Educational Rights (for Dummies!), by Katy Zago – Progressive Education


How can we recover respect for human rights in education?

There’s a reason for the ambiguity of my title. Too many people seem to ignore, through ignorance or negligence, the true meaning and purpose of the right to education. So it is essential first to recall the purpose—and then to question its implementation in practice, and determine whether it is possible for all to achieve it.

Why a “right” to education?

Following the atrocities of the Second World War, which occurred due to ignorance and the fear of totalitarianism, the convention to safeguard human rights and fundamental freedoms was signed in Rome on November 4, 1950, along with an additional protocol in Paris on March 20, 1952. For the 47 signatory countries, the aim was to ensure that every citizen would fully develop their personality and critical sense, as well as a sense of dignity and self-esteem, in order to strengthen respect for human rights and fundamental freedoms. Education was thus defined as essential for the promotion of peace and democracy. This text inspired a universal moral vocation of respect and dignity, enabling us to live better together regardless of sensibilities and convictions.

Thus, after much debate, an intentionally vague negative formulation was determined:

“No one can be denied the right to education. The State, in carrying out its functions in the field of education and education, will respect the right of parents to provide this education and teaching in accordance with their religious and philosophical convictions.”

Article 2 of Protocol 1 European Court of Human Rights – Right to Education

The term education covers both the concept of upbringing and that of instruction.

Upbringing contributes to the moral and personal development of an individual, while instruction is about the transmission of knowledge and intellectual training. The interpretation of this right in jurisprudence evolves over time and with social norms, but it cannot be regressive, i.e. it must contribute more and more to the realization of human rights as a right of equal or greater value to local or even constitutional law.

From this starting point, it is clear that the European Court of Human Rights (ECHR) interprets these principles as follows:

  • the right to education has an initial nourishing, formative and protective value of young minds; however, without the support of their parents, their individual sovereignty is still often neglected
  • this upbringing and instruction are missions delegated to the State, but they are primarily the responsibility of parents. There is an obligation for the state and parents to educate, but this is too often confused with an obligatory didactic method of education or school standards
  • in fact, the State must respect the educational values of the parents, as long as they do not undermine the best interests of the child or the substance of the right to education (and there is something to discuss…)
  • the State has no obligation to create specific means of education, nor to achieve an absolute right to education, but it must guarantee universal access to existing means and pluralistic education, in the sense that learners have access to various ideologies. The court encourages the promotion of equal opportunities but also equal treatment
  • a great deal of discretion is given to States for the implementation of the right to education but there are corrective mechanisms and the Court will ensure compliance with non-discrimination
  • safeguarding educational pluralism requires government neutrality

The right to education in practice

In reality, only well-informed and organized citizens manage to protect themselves from the excessive or illegitimate control of governments over their right to education. To demand respect for human rights in education from the ECHR, first one must exhaust all national legal remedies, making it difficult to raise other points at trial. In other words, it requires an outstanding strategy and lawyers, as well as considerable financial resources, which are not available to everyone.

However, it is sometimes enough to demand compliance with the law at its source, reminding the bureaucrats of their mission – because they themselves are often ill-informed and overestimate their authority in a particular area.

This is where the problem lies: one must be educated in order to realize the right to education. However, the privileged will tend to preserve their own interests, while the ignorant will not be aware of their alienation. As the sociologist Pierre Bourdieu said: “Alienation has deprived us of the consciousness of alienation” and “people deprived of culture are not aware of cultural inequality, they believe that social hierarchies based on the school system are just.” Paradoxically, “human dignity is measured in academic titles” while “the poor support the education system of which they are victims.” Now, 42 years later, has anything changed?

Now that our society is steeped in a uniform school ideology, in some respects the situation may even have worsened. Many parents and students concerned about their future economic success are putting enormous pressure on themselves. Students who do not fit into educational boxes are quickly labelled with various dysfunctions and over-medicated or excluded. Others are reduced to pure laboratory subjects. There is an obsession with structuring and controlling everything, and a persistent belief that more teaching leads to more education.

But everything  depends on quality and nuance, not quantity. Despite all our progress, there are still so many myths to deconstruct.

What happened to human dignity in this frenzy of uniformity? Is one-size-fits-all in line with human rights? Does this really make sense at the dawn of the 4th industrial revolution and a looming digital dictatorship, where humans may even lose all economic value?

The right to education for all!

If we are to meet contemporary political and economic challenges, we will have to break out of this outdated education system. This will require demolishing the barriers that prevent innovation. The government monopoly on education prevents the emergence of alternative paths, when the state should be promoting ingenuity.

Moreover, by limiting competition in the education system and making it into a closed system with a model of vertical and uniform governance, the state kills any possibility of evolution. On the one hand, going off the beaten track is politically risky; on the other hand, letting go of the reins of government control over education could allow private initiatives to exploit this industry at the expense of the common good.

As Louis-Marie Le Rouzic concludes in his thesis on the right to education, a possible legal outcome would be:

“The concrete guarantee of a universal right to education assumes that all individuals can access the means of education in the best possible conditions. As far as case law is concerned, the European Court of Human Rights does not require states to introduce a difference in treatment for the benefit of certain pupils in order to ensure their right to education. Such an approach would, however, be useful in ensuring that as many people as possible have the effective enjoyment of the other rights and freedoms of thought contained in the Convention.

If an interpretation in favour of affirmative action is difficult to conceive, the promotion of equality of opportunity – which does not offer an advantage to one individual at the expense of another – is possible. This solution would not be unprecedented because the Court has already successfully adopted it for other rights, including the right of access to a court. The interpretation of Article 2 of the Additional Protocol could evolve in this direction. It would be a welcome additional step in protecting the right to education.

This new level will lead the Court to continue its important work of interpretation to ensure that all, without distinction, can benefit from the tools necessary to exploit their abilities and to the development of their personality.”

Moreover, the Abidjan Principles (outlined in February 2019) defined the human rights obligations of states with regard to public education as “ensuring that public education remains responsible, participatory, inclusive and transparent.” These Principles, which were established in Côte d’Ivoire in February 2019 following a three-year participatory consultation and writing process, aimed to strengthen the power of the state in the face of an increasing commercialization and privatization of education. However, as an initiative to protect the public interest, they also invited citizens to demand the realization of human rights in the public education system and called on governments to honor these requests.

As such, this official and international text demands that governments “set up a system of participative educational governance which is representative of all stakeholders, in particular children and other learners, parents or legal guardians, communities, teaching and non-teaching staff, teachers’ unions and other civil society organizations.”

The upshot? Education is a common good, and like it or not, all these parties will have their say in it. It is up to us – both parents and children – to do what is necessary, so that a true right to education can be realized!

Right to Education, by ALLI asbl Luxembourg

Katy Zago is an active member of the Association Luxembourgeoise pour la liberté d’instruction” (ALLI). She is a mother ‘who goes to school at home’, and her story was presented in Luxembourg Times in 2016. This article was first published at https://eurohomeed.org/ in February 2021.

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