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
