article 14 education explanation

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EU Charter of Fundamental Rights

Title ii freedoms, article 14 - right to education.

1. Everyone has the right to education and to have access to vocational and continuing training. 2. This right includes the possibility to receive free compulsory education. 3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right.

1. This Article is based on the common constitutional traditions of Member States and on Article 2 of the Protocol to the ECHR, which reads as follows:

"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."

It was considered useful to extend this right to vocational and continuing training (see point 15 of the Community Charter of the Fundamental Social Rights of Workers and Article 10 of the Social Charter) and to add the principle of free compulsory education. As it is worded, the latter principle merely implies that as regards compulsory education, each child has the possibility of attending an establishment which offers free education. It does not require all establishments which provide education, in particular private ones, to be free of charge. Nor does it exclude certain specific forms of education having to be paid for, if the State takes measures to grant financial compensation. Insofar as the Charter applies to the Union, this means that in its training policies the Union must respect free compulsory education, but this does not, of course, create new powers. Regarding the right of parents, it must be interpreted in conjunction with the provisions of Article 24.

2. Freedom to found public or private educational establishments is guaranteed as one of the aspects of freedom to conduct a business but it is limited by respect for democratic principles and is exercised in accordance with the arrangements defined by national legislation.

• CJEU Joined Cases C-804/18 and C-341/19 / Judgment IX v WABE eV and MH Müller Handels GmbH v MJ Decision date: 15 July 2021 Deciding body type: Court of Justice of the European Union Deciding body: Court (Grand Chamber) Type: Decision Policy area: Employment and social policy ECLI (European case law identifier): ECLI:EU:C:2021:594
• CJEU Case C-66/18 / Judgment European Commission v Hungary Decision date: 06 October 2020 Deciding body type: Court of Justice of the European Union Deciding body: Court (Grand Chamber) Type: Decision Policy area: ECLI (European case law identifier): ECLI:EU:C:2020:792
• CJEU Case C-830/18 / Judgment Landkreis Südliche Weinstraße v PF and Others Decision date: 02 April 2020 Deciding body type: Court of Justice of the European Union Deciding body: Court (Ninth Chamber) Type: Decision Policy area: Education, training, youth, sport ECLI (European case law identifier): ECLI:EU:C:2020:275
• CJEU Case C-161/17 / Judgment Land Nordrhein-Westfalen v Dirk Renckhoff. Decision date: 07 August 2018 Deciding body type: Court of Justice of the European Union Deciding body: Court (Second Chamber) Type: Decision Policy area: ECLI (European case law identifier): ECLI:EU:C:2018:634
• CJEU Case C-161/17 / Opinion Land Nordrhein-Westfalen v Dirk Renckhoff Decision date: 25 April 2018 Deciding body type: Court of Justice of the European Union Deciding body: Advocate General Type: Opinion Policy area: ECLI (European case law identifier): ECLI:EU:C:2018:279

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Artikel 23 1. Het onderwijs is een voorwerp van de aanhoudende zorg der regering. 2. Het geven van onderwijs is vrij, behoudens het toezicht van de overheid en, voor wat bij de wet aangewezen vormen van onderwijs betreft, het onderzoek naar de bekwaamheid en de zedelijkheid van hen die onderwijs geven, een en ander bij de wet te regelen. 3. Het openbaar onderwijs wordt, met eerbiediging van ieders godsdienst of levensovertuiging, bij de wet geregeld. 4. In elke gemeente wordt van overheidswege voldoend openbaar algemeen vormend lager onderwijs gegeven in een genoegzaam aantal openbare scholen. Volgens bij de wet te stellen regels kan afwijking van deze bepaling worden toegelaten, mits tot het ontvangen van zodanig onderwijs gelegenheid wordt gegeven, al dan niet in een openbare school. 5. De eisen van deugdelijkheid, aan het geheel of ten dele uit de openbare kas te bekostigen onderwijs te stellen, worden bij de wet geregeld, met inachtneming, voor zover het bijzonder onderwijs betreft, van de vrijheid van richting. 6. Deze eisen worden voor het algemeen vormend lager onderwijs zodanig geregeld, dat de deugdelijkheid van het geheel uit de openbare kas bekostigd bijzonder onderwijs en van het openbaar onderwijs even afdoende wordt gewaarborgd. Bij die regeling wordt met name de vrijheid van het bijzonder onderwijs betreffende de keuze der leermiddelen en de aanstelling der onderwijzers geëerbiedigd. 7. Het bijzonder algemeen vormend lager onderwijs, dat aan de bij de wet te stellen voorwaarden voldoet, wordt naar dezelfde maatstaf als het openbaar onderwijs uit de openbare kas bekostigd. De wet stelt de voorwaarden vast, waarop voor het bijzonder algemeen vormend middelbaar en voorbereidend hoger onderwijs bijdragen uit de openbare kas worden verleend. 8. De regering doet jaarlijks van de staat van het onderwijs verslag aan de Staten-Generaal.

Article 16 (3) The conditions under which religious instruction may be given at state schools shall be set by law. Article 26 (1) Everybody has the right to the free choice of her profession and the training for that profession, as well as the right to engage in enterprise and pursue other economic activity. Article 33 (1) Everyone has the right to education. School attendance shall be obligatory for the period specified by law. (2) Citizens have the right to free elementary and secondary school education, and, depending on particular citizens’ ability and the capability of society, also to university-level education. (3) Private schools may be established and instruction provided there only under conditions set by law; education may be provided at such schools for tuition. (4) The conditions under which citizens have the right to assistance from the state during their studies shall be set by law.

Článek 16 (...) (3) Zákon stanoví podmínky vyučování náboženství na státních školách. Článek 26 (1) Každý má právo na svobodnou volbu povolání a přípravu k němu, jakož i právo podnikat a provozovat jinou hospodářskou činnost. (...) Článek 33 (1) Každý má právo na vzdělání. Školní docházka je povinná po dobu, kterou stanoví zákon. (2) Občané mají právo na bezplatné vzdělání v základních a středních školách, podle schopností občana a možností společnosti též na vysokých školách. (3) Zřizovat jiné školy než státní a vyučovat na nich lze jen za podmínek stanovených zákonem; na takových školách se může vzdělání poskytovat za úplatu. (4) Zákon stanoví, za jakých podmínek mají občané při studiu právo na pomoc státu.

See ECHR provisions of Article 2 of the First Protocol which have been incorporated into UK law by the Human Rights Act 1998. Schedule 1, Part II, The First Protocol Article 2 Right to education No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

Section 7 Duty of parents to secure education of children of compulsory school age. The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable— (a) to his age, ability and aptitude, and (b) to any special educational needs he may have, either by regular attendance at school or otherwise.

Section 1 Persons to whom Part 1 applies This Part applies to any person who is resident in England and who— (a) has ceased to be of compulsory school age, (b) has not reached the age of 18, and (c) has not attained a level 3 qualification (see section 3).

Section 2 Duty to participate in education or training (1) A person to whom this Part applies must— (a) be participating in appropriate full-time education or training (see section 4), (b) be participating in training in accordance with a contract of apprenticeship[F1or an apprenticeship agreement], or (c) both— (i) be in full-time occupation (see section 5), and (ii) participate in sufficient relevant training or education in each relevant period (see sections 6 to 8). (2)For the purposes of this Part, a person who is in full-time occupation is to be taken to be participating in sufficient relevant training or education at any particular time if— (a) arrangements have been made (whether by means of enrolment on a course or courses, or otherwise) for the person to receive sufficient relevant training or education during the current relevant period, and (b) where the arrangements call for the person to be participating in training or education at the time, the person is so participating.

Chapter 1 - Basic Principles of the form of government: Article 2 The personal, economic and cultural welfare of the individual shall be fundamental aims of public activity. In particular, the public institutions shall secure the right to employment, housing and education, and shall promote social care and social security, as well as favourable conditions for good health. (...) Chapter 2 - Fundamental Rights and Freedoms: Article 18 All children covered by compulsory schooling shall be entitled to a free basic education in the public education system. The public institutions shall be responsible also for the provision of higher education. The freedom of research is protected according to rules laid down in law.

1 kapitlet - Statsskickets grunder: 2 § Den enskildes personliga, ekonomiska och kulturella välfärd ska vara grundläggande mål för den offentliga verksamheten. Särskilt ska det allmänna trygga rätten till arbete, bostad och utbildning samt verka för social omsorg och trygghet och för goda förutsättningar för hälsa (...); 2 kapitlet - Grundläggande fri- och rättigheter: 18 § Alla barn som omfattas av den allmänna skolplikten har rätt till kostnadsfri grundläggande utbildning i allmän skola. Det allmänna ska svara också för att högre utbildning finns. Forskningens frihet är skyddad enligt bestämmelser som meddelas i lag.

Artículo 27 1. Todos tienen el derecho a la educación. Se reconoce la libertad de enseñanza. 2. La educación tendrá por objeto el pleno desarrollo de la personalidad humana en el respeto a los principios democráticos de convivencia y a los derechos y libertades fundamentales. 3. Los poderes públicos garantizan el derecho que asiste a los padres para que sus hijos reciban la formación religiosa y moral que esté de acuerdo con sus propias convicciones. 4. La enseñanza básica es obligatoria y gratuita. 5. Los poderes públicos garantizan el derecho de todos a la educación, mediante una programación general de la enseñanza, con participación efectiva de todos los sectores afectados y la creación de centros docentes. 6. Se reconoce a las personas físicas y jurídicas la libertad de creación de centros docentes, dentro del respeto a los principios constitucionales. 7. Los profesores, los padres y, en su caso, los alumnos intervendrán en el control y gestión de todos los centros sostenidos por la Administración con fondos públicos, en los términos que la ley establezca. 8. Los poderes públicos inspeccionarán y homologarán el sistema educativo para garantizar el cumplimiento de las leyes. 9. Los poderes públicos ayudarán a los centros docentes que reúnan los requisitos que la ley establezca. 10. Se reconoce la autonomía de las Universidades, en los términos que la ley establezca.

Section 27 (1) Everyone has the right to education. Freedom of teaching is recognized. (2) Education shall aim at the full development of human personality with due respect for the democratic principles of coexistence and for basic rights and freedoms. (3) The public authorities guarantee the right of parents to ensure that their children receive religious and moral instruction in accordance with their own convictions. (4) Elementary education is compulsory and free. (5) The public authorities guarantee the right of all to education, through general education programming, with the effective participation of all sectors concerned and the setting-up of educational centres. (6) The right of individuals and legal entities to set up educational centres is recognized, provided they respect constitutional principles. (7) Teachers, parents and, when appropriate, pupils shall participate in the control and management of all centres supported by the Administration out of public funds, under the terms established by the law. (8) The public authorities shall inspect and standardize the educational system in order to ensure compliance with the laws. (9) The public authorities shall help the educational centres which meet the requirements established by the law. (10) The autonomy of Universities is recognized, under the terms established by the law.

Article 54 Parents have the right and duty to maintain, educate and raise their children. This right and duty may be revoked or restricted only for such reasons as are provided by law in order to protect the child's interests. Children born out of wedlock have the same rights as children born within it.

