education as a fundamental right essay

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Is Education a Fundamental Right?

By Jill Lepore

A Supreme Court decision about the right of undocumented immigrants to attend school may yet prove significant.

Before sunrise on a morning just after Labor Day, 1977, Humberto and Jackeline Alvarez, Felix Hernandez, Rosario and Jose Robles, and Lidia and Jose Lopez huddled together in the basement of the United States Courthouse in Tyler, Texas , the Rose City, to decide just how much they were willing to risk for the sake of their children, for the sake of other people’s children, and for the sake, really, of everyone. Among them, the Alvarezes, Hernandez, the Robleses, and the Lopezes had sixteen children who, the week before, had been barred from entering Tyler’s public schools by order of James Plyler, Tyler’s school superintendent. On the first day of school, Rosario Robles had walked her five children to Bonner Elementary, where she was met by the principal, who asked her for the children’s birth certificates, and, when she couldn’t provide them, put her and the kids in his car and drove them home.

This hadn’t been the principal’s idea, or even Plyler’s. In 1975, when Texas passed a law allowing public schools to bar undocumented immigrants, Plyler ignored it. “I guess I was soft-hearted and concerned about the kids,” he said. Also, there weren’t many of them. About sixteen thousand children went to the schools in the East Texas city of Tyler, which considered itself the rose-growing capital of America and was named for John Tyler, the President of the United States who had pushed for the annexation of Texas in 1844, which led to a war with Mexico in 1846. Of those sixteen thousand students, fewer than sixty were the children of parents who had, without anyone’s permission, entered the United States from Mexico by crossing a border established in 1848, when the war ended with a treaty that turned the top half of Mexico into the bottom third of the United States. Jose Robles worked in a pipe factory. Humberto Alvarez worked in a meatpacking plant. They paid rent. They owned cars. They paid taxes. They grew roses.

Nevertheless, in July of 1977 Tyler’s school board, worried that Tyler would become a haven for immigrants driven away from other towns, insisted that undocumented children be kicked out of the city’s schools unless their parents paid a thousand dollars a year, per child, which few of them could afford, not even the Robleses, who owned their own home. Turned away from Bonner Elementary, the Robleses sent some of their kids to a local Catholic school—Jose did yard work in exchange for tuition—but they were put in touch with the Mexican American Legal Defense and Educational Fund, which sent an attorney, Peter Roos, who filed a lawsuit in the U.S. Eastern District Court of Texas. It was presided over by a judge whose name was Justice. “There were two judges in Tyler,” Roos liked to say. “You got Justice, or no justice.”

Participating in a lawsuit as an undocumented immigrant is a very risky proposition. In a closed-door meeting, Roos asked that the parents be allowed to testify in chambers and so avoid revealing their identities, which could lead to deportation. They had come to the courthouse knowing that, at any moment, they could be arrested, and driven to Mexico, without so much as a goodbye. Judge William Wayne Justice refused to grant the protective order. “I am a United States magistrate and if I learn of a violation of the law, it’s my sworn duty to disclose it to the authorities,” he said. Roos went down to the basement, near the holding cells, to inform the families and give them a chance to think it over. They decided to go ahead with the suit, come what may. Justice did make efforts to protect them from publicity, and from harassment, decreeing that the proceeding would start before dawn, to keep the press and the public at bay, and that the plaintiffs’ names would be withheld.

Roos filed a motion requesting that the children be allowed to attend school, without paying tuition, while the case unfolded, which was expected to take years. “An educated populace is the basis of our democratic institutions,” his brief argued, citing Brown v. Board of Education. “A denial of educational opportunities is repugnant to our notions that an informed and educated citizenry is necessary to our society.” The case was docketed as Doe v. Plyler. “This is one that’s headed for the United States Supreme Court,” Justice told his clerk. Five years later, the appeal, Plyler v. Doe , went to Washington.

Some Supreme Court decisions are famous. Some are infamous. Brown v. Board, Roe v. Wade. But Plyler v. Doe? It’s not any kind of famous. Outside the legal academy, where it is generally deemed to be of limited significance, the case is little known. (Earlier this year, during testimony before Congress, Betsy DeVos , the Secretary of Education, appeared not to have heard of it.) The obscurity of the case might end soon, though, not least because the Court’s opinion in Plyler v. Doe addressed questions that are central to ongoing debates about both education and immigration and that get to the heart of what schoolchildren and undocumented migrants have in common: vulnerability.

Plyler is arguably a controlling case in Gary B. v. Snyder, a lawsuit filed against the governor of Michigan, Rick Snyder, by seven Detroit schoolchildren, for violating their constitutional right to an education. According to the complaint, “illiteracy is the norm” in the Detroit public schools; they are the most economically and racially segregated schools in the country and, in formal assessments of student proficiency, have been rated close to zero. In Brown, the Court had described an education as “a right which must be made available to all on equal terms.” But the Detroit plaintiffs also cite Plyler, in which the majority deemed illiteracy to be “an enduring disability,” identified the absolute denial of education as a violation of the equal-protection clause, and ruled that no state can “deny a discrete group of innocent children the free public education that it offers to other children residing within its borders.” Dismissed by a district court in June, the case is now headed to the Sixth Circuit on appeal.

Plyler’s reach extends, too, to lawsuits filed this summer on behalf of immigrant children who were separated from their families at the U.S.-Mexico border. In June, the Texas State Teachers Association called on the governor of the state to make provisions for the education of the detained children, before the beginning of the school year, but has so far received no reply. Thousands of children are being held in more than a hundred detention centers around the country, many run by for-profit contractors. Conditions vary, but, on the whole, instruction is limited and supplies are few. “The kids barely learn anything,” a former social worker reported from Arizona.

Court-watchers have tended to consider Plyler insignificant because the Court’s holding was narrow. But in “ The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind ” (Pantheon) Justin Driver, a law professor at the University of Chicago, argues that this view of Plyler is wrong. “Properly understood,” Driver writes, “it rests among the most egalitarian, momentous, and efficacious constitutional opinions that the Supreme Court has issued throughout its entire history.”

Driver is not alone in this view. In “ No Undocumented Child Left Behind ” (2012), the University of Houston law professor Michael A. Olivas called Plyler “the apex of the Court’s treatment of the undocumented.” In “ Immigration Outside the Law ” (2014), the U.C.L.A. law professor Hiroshi Motomura compared Plyler to Brown and described its influence as “fundamental, profound, and enduring.” Even people who think the case hasn’t been influential wish it had been. “Plyler v. Doe may be irrelevant in a strictly legal sense,” the legal journalist Linda Greenhouse wrote last year, “but there are strong reasons to resurrect its memory and ponder it today.” Because, for once, our tired, our poor, our huddled masses—the very littlest of them—breathed free.

Laura Alvarez, ten years old, rode in the family’s battered station wagon to the courthouse in Tyler, for a hearing held on September 9, 1977, at six in the morning. (During a related Texas case—later consolidated with Plyler—a nine-year-old girl spoke to the judge in chambers and told him that, since being barred from school, the only learning she was getting came from poring over the homework done by a younger sibling—an American citizen.) In Tyler, the assistant attorney general for the State of Texas showed up wearing bluejeans. She’d flown in late the night before, and had lost her luggage. After an attorney from the Carter Administration said that the Justice Department would not pursue the litigants while the trial proceeded, during which time the students would be able to attend school, Judge Justice issued the requested injunction.

Witnesses presented testimony about economies: educating these children cost the state money, particularly because they needed special English-language instruction, but not educating these children would be costly, too, in the long term, when they became legal residents but, uneducated, would be able to contribute very little to the tax base. The Judge had a policy preference: “The predictable effects of depriving an undocumented child of an education are clear and undisputed. Already disadvantaged as a result of poverty, lack of English-speaking ability, and undeniable racial prejudices, these children, without an education, will become permanently locked into the lowest socio-economic class.” But the question didn’t turn on anyone’s policy preferences; it turned on the Fourteenth Amendment.

The Fourteenth Amendment, ratified in 1868, guarantees certain rights to “citizens” and makes two promises to “persons”: it prohibits a state from depriving “any person of life, liberty, or property, without due process of law,” and prohibits a state from denying “any person within its jurisdiction the equal protection of the laws.” Before Plyler, the Supreme Court had established that the due-process clause applied to undocumented immigrants, who are, plainly, “persons,” but it had not established that the equal-protection clause extended to them, and the State of Texas said that it didn’t, because undocumented immigrants were in the state illegally. Judge Justice disagreed. “People who have entered the United States, by whatever means, are ‘within its jurisdiction’ in that they are within the territory of the United States and subject to its laws,” he wrote.

