Survey Submission -Public Consultation on Human Rights Guiding Principles for States’ Obligations Regarding Private Education

Here is one set of answers submitted:

“Does the text adequately address the topic of potential negative impacts of private educational operators on the right to education?”

In my opinion the text does not “adequately address” the topic of potential negative impacts of private educational operators on the right to education, but not because the text has failed in the way implied by the wording of this question.

The problem is rather, that all kinds of ‘private actors’ are lumped together as if their negative impact were identical and clearly established, and as if a single set of state regulations could appropriately address them all.

In truth there is an incalculable difference between Curro holdings and a small private Reggio Emilia-inspired co-op, or a democratic self-directed learning community whose fees are entirely set by income and have no lower limit. They are completely different in terms of both their ‘public good’ and ‘educational freedom’ impacts on the enjoyment of the right to education.

When reviewing input about the potential negative impacts of private education, it is important to consider whence this input comes. For example, in South Africa the government opportunistically promotes a stereotype of racist white Afrikaans Christian fundamentalist home-schoolers, while the truth of the boom in home-education is far more diverse and has primarily to do with downright dangerous and abusive (as well as educationally inadequate) public facilities, along with the lack of alignment between state education and General Comment #1.

It is popular rhetoric for state-employees to claim that private actors damage the states’ ability to provide quality public education, in line with the current general culture of scapegoating others for their own shortcomings. In South Africa we see state outsourcing to international tech profiteers http://firstmonday.org/ojs/index.php/fm/article/view/8054/6585 go hand in hand with the attempted persecution of parents and micro-facilities (Basic Education Laws Amendment Bill, and current Draft Home-school policy) that choose approaches better aligned with General Comment #1 than state regulations permit, (to bring more data calves into the field they’ve promised to sell?)

The current version of the Guiding Principles might be able to help with the former, but it will worsen the latter. With an overriding emphasis on states’ obligations to regulate and monitor, phase out and liquidate private education, the smallest actors will be the easiest targets, and the smallest people will suffer. The Guiding Principles as they currently stand can – and probably will – be used by political careerists as weapons in their distractionist witch-hunts.

It is critical we don’t fall into utilitarian assumptions. We cannot afford to assume that states, just by dint of being states, are generally ethical best-practice educational operators superior to private operators. State education even if free and universal, is also capable of human rights abuses. The right to ‘universally free’ education is only one aspect of the right to education and to primarily emphasise that as being key for states to upholding the right to education, is to invite authoritarian and minimalist practises that are easy for states to administer and justify to MDG monitors but hellish for individual children’s actual education and well-being.

It is necessary not only to say that
States must ensure the availability of prompt, accessible, effective, and independent grievance and redress mechanisms, including where necessary, judicial remedies, allowing any rights-holder or, where possible, public interest groups to seek remedies for the failure of a private educational operator to comply with the applicable State regulations. (p16, D)
But to also say that
States must ensure the availability of prompt, accessible, effective, and independent grievance and redress mechanisms, including where necessary, judicial remedies, allowing any rights-holder or, where possible, public interest groups to seek remedies for the failure of public education policy and practice to respect, protect and promote human rights in general and the right to education as described in General Comment #1, in particular.

Please indicate the potential positive contributions of the private sectors that are not adequately addressed by the text, with examples to illustrate it, and if possible suggestion of how the text could address them.

The text as it stands assumes that all private educational operators are huge and profit-oriented, effectively rendering invisible the other end of the spectrum, such as home-educating parents (mentioned once in a footnote). Completely invisible in this text are private micro-facilities. While each one of these facilities is in itself small, their numbers are growing rapidly and they account for a larger share of the private education sector each year. Especially in under-resourced and rural areas, some such operators may even be able to develop services and networks that can eventually be integrated into new and improved public education offerings.

Currently, the Guiding Principles currently seem biased against private actors in education.