Article 57 Freedom of education shall be guaranteed. Primary education is compulsory and shall be financed from public funds. The state shall create the opportunities for citizens to obtain a proper education.

Article 58 State universities and state institutions of higher education shall be autonomous. The manner of their financing shall be regulated by law.

54. člen Starši imajo pravico in dolžnost vzdrževati, izobraževati in vzgajati svoje otroke. Ta pravica in dolžnost se staršem lahko odvzame ali omeji samo iz razlogov, ki jih zaradi varovanja otrokovih koristi določa zakon. Otroci, rojeni zunaj zakonske zveze, imajo enake pravice kakor otroci, rojeni v njej.

57. člen Izobraževanje je svobodno. Osnovnošolsko izobraževanje je obvezno in se financira iz javnih sredstev. Država ustvarja možnosti, da si državljani lahko pridobijo ustrezno izobrazbo.

58. člen Državne univerze in državne visoke šole so avtonomne. Način njihovega financiranja ureja zakon.

Article 42(1) Everyone has the right to education. School attendance is compulsory. Its period and age limit shall be laid down by law. (2) Citizens have the right to free education at primary and secondary schools and, depending on their abilities and society's resources, also at higher educational establishments. (3) Schools other than state schools may be established, and teaching in them provided, only under conditions laid down by law; such schools may collect tuition fees. (4) A law shall lay down conditions under which citizens are entitled to assistance from the state in their studies.

Čl. 42 (1) Každý má právo na vzdelanie. Školská dochádzka je povinná. Jej dĺžku po vekovú hranicu ustanoví zákon. (2) Občania majú právo na bezplatné vzdelanie v základných školách a stredných školách, podľa schopností občana a možnosti spoločnosti aj na vysokých školách. (3) Zriaďovať iné školy ako štátne a vyučovať v nich možno len za podmienok ustanovených zákonom; v takýchto školách sa môže vzdelávanie poskytovať za úhradu.( 4) Zákon ustanoví, za akých podmienok majú občania pri štúdiu právo na pomoc štátu.

Articolul 32(1) Dreptul la învatatura este asigurat prin învatamântul general obligatoriu, prin învatamântul liceal si prin cel profesional, prin învatamântul superior, precum si prin alte forme de instructie si de perfectionare. (2) Învatamântul de toate gradele se desfasoara în limba româna. În conditiile legii, învatamântul se poate desfasura si într-o limba de circulatie internationala. (3) Dreptul persoanelor apartinând minoritatilor nationale de a învata limba lor materna si dreptul de a putea fi instruite în aceasta limba sunt garantate; modalitatile de exercitare a acestor drepturi se stabilesc prin lege. (4) Învatamântul de stat este gratuit, potrivit legii. Statul acorda burse sociale de studii copiilor si tinerilor proveniti din familii defavorizate si celor institutionalizati, în conditiile legii. (5) Învatamântul de toate gradele se desfasoara în unitati de stat, particulare si confesionale, în conditiile legii. (6) Autonomia universitara este garantata. (7) Statul asigura libertatea învatamântului religios, potrivit cerintelor specifice fiecarui cult. În scolile de stat, învatamântul religios este organizat si garantat prin lege.

Article 32(1) The right to education is provided by the compulsory general education, by education in high schools and vocational schools, by higher education, as well as other forms of instruction and postgraduate improvement. (2) Education at all levels shall be carried out in Romanian. Education may also be carried out in a foreign language of international use, under the terms laid down by law. (3) The right of persons belonging to national minorities to learn their mother tongue, and their right to be educated in this language are guaranteed; the ways to exercise these rights shall be regulated by law. (4) State education shall be free, according to the law. The State shall grant social scholarships to children or young people coming from disadvantaged families and to those institutionalized, as stipulated by the law. (5) Education at all levels shall take place in state, private, or confessional institutions, according to the law. (6) The autonomy of the Universities is guaranteed. (7) The State shall ensure the freedom of religious education, in accordance with the specific requirements of each religious cult. In public schools, religious education is organized and guaranteed by law.

Artigo 43.º (Liberdade de aprender e ensinar) 1. É garantida a liberdade de aprender e ensinar. 2. O Estado não pode programar a educação e a cultura segundo quaisquer directrizes filosóficas, estéticas, políticas, ideológicas ou religiosas. 3. O ensino público não será confessional. 4. É garantido o direito de criação de escolas particulares e cooperativas. Artigo 73.º (Educação, cultura e ciência) 1. Todos têm direito à educação e à cultura. 2. O Estado promove a democratização da educação e as demais condições para que a educação, realizada através da escola e de outros meios formativos, contribua para a igualdade de oportunidades, a superação das desigualdades económicas, sociais e culturais, o desenvolvimento da personalidade e do espírito de tolerância, de compreensão mútua, de solidariedade e de responsabilidade, para o progresso social e para a participação democrática na vida colectiva. 3. O Estado promove a democratização da cultura, incentivando e assegurando o acesso de todos os cidadãos à fruição e criação cultural, em colaboração com os órgãos de comunicação social, as associações e fundações de fins culturais, as colectividades de cultura e recreio, as associações de defesa do património cultural, as organizações de moradores e outros agentes culturais. 4. A criação e a investigação científicas, bem como a inovação tecnológica, são incentivadas e apoiadas pelo Estado, por forma a assegurar a respectiva liberdade e autonomia, o reforço da competitividade e a articulação entre as instituições científicas e as empresas. Artigo 74.º (Ensino) 1. Todos têm direito ao ensino com garantia do direito à igualdade de oportunidades de acesso e êxito escolar. 2. Na realização da política de ensino incumbe ao Estado: a) Assegurar o ensino básico universal, obrigatório e gratuito; b) Criar um sistema público e desenvolver o sistema geral de educação pré-escolar; c) Garantir a educação permanente e eliminar o analfabetismo; d) Garantir a todos os cidadãos, segundo as suas capacidades, o acesso aos graus mais elevados do ensino, da investigação científica e da criação artística; e) Estabelecer progressivamente a gratuitidade de todos os graus de ensino; f) Inserir as escolas nas comunidades que servem e estabelecer a interligação do ensino e das actividades económicas, sociais e culturais; g) Promover e apoiar o acesso dos cidadãos portadores de deficiência ao ensino e apoiar o ensino especial, quando necessário; h) Proteger e valorizar a língua gestual portuguesa, enquanto expressão cultural e instrumento de acesso à educação e da igualdade de oportunidades; i) Assegurar aos filhos dos emigrantes o ensino da língua portuguesa e o acesso à cultura portuguesa; j) Assegurar aos filhos dos imigrantes apoio adequado para efectivação do direito ao ensino. Artigo 75.º (Ensino público, particular e cooperativo) 1. O Estado criará uma rede de estabelecimentos públicos de ensino que cubra as necessidades de toda a população. 2. O Estado reconhece e fiscaliza o ensino particular e cooperativo, nos termos da lei. Artigo 76.º (Universidade e acesso ao ensino superior) 1. O regime de acesso à Universidade e às demai instituições do ensino superior garante a igualdade de oportunidades e a democratização do sistema de ensino, devendo ter em conta as necessidades em quadros qualificados e a elevação do nível educativo, cultural e científico do país. 2. As universidades gozam, nos termos da lei, de autonomia estatutária, científica, pedagógica, administrativa e financeira, sem prejuízo de adequada avaliação da qualidade do ensino. Artigo 77.º (Participação democrática no ensino) 1. Os professores e alunos têm o direito de participar na gestão democrática das escolas, nos termos da lei. 2. A lei regula as formas de participação das associações de professores, de alunos, de pais, das comunidades e das instituições de carácter científico na definição da política de ensino.

Article 43 (Freedom to learn and to teach) (1) The freedom to learn and to teach is guaranteed. (2) The state may not programme education and culture in accordance with any philosophical, aesthetic, political, ideological or religious directives. (3) Public education shall not be linked to a religious belief. (4) The right to create private and cooperative schools is guaranteed. Article 73 (Education, culture and science) (1) Everyone has the right to education and culture. (2) The state shall promote the democratisation of education and the other conditions needed for an education conducted at school and via other means of training to contribute to equal opportunities, the overcoming of economic, social and cultural inequalities, the development of the personality and the spirit of tolerance, mutual understanding, solidarity and responsibility, to social progress and to democratic participation in collective life. (3) In cooperation with the media, cultural associations and foundations, cultural and recreational groups, cultural heritage associations, residents’ organisations and other cultural agents, the state shall promote the democratisation of culture by encouraging and ensuring access by all citizens to cultural enjoyment and creation. (4) The state shall encourage and support scientific research and creation and technological innovation, in such a way as to ensure their freedom and autonomy, strengthen competitivity and ensure articulation between scientific institutions and enterprises. Article 74 (Education) (1) Everyone has the right to education, with the guarantee of the right to equal opportunities in access to and success in schooling. (2) In implementing the education policy, the state is charged with: (a) Ensuring universal, compulsory and free basic education; (b) Creating a public, and developing the general, preschool education system; (c) Guaranteeing permanent education and eliminating illiteracy; (d) In accordance with his capabilities, guaranteeing every citizen access to the highest levels of education, scientific research and artistic creation; (e) Progressively making all levels of education free of charge; (f) Inserting schools into the communities they serve and establishing links between education and economic, social and cultural activities; (g) Promoting and supporting disabled citizens’ access to education and supporting special education when necessary; (h) Protecting and developing Portuguese sign language, as an expression of culture and an instrument for access to education and equal opportunities; (i) Ensuring that emigrants’ children are taught the Portuguese language and enjoy access to Portuguese culture; (j) Ensuring that immigrants’ children receive adequate support in order to enable them to effectively enjoy the right to education. Article 75 (Public, private and cooperative education) (1) The state shall create a network of public education establishments that covers the needs of the whole population. (2) The state shall recognise and inspect private and cooperative education, as laid down by law. Article 76 (University and access to higher education) (1) The regime governing access to university and the other higher education institutions shall guarantee equal opportunities in and the democratisation of the education system, and must have due regard to the country’s needs for qualified staff and to raising its educational, cultural and scientific level. (2) As laid down by law and without prejudice to an adequate assessment of the quality of education, universities shall enjoy autonomy in drawing up their own by-laws and in scientific, pedagogical, administrative and financial matters. Article 77 (Democratic participation in education) (1) Teachers and students have the right to take part in the democratic management of schools, as laid down by law. (2) The law shall regulate the forms in which associations of teachers, students and parents, communities and institutions of a scientific nature participate in the definition of the education policy.

Article 70.1. Everyone shall have the right to education. Education to 18 years of age shall be compulsory. The manner of fulfilment of schooling obligations shall be specified by statute. 2. Education in public schools shall be without payment. Statutes may allow for payments for certain services provided by public institutions of higher education. 3. Parents shall have the right to choose schools other than public for their children. Citizens and institutions shall have the right to establish primary and secondary schools and institutions of higher education and educational development institutions. The conditions for establishing and operating non-public schools, the participation of public authorities in their financing, as well as the principles of educational supervision of such schools and educational development institutions, shall be specified by statute. 4. Public authorities shall ensure universal and equal access to education for citizens. To this end, they shall establish and support systems for individual financial and organizational assistance to pupils and students. The conditions for providing of such assistance shall be specified by statute. 5. The autonomy of the institutions of higher education shall be ensured in accordance with principles specified by statute.