But how to apply that clause? The courts bring a standard known as “strict scrutiny” to laws that abridge a “fundamental right,” like the right to life, liberty, and property, and to laws that discriminate against a particular class of people, a “suspect class,” like the freed slaves in whose interest the amendment was originally written—that is, any population burdened with disabilities “or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”

Is education a fundamental right? The Constitution, drafted in the summer of 1787, does not mention a right to education, but the Northwest Ordinance, passed by Congress that same summer, held that “religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” By 1868 the constitutions of twenty-eight of the thirty-two states in the Union had provided for free public education, open to all. Texas, in its 1869 constitution, provided for free public schooling for “all the inhabitants of this State,” a provision that was revised to exclude undocumented immigrants only in 1975.

Justice skirted the questions of whether education is a fundamental right and whether undocumented immigrants are a suspect class. Instead of applying the standard of “strict scrutiny” to the Texas law, he applied the lowest level of scrutiny to the law, which is known as the “rational basis test.” He decided that the Texas law failed this test. The State of Texas had argued that the law was rational because undocumented children are expensive to educate—they often require bilingual education, free meals, and even free clothing. But, Justice noted, so are other children, including native-born children, and children who have immigrated legally, and their families are not asked to bear the cost of their special education. As to why Texas had even passed such a law, he had two explanations, both cynical: “Children of illegal aliens had never been explicitly afforded any judicial protection, and little political uproar was likely to be raised in their behalf.”

In September, 1978, Justice ruled in favor of the children. Not long afterward, a small bouquet arrived at his house, sent by three Mexican workers. Then came the hate mail. A man from Lubbock wrote, on the back of a postcard, “Why in the hell don’t you illegally move to mexico?”

“The Schoolhouse Gate” is the first book-length history of Supreme Court cases involving the constitutional rights of schoolchildren, a set of cases that, though often written about, have never before been written about all together, as if they constituted a distinct body of law. In Driver’s view, “the public school has served as the single most significant site of constitutional interpretation within the nation’s history.” Millions of Americans spend most of their days in public schools—miniature states—where liberty, equality, rights, and privileges are matters of daily struggle. Schools are also, not incidentally, where Americans learn about liberty, equality, rights, and privileges. “The schoolroom is the first opportunity most citizens have to experience the power of government,” Justice John Paul Stevens once wrote.

The Supreme Court paid relatively little attention to public schools until after the Second World War, but, since then, it has ruled on a slew of cases. Do students have First Amendment rights? In Tinker v. Des Moines Independent Community School District (1969), the Court said yes. Three students had sued when they were suspended for wearing black armbands to school to protest the Vietnam War. In a 7–2 opinion, the Court sided with the students, affirming that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and that public schools, though not democracies, “may not be enclaves of totalitarianism,” either. Justice Hugo Black issued a heated dissent. “It may be that the Nation has outworn the old-fashioned slogan that ‘children are to be seen not heard,’ ” he wrote, but he hoped it was still true that we “send children to school on the premise that at their age they need to learn, not teach.” A still more strident version of Black’s position was taken by Justice Clarence Thomas, in Morse v. Frederick (2007), a case involving a student who, when a parade passed in front of the school, waved a banner that read “ BONG H i TS 4 JESUS .” Writing for the majority, Chief Justice John Roberts marked an exception to the free-speech rights established in Tinker: students are not free to endorse drug use, but Thomas, concurring, used the occasion to wax nostalgic: “In the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed.”

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Just because the courts have recognized students’ First Amendment rights, it doesn’t follow that students have other rights. Do students have Fourth Amendment protections against “unreasonable searches and seizures”? Do they have Fifth Amendment protections against self-incrimination? Do they have Eighth Amendment protections against “cruel and unusual punishment”? In Goss v. Lopez (1975), the Court ruled that students cannot be suspended or expelled without at least some form of due process, but, two years later, in Ingraham v. Wright , it said that schools could punish children, physically, and without any procedure at all. This shift took place amid a growing conservative reaction that viewed the Court’s schoolhouse opinions as an example of judicial overreach, as a violation of states’ rights, and as part of the rise of permissiveness and the decline of order. Lopez had extended to students a Fourteenth Amendment right to due process, partly on the back of the argument that granting students rights is a way of teaching them about citizenship, fairness, and decency. “To insist upon fair treatment before passing judgment against a student accused of wrongdoing is to demonstrate that society has high principles and the conviction to honor them,” the legal scholar William G. Buss wrote , in an influential law-review article in 1971.

Plenty of teachers and school administrators think that students don’t have any rights. “I am the Constitution,” Joe Clarke, the principal of a high school in Paterson, New Jersey, liked to say, roaming the hallways with a Willie Mays baseball bat in the nineteen-eighties. This was an era that Driver describes as marking a Reagan Justice Department campaign for “education law and order.” The era produced a 1985 decision, T.L.O. v. New Jersey , in which the Court ruled that schools require only reasonable suspicion, not probable cause, to search students and their backpacks and lockers and other belongings.

Together, the education law-and-order regime and the rise of school shootings, beginning with Columbine in 1999, have produced a new environment in the nation’s schools, more than half of which, as of 2007, are patrolled by police officers. It was a police officer’s closed-door questioning of a seventh grader, taken out of his social-studies class in Chapel Hill, that led to the Court’s 2011 decision, in J.D.B. v. North Carolina , establishing that only in certain circumstances do students have Fifth Amendment rights. Do students have Second Amendment rights? Not yet. But last year a Kentucky congressman introduced a Safe Students Act that would have repealed the 1990 Gun-Free School Zones Act, and allowed guns in schools. Meanwhile, more and more schools are surveilled by cameras, and bordered by metal detectors. If the schoolhouse is a mini-state, it has also become, in many places, a military state.

Few discussions of Plyler are more keenly sensitive to its ambiguities than Ana Raquel Minian’s “ Undocumented Lives: The Untold Story of Mexican Migration ” (Harvard), a revealing study that, because “undocumented lives” are nearly impossible to trace in the archives, relies on hundreds of oral histories. For Minian, Plyler, by its very casting of undocumented children as innocents, underscored the perception of undocumented adults as culpable—criminals to be arrested, detained, prosecuted, and deported.

As Texas appealed to the Fifth Circuit, Woodrow Seals, a district judge in Houston, ruled for the children in a related case. Seals didn’t agree that the undocumented children were a suspect class, but he didn’t need to, because he believed the Texas statute was not rational, and, in any case, he thought that absolute denial of an education was so severe a harm that, on its own terms, it required strict scrutiny. Public school is “the most important institution in this country,” Seals wrote, and “the Constitution does not permit the states to deny access to education to a discrete group of children within its border.” Seals handed down his opinion in July, 1980, just months before the Presidential election. He wrote in a letter, “I hate to think what will happen to my decision if Governor Reagan wins the election and appoints four new justices to the Supreme Court.”

Carter’s Justice Department had supported the plaintiffs. Reagan’s did not. The Supreme Court heard oral arguments in Plyler v. Doe on December 1, 1981. The Mexican American Legal Defense and Educational Fund considered the case to be as important as Brown v. Board of Education, which, in 1954, Thurgood Marshall, then the head of the N.A.A.C.P. Legal Defense and Educational Fund, had argued before the Court. Marshall had presented Brown as a Fourteenth Amendment, equal-protection case. The plaintiffs in Plyler were making, essentially, the same argument. Conceivably, their case could realize the promise of Brown by establishing a constitutional right to an education. They could even press the claim that undocumented immigrants were not only persons under the equal-protection clause of the Fourteenth Amendment but also, doctrinally, a suspect class. None of these objectives were politically within their reach, however, given the makeup of the bench.

During oral arguments, Marshall peppered John Hardy, representing Plyler, about what the State of Texas did and did not provide for undocumented immigrants:

M arshall : Could Texas deny them fire protection? H ardy : Deny them fire protection? M arshall : Yes, sir. F-i-r-e. H ardy : Okay. If their home is on fire, their home is going to be protected with the local fire services just— M arshall : Could Texas pass a law and say they cannot be protected? H ardy : —I don’t believe so. M arshall : Why not? If they could do this, why couldn’t they do that? H ardy : Because . . . I am going to take the position that it is an entitlement of the . . . Justice Marshall, let me think a second. You . . . that is . . . I don’t know. That’s a tough question. M arshall : Somebody’s house is more important than his child?

Later, Marshall came back at him, asking, “Could Texas pass a law denying admission to the schools of children of convicts?” Hardy said that they could, but that it wouldn’t be constitutional. Marshall’s reply: “We are dealing with children. I mean, here is a child that is the son of a murderer, but he can go to school, but the child that is the son of an unfortunate alien cannot?”

Three days later, the Justices held a conference. According to notes made by Justice Lewis F. Powell, Jr., Chief Justice Warren Burger said, “14A applies as they are persons but illegals are not entitled to E/P.” Marshall said, “Children are not illegals. . . . E/P means what it says.” Five Justices wanted to uphold the lower court’s opinion, four to reverse it. Justice William J. Brennan, Jr., volunteered to write the majority opinion. He circulated a draft that called for strict scrutiny, deeming the children “a discrete and historically demeaned group.” Powell said that he couldn’t sign it.