This is not surprising when we consider the skewed directive provided in the research guide associated with the development of these guidelines: “Generally, you are looking for evidence that the existence or growth of private education (or ‘privatisation’) is having a NEGATIVE effect on the enjoyment of human rights.” http://globalinitiative-escr.org/wp-content/uploads/2016/06/RTE_GIESCR_Methodological_Guide_Privatisation_and_Human_Rights_2016_E.pdf p4 (emphasis mine)

I have personally encountered a number of children who experienced significant abuse of their rights in state schools, who experienced a positive effect on the enjoyment of their rights when escaping into private education. We can’t know that if we don’t even look for it when we conduct research. Legitimate research helps us understand what IS so that we can make more informed decisions. It is not meant to selectively help us justify a chosen agenda.

I suspect that this blatantly biased approach stems from a primary concern with large, often destructive, profit-oriented edu-business in concert with state-abdication of responsibility for quality public education.

However, it is important that these Guiding Principles do not sabotage their legitimacy with a text tailored exclusively to this concern, thereby failing to address other more valuable categories of private actors in education, and the enjoyment of their rights that children experience by their existence.

Private educational operators such as parents and micro-facilities, depending on the approach used, can improve the realisation of the right to education by paying attention to the individual best interests of the child. They are actually able to support the“the holistic development of the full potential of the child” in reality rather than in theory – something that is almost impossible for a centralised and standardised state education system, or a franchised edu-business.

It is critical to realise that this benefit is vastly reduced if these micro-operators are constrained by ‘norms and standards’ created for macro-facilities: such as age-related grades, set curricula and standardised tests.

Private education of the micro and grass-roots kind can also improve the realisation of the right to education by:
1) giving sanctuary to children who suffer in bigger institutions both public and private – inter alia ‘highly sensitive’ children who find regular school environments overwhelming; left-handed and other ‘slow’ workers who need flexible time structures; children who are typical bully-targets; creative, energetic, and self-directed children; children with specific talents, and children with strengths that are mostly non-academic. Given the nature of children and their needs, it is a moot point whether any child at all is actually suited to education in a big institution. (It would be long-winded to provide examples/case descriptions for all of these here, but I can do so on request.)
2) providing hope for ‘drop-outs’.
3) providing a source of grass-roots political empowerment, social diversity, community involvement and empowerment through use of volunteer staff and collaborative resourcing.
4) providing living examples of child-friendly environments to inspire best-practice initiatives at state level, for example developing structures for child-participation in education.
5) providing innovative and experimental spaces for the evolution of educational practices better suited to the nature of children, as well as to the digital age.
6) through all of the above, keeping states on their toes and pushing states to improve the quality of public education offerings.

The text needs to address this by protecting small private educational operators rather than giving states a mandate or even imperative to wipe them out – which the text currently does.

There is a budding exploration of the heutagogical approach to education precisely since it is particularly suited to digital-age learning. My own experience is that heutagogy when used with children is also optimal for moving away from a paternalistic approach towards mutual respect and genuine empowerment. Since it is not yet widely understood that heutagogy is effective, appropriate and empowering for children and not only adults, families and facilities adopting heutagogical approaches, are particularly vulnerable to well-meaning but crippling interference.

One possibility would be to include explicit special protection for these forms of private education, for example the text that follows:

“Special Protection for Child-Friendly Private Education that Differs in Approach”
States must recognise that certain forms of private education have heutagogical approaches that are significantly different to the pedagogical approach that may be currently chosen by the particular state. Where private educational actors adopt child-friendly approaches that align with international human rights law except that they do not align with current state norms and standards, these private actors shall be exempted from state regulation.

The practitioners of each defined approach should be encouraged to form their own International, National and Regional guiding bodies, and to clearly articulate and promulgate their own specific best-practise norms and standards. For example, Democratic schools should be encouraged to define norms and standards for Democratic education, Montessori schools to do so for Montessori education, Self-Directed Education for SDE facilities, Reggio Emilia-inspired schools for Reggio education, and so on.