Art. 70.1. Każdy ma prawo do nauki. Nauka do 18 roku życia jest obowiązkowa. Sposób wykonywania obowiązku szkolnego określa ustawa. 2. Nauka w szkołach publicznych jest bezpłatna. Ustawa może dopuścić świadczenie niektórych usług edukacyjnych przez publiczne szkoły wyższe za odpłatnością. 3. Rodzice mają wolność wyboru dla swoich dzieci szkół innych niż publiczne. Obywatele i instytucje mają prawo zakładania szkół podstawowych, ponadpodstawowych i wyższych oraz zakładów wychowawczych. Warunki zakładania i działalności szkół niepublicznych oraz udziału władz publicznych w ich finansowaniu, a także zasady nadzoru pedagogicznego nad szkołami i zakładami wychowawczymi, określa ustawa. 4. Władze publiczne zapewniają obywatelom powszechny i równy dostęp do wykształcenia. W tym celu tworzą i wspierają systemy indywidualnej pomocy finansowej i organizacyjnej dla uczniów i studentów. Warunki udzielania pomocy określa ustawa. 5. Zapewnia się autonomię szkół wyższych na zasadach określonych w ustawie.

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HEREBY RECOMMENDS THAT MEMBER STATES:

In accordance with national and European legislation, available resources and national circumstances, and in close cooperation with all relevant stakeholders:

1. Improve access to high-quality early childhood education and care systems in line with the statements set out in the ‘Quality framework for early childhood education and care’ presented in the Annex to this Recommendation and with the 11th principle of the European Pillar of Social Rights.

2. Work towards ensuring that early childhood education and care services are accessible, affordable and inclusive. Consideration could be given to:

(a) supporting child development in a consistent way starting as early as possible by using early childhood education and care services;

(b) analysing the supply and demand from families in order to better adapt the offer of early childhood education and care services to their needs, respecting parental choice;

(c) analysing and addressing the barriers that families might encounter when accessing and using early childhood education and care services, such as costs, poverty-related barriers, geographical location, inflexible opening hours, barriers related to inadequate provisions for children with special needs, cultural and linguistic barriers, discrimination as well as a lack of information;

(d) establishing contact and cooperation with families and especially those in a vulnerable or disadvantaged situation, in order to inform them about the possibilities and benefits of early childhood education and care participation and, where relevant, about available support, and build trust in the services and encourage participation from an early age;

(e) ensuring that all families who want to make use of early childhood education and care services have access to affordable high-quality early childhood education and care, ideally by working at the appropriate governance level towards a right to an early childhood education and care place of high quality;

(f) providing inclusive early childhood education and care services for all children, including children with diverse backgrounds and special educational needs, including disabilities, avoiding segregation and incentivising their participation, regardless of the labour market status of their parents or carers;

(g) supporting all children to learn the language of education while also taking into account and respecting their first language;

(h) strengthening preventive actions, early identification of difficulties and adequate provisions for children with special needs and their families, involving all relevant actors, e.g. educational, social or health services as well as parents.

(35) Children who are suspects or accused persons in criminal proceedings should have the right to an individual assessment to identify their specific needs in terms of protection, education, training and social integration, to determine if and to what extent they would need special measures during the criminal proceedings, the extent of their criminal responsibility and the appropriateness of a particular penalty or educative measure.

(35) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1, 4, 6, 7, 18, 21, 24 and 47 of the Charter and has to be implemented accordingly.

‘Access to education 1.3. Take effective measures to ensure equal treatment and full access for Roma boys and girls to quality and mainstream education and to ensure that all Roma pupils complete at least compulsory education (6). This goal could be attained by means of measures such as measures: (a) eliminating any school segregation; (b) putting an end to any inappropriate placement of Roma pupils in special needs schools; (c) reducing early school leaving (7) throughout all levels of education, including at secondary level and vocational training; (d) increasing the access to, and quality of, early childhood education and care, including targeted support, as necessary; (e) considering the needs of individual pupils and addressing those accordingly, in close cooperation with their families; (f) using inclusive and tailor-made teaching and learning methods, including learning support for struggling learners and measures to fight illiteracy, and promoting the availability and use of extracurricular activities; (g) encouraging greater parental involvement and improving teacher training, where relevant; (h) encouraging Roma participation in and completion of secondary and tertiary education; (i) widening access to second-chance education and adult learning, and providing support for the transition between educational levels and support for the acquisition of skills that are adapted to the needs of the labour market.‘

8 results found

‘6. While the precise and appropriate application of the terms will depend upon the conditions prevailing in a particular State party, education in all its forms and at all levels shall exhibit the following interrelated and essential features: (a) Availability - functioning educational institutions and programmes have to be available in sufficient quantity within the jurisdiction of the State party. What they require to function depends upon numerous factors, including the developmental context within which they operate; for example, all institutions and programmes are likely to require buildings or other protection from the elements, sanitation facilities for both sexes, safe drinking water, trained teachers receiving domestically competitive salaries, teaching materials, and so on; while some will also require facilities such as a library, computer facilities and information technology; (b) Accessibility - educational institutions and programmes have to be accessible to everyone, without discrimination, within the jurisdiction of the State party. Accessibility has three overlapping dimensions: (i) Non-discrimination - education must be accessible to all, especially the most vulnerable groups, in law and fact, without discrimination on any of the prohibited grounds (see paras. 31-37 on non-discrimination); (ii) Physical accessibility - education has to be within safe physical reach, either by attendance at some reasonably convenient geographic location (e.g. a neighbourhood school) or via modern technology (e.g. access to a "distance learning" programme); (iii) Economic accessibility - education has to be affordable to all. This dimension of accessibility is subject to the differential wording of article 13 (2) in relation to primary, secondary and higher education: whereas primary education shall be available "free to all", States parties are required to progressively introduce free secondary and higher education; (c) Acceptability - the form and substance of education, including curricula and teaching methods, have to be acceptable (e.g. relevant, culturally appropriate and of good quality) to students and, in appropriate cases, parents; this is subject to the educational objectives required by article 13 (1) and such minimum educational standards as may be approved by the State (see art. 13 (3) and (4)); (d) Adaptability - education has to be flexible so it can adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings. [...]‘

‘21. The increased role and impact of private actors in traditionally public sectors, such as the health or education sector, pose new challenges for States parties in complying with their obligations under the Covenant. Privatization is not per se prohibited by the Covenant, even in areas such as the provision of water or electricity, education or health care where the role of the public sector has traditionally been strong. Private providers should, however, be subject to strict regulations that impose on them so-called “public service obligations”: in the provision of water or electricity, this may include requirements concerning universality of coverage and continuity of service, pricing policies, quality requirements, and user participation. Similarly, private health-care providers should be prohibited from denying access to affordable and adequate services, treatments or information. For instance, where health practitioners are allowed to invoke conscientious objection to refuse to provide certain sexual and reproductive health services, including abortion, they should refer the women or girls seeking such services to another practitioner within reasonable geographical reach who is willing to provide such services.‘ ‘22. The Committee is particularly concerned that goods and services that are necessary for the enjoyment of basic economic, social and cultural rights may become less affordable as a result of such goods and services being provided by the private sector, or that quality may be sacrificed for the sake of increasing profits. The provision by private actors of goods and services essential for the enjoyment of Covenant rights should not lead the enjoyment of Covenant rights to be made conditional on the ability to pay, which would create new forms of socioeconomic segregation. The privatization of education illustrates such a risk, where private educational institutions lead to high-quality education being made a privilege affordable only to the wealthiest segments of society, or where such institutions are insufficiently regulated, providing a form of education that does not meet minimum educational standards while giving a convenient excuse for States parties not to discharge their own duties towards the fulfilment of the right to education. Nor should privatization result in excluding certain groups that historically have been marginalized, such as persons with disabilities. States thus retain at all times the obligation to regulate private actors to ensure that the services they provide are accessible to all, are adequate, are regularly assessed in order to meet the changing needs of the public and are adapted to those needs. Since privatization of the delivery of goods or services essential to the enjoyment of Covenant rights may result in a lack of accountability, measures should be adopted to ensure the right of individuals to participate in assessing the adequacy of the provision of such goods and services.‘

• Human Rights Council Resolution 25/20 (2014) - The right to education of persons with disabilities URL (Human Rights Council Resolution 25/20 (2014))
• Human Rights Council Resolution 26/17 (2014) - The right to education: follow-up to Human Rights Council resolution 8/4 URL (Human Rights Council Resolution 26/17 (2014))
• Human Rights Council Resolution 35/22 (2017) - Realizing the equal enjoyment of the right to education by every girl URL (Human Rights Council Resolution 35/22 (2017))
• Recommendation CM/Rec (2012)13 of the Committee of Ministers to member States on ensuring quality education URL (Recommendation on ensuring quality education)
• UNESCO Recommendation concerning technical and vocational education and training (TVET) URL (UNESCO Recommendation concerning technical and vocational education and training)
• UNESCO Recommendation on adult learning and education URL (UNESCO Recommendation on adult learning and education)

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ARTICLE XIV EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND SPORTS (1987 Philippine Constitution

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EDUCATION Section 1. The State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all. Section 2. The State shall: 1. Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society; 2. Establish and maintain, a system of free public education in the elementary and high school levels. Without limiting the natural rights of parents to rear their children, elementary education is compulsory for all children of school age; 3. Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the underprivileged ; 4. Encourage non-formal, informal, and indigenous learning systems, as well as self-learning, independent, and out-of-school study programs particularly those that respond to community needs; and 5. Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency, and other skills. Section 3. 1. All educational institutions shall include the study of the Constitution as part of the curricula. 2. They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency. 3. At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.

Melanesia Eva

theresa custodio

Rhea Pascua

John Nhoel Bernabe

Preamble: We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.

Eduardo Encarnacion

Jay Lord Soriano

Benjamin Joseph Y. Geronimo

TONI EIFFER TENTEN REMUDARO

The 1987 Philippine Constitution

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Commentary on the eu charter: article 14: the right to education.

Commentary explaining the scope and content of the right to education (Article 14) in the EU Charter. Includes detailed sections on the main aspects of Article 14 including: non-discrimination in access to education, right of access to education, possibility of compulsory free education, freedom to found educational establishments and respect of parents' convictions.

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Demarcating the Margin: Positive Obligations under Article 14 of the European Convention on Human Rights

By: Daron Tan, LL.M., Columbia Law School, 2018

I want to extend my gratitude to Professor Nicholas Bamforth for his comments on an earlier draft of this piece. All errors remain my own.

I. Introduction

The European Court of Human Rights (“ ECtHR ”) has been increasingly willing to recognize the positive duties of States and public authorities to realize the right to equality that is protected by Article 14 of the European Convention on Human Rights (“ ECHR ”). This development has been most noticeable in the areas of indirect discrimination, parental rights, and gender-based violence.

