. Sex education sharply brings into focus the discriminatory gender norms that influence and undermine a girl's right to education and the accountability challenges that are becoming increasingly pervasive throughout all of education. The Convention on the Elimination of Discrimination Against Women (CEDAW), the prominent legal instrument on women's rights, offers new ways of conceptualising and addressing these challenges. There are specific obligations referring to sex education in the treaty and most importantly there is a positive obligation on the state to provide sex education to fulfil the fundamental rights of girls and women. Indeed, sex education is a necessary measure to ensure girls and women's right to life, health, education, gender equality, and freedom from violence.

From the classroom to the courtroom: litigating education rights in South Africa

This chapter focuses on two streams of education litigation concerning public schools in South Africa: first, cases concerning contestation over the power to formulate policy for schools in the education system established in the new democratic era; and, second, cases seeking to compel the state to provide specific education inputs. In respect of the power to determine key school policies, the South African Constitutional Court has sought to strike a balance between recognising the democratic and community-level legitimacy of school governing bodies, on one hand, and the need to empower government to act in the interests of all students and to promote equal education, on the other. In the second category of cases, the courts incrementally developed the content of the right to a basic education in section 29(1)(a).

Women and education: the right to substantive equality

This chapter studies the right to substantive equality in education. The right to equality demands much more than parity for girls and boys in education. Simply requiring parity ignores the specifically gendered way in which inequality in education manifests itself. Instead, it is argued that the principle of substantive equality should be the framework for evaluating progress towards equality in education. The meaning of substantive equality remains somewhat contested, with some focusing on dignity, others on equality of opportunity, and still others on equality of results. Instead of reducing substantive equality to a single principle, it should be regarded as having four interconnected dimensions: redressing disadvantage (distributive dimension); addressing stigma, stereotyping, prejudice, and violence (recognition dimension); facilitating participation (participative dimension); and accommodating difference and achieving structural change (transformative dimension).

The challenge of Afrikaans language rights in South African education

This chapter explores how the unique South African context affects the way one evaluates the right to own-language education of the White Afrikaans minority. International human rights law affords linguistic minorities the right to education in the language of their choice. However, for one particular minority community, the Afrikaners, the protection of that right is complicated by South Africa's history of racial inequality, particularly in the area of education. As such, the chapter argues that it is not possible to apply the ordinary principles concerning minority languages to Afrikaans. However, that does not mean that Afrikaners are not entitled to some protection for their language. Rather, it requires looking for compromises and innovative solutions that acknowledge both the position of privilege built on a history of racial discrimination and the legitimate demand for protecting Afrikaans-language education.

Public rights and private schools: state accountability for violations of rights in education

This chapter discusses state accountability for violations of rights in education. Securing state accountability for vindicating the rights of children in education becomes particularly challenging in the context of private schools. In these schools, a private organisation is interposed between the rights-holder (the child) and the duty-bearer (the state). This poses the question of where responsibility lies if a child's rights are not vindicated. In essence, this was the question that confronted the European Court of Human Rights (ECtHR) in O'Keeffe v Ireland. The key message of the O'Keeffe decision is a crucial one. Children have human rights while they are in school; they do not leave their rights behind at the school gate. The state has a direct obligation to protect the rights of children in all schools, whether fully public, fully private, or something in between.

Human rights and equality in education: Conclusion

This concluding chapter argues that a human rights-based approach to education offers a promising framework for identifying and addressing the obstacles that stand in the way of minorities and disadvantaged groups enjoying equal rights to quality education. It should serve as a blueprint for laws, policies, and programmes geared towards achieving Sustainable Development Goal 4 — universal access to quality education. The diversity of perspectives featured in this book consider these obstacles from a variety of viewpoints, illuminating more fully the complexities that need to be considered in order to successfully overcome them. These conversations need to continue across countries in a way that brings together all the actors and stakeholders in the education system to work in partnership towards a rights-oriented vision of quality education for all children.