States also must recognise that home-education is only “home-schooling” when parents choose to home-educate a child using norms and standards related to pedagogical tools such as curricula, progression through ‘grades’, and quantifiable assessments. Parents who home-educate using a defined alternative approach must be guided by the best-practice guidelines, norms and standards set by the guiding bodies of their chosen style of education, rather than being compelled to comply with state norms and standards.”

It could be stipulated that exempt facilities demonstrably align with General Comment #1 and human rights in general; that in particular they practice inclusivity and non-discrimination; that they make arrangements for a ratio of students of different income levels; and that their size does not exceed 200 students.

Additional remedies are suggested below in other sections.

Please indicate your suggestion for important issues or guiding principles that you think are missing to address the role of private actors in education in line with human rights law, including where it would fit.

1) The Guiding Principles currently present no explicit guideline for dealing with small private educational operators ranging from home-educating parents through community co-ops to small private schools.

Since footnote 69 on p12 stipulates that these are included under the term ‘private educational operators’ that means that states will be required to regulate, register, and monitor these micro-operators right along with large edu-business franchises.

A state like South Africa that lacks capacity, currently uses two tactics – scare micro-operators into shutting down, and where that fails, pretend they don’t exist.

The vast majority of SA home-educators do not even try to register, because the registration requirements ignore the right to educational freedom, plus it’s easier to just disappear instead. So-called public consultation processes to improve regulations on the topic have been tokenistic and illegitimate and have led nowhere.

Let’s consider that many established independent schools that now have 400 students or more, opened with less than 20. Yet in South Africa today, the state currently offers no way for micro-facilities to register at all. This renders every small alternative private startup up and community co-op “not legal” for no other reason than red tape.

This not only erodes true educational freedom but also further biases the private education sector in favour of big, profit-oriented enterprises who open their doors already big enough for state requirements.

SUGGESTED REMEDY:
Insert into c) Obligation to regulate non-state actors p12
“Where any given private educational operator caters to less than 200 students in total, rather than being required to directly monitor such facilities, the state shall require such private educational operators to form their own local and regional and where viable, national associations, which shall provide the state with collated annual reports.

These local and regional associations shall ensure that all registered members are educated in, and undertake to align with international human rights law pertaining to education, children’s rights, as well as general human rights.

The state shall provide publicly available channels accessible to all children and parents, for reporting human rights abuses and educational grievances that might otherwise fall below the state radar.

Where any given private educational operator caters to a number of students greater than 200 in total States must use all appropriate means, including, particularly, the adoption of regulatory measures, to prevent the infringement of the right to education in the context of the involvement of private actors in education….”

2) It is critically important to stress that states are held to the ALL same standards as private actors, and to prevent states using private education as a scapegoat to distract attention from or excuse state failures.

For example, “Privacy and data collection, ensuring that no private data be used for commercial purposes” is stipulated as something states must regulate with regard to private actors, and it is important that states don’t use this as a way to simply keep unethical opportunities for their own nefarious benefit. For example, it already seems that South Africa may be abusing children’s data privacy in public education, https://journals.uic.edu/ojs/index.php/fm/article/view/8054 yet these guidelines as they currently stand only demand that the state stop private schools from following suit.

Likewise, given the content-heavy CAPS state curriculum in South Africa at present there is a growing accusation that “pressure for educational achievement or emphasis on formal academic success” does currently “undermine the right of the child to rest, leisure, play, recreational activities, cultural life and the arts”. If this is so, then holding private actors to the current state norms and guidelines would de-facto cause problems the Guidelines seek to remedy.

SUGGESTED REMEDY:
Insert on p11 at the end of 4.d as indicated below:
Assessment and monitoring of public education systems
States must regulate their own activities and put in place all necessary mechanisms to monitor implementation and decision-making related to education and provide appropriate remedies where the right to education has not been complied with. “Every regulation and standard that applies to private education applies even more to public education, and the state must ensure that it consistently presents a best-practice example for private education to follow. Where limited resources force the state to choose between bringing state education into compliance with its own standards, or bringing private education actors into compliance, the state must prioritise correcting its own facilities first.”