However, this development in the Article 14 jurisprudence needs to be approached cautiously with an appropriate margin of appreciation. This is necessary to balance the orthogonal interests of substantive equality and a necessary degree of deference to Member States. This is especially vital for the imposition of positive duties, which are typically more intrusive than traditional duties of restraint. In this line of logic, articulating a clearer list of factors that can determine what the appropriate margin of appreciation should be in Article 14 cases can help bring transparency to the dilemma between these competing interests.

Section II will address how a textual reading of the provisions of Article 14 permits the finding of positive obligations. The casting of positive obligations on States is an important and necessary step to achieving substantive equality. This will be explained based on an analysis on the case law on gender-based violence (Section III) and parental rights (Section IV). However, the development of the case law on positive obligations must be limited by the principle of subsidiarity (Section V). This paper will articulate a list of relevant factors,for demarcating the margin of appreciation, with the factors organized into the different stages in which the margin is relevant (Section VI). These go towards expanding the scope of Article 14 from being a prohibition on discrimination, to being a protection against discrimination.

II. Moving beyond negative duties under Article 14

Article 14 of the ECHR prohibits discrimination, and provides that:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The official text of the Convention labels Article 14 as the “ prohibition of discrimination.” Under this reading, Article 14 is concerned with negative human rights, where the State or private actors are prevented from certain conduct that treats certain protected groups differently. Initial case law litigated under Article 14 confirms this negative conception. In Abdulaziz, Cabales and Balkandali v. UK , the ECtHR held that the UK’s immigration laws unlawfully discriminated against the applicants, because the applicants were “treated, without proper justification, less favourably than another.” (¶ 82). This reasoning places the emphasis on the active nature of the State’s conduct that is incompatible with Article 14. In this conception, the State has to refrain from discrimination to avoid active impediments of and respect an applicant’s right to non-discrimination.

However, negative duties under Article 14 are not mutually exclusive with positive obligations. The increased willingness of the ECtHR to recognize positive obligations moves Article 14 from merely prohibiting discrimination, to protecting individuals from discrimination . This expansive judicial development is enabled by the unique structure of Article 14. Two characteristics of Article 14 have precipitated this development. First, Article 14 is framed in positive terms. Second, Article 14 is not a freestanding right, and is parasitic to another Convention right being engaged.

First, Article 14 does not expressly prohibit discrimination, but is instead framed as a positive right to secure non-discrimination. Instead of explicitly prohibiting discrimination, it states that the “enjoyment of the rights and freedoms […] shall be secured without discrimination” on the grounds of protected characteristics. The word “secured” suggests an effort to obtain or achieve something : this can be read in contradistinction to a mere duty to refrain from doing something. This reading of Article 14 implies an obligation on the State not only to respect the right, but also to protect and fulfill their obligations. At face value, Article 14 can contain both negative duties and positive duties on the part of the State, with the purpose of attaining the objective of equality and non-discrimination.

This reading of the word “secured” was confirmed by the Council of Europe in their Explanatory Report to the Protocol No. 2 to the Convention for the Protection of Human Rights and Fundamental Freedoms . Article 1 of Protocol No. 12 also uses the language of “secured without discrimination.” In analyzing the scope of this provision, the Council of Europe stated that “positive obligations cannot be excluded altogether,” especially where “there is a clear lacuna in domestic law protection from discrimination.” Thus, at the very least, Article 14 does not exclude reading positive obligations into its scope. This stands in contrast with the Equal Protection Clause in the Fourteenth Amendment to the U.S. Constitution , which provides that no state “shall […] deny to any person within its jurisdiction the equal protection of the laws.” The operative word of “deny” has translated to the U.S. Courts narrowly construing the Fourteenth Amendment as solely being a protection of people from the State, without a corresponding positive obligation for the State to protect individuals from each other.

Second, Article 14 is a parasitic right that is accessorial to the enjoyment of other Convention rights. However, the ECtHR’s broader interpretation of the role of the “gateway” rights has allowed for Article 14 to be read more expansively. This expansion can be seen in how the ECtHR has moved from “breach” to “ambit” in the development of Article 14. Instead of requiring a breach of another Convention right for Article 14 to be read in conjunction with the other Convention right, it was sufficient for the discrimination to “touch the enjoyment” of another Convention right ( Belgian Linguistics ). In other words, as formulated by the ECtHR later in Thlimmenos v. Greece , it is sufficient that “the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols.”

This has widened the net cast by Article 14, because the principle of non-discrimination now extends to all the Convention rights and its resulting obligations, including positive obligations. For instance, in E.B. v. France , the Court made clear that although Article 8 (the right to family life) did not confer an express right to a single person to adopt a child, the fact that adoption clearly fell within the “ambit” of Article 8 meant that “the State, which has gone beyond its obligations under Article 8 in creating such a right cannot in application of that right, take discriminatory measures within the meaning of Article 14.” While Article 8 does not confer a freestanding right to adopt, reading Article 8 in conjunction with Article 14 creates a right that prevents prohibitions on adoption because of one’s sexual orientation. In effect, the applicants can now adopt children as a result of the decision. This casts upon the State a positive obligation to permit adoption, which would not have been possible if the applicants had relied on Article 8 (or Article 12) alone .

III. Realizing Substantive Equality: Gender-Based Violence

The stronger bite of Article 14 that has been created by this expansive reading has allowed the ECtHR to promote a substantive conception of equality, and positive obligations are a crucial measure to attaining this. According to Fredman , substantive equality has four objectives:

[R]edressing disadvantage (the redistributive dimension); addressing stigma, stereotyping, prejudice and violence (the recognition dimension); facilitating participation (the participatory dimension); and accommodating difference, including through structural change (the transformative dimensions).

A substantive conception of equality recognizes that the ostensible façade of formal equality is insufficient. A focus on equal treatment instead of equal outcomes decontextualizes the systemic disadvantage and oppression that some persons are subject to, because of their membership in a particular marginalized group. If Article 14 is concerned solely with duties of restraint, structures of inequality are not challenged, and are left protected by the misguided understanding that responsibility for change rests only with those who have committed acts of deliberate or manifest prejudice. A substantive conception of equality calls on States to take positive measures to promote equality in order to effectively vindicate the values and interests that are protected by the Convention rights. As Liebenberg has pointed out, an enforcement of only negative duties would fail to “interrogate the way in which existing legal rules operate to reinforce poverty and social marginalization.”

This pursuit of substantive equality is reflected in the case law on gender-based violence, where the ECtHR has started recognizing positive human rights duties for the State to prevent gender-based violence. This is part of a movement to effect societal change in terms of attitudes towards women. Notably, the ECtHR’s case law on domestic violence demonstrates a commitment to the recognition and redistributive dimensions of Fredman’s conception of substantive equality, where the disproportionate impact of domestic violence on women is acknowledged, and redressed through the imposition of positive obligations.

In Opuz v. Turkey , the ECtHR held that in cases of gender-based violence, positive interference with the private or family life might be necessary to protect the health and the rights of women. The State’s failure to protect women against domestic violence was a breach of the applicant’s right to equal protection of the law, regardless of the intent of the State. This judicial passivity had been occurring against a backdrop of high numbers of reports of domestic violence, the majority of which were women who “were of Kurdish origin, illiterate or of a low level of education and generally without any independent source of income.” (¶ 194). Additionally, Turkish laws on domestic violence are poorly implemented, because “domestic violence is tolerated by the authorities,” and “the remedies indicated by the Government do not function effectively.” (¶ 196). In so doing, the ECtHR was sending a clear judicial signal of moving way from a fault-based system (where fault of the State had to be proven). Instead, the hardship of the applicant can be situated in the wider pattern of gender-based violence in Turkey, and “the overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors.” (¶ 200).

This was similarly reflected in Eremia v. Republic of Moldova . The ECtHR held that the State’s failure to protect the victims against domestic violence breached its positive duties under Article 3 and Article 14. It established that the “State’s failure to protect women against domestic violence breaches their right to equal protection of the law and that this failure does not need to be intentional.” (¶ 85). The ECtHR highlighted how stereotypes and prejudices against women percolated the State’s indifference towards victims of violence and entrenched structures that perpetuated the disproportionate impact of domestic violence against women. For instance, the ECtHR noted how the relevant family protection department in the applicant’s area failed to enforce the protection order issued in her name for over three months because she was “not the first nor the last woman to be beaten up by her husband.” (¶ 87). The effect of this would be for the ECtHR, like in Opuz , to locate the incident within institutional, patriarchal attitudes. The positive duties enforced by the ECtHR sought to correct the systemic and institutionalized hierarchy of women’s rights as being subservient to the patriarchy. The ECtHR went beyond a mere duty of restraint, by emphasizing the need for structural change in society to achieve substantive equality.

This pursuit of substantive equality in the context of gender-based violence has also been reflected in the ECtHR’s other case law on other Convention rights. For instance, in Valiuliene v. Lithuania , the concurring opinion of Judge Pinto de Albuquerque pointed out that the “full effet utile of the [ECHR] can only be achieved with a gender-sensitive interpretation and application of [the ECHR’s] provisions which takes in account the factual inequalities between women and men and the way they impact on women’s lives.” This approach is also consistent with the UN’s approach , where domestic violence is recognized as a form of gender-based discrimination. States “may be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.” (¶ 9).

It is worth noting what positive duties are being expected of the Contracting States in these two cases. As has been noted above, the recognition and redistributive dimensions of Fredman’s conception of substantive inequality can explain the reasoning of the ECtHR. The obligations placed on States here relate primarily to compensation (to redress the harms suffered by the applicants), and the necessity to enforce laws on domestic violence effectively and with due diligence. This, however, falls short of facilitating the participation of women, and transforming the structures in which women live. These are both dimensions that are pivotal to realizing true substantive equality for women in these societies. This can, perhaps, be attributed to how far-reaching the positive duties would be if they were to address these systemic inequalities. If so, the type of positive duties being imposed is a necessary consideration in how wide the margin of appreciation accorded to States should be (which will be discussed in further detail in Section V). However, in the absence of any explicit references to the margin of appreciation in these two cases, one can only speculate on why the ECtHR limited the scope of positive duties in these cases to procedural due diligence and compensation.

IV. Realizing Substantive Equality: Parental Rights

Another instance in which the ECtHR has demonstrated such willingness is when it has called for the State to properly account for its decision to exclude certain groups of socioeconomic benefits provided to others. This non-discrimination clause can transform negative duties associated with civil and political rights, to positive duties to make socioeconomic provisions equally available.

The development of the case law on parental rights from Petrovic v. Austria to Konstantin Markin v. Russia is worth particular perusal. In Petrovic v. Austria , the Court held that unless the State could justify the exclusion of fathers from the right to a parental leave allowance that was available to mothers, it would be under a positive duty to provide the allowance to fathers and not solely to mothers. However, it eventually found that Austria’s justification was acceptable because there was a lack of a common accepted standard among Convention countries of giving fathers the right to paternity benefits. The disparity between legal systems of Contracting States meant that States had a wide margin of appreciation in respect of welfare policy.