Powell, appointed by Nixon in 1971, had been, for a decade, the chair of the school board of Richmond, Virginia. Sometimes known as “the education justice,” he was deeply committed to public schools. But, because he was also committed to judicial restraint, he was opposed to declaring education to be a constitutional right. “It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws,” he had written in 1973, in San Antonio Independent School District v. Rodriguez , a case that was widely seen as having shut the door on the idea. For Powell, establishing education as a fundamental right invited claims: are health care, food, and shelter fundamental rights, too?

Powell was unwilling to sign Brennan’s first draft, not only because it went against his opinion in Rodriguez but also because the draft contained language “that will be read as indicating that all illegal aliens, adults as well as children, may be ‘discrete and insular minorities for which the Constitution offers a special solicitude.’ ” Brennan wrote a second draft; Powell once again asked him to narrow his opinion. But other Justices, who wanted to uphold the lower court’s decision, sought to move Brennan further to the left. After reading a draft of Burger’s dissent (“The Constitution does not provide a cure for every social ill,” the Chief Justice wrote, “nor does it vest judges with a mandate to try to remedy every social problem”), Justice Harry Blackmun circulated a proposal for issuing a different opinion, arguing that education has a special status because it’s foundational to all other political rights, being necessary “to preserve rights of expression and participation in the political process, and therefore to preserve individual rights generally.” Marshall, Brennan, and Stevens were prepared to join that opinion. But Blackmun needed Powell to make five. And Powell wouldn’t sign on. “As important as education has been in the life of my family for three generations,” he wrote to Blackmun, “I would hesitate before creating another heretofore unidentified right.”

In the end, Brennan crafted a compromise. Education is not a constitutional right, he wrote, “but neither is it merely some governmental ‘benefit.’ ” Undocumented migrants are not a suspect class, but their children are vulnerable, and laws that discriminate against them, while not subject to strict scrutiny, deserved “heightened scrutiny.” Powell wrote to Brennan after reading the draft, “Your final product is excellent and will be in every text and case book on Constitutional law.”

And yet its interpretation remains limited. “Powell wanted the case to be about the education of children, not the equal protection rights of immigrants, and so the decision was,” Linda Greenhouse remarked in a careful study of the Court’s deliberations, published a decade ago. For many legal scholars, Plyler looks like a dead end. It didn’t cut through any constitutional thickets; it opened no new road to equal rights for undocumented immigrants, and no new road to the right to an education. It simply meant that no state could pass a law barring undocumented children from public schools. But that is exactly why Driver thinks that Plyler was so significant: without it, states would have passed those laws, and millions of children would have been saddled with the disability of illiteracy.

In 1994, when Californians were contemplating Proposition 187, which would have denied services to undocumented immigrants, a reporter for the Los Angeles Times was able to track down thirteen of the original sixteen Plyler children. Ten had graduated from high school in Tyler. Two worked as teacher’s aides. Laura Alvarez and all six of her brothers and sisters stayed in Tyler after Judge Justice issued his opinion in Plyler. She became a legal resident of the United States under the terms of the 1986 Immigration Reform and Control Act, graduated in 1987 from John Tyler High School, and spent a decade working for the Tyler school district. “Without an education, I don’t know where I’d be right now,” she said.

“I’m glad we lost,” James Plyler said in an interview in 2007, when he was eighty-two, and long since retired, and enjoying his grandchildren, who are themselves of Mexican descent.

Lewis Powell retired from the Court in 1987. He was replaced by Anthony Kennedy. In another opinion, Powell had written that children should not be punished for the crimes of their parents. “Visiting this condemnation on the head of an infant is illogical and unjust,” because “legal burdens should bear some relationship to individual responsibility or wrongdoing.” It’s hard to know what Kennedy’s likely replacement, Brett Kavanaugh, would say about whether the Constitution guarantees undocumented migrant children the equal protection of the law. He’s never cited Plyler in his scholarship and, in opinions issued from the bench, has cited it only once. He hasn’t written much about equal protection, either, though he has said, in passing, that he finds the equal-protection clause ambiguous. As for undocumented migrant children, he has issued one important opinion, a dissent in Garza v. Hargan, last year, that, while not citing Plyler, described the plaintiff in the case, an undocumented immigrant minor in Texas, as particularly vulnerable.

“The minor is alone and without family or friends,” Kavanaugh wrote. “She is in a U.S. Government detention facility in a country that, for her, is foreign. She is 17 years old.” The reason for her vulnerability? “She is pregnant and has to make a major life decision.” She wanted to have an abortion; Kavanaugh had earlier joined a decision ruling that she must first leave detention and find a sponsoring foster family. When, in a further appeal, the D.C. court vacated that ruling, Kavanaugh dissented, arguing that the court had acted on “a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” Her name was kept out of the proceedings. She was another Doe. It is not clear whether she ever finished her education. ♦

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An Underground College for Undocumented Immigrants

By Jonathan Blitzer

By Jeannie Suk Gersen

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Education is not a privilege. It is a human right.

Education as a human right means:

the right to education is legally guaranteed for all without any discrimination
states have the obligation to protect, respect, and fulfil the right to education
there are ways to hold states accountable for violations or deprivations of the right to education

Human rights are inherent to all human beings, regardless of nationality, sex, national or ethnic origin, colour, religion, language, or any other status. They cannot be given or taken away.

Human rights are the foundation for freedom, justice and peace in the world.

They are formally and universally recognised by all countries in the Universal Declaration on Human Rights (1948, UDHR). Since the adoption of the UDHR, many treaties have been adopted by states to reaffirm and guarantee these rights legally.

International human rights law sets out the obligations of states to respect, protect, and fulfil human rights for all. These obligations impose specific duties upon states, regardless of their political, economic, and cultural systems.

All human rights are universal, indivisible, interdependent, and interrelated ( Vienna Declaration and Programme of Action , 1993, para. 5).

Equality and non-discrimination are foundational and cross-cutting principles in international human rights law. This means that all human rights apply to everyone.

International human rights law guarantees the right to education. The Universal Declaration on Human Rights , adopted in 1948, proclaims in Article 26: 'everyone has the right to education'.

Since then, the right to education has been widely recognised and developed by a number of international normative instruments elaborated by the United Nations, including the International Covenant on Economic, Social and Cultural Rights (1966, CESCR), the Convention on the Rights of the Child (1989, CRC), and the UNESCO Convention against Discrimination in Education (1960, CADE).

The right to education has also been reaffirmed in other treaties covering specific groups ( women and girls , persons with disabilities , migrants, refugees , Indigenous Peoples , etc.) and contexts ( education during armed conflicts ). It has also been incorporated into various regional treaties and enshrined as a right in the vast majority of national constitutions.

See our pages on international law and national implementation for more information.

Both individuals and society benefit from the right to education. It is fundamental for human, social, and economic development and a key element to achieving lasting peace and sustainable development. It is a powerful tool in developing the full potential of everyone and ensuring human dignity, and in promoting individual and collective wellbeing.

it is an empowerment right
it lifts marginalised groups out of poverty
it is an indispensable means of realising other rights
it contributes to the full development of the human personality

For more details, see the Committee on Economic, Social and Cultural Rights' General Comment 13 on the right to education (1999, para. 1).

The right to education encompasses both entitlements and freedoms, including the:

right to free and compulsory primary education

right to available and accessible secondary education (including technical and vocational education and training), made progressively free

right to equal access to higher education on the basis of capacity made progressively free

right to fundamental education for those who have not received or completed primary education

right to quality education both in public and private schools

freedom of parents to choose schools for their children which are in conformity with their religious and moral convictions

freedom of individuals and bodies to establish and direct education institutions in conformity with minimum standards established by the state

academic freedom of teachers and students

The 4As were developed by the first UN Special Rapporteur on the right to education, Katarina Tomaševski, and adopted by the Committee on Economic, Social and Cultural Rights in its General Comment 13 on the right to education (1999, para.6). To be a meaningful right, education in all its forms and at all levels shall exhibit these interrelated and essential features:

Available – Education is free and there is adequate infrastructure and trained teachers able to support the delivery of education.

Accessible – The education system is non-discriminatory and accessible to all, and positive steps are taken to include the most marginalised.

Acceptable – The content of education is relevant, non-discriminatory and culturally appropriate, and of quality; schools are safe and teachers are professional.

Adaptable – Education evolves with the changing needs of society and challenges inequalities, such as gender discrimination; education adapts to suit locally specific needs and contexts.

For more details see:

Primer 3 Human rights obligations: making education available, accessible, acceptable and adaptable (RTE, Katarina Tomaševski, 2001)

When a state has ratified a treaty that guarantees the right to education, it has obligations to respect, protect, and fulfil this right. Some obligations are immediate. Others are progressive.