1) The Guiding Principles currently present no explicit guideline for dealing with small private educational operators ranging from home-educating parents through community co-ops to small private schools.

Since footnote 69 on p12 stipulates that these are included under the term ‘private educational operators’ that means that states will be required to regulate, register, and monitor these micro-operators right along with large edu-business franchises.

A state like South Africa that lacks capacity, currently uses two tactics – scare micro-operators into shutting down, and where that fails, pretend they don’t exist.

Many, maybe even most SA home-educators do not even try to register, because the registration requirements ignore the right to educational freedom, plus it’s easier to just disappear instead. So-called public consultation processes to improve regulations on the topic have been tokenistic and illegitimate and have led nowhere.

Let’s consider that many established independent schools that now have 400 students or more, opened with less than 20. Yet in South Africa today, the state currently offers no way for micro-facilities to register at all. This renders every small alternative private startup up and community co-op “not legal” for no other reason than red tape.

This not only erodes true educational freedom but also further biases the private education sector in favour of big, profit-oriented enterprises who open their doors already big enough for state requirements.

SUGGESTED REMEDY:
Insert into c) Obligation to regulate non-state actors p12
“Where any given private educational operator caters to less than 200 students in total, rather than being required to directly monitor such facilities, the state shall require such private educational operators to form their own local and regional and where viable, national associations, which shall provide the state with collated annual reports.

These local and regional associations shall ensure that all registered members are educated in, and undertake to align with international human rights law pertaining to education, children’s rights, as well as general human rights.

The state shall provide publicly available channels accessible to all children and parents, for reporting human rights abuses and educational grievances that might otherwise fall below the state radar.

Where any given private educational operator caters to a number of students greater than 200 in total States must use all appropriate means, including, particularly, the adoption of regulatory measures, to prevent the infringement of the right to education in the context of the involvement of private actors in education….”

2) It is critically important to stress that states are held to the ALL same standards as private actors, and to prevent states using private education as a scapegoat to distract attention from or excuse state failures.

For example, “Privacy and data collection, ensuring that no private data be used for commercial purposes” is stipulated as something states must regulate with regard to private actors, and it is important that states don’t use this as a way to simply keep unethical opportunities for their own nefarious benefit. For example, it already seems that South Africa may be abusing children’s data privacy in public education, https://journals.uic.edu/ojs/index.php/fm/article/view/8054 yet these guidelines as they currently stand only demand that the state stop private schools from following suit.

Likewise, given the content-heavy CAPS state curriculum in South Africa at present there is a growing accusation that “pressure for educational achievement or emphasis on formal academic success” does currently “undermine the right of the child to rest, leisure, play, recreational activities, cultural life and the arts”. If this is so, then holding private actors to the current state norms and guidelines would de-facto cause problems the Guidelines seek to remedy.

SUGGESTED REMEDY:
Insert on p11 at the end of 4.d as indicated below:
Assessment and monitoring of public education systems
States must regulate their own activities and put in place all necessary mechanisms to monitor implementation and decision-making related to education and provide appropriate remedies where the right to education has not been complied with. “Every regulation and standard that applies to private education applies even more to public education, and the state must ensure that it consistently presents a best-practice example for private education to follow. Where limited resources force the state to choose between bringing state education into compliance with its own standards, or bringing private education actors into compliance, the state must prioritise correcting its own facilities first.”

3.There is a growing ‘fashion’ of drugging children in the name of education which must be considered an urgent and mounting children’s rights crisis. This may be more prevalent in private than public education, because parents who can afford private education are more likely to afford psychiatrists and medication, but I am not aware of the status of this issue in circumstances where public healthcare is well-resourced.

There is enough initial evidence that ‘ADHD’, anxious, depressed and behaviourally challenged children who are rescued from structured educational settings and given appropriate support in more self-directed settings can learn and thrive without drugs, that further research is urgently indicated. It is not ethical to continue by default to force these children to remain in conventional education and be drugged in order to do so.