However, in Konstantin Markin v. Russia (decided 14 years after Petrovic ), the Court took more assertive steps towards realizing shared parenting responsibilities, and the corresponding positive duty of States to provide parental leave to both fathers and mothers. The Court did so by drawing a bright line between maternity leave, and parental leave and parental leave allowances. The former is “intended to enable the woman to recover from the childbirth and to breastfeed her baby if she so wishes.” (¶ 132). However, the latter “relate[s] to the subsequent period and [is] intended to enable a parent concerned to stay at home to look after an infant personally.” (¶ 132). Therefore, providing maternity leave to mothers and not to fathers has the “effect of perpetuating gender stereotypes disadvantageous both to women’s careers and to men’s family life.” (¶ 141). The justification provided by the Russian Constitutional Court on the “special social role of women associated with motherhood” (¶ 34) to preclude the extension of paternal rights was also internally incoherent, because Russian society has already accepted that parental leave should be available to civilian men. Thus, it is hard to follow the logic that Russian culture would not be ready to do the same for servicemen.

This approach by the ECtHR in Konstantin Markin is far more progressive than the approach to gender-based violence in Opuz and Ereima . The language of the Court exemplifies the transformative dimension of Fredman’s substantive equality, where the positive duties that are being imposed on the State are aimed at countering deep-rooted inequalities and stereotypes. The boldness of the Court was motivated in part by the progressive social movement in Europe on parental rights, which seeks to develop a “wide international consensus in European and universal human rights law and international labour law” on the extension of parental leave to both parents as a non-transferable and individual entitlement, as noted by Judge Pinto de Albuquerque in his partly concurring, partly dissenting opinion.

V. Limiting this Expansion: Margin of Appreciation

Notwithstanding the sanguine perspective that the ECtHR should interpret Article 14 more progressively in the judicial vision of substantive equality, this optimism cannot be divorced from the role of the ECtHR as a supra-national court, and the doctrine of the margin of appreciation. As McGoldrick has observed, the ECtHR’s jurisprudence is underscored by the principle of subsidiarity, meaning that its mandate is premised on “institutional competence, comparative institutional advantage or judicial self-restraint.” The margin of appreciation is a necessary acknowledgement of the politically and economically intrusive nature of positive duties on Member States.

The trepidation inherent in the case law on positive obligations can also be explained with reference to the political backlash that would arise from imposing positive duties on Member States. This was evident in the Russian reaction to Konstantin Markin . A Russian Senator Alexander Torshin suggested a radical bill to limit the ECHR’s influence on Russia’s legal system that places the Kompetenz-Kompetenz with the Russian Constitutional Court. The potentially politically tenuous relationship that the ECtHR may have with its Member States can be threatened if the court takes a too robust approach with regards to substantive equality and positive duties. This may account for the relatively narrow circumstances in which Article 14 has been invoked with regards to positive duties.

However, this falls short of suggesting that the ECtHR should shy away from passing politically controversial decisions. As Judge Pinto de Albuquerque noted in his dissent in Hutchinson v UK , adopting too wide a margin of appreciation would result in “downgrading the role of the Court before certain domestic jurisdictions,” such that it ends up as a “non-judicial commission of highly qualified and politically legitimised experts, which does not deliver binding judgments.” Instead, this paper proposes that because positive duties translate to a greater interference with domestic competence, the ECtHR must be more cautious. Positive duties require complex policy decisions to be made, which the ECtHR may not competence to do. This decision-making is done within the spectrum of providing equal opportunities on the one hand, and equality of results on the other end. Moving forward, the main dilemma that the ECtHR must confront is how to find an appropriate balance between achieving substantive equality on the one hand, and finding an appropriate margin of appreciation for Member States on the other.

VI: Demarcating the Margin

How exactly should the margin of appreciation be demarcated, insofar as it serves the function of balancing the two opposing interests at stake here?

The first area where the margin of appreciation under Article 14 can be more clearly delimited is to note that the margin is relevant at two logically distinct stages:

• Stage 1 : in assessing the merits of the State’s justification for the differential treatment under Article 14; and
• Stage 2 : in assessing whether the positive obligations expected of the State are reasonable and adequate.

This distinction is important for organizing the factors that are relevant to assessing the margin of appreciation that should be accorded to States for Article 14 prima facie breaches. In fact, a degree of confusion can be seen in some of the academic commentary on the margin of appreciation and judicial deference in Article 14, where the role of deference is conflated for the two stages. For instance, Fredman has suggested that the Court’s role is to “advance accountability, deliberative democracy, and participative equality.” Decision-makers are required to justify their decisions on why, for instance, fathers are precluded from parental allowances from the State. This would increase the range of opinions aired on the issue: since judges have “limited wisdom and limited tools,” their role in the judicial inquiry is thus “catalytic rather than preclusive.” However, it is hard to see how in recognizing positive equality duties, the ECtHR is merely expecting justification from the States to improve the deliberation that goes into decision-making. The merits of the justifications are eventually assessed by the proportionality inquiry (Stage 1), such that the anticipated end result would be positive duties on the part of the Member States that interfere with the socioeconomic policy making of the Member States (Stage 2). The obligation cast on States is twofold: first, in providing justifications for the differential treatment; and second, in providing positive measures in response to the unjustified differential treatment. The two, while interlinked, are conceptually discrete.

For instance, the ECtHR tends towards deference where ending either direct or indirect discrimination would require significant cost and resource implications for governments, e.g. the provision of parental leave allowances in Petrovic . This goes towards assessing what positive measures should be provided by the State (Stage 2). However, this comes logically subsequent to the prior question of whether the State’s justifications for the differential treatment of a group are “objective and reasonable” ( Thlimmenos ). In some sense, the first stage is a sine qua non for the second stage: it is only where the justification advanced by the State is inadequate, that an assessment of what is a adequate and reasonable positive obligation to remedy the breach would be relevant.

The second area where the clarity can be injected into the proportionality inquiry is by articulating the factors that are involved in the Court’s decision on the size of the margin of appreciation. With respect to assessing whether the justification provided by the State is “objective and reasonable” ( Thlimmenos ), the regional or international consensus over whether the positive measure is appropriate is one of the most relevant factors. For instance, in Petrovic , Austria had a broader margin because of the lack of consensus, but Russia had a narrower margin because there was a developed consensus on parental rights in Konstantin Markin . While this reasoning might fall prey to the notion of subscribing to positive morality (where what is considered right is determined by consensus), this is a necessary compromise because of the political and socioeconomic intrusiveness of positive obligations.

The next step of the inquiry is then to look at the specific positive measure that is being cast on the State. This step comes logically subsequent to the previous step: it is only where the justification advanced by the State has been considered inadequate that the specificity of the positive measures (which serve as a remedy to the Article 14 breach) is assessed. To this end, the margin of appreciation that is accorded to States at this second stage should depend on:

• Whether a negative duty (narrower margin) or positive duty (broader margin) is imposed;
• The type of obligation being imposed (where a narrower margin of appreciation is accorded for procedural due process obligations, e.g. in Opuz and Ereima , than substantive socioeconomic provisions, e.g. in Petrovic and Konstantin Markin );
• The cost and resource implications for governments (with a broader margin being accorded to costlier measures); and
• The context in which the positive duty is being recognized (with matters of national security having a broader margin).

While fully acknowledging that this is by no means a precise calibrating mechanism, this will nonetheless provide more coherent guidance on determining the margin of appreciation for Article 14 breaches. Once the threshold has been determined, the justifications provided by Member States can then be assessed, within this pre-determined margin of appreciation. This has already been done in the judicial reasoning process under Article 4 breaches. It was held in Rantsev v Cyprus and Russia that the obligation to take operational measures must “be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.” (¶ 219). This was important in order to bear in mind “the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources.” (¶ 287). In other words, the State’s positive obligations would be to take reasonable and adequate measures to protect persons and provide redress, with what is considered reasonable and adequate being determined by the margin of appreciation.

By bringing these policy considerations of Member States to the forefront of the judicial reasoning process, the margin of appreciation that is eventually accorded to Member States can be explicitly justified, beyond a mere recitation of the concept as a smokescreen for actual legal reasoning.

VII. Conclusion

To conclude, the expansion of the scope of positive obligations being recognized under Article 14 of the ECHR is an encouraging development that endeavors towards a judicial vision of substantive equality. However, what is immediately apparent from this is that the finding of positive duties confers upon the ECtHR the additional burden of balancing the interference with the autonomy of Contracting States with an appropriate level of deference to them. This is premised on how recognizing positive duties is far more intrusive than the traditional duties of restraint under discrimination law. In addition, certain positive duties are more onerous than others: for instance, duties that go towards transformative change (as opposed to merely redressing harms) are far more intrusive on the autonomy of Contracting States.

To this extent, two clarifications to the proportionality inquiry have been proposed. First, the margin of appreciation is relevant at two distinct stages. Second, an illustrative and transparent list of factors can be spelled out to assess the extent of the positive duties to be generated from Article 14 breaches. This clarification would allow for the concept of the margin of appreciation in Article 14 breaches to be used in a coherent and consistent manner that balances the rights and responsibilities of the various stakeholders in breaches of fundamental rights.

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Education, Science and Technology, Arts, Culture and Sports (Article XIV, Philippine Constitution): Full Text

ARTICLE XIV EDUCATION, SCIENCE AND TECHNOLOGY,ARTS, CULTURE AND SPORTS

( 1987 philippine constitution ).

Section 1 . The State shall protect and promote the right of all citizens to quality education at all levels and shall take appropriate steps to make such education accessible to all.

Section 2 . The State shall:

(1) Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society;

(2) Establish and maintain, a system of free public education in the elementary and high school levels. Without limiting the natural rights of parents to rear their children, elementary education is compulsory for all children of school age;

(3) Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the underprivileged;

(4) Encourage non-formal, informal, and indigenous learning systems, as well as self-learning, independent, and out-of-school study programs particularly those that respond to community needs; and

(5) Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency, and other skills.

Section 3 . (1) All educational institutions shall include the study of the Constitution as part of the curricula.

(2) They shall inculcate patriotism and nationalism, foster lover of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency.

(3) At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.

Section 4 .(1) The State recognizes the complementary roles of public and private institutions in the educational system and shall exercise reasonable supervision and regulation of all educational institutions.

(2) Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions.

The control and administration of educational institutions shall be vested in citizens of the Philippines.

No educational institution shall be established exclusively for aliens and no group of aliens shall comprise more than one-third of the enrollment in any school. The provisions of this subsection shall not apply to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents.

(3) All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law.

Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions subject to the limitations provided by law including restrictions on dividends and provisions for reinvestment.

(4) Subject to conditions prescribed by law, all grants, endowments, donations, or contributions used actually, directly, and exclusively for educational purposes shall be exempt from tax.

Section 5 . (1) the State shall take into account regional and sectoral needs and conditions and shall encourage local planning in the development of educational policies and programs.

(2) Academic freedom shall be enjoyed in all institutions of higher learning.

(3) Every citizen has a right to select a profession or course of study, subject to fair, reasonable, and equitable admission and academic requirements.

(4) The State shall enhance the right of teachers to professional advancement. Non-teaching academic and non-academic personnel shall enjoy the protection of the State.

(5) The State shall assign the highest budgetary priority to education and ensure that teaching will attract and retain its rightful share of the best available talents through adequate remuneration and other means of job satisfaction and fulfillment.

