Thursday, March 3, 2016

The right to freedom of education 9/9


 40. The principle of non-discrimination that obliges the State to provide free and compulsory education (the right to education as a social right) entails another aspect of the right to education, which puts it more on a par with the classic individual freedoms: the right to freedom of education. A quality education should not only aim to enable all persons to participate effectively in a free society (article 13, paragraph 1, of the International Covenant on Economic, Social and Cultural Rights) but should also be based on personal freedom, i.e. on “a multiplicity of educational supply”. This aspect is stressed by the human rights instruments. All education policy should take account of “the best interests of the child” and the responsibility for educating children falls first and foremost on parents.38 As far as the current discussion is concerned, this personal dimension has several aspects and raises a number of problems. Let us consider two of these


(a) Non-discrimination and the choice of institutions other than those established by the public authorities

41. All the relevant instruments contain more or less detailed provisions regarding freedom of education; it is clear from these that education is not a State monopoly, but the State has to ensure respect for the principle of non-discrimination, including non-discrimination on racial grounds.

(i) Education is not a State monopoly 

42. The relevant provisions are similar in that they establish the principle of multiplicity of educational supply and, consequently, freedom of choice.39 The classic provision in this regard is contained in article 13, paragraph 3, of the International Covenant on Economic, Social and Cultural Rights. However, unlike in the case of minorities and religious groups, these provisions seem to be general in their scope ratione persona, which does not have any particular application to racial or ethnic groups; private education is a response to very varied needs. However, bearing in mind the flexible definition of the concept of minority and the overlap between race and religion, there is nothing to stop a racial group from claiming the freedom either to establish an educational system or to choose a given institution, always provided that they observe the internationally established rules contained in these instruments

 43. This freedom is very important, particularly in extreme situations, since education may be the ideal vector for all forms of intolerance and totalitarianism if it is based on a particular ideology or it is a State monopoly, or if it is based on an official view that is imposed on the children in the State system.

44. Lastly, according to well-established case law, the State does not act in a discriminatory fashion if the subsidies it provides to private schools are lower than those granted to the public education system, or even if it does not subsidize the private system at all.43 Consequently, for the purposes of this study, ethnic and religious minorities, for example, cannot claim a right from the State in this respect. However, as the Committee on Economic, Social and Cultural Rights states in its General Comment No. 13, “if a State elects to make a financial contribution to private educational institutions, it must do so without discrimination” (E/C.12/1999/10, para. 54). The Human Rights Committee takes the same view, on the basis of article 26 of the International Covenant on Civil and Political Rights.

 (ii) Respect for the principle of non-discrimination

45. The establishment and maintenance of private schools, and the privatization of education in general, may result in the ghettoization of certain ethnic groups and perpetuate a lack of understanding and fear of others, and may be a potential source of conflict between communities. A balance needs to be struck between, on the one hand, the establishment of a public education system and the fundamental principle of free education as a basic guarantee of equality, and, on the other hand, individuals’ freedom to choose the kind of education that is appropriate to their beliefs or their membership of an ethnic group. Such a balance can be achieved only by respecting the principle of non-discrimination, which, if it is guaranteed by the State, makes it possible to ensure equality of opportunity for all individuals and groups, whatever their ethnic or religious affiliation (see General Comment No. 13, E/C.12/1999/10, para. 30). There are three aspects to this principle.


46. The first aspect is of a general nature. Freedom of education is guaranteed on condition that the aims of education established in these instruments are observed. The aim is to “promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups ...” (International Covenant on Economic, Social and Cultural Rights, article 13, paragraph 1). Clearly, then, it is not only the State that has obligations regarding the content of education, but all who occupy positions of responsibility within a country’s educational system.


47. The second aspect relates to the standard of education provided in these establishments, which should “conform to such minimum educational standards as may be laid down or approved by the State”. The yardstick here is the standard of education provided in public institutions as regards, for example, admission, curricula and the recognition of certificates (see General Comment No. 13, E/C.12/1999/10, para. 30). Failure to comply with this principle may constitute prohibited discrimination.

