| Abstract | What is a right to Education?
The sustainability of any society depends upon many factors, political, legal, geographical, etc. However a common thread running through the optimal utilisation and facilitation of any of these facets of a society is the level of education of the populace. More fundamentally this paper would argue that a right to education is a fundamental human right.
A right to education is widely espoused throughout the world but takes many forms. This paper will examine the scope of a right to education. It will start from broad international provisions and narrow down to state specific provisions.
Education can be an all-encompassing concept that must be defined and placed in the aforementioned political, legal and geographical contexts. The paper will examine the topic from an academic perspective as it might apply at school or university but the focus will be on elementary or primary education. It will discuss international sources of education rights such as Article 26 of The Universal Declaration of Human Rights, Article 13 The International Covenant on Economic, Social and Cultural Rights, Articles 28 and 29 The United Nations Convention on the Rights of the Child (CRC), European Union law, United Kingdom legislation and various countries’ constitutional provisions for education.
It will argue that educational rights are necessary for the sustainable provision of education. Education is expensive and it often falls the courts to ensure that states are forced to provide or prevented from withdrawing sufficient resources to ensure the adequate provision of suitable and accessible education. There may be a mismatch between the political cycle which tends to be short and the benefits of sustainable educational provision which may only become apparent in the longer term. It will argue that sustainable provision of education is a prerequisite to sustainable economic development and other forms of social progress.
It will analyse how various states’ judiciaries have taken education rights, be they enshrined or otherwise embedded in their legal systems, and given practical application to these concepts sometimes in the face of state opposition particularly in circumstances where they might object on the grounds of the potential cost of giving effect to the rights or where they conflict with the states’ political viewpoints in some way.
It will explain how courts have been able to adjudicate upon education rights even where no such explicit rights existed but were implicit in other rights’ guarantees such as the equality provisions of the United States’ Constitution. It will argue that of less importance than the nature or source of these rights is the judiciary’s ability and willingness to pronounce upon and give effect to them.
The nebulous nature of education rights has proven to be both a boon and a hindrance to those who would seek to argue for them. Account will be given of the explicit education rights in the Constitution of Ireland, Article 42.4 of which states that “The State shall provide for free primary education…”. At first reading this might purport to be a relatively straightforward provision yet the Irish superior courts have since its enactment in 1937 been adjudicating upon what free primary education is, when it should be provided, in what circumstances and to whom.
Few, other than some ideological extremists, would argue that education is not a good thing; why then is it such a contentious topic? It will be argued that precisely for the reasons alluded to above and other reasons that this is a highly contentious issue. It is inextricably linked to one’s human identity and life experience. It is tied in with gender, race, religion, ethnicity political values, financial standing and the list could continue ad infinitum.
It will consider how this panoply of rights has been interpreted and enforced and whether they are sufficient to foster an environment that will stimulate greater opportunities for personal, national and international advances in the mobility of knowledge, ideas, people and goods such as will foster advances in societal wellbeing in a range of areas of social, political and economic activity.
A right to education has to be framed within the social, political and legal (to name a few) contexts referred to above but to it cannot be completely subject to any or all of them. To do so would be to fail to understand the core thrust of this paper which is that for all the discussion of its nature and scope a right to education is a fundamental human right and as such can be no more limited than can be our own humanity. |
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