Section 6 . The national language of the Philippines is Filipino. As it evolves, it shall be further developed and enriched on the basis of existing Philippine and other languages.

Subject to provisions of law and as the Congress may deem appropriate, the Government shall take steps to initiate and sustain the use of Filipino as a medium of official communication and as language of instruction in the educational system.

Section 7 . For purposes of communication and instruction, the official languages of the Philippines are Filipino and, until otherwise provided by law, English.

The regional languages are the auxiliary official languages in the regions and shall serve as auxiliary media of instruction therein.

Spanish and Arabic shall be promoted on a voluntary and optional basis.

Section 8 . This Constitution shall be promulgated in Filipino and English and shall be translated into major regional languages, Arabic, and Spanish.

Section 9 . The Congress shall establish a national language commission composed of representatives of various regions and disciplines which shall undertake, coordinate, and promote researches for the development, propagation, and preservation of Filipino and other languages.

Science and Technology

Section 10 . Science and technology are essential for national development and progress. The State shall give priority to research and development, invention, innovation, and their utilization; and to science and technology education, training, and services. It shall support indigenous, appropriate, and self- reliant scientific and technological capabilities, and their application to the country’s productive systems and national life.

Section 11 . The Congress may provide for incentives, including tax deductions, to encourage private participation in programs of basic and applied scientific research. Scholarships, grants-in-aid, or other forms of incentives shall be provided to deserving science students, researchers, scientists, inventors, technologists, and specially gifted citizens.

Section 12 . The State shall regulate the transfer and promote the adaptation of technology from all sources for the national benefit. It shall encourage the widest participation of private groups, local governments, and community-based organizations in the generation and utilization of science and technology.

Section 13 . The State shall protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law.

Arts and Culture

Section 14 . The State shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression.

Section 15 . Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation’s historical and cultural heritage and resources, as well as artistic creations.

Section 16 . All the country’s artistic and historic wealth constitutes the cultural treasure of the nation and shall be under the protection of the State which may regulate its disposition.

Section 17 . The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies.

Section 18 . (1) The State shall ensure equal access to cultural opportunities through the educational system, public or private cultural entities, scholarships, grants and other incentives, and community cultural centers, and other public venues.

(2) The State shall encourage and support researches and studies on the arts and culture.

Section 19 . (1) The State shall promote physical education and encourage sports programs, league competitions, and amateur sports, including training for international competitions, to foster self-discipline, teamwork, and excellence for the development of a healthy and alert citizenry.

(2) All educational institutions shall undertake regular sports activities throughout the country in cooperation with athletic clubs and other sectors.

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Amdt14.S1.8.12.4 Educational Opportunity, Wealth, and Equal Protection

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Making even clearer its approach in de facto wealth classification cases, the Court in San Antonio School District v. Rodriguez 1 Footnote 411 U.S. 1 (1973) . The opinion by Justice Lewis Powell was concurred in by the Chief Justice and Justices Potter Stewart, Harry Blackmun, and William Rehnquist. Justices William O. Douglas, William Brennan, Byron White, and Thurgood Marshall dissented. Id. at 62, 63, 70 . rebuffed an intensive effort with widespread support in lower court decisions to invalidate the system prevalent in forty-nine of the fifty states of financing schools primarily out of property taxes, with the consequent effect that the funds available to local school boards within each state were widely divergent. Plaintiffs had sought to bring their case within the strict scrutiny—compelling state interest doctrine of equal protection review by claiming that under the tax system there resulted a de facto wealth classification that was suspect or that education was a fundamental right and the disparity in educational financing could not therefore be justified. The Court held, however, that there was neither a suspect classification nor a fundamental interest involved, that the system must be judged by the traditional restrained standard, and that the system was rationally related to the state’s interest in protecting and promoting local control of education. 2 Footnote Id. at 44–55 . Applying the rational justification test, Justice Byron White would have found that the system did not use means rationally related to the end sought to be achieved. Id. at 63 .

Important as the result of the case is, the doctrinal implications are far more important. The attempted denomination of wealth as a suspect classification failed on two levels. First, the Court noted that plaintiffs had not identified the class of disadvantaged ‘poor’ in such a manner as to further their argument. That is, the Court found that the existence of a class of poor persons, however defined, did not correlate with property-tax-poor districts; neither as an absolute nor as a relative consideration did it appear that tax-poor districts contained greater numbers of poor persons than did property-rich districts, except in random instances. Second, the Court held, there must be an absolute deprivation of some right or interest rather than merely a relative one before the deprivation because of inability to pay will bring into play strict scrutiny. The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. 3 Footnote Id. at 20 . But see id. at 70, 117–24 (Marshall and Douglas, JJ., dissenting). No such class had been identified here and more importantly no one was being absolutely denied an education; the argument was that it was a lower quality education than that available in other districts. Even assuming that to be the case, however, it did not create a suspect classification.

Education is an important value in our society, the Court agreed, being essential to the effective exercise of freedom of expression and intelligent utilization of the right to vote. But a right to education is not expressly protected by the Constitution, continued the Court, nor should it be implied simply because of its undoubted importance. The quality of education increases the effectiveness of speech or the ability to make informed electoral choice but the judiciary is unable to determine what level of quality would be sufficient. Moreover, the system under attack did not deny educational opportunity to any child, whatever the result in that case might be; it was attacked for providing relative differences in spending and those differences could not be correlated with differences in educational quality. 4 Footnote Id. at 29–39 . But see id. at 62 (Brennan, J., dissenting), 70, 110–17 (Marshall and Douglas, JJ., dissenting).

Rodriguez clearly promised judicial restraint in evaluating challenges to the provision of governmental benefits when the effect is relatively different because of the wealth of some of the recipients or potential recipients and when the results, what is obtained, vary in relative degrees. Wealth or indigency is not a per se suspect classification but it must be related to some interest that is fundamental, and Rodriguez doctrinally imposed a considerable barrier to the discovery or creation of additional fundamental interests. As the decisions reviewed earlier with respect to marriage and the family reveal, that barrier has not held entirely firm, but within a range of interests, such as education, 5 Footnote Cf. Plyler v. Doe , 457 U.S. 202 (1982) . The case is also noted for its proposition that there were only two equal protection standards of review, a proposition even the author of the opinion has now abandoned. the case remains strongly viable. Relying on Rodriguez and distinguishing Plyler , the Court in Kadrmas v. Dickinson Public Schools 6 Footnote 487 U.S. 450 (1988) . This was a 5-4 decision, with Justice Sanra Day O’Connor’s opinion of the Court being joined by Chief Justice William Rehnquist and Justices Byron White, Antonin Scalia, and Anthony Kennedy, and with Justices Thurgood Marshall, William Brennan, John Paul Stevens, and Harry Blackmun dissenting. rejected an indigent student’s equal protection challenge to a state statute permitting school districts to charge a fee for school bus service, in the process rejecting arguments that either strict or heightened scrutiny is appropriate. Moreover, the Court concluded, there is no constitutional obligation to provide bus transportation, or to provide it for free if it is provided at all. 7 Footnote 487 U.S. at 462 . The plaintiff child nonetheless continued to attend school, so the requirement was reviewed as an additional burden but not a complete obstacle to her education.

•   Jump to essay-1 411 U.S. 1 (1973) . The opinion by Justice Lewis Powell was concurred in by the Chief Justice and Justices Potter Stewart, Harry Blackmun, and William Rehnquist. Justices William O. Douglas, William Brennan, Byron White, and Thurgood Marshall dissented. Id. at 62, 63, 70 .
•   Jump to essay-2 Id. at 44–55 . Applying the rational justification test, Justice Byron White would have found that the system did not use means rationally related to the end sought to be achieved. Id. at 63 .
•   Jump to essay-3 Id. at 20 . But see id. at 70, 117–24 (Marshall and Douglas, JJ., dissenting).
•   Jump to essay-4 Id. at 29–39 . But see id. at 62 (Brennan, J., dissenting), 70, 110–17 (Marshall and Douglas, JJ., dissenting).
•   Jump to essay-5 Cf. Plyler v. Doe , 457 U.S. 202 (1982) . The case is also noted for its proposition that there were only two equal protection standards of review, a proposition even the author of the opinion has now abandoned.
•   Jump to essay-6 487 U.S. 450 (1988) . This was a 5-4 decision, with Justice Sanra Day O’Connor’s opinion of the Court being joined by Chief Justice William Rehnquist and Justices Byron White, Antonin Scalia, and Anthony Kennedy, and with Justices Thurgood Marshall, William Brennan, John Paul Stevens, and Harry Blackmun dissenting.
•   Jump to essay-7 487 U.S. at 462 . The plaintiff child nonetheless continued to attend school, so the requirement was reviewed as an additional burden but not a complete obstacle to her education.