Obligations to respect, protect, and fulfil:

respect: refrain from interfering with the enjoyment of the right (e.g., the state must respect the liberty of parents to choose schools for their children)
protect: prevent others from interfering with the enjoyment of the right usually through regulation and legal guarantees (e.g., the state must ensure that third parties, including parents, do not prevent girls from going to school)
fulfil: adopt appropriate measures towards the full realisation of the right to education (e.g., the state must take positive measures to ensure that education is culturally appropriate for minorities and indigenous peoples, and of good quality for all)

Immediate and progressive obligations:

As with other economic, social and cultural rights, the full realisation of the right to education can be hampered by a lack of resources and can be achieved only over a period of time, particularly for countries with fewer resources. This is the reason why some state obligations are progressive, for instance, the introduction of free secondary and higher education.

However, no matter how limited resources are, all states have immediate obligations to implement the following aspects of right to education:

ensure minimum core obligations to meet the essential levels of the right to education, which includes prohibiting discrimination in access to and in education, ensuring free and compulsory primary education for all, respecting the liberty of parents to choose schools for their children other than those established by public authorities, protecting the liberty of individuals and bodies to establish and direct educational institutions
take appropriate steps towards the full realisation of the right to education to the maximum of its available resources. A lack of resources cannot justify inaction or indefinite postponement of measures to implement the right to education. States must demonstrate they are making every effort to improve the enjoyment of the right to education, even when resources are scarce
not take retrogressive measures. This means that the state should not take backwards steps or adopt measures that will repeal existing guarantees of the right to education. For instance, introducing school fees in secondary education when it had formerly been free of charge would constitute a retrogressive measure

States have the primary duty to ensure the right to education. However, other actors play a key role in promoting and protecting this fundamental right.

According to international law, other actors have responsibilities in upholding the right to education:

the role of multilateral intergovernmental agencies, such as UNESCO, OHCHR, UNICEF, is of particular importance in relation to the realisation of the right to education in providing technical and financial assistance
international financial institutions should play greater attention to the protection of the right to education in their policies, credit agreements, structural adjustment programmes and measures taken in response to the debt crisis
private businesses also have the responsibility to respect human rights and avoid infringing on the rights of others. For more information, see UN Guiding Principles on Business and Human Rights , Committee on Economic, Social and Cultural Rights' General Comment 24 , Committee on the Rights of the Child's General Comment 16 , and our page on Privatisation
civil society plays a crucial role in promoting the right to education and holding the state accountable for its obligations
parents have the responsibility to ensure that their children attend compulsory education. They cannot deny their children access to education

Violations of the right to education may occur through direct action of States parties (act of commission) or through their failure to take steps required by law (act of omission). Concrete examples are given in paragraph 59 of General Comment 13 .

Whilst the vast majority of countries have ratified international treaties that recognise the full right to education, it is still denied to millions around the world due to lack of resources, capacity, and political will. There are still countries that have not integrated the right to education into their national constitution or provided the legislative and administrative frameworks to ensure that the right to education is realised in practice. Most of the children and adults who do not fully enjoy the right to education belong to the most deprived and marginalised groups of society which are often left behind in national policies.

raise awareness on the right to education. If individuals knows their rights they are empowered to claim them
monitor the implementation of the right to education and report regularly on deprivations and violations
advocate and campaign for the full implementation of the right to education, holding the state accountable
seek remedies when there are violations of the right to education

See our page on Using rights in practice for more details on what you can do.

5 Must-Read Essays on the Right to Education

When the United Nations adopted the Universal Declaration on Human Rights, Article 26 asserted that all people have the right to education. That right appears in other documents such as the Convention on the Rights of the Child (1989) and in treaties about women and girls, refugees, migrants, and others. Many constitutions around the world also list education as a right. However, the right to education isn’t always upheld. To understand more about education as a human right, and where and why it’s often not a reality, here are five must-read essays:

“ Girls Can Change The World – But We Have To Invest In Them First ” – Malala Yousafzai

Writing for Time Magazine in 2018, Malala Yousafzai’s essay details the importance of educating girls. It’s short, but like all of Malala’s writing, it’s impactful. She opens with the sobering statistic that 130 million girls are not in school. Despite promises at the United Nations to guarantee that every girl will get 12 years of education by 2030, donor countries either halted or decreased their giving for education. Malala expresses her discouragement, but remains hopeful, drawing attention to the Malala Fund and impact of local activists and educators.

The youngest Nobel Prize laureate, Malala is a Pakistani human rights activist, with a special focus on female education. In 2012, the Taliban attempted to assassinate her since she was already a well-known activist, but she survived. The attack and recovery made her a household name, and she won the Nobel Prize two years later. She is a writer and current student at Oxford University.

“ Is Education a Fundamental Right? ” – Jill Lepore

A relatively-unknown Supreme Court Case from 1982, Plyler v. Doe addressed questions about education, immigration, and if schooling is a human right. In her essay, Jill Lepore writes that this case could become much better known as various lawsuits filed on behalf of immigrant children enter the court system. These are the children who are separated from their parents at the border and deprived of education. Using Plyler v. Doe as a guide along with the other cases both past and present, Lepore explores the issue of education as a fundamental right in the United States.

This essay appeared in the print edition of The New Yorker in September 2018 under the headline “Back to the Blackboard.” Jill Lepore is a professor of history at Harvard University and a staff writer for the New Yorker. Publications include the book These Truths: A History of the United States and This America: The Case for the Nation.

“ How to Improve Access to Education Around the World ” – Jan Lee

In this piece on the Triple Pundit platform, Lee takes a look at how Pearson, an education publishing and assessment service company based in the UK, is making an impact on education access around the world. In the United States, Pearson works on finding solutions for the social and economic problems that lead to low high-school graduation rates. Pearson also invests in low-cost private education around the world. The essay highlights how access to education can be improved through new educational technology for students with disabilities and outreach to underserved communities. Since this article was sponsored by Pearson, it doesn’t look at what other companies or organizations are doing, but it provides a good model for the kinds of actions that can help.

Jan Lee is an award-winning editorial writer and former news editor, whose work can be found Triple Pundit, JustMeans, and her blog The Multicultural Jew. On Triple Pundit, she’s written stories on a variety of topics, such as Leadership & Transparency, Data & Technology, and Energy & Environment.

“ Higher Education Is A Human Right ” – Heidi Gilchrist

It’s established that primary education is a human right, but what about higher education? In her essay, Heidi Gilchrist argues that it is. Looking specifically at the United States, her reason is that in order to access the American dream- which she calls the “ideal it [the country] was founded on” – people need higher education. As global society starts to depend more on technology and other complex systems, more and more jobs will require advanced degrees. In order to truly succeed and achieve their dreams, people will need higher education. Gilchrist offers another perspective on the issue, as well, writing that countries need people with advanced degrees to protect national security. Having higher education remain a luxury means only the wealthy can access it, and that harms a society in every regard.

Heidi Gilchrist is a Lecturer-in-Law at Columbia Law School and an Assistant Professor of Legal Writing at Brooklyn Law. In her previous career, she served as a national security analyst in the federal government, and as a laison to the FBI’s Joint Terrorism Task Force in New York City. She writes on national security and how it converges with human rights law and civil rights.

“ Public schools for private gain: The declining American commitment to serving the public good ” – David F. Larabee

In an essay that is both a history lesson and critical look at the pursuit of education as a “private benefit,” Larabee argues that this new view of schooling is dangerous. While in the past, school had been seen as a community where students of all backgrounds and finances mingle and receive opportunities, it’s morphing into just another capitalist arena. Wealthy parents are choosing private schools and focusing their resources there, while public schools and students struggle. School is becoming “a means of private advancement,” Larabee says, instead of a source of public good. This has serious long-term consequences.

David Larabee is a Lee L. Jacks Professor of Education, emeritus, at the Standard University Graduate School of Education. He describes himself as a “sociologically oriented historian of education.” He is also an author, most recently of 2017’s A Perfect Mess: The Unlikely Ascendancy of American Higher Education.

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What you need to know about the right to education

Why is it important to have the right to education formally enshrined in law and other instruments .

Around 244 million children and youth are deprived of education worldwide as a result of social, economic and cultural factors. 98 million of whom are in Sub-Saharan Africa, the region with the highest out-of-school population. Yet only 70 per cent of the world’s countries legally guarantee 9 years or more of compulsory education. And an estimated 771 million young people and adults lack basic literacy skills, of which two thirds are women

Education is an empowering right in itself and one of the most powerful tools by which economically and socially marginalized children and adults can lift themselves out of poverty and participate fully in society. To unleash the full transformational power of education and meet international markers of progress such as those of the Sustainable Development Agenda, everyone must have access to it. Binding countries to certain standards by way of law is one way of ensuring access to quality education is widened. Legal guarantees and protection of the right to education are not time-bound (unlike policies and plans). They also ensure that judicial mechanisms (such as courts and tribunals) can determine whether human rights obligations are respected, impose sanctions for violations and transgressions, and ensure that appropriate action is taken.

What are the key legal documents and instruments?