SUGGESTED REMEDY:
Insert into Minimum Standards as indicated below:
No child may be drugged in the name of education, whether diagnosed by a psychiatrist or not, for ADD, ADHD, anxiety, depression, behavioural issues, or any other problem, unless every other avenue, including alternative forms of education such as smaller, more informal and democratic environments as well as alternative educational approaches possibly more suited to the child’s temperament, have been exhausted.

Please indicate the specific examples or cases of vulnerable, marginalised or disadvantaged groups that are not adequately addressed by the text, and make suggestion if you can on how the text could be improved to address these situations in line with human rights law.

1) There is a new and rapidly growing group of marginalised children – the drugged. A suggestion to remedy this was made in the previous section.

2) The assumption that all education of children must automatically involve pedagogy and a fixed curriculum discriminates against forms of education that are a) more indigenous and traditional and b) more innovative.

Given that alternative educators and families often already feel the need to ‘fly under the radar’ to avoid persecution, the Guiding Principles could unwittingly contribute to the further marginalisation of these children and their families.

There is a tendency for WEIRD (White Educated Industrial Rich Democratic) people to see ourselves as ‘normal’ and assume the validity of our cultural assumptions and superstitions. There is no good reason for international human rights law to uphold an assumption that colonial-style schooling is the ideal or even only way that the right to education can or should be realised.

Again, there is enough initial evidence that less structured, informal educational approaches can better meet the needs of children in general and the children of under-resourced, developing countries in particular, that more research is urgently indicated. If informal education can condense 3 years of primary education into 9months in emergency settings, why not explore this further so that all children can better balance the right to education with the right to play? https://41pylqn86jp37e3n04us8vqq-wpengine.netdna-ssl.com/wp-content/uploads/2018/01/ECR-Final_Report.pdf

Reading clubs, toy libraries, municipal libraries with trained staff and internet connections, variations on Mitra’s ‘hole in the wall’ as well as other creative solutions, may be better at delivering universal basic education to the most vulnerable populations than costly and unwieldy conventional state schools. We need the chance to find out instead of stifling innovation by enforcing narrow and conventional ‘state norms and standards’.

I call on the authors of the Guiding Principles to check carefully whether a set curriculum and pedagogy as opposed to emergent/personal curricula and heutagogy are entrenched in international human rights law, or whether this text creates an unnecessary problem by using wording that simply rests on an unfounded assumption about this.

If it is in line with human rights law, as I believe it should be, that alternative educational approaches rather than only religion and culture are good reason for the exercise of educational freedom then I propose the following insertion on p4:

States’ obligations to eliminate substantive discrimination includes an obligation to ensure that everyone has equal access to quality inclusive education on an equal basis with others in the communities in which they live, without any discrimination on any ground. It also includes an obligation to ensure reasonable accommodation of individuals’ requirements in education institutions,”and to ensure that state norms and standards are worded to also allow for informal and heutagogical approaches to education.”

Please indicate your suggestions of additional requirements for the minimum standards (guiding principle 45)

Mechanisms for children’s participation to give them a voice and empower their positive contribution.

Mechanisms for children to get quick, safe, effective help with problematic circumstances in their educational environment such as bullying and abuse by teachers.

Sufficient play and rest breaks during the school day, similar but more extensive than the minimum meal and rest breaks granted to adult workers. (It should be cause for concern that some schools are doing away with recess, others are letting children outside on alternate days.)

Defined limits on homework hours, holiday assignments and ‘detention’ punishments during and after school hours.

Safeguarding against misdiagnosis and inappropriate prescription of drugs for children who are merely energetic, talkative, creative, easily bored, or need a different learning environment or educational approach to what is currently available to them.

Is there any Guiding Principle that is unclear for you? Please indicate the Guiding Principle number, why it is unclear, and if you have any suggestion for improvement.

Problem: “Norms and Standards” – curriculum and pedagogy.

We cannot assume that just because the education provided by any given state is free, equal and universal, that it will be the kind of education consonant with the aims of education stated here. Many states provide very narrow content-oriented rote-learning types of education that are essentially obsolete.