It is among the greatest scourges afflicting humanity at the end of the 20 century.  It has left hundreds of millions of adults disadvantaged, vulnerable and impoverished.  Each year, it claims millions of new victims from the ranks of the world’s most vul­nerable citi­zens: its children.  It is destroying human potential on a vast scale.  Most of the victims are poor.  The vast majority are young girls and women.  The scourge in question is not a disease, but mass illiteracy, caused by exclusion from opportunities. Failure to act will carry a high price.  Universal primary education is an imperative for ad­dressing the single greatest challenge facing humanity at the end of the 20 century: namely, the eradication of poverty.  It is also a fundamental requirement for social jus­tice.  We are living through an age in which education is becoming an increas­ingly im­portant determinant of living standards.  Countries and individuals without access to the skills and knowledge provided by education will fall further and further behind . . . Some will object that universal primary education is an impractical and unaffordable goal.  In fact, the achievement of universal primary education within a decade in all de­veloping re­gions would cost only $7-8 billion annually, over and above existing expen­diture.  This rep­resents: about four days’ worth of global military spending; seven days’ worth of currency speculation in international markets; less than half of what North American parents spend on toys for their children each year; and less than the annual amount that Europeans spend on computer games or mineral water. Crucial as international support is, it would count for little in the absence of national ac­tion.  Developing countries themselves must do far more.  Between them India and Paki­stan have 40 million children out of school-over one third of the global total.  Education is one of the main driving forces of poverty in both countries.  Yet their governments spend more on armaments and on creating a new balance of nuclear terror than on pri­mary education.  Sadly their example is widely followed. The world cannot afford to tolerate the poverty, injustice, and waste associated with the mass violation of the right to education. Education has been regarded in all societies and throughout human history both as an end in itself and as a means for the individual and society to grow.  Its recognition as a human right is de­rived from the indispensability of education to the preservation and enhancement of the in­herent dignity of the human person. (See Module 1 for more discussion on this point). Several international, regional and national legal instruments recog-nize the right to educa­tion. states, "Everyone has the right to educa­tion.”  In addition, it says that it shall be free, at least in the elementary and fundamental stages.  Ele­mentary education shall be compulsory.  Higher education shall be equally acces­sible to all on the basis of merit, and technical and professional education shall be made generally avail­able. The UDHR also stipulates that education should be directed towards the full development of the human personality and strengthen respect for human rights.  Finally, it acknowledges that parents have a prior right to choose the kind of education that shall be given to their children.  Articles 13 and 14 of the ICESCR set out detailed formulations of the right to education.  Article 13 contains a general statement that everyone has the right to education and that edu­cation should contribute to the full development of the human personality.  It also specifi­cally stipulates: • Primary education shall be compulsory and available free to all. • Secondary education, including technical and vocational education, shall be made generally available and accessible to all by every appropriate means, in particular by the progressive introduction of free education. • Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, in particular by the progressive introduction of free educa­tion. • Fundamental education shall be intensified for those persons who have not received or completed the whole period of their primary education. • Systems of schools shall be established and the material condition of teaching staff shall be continuously improved. • The liberty of parents or guardians to choose for their children schools other than those established by the public authorities which conform to minimum educational standards shall be respected.  In addition, article 13 recognizes the liberty of parents or guardians to ensure the religious and moral education of their children in confor­mity with their own convictions. Article 14 requires each state party that has not been able to secure compulsory primary edu­cation free of charge, to undertake, "within two years, to work out and adopt a detailed plan of action for the progressive implementation . . . of compulsory primary education free of charge for all.”  Articles 28 and 29 of the CRC deal with the right of the child to education.  Article 28 is similar to the provisions contained in ICESCR.  In addition, it states that school discipline should be administered in a manner consistent with a child’s human dignity.  Article 29 stipulates that the education of the child shall be directed towards the development of the child’s personality, talents, and mental and physical abilities to their fullest potential.   The UNESCO Convention stipulates that states parties must undertake to formulate, develop and apply a national policy which will tend to promote equality of opportunity and treatment, and, in particular, to make primary education free and compulsory.  In addition, it recognizes par­ents’ right to freely choose their children’s educational institutions and to ensure the re­ligious and moral education of their children in conformity with their own convictions. Article 10 of CEDAW also contains provisions dealing with the right to education.  It pro­vides, for example, for equal access to career and vocational guidance and to studies at all educational levels; access to the same curricula and examinations; elimination of stereotyp­ing in the roles of women and men; and the same opportunities to benefit from academic scholarships. The right to education is recognized and guaranteed under several regional human rights in­struments.  These include the African Charter on Human and Peoples’ Rights (article 17) and the African Charter on the Rights and Welfare of the Child; the American Declaration of the Rights and Duties of Man (article 12) and the Additional Protocol to the American Conven­tion on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) (article 13); the European Convention on the Legal Status of Migrant Workers (articles 14 and 15); and the Framework Convention for the Protection of National Minori­ties (articles 13 and14). "The notion that elementary education is a fundamental right is not accepted by all, at least not wholeheartedly. Some even perceive the universalization of education as a threat to the opportunities of their own children. In their view, the role of the schooling system is to act as a "filtering process", which picks the best and the brightest and helps them to realize their potential. If too many children get on board, the prospects of those who currently enjoy the privilege of good schooling facilities will be threatened. Of course, these feelings are seldom expressed openly. Instead, the tendency is to rationalize the inequities of the schooling system in various ways. One common device is to blame the victims. Poor parents, for instance, are held responsible for not sending their children to school, overlooking all the difficulties they face. Below are other real life examples of statements of this kind, heard in middle-class circles in the course of our research: 'So many schools, how can you talk of a shortage of schools?' 'Lack of enterprise-so lazy, they do not make the best of the opportunities offered.' 'Why should government take the responsibility for educating children?' 'We have worked. We pay taxes. We should get something in return.' 'If a man can pay for his beedis (cigarette), if a man can buy daru (liquor), then in my opinion he should be able to pay for his child's education.' 'Waste of resources. They need literacy, that's it. Just enough to catch a bus.' 'The government has reduced funding for higher education to promote primary education-yet it is a fact that many of these people cannot learn.' The perception of schooling as a filtering process has a strong influence on educational planning. It helps to explain, for instance, why enormous resources have been spent on developing world-class institutions of higher learning (such as Institutes of Management and Institutes of Technology) while thousands of primary schools went without blackboard or drinking water. Teaching methods and the school curriculum also bear the stamp of this view of education as a rat-race." National constitutions The constitutions of several countries include provisions on the right to education.   For ex­ample, article 56 of El Salvador’s Constitution guarantees the right to education, and man­dates the provision of basic and special education freely to citizens.  Similarly, the South Af­rican Constitution safeguards its citizens’ right to basic formal education, which the state, through reasonable measures, must make progressively available and accessible.  South Afri­cans also have a constitutional right to be educated in the language of their choice in public educational institutions, taking into account equity, practicability and the need to redress the results of past racially discriminatory laws and practices.  Further, South Africa’s Constitu­tion provides for the right to establish and maintain private educational institutions that do not discriminate on the basis of race, are registered with the state, and maintain standards comparable to public schools (chap. 2, art. 29). Content of the Right to Education and State Obligations Legal standards on the right to education encompass two broad components: enhancement of access of all to education on the basis of equality and nondiscrimination, and freedom to choose the kind (public/private institutions) and content (religious and moral) of education.  Both aspects represent the spirit and cardinal essence of the right to education.  The demanding nature of the obligations involved in ensuring the right to education is re­flected in the number and variety of reservations, declarations and objections relating to the relevant article in the Convention on the Rights of the Child.  However, at least four compo­nents of the right to education can be gleaned from various legal provisions on the right to education: • Equal enjoyment of, and equal access to, educational opportunities and facilities • Compulsory and free primary education • Generally available and accessible secondary education, and equally accessible higher education • Freedom of choice in education, and freedom to establish private institutions The CESCR, in its General Comment 13 (see full text beginning at p. 316), identifies four elements of the state’s obligations with respect to the right to education.  These are (1) availability, (2) accessibility, (3) accept­ability and (4) adaptability. Availability The duty to provide compulsory and free primary education is undoubtedly a prerequisite for the realization of the right to education.  The CESCR in its General Comment 11 on article 14 of the ICESCR (see full text beginning at p. 313) considers that states parties have a clear and unequivocal obligation to draw up a plan of action for ensuring compulsory and free primary education.  The commit­tee has stated that lack of educational opportunities for children often reinforces their subjec­tion to various other human rights violations. The Central Role of the State What are the factors that led to some countries achieving greater results in ensuring the right to universal primary education? A recent UNICEF study covering nine countries, as well as the Indian state of Kerala, identified six broad themes. Political Commitment. In each case, governments made the achievement of universal primary education a political priority at the highest level. Financial Commitment. Political commitment was reflected in financial allocations to basic education during the period of transformation. Over the period 1950-7, Costa Rica doubled the share of public spending allocated to basic education. Cuba increased the share of GDP allocated to education by 3 percent over the decade up to the mid-1970s. Zimbabwe achieved the same increase over the period 1980-88. The Central Role of Public Sector. Countries which have achieved rapid transformation in basic education have done so through public action rather than private provision. There was no private provision at the primary level in Cuba after the revolution. Despite the strong free-market ideology in South Korea, private providers were absent from basic education. Over 90 percent of primary-school children attended public schools in Costa Rica in the mid-1960s. Equity in Public Finance. During the decisive periods of progress towards universal primary education, investment resources for education were concentrated in this sector. In the mid-1980s, the ratio of public spending per pupil in primary education to spending on each university student was 1:7 in Cuba, compared with an average of 1:33 in sub-Saharan Africa. Until South Korea achieved universal primary education, it allocated over 60 percent of public spending to primary education, allowing the private sector to play a more significant role in secondary education, and recovering a large share of expenditure on higher education from charges on students. Reducing the Cost of Education to Households. Increased public expenditure was used in each case to reduce the cost of education to households. Free primary education was introduced in Sri Lanka immediately after independence. Similarly, Cuba made free education a right of citizenship. Similar steps were taken in Botswana and Zimbabwe. Integration of Education Reforms into Wider Human-Development Strategies. Education reforms were supported by wider strategies which reduced poverty. In Zimbabwe, Cuba, Botswana and Costa Rica, for example, health sector reforms led to improvements in child health and nutrition, thereby enhancing the capacity of poor households to benefit from education reforms. According to the Special Rapporteur on the Right to Education, "The state’s obligation to make primary education free of charge is frequently, albeit erroneously, associated with the State’s provision of primary education.  The State’s obligation to make primary education free is in quite a few countries implemented through subsidies to a diverse range of primary schools.” 7   She has also stated: The first State obligation relates to ensuring that primary schools are available for all children, which necessitates a considerable investment.  While the State is not the only investor, international human rights law obliges it to be the investor of last resort so as to ensure that primary schools are available for all school-age children.  If the intake capacity of primary schools is below the number of primary-school aged chil­dren, legal provisions on compulsory education will not be translated into practice and access to education will remain a need rather than being a right. 9 The provision of secondary and higher education is also considered an important element of the right to education.  The requirement of "progressive introduction of free education” does not mean that a state can absolve itself from its obligations. Finally, the CESCR has stated that a state party cannot escape the unequivocal obligation to adopt a plan of action on the grounds that the necessary resources are not available. Accessibility The second state obligation relates to accessibility.  At a minimum, governments are obli­gated to ensure the enjoyment of the right to education through guaranteeing access to exist­ing educational institutions by all on the basis of equality and nondiscrimination. 