Education as a fundamental human right is enshrined in the Universal Declaration of Human Rights (1948) and many other international human rights instruments . UNESCO’s foremost standard-setting instrument is the Convention against discrimination in education which dates from 1960 and has so far been ratified by 107 States. It is the first international instrument which covers the right to education extensively and has a binding force in international law. The Convention also acts as a cornerstone of the Education 2030 Agenda and Sustainable Development Goal 4 for education adopted by the international community. SDG 4 is rights-based and seeks to ensure the full enjoyment of the right to education as fundamental to achieving sustainable development.

How does UNESCO work to ensure the right to education?

Through its programme on the right to education, UNESCO develops, monitors and promotes education norms and standards in relation to the right to education to advance the aims of the Education 2030 Agenda. It provides guidance, technical advice and assistance to Member States in reviewing or developing their own legal and policy frameworks, and builds capacities, partnerships and awareness on key challenges especially in light of the evolving education context .

It also supports and monitors States in their application of legal instruments, conventions and recommendations through periodic consultations , its online Observatory on the right to education and the interactive tool, Her Atlas, which shows where in the world and to what extent women and girls have their educational rights protected by law. As part of the monitoring, UNESCO also works closely with the UN system and the Office of the High Commissioner for Human Rights.

In addition, it advocates for and promotes the right to education through communication actions as well as research and studies on specific components of this right such as on pre-primary education, higher education , and digital learning .

UNESCO mobilises, develops and fosters global partnerships to raise awareness on key issues such as the right to education of climate-displaced persons , non-state actors in education and the right to education of vulnerable groups .

Who does UNESCO partner with to ensure the right to education?

UNESCO has the lead role and responsibility in the field of the right to education in the United Nations system and cooperates with the following United Nations human rights bodies in monitoring the implementation of treaties and conventions relating to that right:

Office of the United Nations High Commissioner for Human Rights
UN Human Rights Committees
Universal Periodic Review
UN Special Rapporteur on the Right to Education
International Labour Organization

UNESCO also acknowledges the importance of non-governmental organizations (NGOS), associations and the intellectual community in international cooperation and has built a network with organizations in its fields of competence including:

The Right to Education Initiative promotes mobilization and accountability on the right to education and builds bridges between human rights, development and education.
The International Organization for the Right to Education and Freedom of Education, OIDEL - a non-profit NGO promoting and creating novel educational models and policies and financing options for schools.

More on UNESCO's partners for the right to education .

11 The Right to Education

Published: November 2018
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Education is a multiplier right. Without education, other rights cannot be fully enjoyed. Education is also an accelerator right: it equips people to enter the labour force and participate in public life. However, education is not only an instrumental right. It should primarily be regarded as an intrinsic right, valuable in its own terms. Section II considers how the freedom, social, and equality components of the right are reflected in different human rights instruments, contrasting these to education in the Sustainable Development Goals. Section III considers the meaning of ‘free and compulsory’ education and particularly the paradoxical nature of a compulsory right. Section IV examines the complex contestations between the freedom and equality dimensions of the right, especially in the context of parental choice as to the religious, moral, or political nature of the right to education. Section V is concerned with the extent to which a human rights approach to education can be used to achieve quality education.

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The Right to Basic Education

Introduction

Education rights are contained in section 29 of the South African Constitution. In terms of section 29 everyone has the right to a basic education, including adult basic education; [1] and to further education, which the state, through reasonable measures, must make progressively available and accessible. [2] These rights place a duty on the state to respect an individual’s right to education. It also imposes a positive obligation on the state to promote and provide education by putting in place and maintaining an education system that is responsive to the needs of the country.

The Aims of Education

Rights to education must be understood in light of the aim of education. Education should be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. [3] The right to education as described above is based on the premise that education is a precondition for the exercise of other rights. If guaranteed, it has the ability to unlock the enjoyment of other human rights and ultimately empower individuals to contribute and participate meaningfully in a free society.

Analysis of the Constitutional Framework

The right to basic education, including adult basic education, unlike other socio-economic rights in the Bill of Rights, is neither formulated as a right of access nor subject to internal qualifiers. The right to basic education is immediately realisable, as confirmed by the Constitutional Court in the Juma Masjid Case: [4]

“Unlike some of the other socio-economic rights, this right is immediately realisable. There is no internal limitation requiring that the right be ‘progressively realised’ within ‘available resources’ subject to reasonable legislative measures’. The right to a basic education in section 29 (1) (a) may be limited only in terms of a law of general application which is ‘reasonable and justifiable in an open and democratic society based on human dignity, equity and freedom.”

This means unlike other socio-economic rights where the state need only demonstrate that it has allocated resources rationally, the right to basic education must be prioritised regardless of the State’s other budgetary commitments. It can only be limited in such a way that is compliant with section 36, as the Court has stated.

While maintaining that this right is not subject to resource constrains, the content and meaning of this right is yet to be interpreted by a court, particularly with reference to the standard of education that is protected by the right.

The Provision of the Right to Basic Education

In understanding the provision of the right to basic education, we should be guided by the preamble of the Constitution, which gives purpose and meaning to the Constitution. It states that the task ahead is to:

“Heal the division of the past and establish a society based on democratic values, social justice and fundamental rights; ... [and] improve the quality of life of all citizens and free the potential of each person.” [5]

Also important in defining the meaning of the right to education is the International Covenant on Economic, Social and Cultural Rights (ICESCR). This is arguably the most significant international convention, which recognises the right of everyone to education. [6] Although not ratified by South Africa, it can be used to guide South Africa’s relatively young socio-economic rights jurisprudence. [7]

General Comment No. 13, published by the Committee on Social, Economic and Cultural Rights (CESCR) of the ICESCR, states that while the exact standard protected by the right may vary according to conditions prevailing in a particular State, education in all its forms and at all levels shall exhibit the following interrelated and essential features: availability, accessibility, acceptability and adaptability. [8]

Availability - functioning educational institution must be available to all learners. This entails the provision of buildings, sanitation facilities for both sexes, teaching material, libraries, computer facilities and access to the internet. [9]
Accessibility - has three overlapping dimensions: non-discrimination, physical accessibility and economic accessibility; meaning education must be affordable, within safe physical reach, and must be granted on a non-discriminative basis. [10]
Acceptability - the form and substance of education, including curricula and teaching methods, have to be acceptable. This refers to the relevance, appropriateness and quality of education, subject to educational objectives required. [11]
Adaptability - education has to be flexible so it can adapt to societal changes and respond to the needs of learners within their diverse social and cultural settings. [12]

The Notion of Reasonableness

Several claims have been made against the State in the Constitutional Court for the enforcement of other socio-economic like health, housing and social security. This has allowed the Court to scrutinise the reasonableness of Government’s actions to provide for those rights. The notion of reasonableness has become the standard against which the Constitutional Court assesses Government’s compliance to meet its constitutional obligations in respect of qualified socio-economic rights. [13]

An application to review the reasonableness of the right to basic education has not yet been made. This means Government’s compliance to meet its constitutional obligation with regards to the right to education cannot be assessed.

In the Grootboom case, the Constitutional Court detailed the standard of 'reasonableness’ in the context of assessing the State’s positive obligation to realise socio-economic rights. The following criteria can be distilled from the judgement.

In order for a government programme to be deemed reasonable, it must display the following characteristic:

be comprehensive and co-ordinated with a clear description of responsibilities amongst the various spheres of government, with the national government having overreaching responsibility;
be capable of facilitating the realisation of the right;
be reasonable both in conception and implementation;
be balanced and flexible and make appropriate provision for crises and for short-, medium and long-term needs;
it cannot exclude a significant segment of society; and
it must include a component that responds to the urgent needs of those in the most desperate situations and the state must plan, budget and monitor measures to address immediate needs and the management of crises. [14]

The Constitutional Court further stated that a court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. [15]

Considering that this standard of ‘reasonableness’ was established for a qualified socio-economic right, an appealing case can be made that, an application to review the reasonableness of an unqualified socio-economic right, such as education, is desirable and probably necessary.

[1] http://www.info.gov.za/documents/constitution/1996/a108-96.pdf [2] ibid. [3] http://www.un.org/en/documents/udhr/ [4] http://www.saflii.org.za/za/cases/ZACC/2011/13.html [5] http://www.info.gov.za/documents/constitution/1996/a108-96.pdf [6] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx [7] http://www.saflii.org.za/za/journals/PER/2011/34.html#sdfootnote100sym [8] http://www.unhchr.ch/tbs/doc.nsf/0/ae1a0b126d068e868025683c003c8b3b?Opendocument [9] ibid. [10] ibid. [11] ibid. [12] ibid. [13] http://www.saflii.org.za/za/journals/PER/2011/34.html#sdfootnote100sym [14] Sandra Liebenberg, http://www.communitylawcentre.org.za/projects/socio-economic-rights/Research [15] http://www.saflii.org/za/cases/ZACC/2000/19.pdf

Anele Mtwesi – [email protected] Researcher Helen Suzman Foundation

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Your Right to Equality in Education

Getting an education isn’t just about books and grades – we’re also learning how to participate fully in the life of this nation. (We’re tomorrow’s leaders after all!)