Where the state uses their own sub-optimal approach to set ‘norms and standards’ this can interfere with the right to the kind of education as defined here.

In this case it is critical that freedom of education is carefully protected.

Various pages of the Guiding Principles are in conflict with each other on the topic of “norms and standards” when one considers the particular needs of progressive education and self-directed education.

These forms of education are more aligned with children’s rights than most other approaches and exceptionally able to fulfill the right to education as described under Section 2, Foundational Principles, the “Nature of the right to education”; yet the nebulous way that state “norms and standards” are referred to in this document makes it possible for states to misinterpret these types of facilities as offering education ‘below’ state standards where such states choose, as part of their “norms and standards”, to specify a specific curriculum or curriculum type, and/or a particular type of pedagogical approach.

As the text currently stands states could deliberately use this as a way to justify prejudicial action against alternative approaches to education which the state concerned can’t yet match, so as not to be ‘shown up’.

While the intent of these Guiding Principles seems to be that ‘norms and standards’ should be interpreted in terms of human rights compliance, states have a tendency to interpret this phrase in easily administrated quantitative and content-specific terms rather than rights-compliance terms. One example is the current draft Basic Education Law Amendment Bill, (South Africa) which, if promulgated, will require all private actors to align with the national curriculum statement (CAPS.)

It is important for educational freedom that the Guiding Principles don’t give states a mandate or even apparently the imperative to ‘phase out’ these forms of education. As the text is currently worded, this is a real danger.

The spirit of the paragraph below (Minimum Standards c) p15 ) is deeply supportive of progressive and self-directed education in that these forms of education are particularly able to allow for the holistic development of the child and the fulfillment of their right to education in far more than a narrow academic sense:
“The curriculum to be used and, with due regards to academic freedom and institutional autonomy, the pedagogical practices, in particular in order to ensure that appropriate time and expertise be allocated within the curriculum for children to learn, participate in and generate cultural, physical, and artistic activities and that no pressure for educational achievement or emphasis on formal academic success undermine the right of the child to rest, leisure, play, recreational activities, cultural life and the arts…” (emphasis mine)
However the specific use of both the words “curriculum” and “pedagogical” in this paragraph as well as in Minimum Standards a.vi, creates an internal contradiction in that “due regards to academic freedom and institutional autonomy” for both progressive and self-directed education requires that personalised emergent ‘curricula’ and heutagogical practices also be allowed – while the implication here is that the state may confine private practitioners to a particular prescribed curriculum and concomitant pedagogical rather than heutagogical practices.

Pages that need to be brought into accord in order to resolve this:

Firstly:
SUGGESTED REMEDY
Reword:
a.vi Transparency of and access to essential information about the operators, including all potential charges, the use of education resources, the educational approach including any curricular, pedagogical or other educational practices, the conditions of enrolment, and other policies of the operators; and

And reword:
3.“The curriculum or approach to be used and, with due regards to academic freedom and institutional autonomy, the pedagogical or other educational practices, in particular in order to ensure that appropriate time and expertise be allocated (delete: within the curriculum) for children to learn, participate in and generate cultural, physical, and artistic activities and that no pressure for educational achievement or emphasis on formal academic success undermine the right of the child to rest, leisure, play, recreational activities, cultural life and the arts…”