48. The third aspect emerges by converse implication from article 2 (c) of the 1960 UNESCO Convention, concerning non-discriminatory situations. The aim of establishing or maintaining this type of education must not be “to secure the exclusion of any group but to provide educational facilities in addition to those provided by the public authorities”

(b) Freedom of education, religious education and religious intolerance 
.49 Private schools therefore complement public education in cases where the public system does not provide teaching of or in the language and of the religion of an ethnic or religious minority.(b) Freedom of education, religious education and religious intolerance . In many instruments, religious education is seen as a projection of freedom of conscience, which is itself the basis of freedom of education. That explains why the reference to religious education is encapsulated within provisions on educational freedom. The most comprehensive provision in that regard is article 5, paragraph 1 (b), of the 1960 UNESCO Convention, which reads:

“It is essential to respect the liberty of parents …, secondly, to ensure in a manner consistent with the procedures followed in the State for the application of its legislation, the religious and moral education of the children in conformity with their own convictions; and no person or group of persons should be compelled to receive religious instruction inconsistent with his or their convictions”. Accordingly, the principle of non-discrimination implies in this case two distinct kinds of obligation falling upon the State.
50. The first, purely passive obligation (that of non-interference), deriving from the implementation of educational pluralism, is that of respect for the liberty of parents practising minority religions to choose for their children private institutions offering an education in conformity with their convictions, provided that the instruction given meets minimum quality standards.

 51. The second obligation seems to concern public establishments and lays upon the State two requirements of widely varying stringency. Firstly, the State is required to take the necessary measures, through appropriate modalities of implementation, to provide within its own educational system for the religious education of children in accordance with their parents’ convictions and therefore those of minority religious groups. The wording of article 5, paragraph 1 (b), of the 1960 UNESCO Convention does not state what modalities are meant they may relate to the teachers recruited to provide this type of instruction, or the teaching manuals and tools, or again the class time reserved for such instruction. Secondly, the liberty enjoyed by the parents entails for the State the obligation to protect the denominational pluralism of individuals and groups against any domination by one specific religion such as would compel them “to receive religious instruction inconsistent with … their convictions”.

 52. In its General Comment No. 13 the Committee on Economic, Social and Cultural Rights presents some very useful further considerations already formulated in 1993 by the Human Rights Committee in its General Comment No. 22 on article 18 of the International Covenant on Civil and Political Rights (right to freedom of thought, conscience and religion).

53. First, as to the scope of the obligation “to ensure the religious and moral education of … children in conformity with their [parents’] convictions” contained in article 13, paragraph 3, of the Covenant, the Committee makes it clear that this obligation applies to public establishments and permits, for instance, “instruction in subjects such as the general history of religion and ethics if it is given in an unbiased and objective way, respectful of the freedoms of opinion, conscience and expression”. The qualitative criteria for absence of bias and for objectivity are not indicated, but it is respect for plurality of convictions in classes and schools, as also the dictates of scientific neutrality inherent in any educative function, which constitute the essential guarantees of such instruction. Thus, if the instruction conveys a historically negative image of a religion, or transmits a biased and scientifically unfounded interpretation of historical facts, or resorts to “invidious distinctions” or “value judgements” with regard to a people or a minority on the grounds of its beliefs or traditional religious practices, that instruction is neither impartial nor objective. It will not always be easy, of course, to say where non-objective reporting of a historical fact begins. Some facts may be the subject of controversy among those who have written the history of a people or a religion. The educational context and, the teacher’s personality, origin, training and culture are as important in this respect as the content of the message addressed to the pupils. Whatever the ethnic or religious mix at the school, the teacher must maintain strict neutrality and refrain from putting forward any philosophical or religious opinion that might be detrimental to the freedom of conscience of the children and the educational role of the parents.