But in order to really participate, we need to know our rights – otherwise we may lose them. The highest law in our land is the U.S. Constitution, which has some amendments, known as the Bill of Rights. The Bill of Rights guarantees that the government can never deprive people in the U.S. of certain fundamental rights including the right to freedom of religion and to free speech and the due process of law. Many federal and state laws give us additional rights, too.

The Bill of Rights applies to young people as well as adults. And what I’m going to do right here is tell you about EQUAL TREATMENT .

DO ALL KIDS HAVE THE RIGHT TO AN EQUAL EDUCATION?

Yes! All kids living in the United States have the right to a free public education. And the Constitution requires that all kids be given equal educational opportunity no matter what their race, ethnic background, religion, or sex, or whether they are rich or poor, citizen or non-citizen. Even if you are in this country illegally, you have the right to go to public school. The ACLU is fighting hard to make sure this right isn’t taken away.

In addition to this constitutional guarantee of an equal education, many federal, state and local laws also protect students against discrimination in education based on sexual orientation or disability, including pregnancy and HIV status.

In fact, even though some kids may complain about having to go to school, the right to an equal educational opportunity is one of the most valuable rights you have. The Supreme Court said this in the landmark Brown v. Board of Education case when it struck down race segregation in the public schools.

If you believe you or someone you know is being discriminated against in school, speak up! Talk to a teacher, the principal, the head of a community organization or a lawyer so they can investigate the situation and help you take legal action if necessary.

ARE TRACKING SYSTEMS LEGAL?

Yes, as long as they really do separate students on the basis of learning ability and as long as they give students the same basic education.

Many studies show, however, that the standards and tests school officials use in deciding on track placements are often based on racial and class prejudices and stereotypes instead of on real ability and learning potential. That means it’s often the white, middle-class kids who end up in the college prep classes, while poor and non-white students, and kids whose first language isn’t English, end up on “slow” tracks and in vocational-training classes. And often, the lower the track you’re on, the less you’re expected to learn – and the less you’re taught.

Even if you have low grades or nobody in your family ever went to college, if you want to go to college, you should demand the type of education you need to realize your dreams. And your guidance counselor should help you get it! Your local ACLU can tell you the details of how to go about challenging your track placement.

CAN STUDENTS BE TREATED DIFFERENTLY IN PUBLIC SCHOOL BASED ON THEIR SEX?

Almost never. Public schools may not have academic courses that are just for boys – like shop – or just for girls – like home economics. Both the Constitution and federal law require that boys and girls also be provided with equal athletic opportunities. Many courts have held, however, that separate teams for boys and girls are allowed as long as the school provides students of both sexes the chance to participate in the particular sport. Some courts have also held that boys and girls may always be separated in contact sports. The law is different in different states; you can call your local ACLU affiliate for information.

CAN GIRLS BE KICKED OUT OF SCHOOL IF THEY GET PREGNANT?

No. Federal law prohibits schools from discriminating against pregnant students or students who are married or have children. So, if you are pregnant, school officials can’t keep you from attending classes, graduation ceremonies, extracurricular activities or any other school activity except maybe a strenuous sport. Some schools have special classes for pregnant girls, but they cannot make you attend these if you would prefer to be in your regular classes.

CAN SCHOOLS DISCRIMINATE AGAINST GAY STUDENTS?

School officials shouldn’t be able to violate your rights just because they don’t like your sexual orientation. However, even though a few states and cities have passed laws against sexual orientation discrimination, public high schools have been slow to establish their own anti-bias codes – and they’re slow to respond to incidents of harassment and discrimination. So while in theory, you can take a same-sex date to the prom, join or help form a gay group at school or write an article about lesbian/gay issues for the school paper, in practice gay students often have to fight hard to have their rights respected.

WHAT ABOUT STUDENTS WITH DISABILITIES?

Although students with disabilities may not be capable of having exactly the same educational experiences as other students, federal law requires that they be provided with an education that is appropriate for them. What is an appropriate education must be worked out individually for each student. For example, a deaf student might be entitled to be provided with a sign language interpreter.

In addition to requiring that schools identify students with disabilities so that they can receive the special education they need in order to learn, federal law also provides procedures to make sure that students are not placed in special education classes when they are not disabled. If you believe you’re not receiving an appropriate education, either because you are not in special classes when you need to be, or because you are in special classes when you don’t need to be, call the ACLU!

And thanks to the Americans with Disabilities Act (ADA), students who are HIV positive have the same rights as every other student. People with HIV are protected against discrimination , not only in school but in many other public places such as stores, museums and hotels.

People with HIV aren’t a threat to anyone else’s health, because the AIDS virus can’t be spread through casual contact. That’s just a medical fact. Your local ACLU can provide information on how to fight discrimination against people with HIV.

CAN I GO TO PUBLIC SCHOOL IF I DON’T SPEAK ENGLISH?

Yes. It is the job of the public schools to teach you to speak English and to provide you with a good education in other subjects while you are learning. Students who do not speak English have the right to require the school district to provide them with bilingual education or English language instruction or both.

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” –Title IX, Education Amendments of 1972

We spend a big part of our life in school, and our voices count. Join the student government! Attend school meetings! Petition your school administration! Talk about your rights with your friends! Let’s make a difference!

Produced by the ACLU Department of Public Education. 125 Broad Street, NY NY 10004. For more copies of this or any other Sybil Liberty paper, or to order the ACLU handbook The Rights of Students or other student-related publications, call 800-775-ACLU or visit us on the internet at https://www.aclu.org .

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Right To Education – A Fundamental Right (Article 21-A)

Introduction.

“Education is the primary key to unlocking other human rights”. -Katarina Tomasevski, Croatia, UN Special Rapporteur

Education, the key to unlocking the sense of justice and injustice, has long been serving the purpose of awakening the desire to be aware of other fundamental rights. The essence of education in human life is to bring stability and uplift problem-solving abilities and creative skills, including the elevation in critical analysis capacity and pursuing an undeniable passion. Henceforth, mandating overall access to education for every child irrespective of any social background and gender shall contribute to the generation of necessary skills, knowledge, ethics, and attitudes among children that would make them active and dutiful citizens of our country.

What are Fundamental Rights?

Fundamental rights have been stated in the Constitution of India as the basic human rights which are guaranteed to all citizens. They are applied without any discrimination based on race, religion, gender and caste. [1] Significantly, fundamental rights are justiciable rights. Therefore, they are enforceable by the courts, subject to certain conditions. The term fundamental right provides primarily two explanations for these rights are:

Expressly mentioned in the Constitution, which in turn guarantees them.
Enforceable in the court of law in the event of any violation.

Fundamental Rights are mentioned under Article 12 to Article 35 of the Indian Constitution. However, these Fundamental rights are not absolute. Therefore, they are subject to reasonable restrictions that are concerned with the security of the state, standards of public morality and decency and amicable relations with foreign countries. Constitutional Amendment by the Parliament could amend Fundamental rights so far, and the amendment is not altering the basic structure of the Constitution . [2]

The Essence of Right to Education (Article 21-A)

Initially, the right to education was not a part of the fundamental rights enumerated in the Indian Constitution. However, the mention of the Right to Education long existed under Article 45 as the Directive Principle of State Policy . Article 45 expressly states that within 10 years from the Constitution’s commencement, the state has a duty to provide free and compulsory education for all children until they attain the age of 14 years. [3] However, such direction under Article 45 was not limited to only primary education but instead extended to providing free education to all children up to the age of 14 years, irrespective of the stage of education. Furthermore, the Supreme Court has mentioned that the state could discharge the foremost obligation under Article 45 through government-aided schools, and it is not required to be performed at the expense of the minority communities.

Effects of 86 th Amendment (2002)

The Constitutional Amendment is made with the intent to protect the citizen’s rights to education, as well as to estimate the forthcoming and existing challenges in India concerning education. Three main provisions in Constitution that 86 th Amendment, 2002 incorporates, which in turn promotes free and compulsory education to children between the age 6 to 14 years. They are as follows:-

Incorporation of Article 21A as the Fundamental Right has expressly mentioned the right of every child to have access to full-time elementary education that would attain the standard of equality and quality through a formal school which would be satisfactory in terms of setting the norms and standard of the education. [4]
Before the 86th Amendment 2002, Article 45 of Directive Principles of State Policy stated that free and compulsory education shall be provided to children up to the age of 14 years old. However, subsequent to the amendment, Article 45 was altered and modified, which entails that the state shall endeavour to impart early childhood care and education for every child till the age of 6 years instead of 14. The age limit has been lowered to emphasize the prominence of early childhood care and education. [5]
Article 51-A(k) was added as the fundamental duties of the parents and guardians to provide and facilitate the opportunities for education to their children who are between the age group of 6 to 14 years.