Secondly:
p3
Everyone has a right to an education that allows them to flourish, independently grow, effectively participate in society, and have the capacity and necessary critical thinking to elaborate and realise their own life project in an autonomous way. This is the right to a well educated, enlightened and active mind, able to wander freely and widely, as one of the joys and rewards of human existence.
(and footnote)
The so-called “life plan,” deals with the full self-actualisation of the person concerned and takes account of her calling in life, her particular circumstances, her potentialities, and her ambitions, thus permitting her to set for herself, in a reasonable manner, specific goals, and to attain those goals. The concept of a “life plan” is akin to the concept of personal fulfillment, which in turn is based on the options that an individual may have for leading his life and achieving the goal that he sets for himself. Strictly speaking, those options are the manifestation and guarantee of freedom. An individual can hardly be described as truly free if he does not have options to pursue in life and to carry that life to its natural conclusion. Those options, in themselves, have an important existential value. Hence, their elimination or curtailment objectively abridges freedom and constitutes the loss of a valuable asset.
The paragraph and footnote above is currently threatened by the paragraph below:
3 (p 5)
International human rights law recognises the liberty of parents or legal guardians to choose for their children an educational institution other than a public educational institution, and the liberty of individuals to establish private educational institutions. These liberties are subject to the conditions that these educational institutions conform to national standards that are in line with international human rights law, and that the exercise of this liberty does not undermine any other dimension of the right to education.
SUGGESTED REMEDY: If the phrase “national standards that are in line with” is struck, so that the amended paragraph reads …
“These liberties are subject to the conditions that these educational institutions conform to (national standards that are in line with ) international human rights law”
…then states will not be able to interpose inappropriate specific ‘standards’ between these private actors facilitating ideal educational facilities, and international human rights law with which these private actors already comply.
Thirdly:
P11
States have an international obligation to respect the liberty of individuals to choose and the liberty of individuals and bodies to establish educational institutions other than those established by the public authorities…
Currently conflicts with:
The establishment or maintenance of private educational institutions, if the object of the institutions is not to secure the exclusion of any group but to provide educational facilities in addition to those provided by the public authorities, if the institutions are conducted in accordance with that object, and if the education provided conforms with such standards as may be laid down or approved by the competent authorities, in particular for education of the same level, does not constitute discrimination in accordance with international human rights law.
This conflict results from ambiguity around what constitutes ‘competent authorities’ enabling states to lay down ‘standards’ that preclude certain approaches: for example a specific content-based curriculum may be laid down as a ‘standard’ defining a ‘level’ that de facto removes the right of the family to choose an institution that offers a child-centred emergent curriculum such as may be offered in a Reggio-inspired primary school.
SUGGESTED REMEDY
Reword to read: “and if the education provided conforms with standards pertinent to the specific approach of the private educational institution concerned, does not constitute discrimination in accordance with international human rights law.”
AND
SUGGESTED REMEDY:
Under “Non-Discrimination” p4 insert after point 2, renumbering point 3 as point 4:
States must ensure that their laws, policies or practices do not have the direct or indirect effect of creating, furthering, or entrenching discrimination in any educational context, and must take all measures to prevent and, where necessary, redress:
disparities of educational opportunity for some groups in society, including people living in poverty,that create systemic discrimination; or

levels of segregation of the education system that are discriminatory on the basis of the ability to pay or on any prohibited basis such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status;

discrimination against educational approaches that comply with human rights law but differ from the educational approach currently preferred by the state;

or any other situation that is discriminatory on any ground.

Fourthly:
D Assessment and Monitoring of Private Actors p17
Insert:
Where private educational operators do not respect State regulations, States must take all necessary steps to remedy this situation, in the shortest possible time. Such steps may include liquidation of the educational institution after ensuring that all affected learners have access to an acceptable alternative educational institution offering the same type of educational approach as the liquidated institution.

Do you have any comment on the terminology used in the Guiding Principles, and in particular, are the terms used accurate and precise enough? Please specify the terms at stake if applicable, and specific suggestions. Please indicate the terms that are unclear, and suggestions for improvements if you have.

“Compulsory”

It is critically important for the Guiding Principles to provide an explicit and very overdue disambiguation of the term “compulsory” since it has caused a lot of confusion and pain for children over the years and if not clarified by these Guiding Priniciples, will continue to do so.

Compulsory education is “the education that a parent must see that his child must receive to the age of 16” COMPULSORY EDUCATION or according to these Guiding Principles, a minimum of nine years for each to child to spend actively dedicated to their education.

Misinterpreting the word ‘compulsory’ to mean that we should exclude (or can simply ignore) the topic of consent from the discourse around children’s education, directly contradicts the core value of child participation.