54. At the quantitative level, General Comment No. 13 is more useful. The Committee “notes that public education that includes instruction in a particular religion or belief is inconsistent with article 13 (3) unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians” (E/C.12/1999/10, para. 28). This protection is not always easy to put into effect, for it may be in competition with other principles laid down in international law or constituting the very foundations of education in some States. Two examples relating to a particular notion of religion and religious freedom may serve to illustrate this difficulty.

55. The first, reported by Katarina Tomaševski, Special Rapporteur on the right to education, concerns the attitude of certain parents adhering to minority religions who consider the prohibition by the host State of corporal punishment of schoolchildren as an infringement of their right to provide for their children’s education according to their religious convictions and as amounting to a threat of indoctrination of children against their parents’ convictions (E/CN.4/1999/49, para. 68). In their decisions on the case the European Commission of Human Rights and particularly the Committee on the Rights of the Child rejected this interpretation as incompatible (according to that Committee) with the Convention on the Rights of the Child.60 In general, as rightly noted by the Committee on Economic, Social and Cultural Rights in its General Comment No. 13, “corporal punishment is inconsistent with the fundamental guiding principle of international human rights law enshrined in the Preambles to the Universal Declaration of Human Rights and both Covenants: the dignity of the individual” (E/C.12/1999/10, para. 41).

56. The second example can be put in the form of a question - which indeed has been raised in France in highly polemical terms and with much media coverage - concerning the principle of the secular nature of the Republic in general and the school system in particular, on the one hand, and freedom of conscience on the other. Are or are not the wearing by pupils of signs of membership of a religious community and, by extension, the practice of certain rites, compatible with the very rationale and functioning of the public school system and do they warrant restrictive measures or even expulsion of the pupils concerned? Asked for a formal opinion, the French Council of State has given a very hedged answer, appealing extensively to international provisions, but highlighting the complexity of the question and the imperative need for prudence in this area.

57. In its opinion dated 27 November 1989, the Council of State first defined what was meant by “secular” and then, on the basis of that definition, to which we shall return, clearly stated the principle that “the wearing of religious signs is not in itself incompatible with the secular principle”.61 The applicability of this principle is not absolute; the Council of State makes it subject to conditions some of which evoke the international instruments on the subject. The wearing of religious signs: (a) must respect the liberty of others and therefore excludes the wearing of signs whose ostentatious or assertive nature would amount to an act of pressure or provocation, proselytism, or propaganda; (b) must not be detrimental to the dignity or freedom of the pupil or of other members of the school community, nor jeopardize their health or safety; (c) does not exempt pupils from their scholastic duties and must not interfere with teaching activities; (d) must not disturb public order or the normal functioning of the public education system.

58. The conditions laid down are, as we can see, numerous; they are based on principles so universal as to preclude any local specificity: respect for public order, for scholastic duties, for the freedom of others, and for dignity. It is, on the other hand, the premises of the Council of State’s argument which are liable to stir a debate in regard to the subject of this study. The question is simple: must public education, in particular at the primary and secondary levels, be secular, and do the requirements of secularity, the conditions of which must be defined, haveimplications for the public school as a place where differences are respected? Can a religious type of education be provided and encouraged by the State in public establishments which are by definition open to all children?

 59. It would seem that if secularity is defined as “the legal expression of a political notion that implies separation between civil society and religious society”62 and if in the educational field it is taken to mean the absence of any connection with religion, in regard either to the curriculum or to the conduct of the teachers, it becomes decidedly inopportune to transpose it to contexts other than those in which it developed. In many countries religious education (often meaning instruction in the dominant religion) constitutes one of the essential features of the public school system and it seems quite absurd to argue in terms of the secularity of society in general and schools in particular. However, that is not the only way to look at secularity. According to one author, it means “above all respect for freedom of conscience, including religious freedom” and “there is no opposition between religious freedom and secularity”. Transcending national divergencies, it is this second aspect which we find in the constitutions of many States, including those where a religion is proclaimed as religion of State or of the State, as also in most of the relevant international instruments. And that is what matters, far more than theoretical or conceptual debates on the ideological underpinnings of education.

http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/daa1576d690994e1c1256a57003417a0/$FILE/G0113802.pdf

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