Right to Education (RTE) Act 2009

The Parliament enacted the Right to Education Act 2009 (RTE Act) intending to regulate the degradation of the standard of the education system and to uplift the education imparting procedure by implementing specific provisions that required certain reformations to live up to the spirit of catering a quality and equitable education irrespective of caste, creed, gender economic and social background. [6] The Act was enacted on 4 th August 2009 and came into force on 1 st April 2010. The principal features of the Act are as follows:

The Act clearly mentions that education is the Fundamental Right of every child.
Private schools must keep 25% of seats reserved for children belonging to the backward classes in terms of social background.
The Act also assures educational rights for dropout students.
Unrecognized schools are barred from interviewing a child or a parent for admission.
Schools are barred from charging any capitation fees at any step while providing admission to a child.
Children pursuing elementary education shall not be expelled, held back, or pressured to pass a board examination.
The Act mandates that every government and aided schools create a School Management Committee composed of 75% of members as parents or guardians.
The Act prohibited physical punishment, mental harassment and private tuition by the teachers.
The Act states the provisions for a child’s admission to an appropriate class based on his/her age in the event that child has never been admitted to any school. To help keep up the child with other students, provisions relating to special training have also been mentioned in the Act. [7]

The RTE Act 2009 acted as a catalyst in accelerating the spirit of imparting free and compulsory elementary education to children between the age group of 6 to 14 years. Subsequent to the inception of the Act, a drastic change came about in the standard of education both in access and enrolment levels; literacy rates of the states also elevated at large. However, lately, due to a lack of an appropriate regulatory framework, the practical application and compliance with the provisions of the Act are facing repeated failure. [8]

Intake of Indian Judiciary on Article 21-A

The Supreme Court of India has repeatedly upheld the impact of Article 21-A in several Public Interest Litigation cases, such as:

Mohini Jain v. State of Karnataka 1992 AIR 1858

The Court, in the absence of any Constitutional Provision for the Right to Education, held that the right to life and personal liberty under Article 21 includes the Right to Education as education is required for the overall development of personality, without which one would not be able to have the enjoyment of his right to life. The purpose of the right to life is baseless without the Right to Education.

Unni Krishnan, J.P & Ors. v. State of Andhra Pradesh & Ors. 1993 AIR 217

By narrowing the approach taken by the Mohini Jain case, the Supreme Court held that the Right to Education is undoubtedly a Fundamental Right that stems from Article 21. However, the right to free education is available to children until they attain the age of 14 years; after that, the obligation of the state to provide education is subject to economic capacity and development.

Avinash Mehrotra v. Union of India 6 SCC 398 (2009)

The Court held that it is a fundamental right to have access to education free from the fear of security and shall have appropriate safety measures in case of any threat to life. Therefore, the right to education includes providing safe schools in accordance with Articles 21 and 21A of the Constitution. No matter where a family seeks to educate its children, even if it is a private institution, the state must ensure that children suffer no harm in exercising their fundamental right to education.

One of the pivotal roles of the Indian Legislature in Indian history is to ensure that every child must receive a primary education which is the fundamental right of every child. The nation’s future lies with its children. Education is, therefore, a tool for introducing a child to cultural and ethical values, thereby preparing him for future professional training and assisting him in making a normal adjustment to his surroundings. A child today cannot succeed in life without education. The fundamental right to education applies to everyone equally. The most crucial component of higher education is elementary education, which should be upheld with prominence to bring about the nation’s overall welfare.

Frequently Asked Questions (FAQs)

Who introduced article 21-a.

Article 21-A was inserted in the Indian Constitution by the Tapas Majumdar Committee, which was established in 1999, to insert the article in the Constitution. In the year 2002, the 86th Amendment to India’s Constitution designated education as a fundamental right in Part III of the Constitution.

What is the difference between Article 21-A and Article 45?

Article 21-A states that the state shall mandatorily impart free and compulsory elementary education to children belonging to the age group of 6 to 14 years. On the contrary, Article 45 states that the state is not obligated to provide the same; rather, the state shall endeavour to provide every child upto 6 years of age an early childhood education and care. Therefore, Article 21-A is a guaranteed fundamental right, while Article 45 is a directive principle of state policy. For example, any person of age group between 6 to 14 years can approach the court of law under Article 21-A if he or she has been deprived of free and compulsory education since Article 21-A is a Fundamental Right under Part III of the Constitution. However, asimilar case shall not prevail in the case of Article 45. The aggrieved person cannot move to a court of law against the state in the event of not providing early childhood care and education by the state to children upto 6 years of age. No cause of action shall lie in the event of non-compliance of the state with Article 45 unless the executive frames any policy or the legislature makes a definite law in that regard since it falls under Part IV, Directive Principle of State Policy.

What is the legal remedy in the event of a breach of Article 21-A?

The right to education was initially a Directive Principle of State Policy and was not enforceable in a court of law. Later, judicial decisions held it as an integral part of Article 21 as a Fundamental Right and are now necessary for a stable life. Therefore, the right to education then attained the level of being enforceable in a court of law. In 2009, although RTE Act vividly discussed the rights of citizens and the state’s obligation in implementing the Act’s objectives, the state and the private institutions repeatedly violated the right. Violation of RTE by private schools and institutions, lack of penal action against such schools and institutions and a massive failure to establish regulatory bodies for teachers are the primary reasons for the failure of the objectives of the RTE Act 2009. Proper compliance with the RTE Act 2009 is impossible without an appropriate regulatory framework.

[1] Gursharan Singh Kainth “Right to education” Bharti publications Delhi 2014, page no. 29.

[2] Madan, Amman (2003)” Education as vision for social change, Economic and Political Weekly May 31, 2003 pp.2135-2136.

[3] Prof. Krishna Pal Malik “ Right to Elementary Education” pg no.01 Allahabad Law Agency, Faridabad 2012.

[4] Dr. J N Pandey,” The Constitutional Law”p.317 Central Law Agency, Allahabad 2004.

[5] S. Nurullah and JP Naik, “A student History of education in India “p. 60 Macmillan & co. Ltd. England,1962.

[6] Agrawal, Tushar. “Right to Education Act and Educationally Backward States in India.” SSRN Electronic Journal, 2012, doi:10.2139/ssrn.1985122.

[7] BL Hansari A Pasayat, Right to life and liberty under Constitution, NM Tripathi, Oct 28 2008.

[8] Nishathajaswal, Role of Supreme court with regard to the Right to life and personal liberty, Ashish public house 1990, 438 – 439 pg, Oct 28 2008.

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Essay on Fundamental Rights for Students and Children

500+ words essay on fundamental rights.

There are some basic rights that are very well-known as fundamental to human existence and crucial for human expansion. In the absence of fundamental rights, a man’s existence would be worthless. So, the political institution’s role and responsibility mainly emphasized on empowering the people, especially the minorities to live in dignity with rights of equality, dignity and religious freedom. Fundamental Rights have been classified into 6 categories that are Right to Equality, Right to Freedom, Right against Exploitation, Right to Freedom of Religion, Right to Cultural and Educational, Right to Constitutional Remedy.

Right to Equality

This right includes the equality before the Law which implies a prohibition of discrimination on the basis of caste, creed, color or sex, equal protection of the law, equal opportunity in public employment and abolition of untouchability and titles. It also states that every citizen shall have equal access to all public places.

To provide equal opportunities there will be no reservation in government services except in the case of scheduled caste, scheduled tribes, and other backward classes and for war widows and physically handicapped person. This right was made to abolish untouchability which was practiced in India for decades.

Right to Freedom

This right includes the right to freedom of speech, freedom of expression, and freedom to form unions and associations. It also includes freedom to travel anywhere in India, freedom to live in any part of India, and the freedom to choose any profession of their interest.

This right also states that any citizen of India has the full right to purchase, sell and hold property in any part of the country. According to these rights, people will have the liberty to indulge in any trade or business. This right also defines that a person cannot be convicted twice for the same offense and it also cannot be compelled to stand as a witness against oneself.

Right against Exploitation

This right includes the prohibition of any form of forced labor. Children who are below the age of 14 years are not allowed to work in mines or factories where the risk of life is involved. According to these rights, no person has the right to exploit the other person in any way.

Therefore human trafficking & begging have been made legal offenses and those found involved are to be penalized. According to this rights slavery and traffic among women and children for dishonest purposes has been declared an offense. Payment of minimum wage against the labor is defined and no compromise is allowed in this regard.

Get the huge list of more than 500 Essay Topics and Ideas

Right to Freedom of Religion

These right states that there will be full freedom of conscience for all citizens of India. All people shall have equal right to freely adopt, practice and spread the religion of their choice. The state shall not hinder in any religious affairs of any individual in any manner. In this, all religions have a right to establish and uphold institutions for religious and charitable purposes. Also, they will be free to manage their own affairs with respect to these rights.

Cultural and Educational Right

This right is one of the most important rights as education is the primary right of each child. According to this right, all are free to follow the culture of their choice. Also, all are free to get the education of their choice.