Such a misinterpretation makes nonsense of children’s rights.

It also annihilates the concept of educational freedom.

However, this is exactly how it is misinterpreted in practice, precisely when it comes to the topic of states’ obligations regarding private education.

The spirit behind the use of the term ‘compulsory’ with reference to basic education clearly refers to the obligation of parents to ensure that their children are enabled to fully realise their right to education, as well as to the obligation of states to provide free and sufficient universal access to educational resources, and to ensure that each and every child is proactively supported in realising their right to education as fully as possible, and that the primary activity of the child under the age of 16 shall be the pursuit of their education rather than paid or unpaid labour.

It is clear to human rights experts that “Children do not lose their human rights by virtue of passing through the school gates,” (UN Committee on the Rights of the Child (CRC), General comment No. 1 (2001), Article 29 (1), The aims of education, 17 April 2001, CRC/GC/2001/1, available at: http://www.refworld.org/docid/4538834d2.html [accessed 23 September 2018] ) and that the best interests of the child are paramount. However, due to common authoritarian misunderstandings of the term ‘compulsory’ this is currently not clear to all states in general and to all education officials in particular.

Some states interpret the word ‘compulsory’ to mean that governments have license to compel children and families to comply with state convenience against their will and even against the best interests of the child, in any situation where the right to education can be invoked as an excuse to do so.

The term “compulsory” is taken to mean that the state can safely ignore the voices of parents and children when it comes to education, since the term ‘compulsory’ implies that the state has the right to simply coerce everyone into compliance with whatever the current administration decides. It is far easier for a state already failing to provide suitable public education, to go on a human-rights-sanctioned witch-hunt against private operators, scapegoating them for its failings, than to put their own broken schools in order.

It is currently common in South Africa for home-educating families to stay ‘under the radar’ out of fear of the state’s current policy to compel such families to use the state curriculum which their children have already discovered does not meet their educational needs, or even to return to schools where their children have actively suffered. It is important to note that, in contrast to the propagandised official stereotype of white racist home-schoolers, a growing number of all kinds of South Africans including black families are rescuing their children from oppressive educational situations. Fear of being open about this and thereby attracting state ‘compulsion’ makes it very hard for low-income families to access the resources they actually need for their children’s education.

Telling an authoritarian state department to put “in place strict and effective regulations on private educational operators” (Guiding Principles draft, p12) without providing a clear disambiguation of the term ‘compulsory’ invites disaster.

Given that these Guiding Principles emphasise the duty of the state to regulate private actors in education, this disambiguation of the word ‘compulsory’ is utterly critical if the Guiding Principles are not to backfire on their actual intent and result in a widespread retrogression of children’s enjoyment of their rights and an obliteration of educational freedom.

This disambiguation does not constitute the creation of a new standard, but constitutes a clarification of the obvious logic behind the use of this term that is not always readily apparent to the public in spite of being obvious to human-rights professionals.

SUGGESTED REMEDY:
Additional point under Section 2 Foundational Principles
(after Nature of Education, before Non-Discrimination:
INSERT: “Compulsory Basic Education
Every child has the right to pursue a minimum of nine years of education with full and free access to sufficient educational resources, as well as the necessary liberty and support to be able to make full use of them.

Parents are obliged to ensure that their children are able to pursue their education during this time, and to ensure that no paid or unpaid duties or labours interfere with the child’s full enjoyment of their right to education.

States are obliged to provide free, equal and sufficient educational resources to all, and to ensure that no person prevents or sabotages the child’s full enjoyment of the right to education.

The word ‘compulsory’ in this sense, is in harmony with the concept of educational freedom.

The word “compulsory” cannot be taken to imply that children can be forced to submit to practices or circumstances that are not acceptable to them or to their parents, in the name of education. Mechanisms for report and redress of educational grievances in both public and private education must be made universally available and accessible directly to all children and their parents.

States must actively prioritise participation of parents and children in the creation of education policy, and endeavour to progressively implement child-friendly, consent-oriented approaches to the provision of public and private education.”

 

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