No individual will be denied admission in any of the educational institutes on the basis of their culture, caste or religion. According to this, all the minorities have the right to establish their own educational institutes.

Right to Constitutional Remedy

This right is a very special right given to all the citizens. According to this right, a citizen has the power to go to the court in case of denial of any of the fundamental rights. The court stands as a guard for anybody against the breach of these rights.

If the government forcefully or intentionally does injustice to any individual or if a person is imprisoned without any reason or by the unlawful act then this right allows the person to go to the court for getting justice against the actions of the government.

Fundamental rights play a very significant role in the life of any citizen. These rights can defend during the time of complexity & difficulty and help us grow into a good human being and that’s why all the rights are the needs of people.

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Advancing social justice, promoting decent work ILO is a specialized agency of the United Nations

The ILO Declaration on Fundamental Principles and Rights at Work , adopted in 1998 and amended in 2022, is an expression of commitment by governments, employers' and workers' organizations to uphold basic human values - values that are vital to our social and economic lives. It affirms the obligations and commitments that are inherent in membership of the ILO, namely:

freedom of association and the effective recognition of the right to collective bargaining;
the elimination of all forms of forced or compulsory labour;
the effective abolition of child labour;
the elimination of discrimination in respect of employment and occupation; and
a safe and healthy working environment.

Read the full text of the Declaration

Follow-up to the Declaration

The commitment is supported by a Follow-up procedure. The aim of the follow-up is to encourage the efforts made by the Members of the Organization to promote the fundamental principles and rights enshrined in the Constitution of the ILO and the Declaration of Philadelphia and reaffirmed in the 1998 Declaration.

This follow-up has two aspects based on existing procedures:

The Annual follow-up concerning non-ratified fundamental Conventions will entail merely some adaptation of the present modalities of application of article 19, paragraph 5(e), of the Constitution.
The Global Report on fundamental principles and rights at work that will serve to inform the recurrent discussion at the Conference on the needs of the Members, the ILO action undertaken, and the results achieved in the promotion of the fundamental principles and rights at work.

There is a third way to give effect to the Declaration, the Technical Cooperation Projects which are designed to address identifiable needs in relation to the Declaration and to strengthen local capacities thereby translating principles into practice.

Annual Review under the follow-up to the Declaration

Member States that have not ratified one or more of the fundamental ILO instruments directly relating to the principles and rights stated in the Declaration, including the Protocol of 2014 to the Forced Labour Convention, 1930 , are asked each year to report on the status of the relevant rights and principles within their borders. The reporting process provides governments and social partners with an opportunity to state what measures have been taken towards achieving respect for the Declaration, as well as to note impediments to ratification of the relevant instruments and areas where assistance may be required.

On the basis of the governments’ annual reports and observations by employers’ and workers’ organizations, the International Labour Office prepares and updates country baselines , which serve as a starting point to evaluate the extent to which the fundamental principles and rights at work are given effect in practice. The baselines also aim at facilitating the governments’ future reporting obligations.

See all country baselines under the 1998 Declaration Annual Review

Five Fundamental Principles and Rights at Work

Freedom of association and the right of collective bargaining

Elimination of forced or compulsory labour

Abolition of child labour

At the import and export shipping yard in Singapore

Elimination of discrimination at work

A safe and healthy working environment

Integrated Strategy on Fundamental Principles and Rights at Work 2017-2023

The teeth of the ILO - The impact of the 1998 ILO Declaration on Fundamentals Principles and Rights at Work

No One Has a Right to Protest in My Home

The difference between a private yard and a public forum

An illustration of a home with a dialogue bubble above it

Listen to this article

Produced by ElevenLabs and News Over Audio (NOA) using AI narration.

As a constitutional scholar and the dean of the UC Berkeley School of Law, I strongly defend the right to speak one’s mind in public forums. But the rancorous debate over the Israel-Hamas war seems to be blurring some people’s sense of which settings are public and which are not. Until recently, neither my wife—Catherine Fisk, a UC Berkeley law professor—nor I ever imagined a moment when our right to limit a protest at a dinner held at our own home would become the subject of any controversy.

Ever since I became a law-school dean, in 2008, the two of us have established a custom of inviting each class of first-year students over for a meal. These dinners help create and reinforce a warm community, and, to accommodate all students, they take place on many evenings during the year. The only exceptions were in 2020 and 2021 because of COVID. So last year and this year, at the request of the presidents of the third-year classes, we organized make-up dinners on three successive nights and invited each of the 400 graduating students to attend one.

The week before the dinners on April 9, 10, and 11, though, a group at Berkeley called Law Students for Justice in Palestine put a profoundly disturbing poster on social media and on bulletin boards in the law-school building. No dinner with Zionist Chem while Gaza starves , the poster declared in large letters. (Students sometimes refer to me as “Chem.”) It also included a caricature of me holding a bloody knife and fork and with what appeared to be blood around my lips—an image that evokes the horrible anti-Semitic blood libel, in which Jews are accused of killing and cannibalizing gentile children. The poster attacks me for no apparent reason other than that I am Jewish. The posters did not specify anything I personally had said or done wrong. The only stated request was that the University of California divest from Israel—a matter for the regents of the University of California, not the law school or even the Berkeley campus.

George Packer: The campus-left occupation that broke higher education

Several Jewish students and staff members told me that the posters offended them and asked me to have them removed. Even though their presence upset me too, I felt that I could not take them off bulletin boards at a public law school. Though appalling, they were speech protected by the First Amendment.

The group responsible for the posters was not content to have its say on paper. Student-government leaders told me that Law Students for Justice in Palestine demanded that my wife and I cancel the dinners; if not, the group would protest at them. I was sad to hear this, but the prospect of a demonstration in the street in front of our home did not change our plans. I made clear that we would still host dinners for students who wanted to attend.

On April 9, about 60 students came to our home for dinner. Our guests were seated at tables in our backyard. Just as they began eating, I was stunned to see the leader of Law Students for Justice in Palestine—who was among the registered guests—stand up with a microphone that she had brought, go up the steps in the yard, and begin reading a speech about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop speaking and leave the premises. The protester continued. At one point, my wife attempted to take away her microphone. Repeatedly, we said to her: You are a guest in our home. Please leave.

The student insisted that she had free-speech rights. But our home is not a forum for free speech; it is our own property, and the First Amendment—which constrains the government’s power to encroach on speech on public property—does not apply at all to guests in private backyards. The dinner, which was meant to celebrate graduating students, was obviously disrupted. Even if we had held the dinner in the law-school building, no one would have had a constitutional right to disrupt the event. I have taught First Amendment law for 44 years, and as many other experts have confirmed, this is not a close question.

Some attendees sympathetic to the student-group leader recorded a video. An excerpt of it appeared on social media and quickly went viral. Soon newspapers and magazines published stories about it. Some commentators have criticized my wife for trying to get hold of the microphone. Some have said that I just should have let the student speak for as long as she wanted. But in all of the dinners we have held over more than 15 years, not once has anyone attempted to give a speech. We had no reason to change the terms of the dinner to accommodate someone from an organization that put up anti-Semitic images of me.

After struggling over the microphone, the student said if we let go of it, she would leave. We relented, and she departed, along with about 10 other students—all of whom had removed their jackets to show matching T-shirts conveying a pro-Palestinian message.

Michael Powell: The unreality of Columbia’s ‘liberated zone’

The dinners went forward on Wednesday and Thursday. On Thursday night, about 15 people came to our home and stood on the street in front of it, and then on the path directly next to our backyard. They chanted loudly and at times offensively. They yelled and banged drums to make as much noise as possible to disturb the dinner. The event continued.

Being at the center of a social-media firestorm was strange and unsettling. We received thousands of messages, many very hateful and some threatening. For days, we got death threats. An organized email campaign demanded that the regents and campus officials fire my wife and me, and another organized email campaign supported us. Amid an intensely painful sequence of events, we experienced one upside: After receiving countless supportive messages from people we have met over the course of decades, we felt like Jimmy Stewart at the end of It’s a Wonderful Life .

Overall, though, this experience has been enormously sad. It made me realize how anti-Semitism is not taken as seriously as other kinds of prejudice. If a student group had put up posters that included a racist caricature of a Black dean or played on hateful tropes about Asian American or LGBTQ people, the school would have erupted—and understandably so. But a plainly anti-Semitic poster received just a handful of complaints from Jewish staff and students.

Many people’s reaction to the incident in our yard reflected their views of what is happening in the Middle East. But it should not be that way. The dinners at our house were entirely nonpolitical; there was no program of any kind. And our university communities, along with society as a whole, will be worse off if every social interaction—including ones at people’s private homes—becomes a forum for uninvited political monologues.

I have spent my career staunchly defending freedom of speech. As a dean, I have tried hard to create a warm, inclusive community. As I continue as dean of Berkeley Law, I will endeavor to heal the divisions in our community. We are not going to solve the problems of the Middle East in our law school, but we must be a place where we treat one another with respect and kindness.

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