10    Arbitrary and discriminatory imposition of fees may result in a denial of equal access to education and therefore constitute a violation of the state's obligations. For example, in a class action filed on behalf of the National Association of Nigerian Students (NANS),12 the Social and Economic Rights Action Center (SERAC), a Nigerian nongovernmental organization, is asking the court to determine whether the arbitrary increase in fees as applicable to tertiary institutions by upwards of 1,000 percent was compatible with the right to education. The suit is founded on the grounds that the policy would impede access to higher education; that it constitutes a violation of the principles of equality and nondiscrimination due to its selective application to schools mostly in Southern Nigeria; and that the policy is unjustifiable given the rapid decline in quantitative and qualitative standards in higher education. The state’s affirmative obligation to ensure equal access to educational institutions encom­passes both physical and constructive access.  In the case of elderly persons, for example, the Vienna International Plan of Action on Ageing calls for easier physical access to institutions and constructive access to education through overcoming stereotyped images of older per­sons suffering from disabilities and/or being incapable of functioning independently. 11 Simi­larly, as provided for in article 10 of the CEDAW, governments are obligated to take all ap­propriate steps towards the "elimination of any stereotyped concepts of the roles of men and women at all levels and in all forms of education” through such means as encouraging "the revision of textbooks and school programs and the adaptation of teaching methods.”  Under that provision, women and girls also have a right to equal access to specific educa­tional in­formation (including family planning advice) and to sports programs.  Migrant workers and members of their families who are officially admitted into host nations are also guaranteed the right to constructive access to education as provided in article 14 and 15 of the European Convention on the Legal Status of Migrant Workers, in so far as the host nation must take action, where practicable, to teach in the migrant workers’ mother tongues. 13 The right to education has been affirmed for disabled persons.  Rule 6 of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities provides that "States should recognize the principle of equal primary, secondary, and tertiary educational opportu­nities for children, youth, and adults with disabilities, in integrated settings.” 14   To this end, the CESCR directs states parties to "ensure that teachers are trained to educate children with disabilities within regular schools and that the necessary equipment and support are available to bring persons with disabilities up to the same level of education as their non-disabled peers.” 15 Similarly, children with physical and mental disabilities are guaranteed the right to training towards "achieving the fullest possible social integration, individual development and . . . cultural and moral development” under article 13 of the African Charter on the Rights and Welfare of the Child. 16 Acceptability The Special Rapporteur has said that "the State is obliged to ensure that all schools conform to the minimum criteria which it has developed as well as ascertaining that education is ac­ceptable both to parents and to children.” 17 This element involves the right to choose the type of education received, and the right to es­tablish, maintain, manage and control private educational establishments.  It does not, how­ever, require the state to provide the same ancillary benefits to private school pupils that public school pupils may enjoy, such as free transport by bus, free textbooks, or school meals. 18 Pupils and parents have a right to be free from indoctrination, and as such, manda­tory study of materials that are incongruent with a pupil’s religious or other beliefs may vio­late the right to education. 19 The right to found private educational institutions has been linked to freedom of expression.  In the landmark case of Archbishop Anthony O. Okogie et al. v. The Attorney General of La­gos , for example, the Nigerian Court of Appeals held that the government, in precluding pri­vate institutions, was abridging freedom of expression and the right of parents and guardians to "bring up their children and wards and to educate them in the best institutions they can think of and in the best traditions and manners they think such children and wards should be educated.” 20   Although the freedom of choice and the freedom to establish private institutions are available to all persons, their benefits for cultural, racial, religious and linguistic minorities are par­ticularly significant.  To this end, article 5(1)(c) of the 1960 UNESCO Convention against Discrimination in Education recognizes "the right of members of national minorities to carry on their own educational activities, including the maintenance of schools and, depending on the educational policy of each State, the use or the teaching of their own language.” For its part, article 13 of the Framework Convention for the Protection of National Minorities pro­vides that "persons belonging to a national minority have the right to set up and to man­age their own private educational and training establishments.” 21 Article 14 of the same text guarantees minorities the right to learn their own language. The issue of language of instruction is an area that has spawned controversies.  The European Court of Human Rights has affirmed the right of the state to determine official languages of a country which are thus the languages of instruction in public schools, but has denied that there was a right to education in a language of one’s choice. 22 Another important element of acceptability relates to the child-friendly nature of the schools.  Based on the Convention on the Rights of the Child, "it is imperative that education respect the right of the child to be curious, to ask questions and receive answers, to argue and dis­agree, to test and make mistakes, to know and not know, to create and be spontaneous.” 23 The Busti Program in Pakistan The Busti (community) program, which is a collaboration between a Karachi-based NGO and UNICEF, aims to provide basic education to children who can then be admitted to formal schools. The age group covered is five to ten years; about three-quarters of the pupils are girls. The initiative has succeeded in reversing the normal gender bias partly by providing education in homes. It has set up more than 200 home schools, enrolling over 6,000 students, at a per-unit costs of $6, far lower than average cost in public elementary schools. This approach was adopted after community discussions revealed that journeys to school were a major deterrent to female education. Local women are recruited as teachers, and they in turn set up schools in their homes. Parents pay the teacher up to $1 per month, less than they would pay in the state system. There are no uniform requirements for children and school timings are flexible. While there is some criticism of the failure to develop teaching techniques beyond rote learning, the Busti initiative does demonstrate what can be achieved when education provision is adapted to community needs. Adaptability Normally, what a child learns in school should be determined by his or her future needs as an adult.  However, the Convention on the Rights of the Child requires that the best interests of the child be given prominence.  Thus, the education system should remain adaptable, taking into account the best interests of the child. Challenges, Opportunities and Strategies Each state party’s right to education compliance can be measured using quantitative and qualitative indicators.  Among other things, quantitative indicators present tangible data on budgets, literacy rates, enrollment rates, and commuting times, dropout and repetition per­centages as distributed by gender, social class, age, geographic centers (e.g., by state and re­gion, urban vs. rural areas), religion and ethnicity.  In contrast, qualitative indicators assess nontangibles like class interaction, textbook content and pedagogical programs.  Assessing the qualitative aspects of education is far more complex than evaluating the quantitative status of education.  Such complexity is derived from the web of relationships involved in the right to education (e.g., the relationship between the state, parents and child; the relationship between the state and minorities; the relationship between the state and traditionally disen­franchised persons; and the relationship between the church and the state).  In its General Comment 1, Reporting by state parties , para. 6, the CESCR observes that "it may be useful for States to identify specific benchmarks or goals against which their per­formance in a given area can be assessed . . . global benchmarks are of limited use, whereas national or other more specific benchmarks can provide an extremely valuable indication of progress.”  Paul Hunt suggests a three-step process for identifying and utilizing national benchmarks for measuring states’ performance on the right to education: first, selecting key indicators; second, setting national benchmarks; and third, monitoring the national bench­marks. 26 These steps merit further study, adaptation and experimentation. (See Module 19 for further discussion on indicators and benchmarks.) -Muhammad Al-Maghut Prisoners everywhere Send me all you have Fears screams and boredom Fishermen of all beaches Send me all you have Empty nets and seasickness Peasants of every land Send me all you have Flowers rags Mutilated breasts Ripped-up bellies And torn-out nails To my address . . . any café Any street in the world I'm preparing a huge file About human suffering To present to God Once it's signed by the lips of the hungry And the eyelids of those still waiting You wretched everywhere What I fear most is God could be illiterate (translated by Abdullah al-Udhari) The importance or role of budget analysis as a tool for human rights work goes beyond the compilation of numeric or statistical data.  It involves the interpretation and use of essential information on resource allocation for analysis or evaluation of official policies and priori­ties. When considering the expenditure dimensions of education, reference may be had to the percentage of the national budget allocated to education versus how much is actually spent per capita and overall at the national, regional, and state levels, as well as in relation to other sectors of the economy. 27    Increased budgetary allocation does not always translate to in­creased enjoyment of the right to education.  For example, in Nica­ragua, notwithstanding that the central gov­ernment’s single largest budgetary allocation was to the Ministry of Education in 1991 and 1992, the quality of education provided remained substandard with rising levels of illiteracy and with the vast majority of pri­mary school teachers boasting no formal educa­tion. 28 Budget analysis may provide an important framework to counter states par­ties’ claim of lack of resources as justifica­tion for noncompliance, as well as to moni­tor progressive realization of certain aspects of the right as well as to foster mobilization and intersectoral collaboration on the right to education. (See Module 19 on budget analysis.) There remains the need for increased popu­larization of the right to education.  The lev­els of ignorance of the existence and nature of this important human right far exceed, and are clearly a factor in, the alarming illiter­acy rates among the world’s poorest popula­tions.  At the lo­cal levels, community-based educational and awareness activities targeting par­ents, women and school-aged children would help nurture the idea of education as a basic human right.  Activist organizations may reinforce this right through action-oriented research that seeks to identify legal, institutional and other structural obstacles to the im­plementation of the right to education, and to explore practical solutions.  Legal advice and impact litigation may also prove critical to securing remedies as well as spurring important policy or legal reform that conduce to the realization of the right to education. Author: The author of this module is Felix Morka. USING MODULE 16 IN A TRAINING PROGRAM 1.   Kevin Watkins, Education Now: Break the Cycle of Poverty (Oxford: Oxfam International, 1999), 1-7. 2. African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990) ( not yet in force ).  See in particular article 20 ("States parties . . . shall in accordance with their means and national conditions take all appropriate measures . . . to assist parents and other per­sons responsible for the child and in case of need provide material assistance and support pro­grammes particularly with regard to . . . education . . . ”). 3. Additional Protocol to the American Convention on Human Rights in the Area of Economic, So­cial and Cultural Rights (Protocol of San Salvador), OASTS No. 69 (1988) ( signed 17 Nov. 1988) reprinted in 28 ILM 156 (1989), corrections at 28 ILM 573 and 1341 (1989), also re­printed in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 Doc.6, Rev. 1 at 67 (1992). 4. European Convention on the Legal Status of Migrant Workers, ETS No. 93, adopted 24 Nov. 1977, entered into force 1 May 1983.  See the Belgian Linguistic case (European Court of Human Rights Publication Series A, vol. 6 at 31), which defines the right to education as a right of access to educational institutions "existing at a given time.” 5. Framework Convention for the Protection of National Minorities, ETS No. 157, entered into force 1 Feb. 1998, reprinted in 34 ILM 351 (1995).   6 . Public Report on Basic Education in India (New Delhi: Oxford University Press, 1999), 3.   7.        Commission on Human Rights, Preliminary Report of the Special Rapporteur on the Right to Education, Ms. Katarina Tomasevski, UN Doc. E/CN.4/1999/49 (13 Jan. 1999).   8 .  Watkins, op. cit., 198-99. 9.  Ibid., paras. 51-52. 10 . Equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium be­tween different situations.  Minority Schools in Albania , Advisory Opinion, P.C.I.J., Series A/B-No.64 (1935). 11 . Report of the World Assembly on Ageing, Vienna International Plan of Action on Ageing , Vienna, 26 July-6 August 1982, recommendations 48 and 50 (UN Publication, Sales No. E82. I. 16). 12 .  Duru Amarachukwu, et al. v. Minister for Education, et al. , Federal High Court of Nigeria, Suit No. FHC\L\CS\94897, filed 25 Aug. 1997. 13 . European Convention on the Legal Status of Migrant Workers, art. 14, ETS No. 93, adopted 24 Nov. 1977, entered into force 1 May 1983. 14 . Standard Rules on the Equalization of Opportunities for Persons with Disabilities, annexed to 48/96 of 20 December 1993, rule 6, UN Doc. A/RES/48/96 (1993). 15 . CESCR, General Comment 5, Persons with disabilities (1994) , UN Doc. E/C.12/1994/13. 16 . African Charter , art. 13.  See note 3 above. 17 . See note 7 above. 18 . See, for example, Blom, Lindgren et al.  and Hjord et al. v. Sweden , Communication No. 191/1985, paras. 10.2-10.3; Communications Nos. 298 and 299/1988, paras. 10.2-10.4. 19 . See, for example, Hartikan v. Finland , Communication No. 40/1978, para. 10.4, where the UN Human Rights Committee ruled that the mandatory participation of children in the study of the history and religion of ethics must be neutral and objective.  See also Asbjørn Eide, Catarina Krause and Allan Rosas, eds., Economic, Social, and Cultural Rights: A Textbook .  (Dordrecht: Martinus Nijhoff Publishers, 1995), 206. 20 . Archbishop Anthony O. Okogie et al. v. The Attorney General of Lagos State , 2 NCLR 337 (1981). 21 . Framework Convention, art. 13.  See note 5 above. 22 . The Belgian Linguistic Case No. 2 (1968), Series A, No. 6; 1 EHRR 252. 23 .  Thomas Hammarberg, "A School for Children with Rights,” in Innocenti Lectures, (UNICEF In­ternational Child Development Centre, Florence, 1997). 24. Watkins, op. cit., 217. 25 . CESCR, State obligations, indicators, benchmarks and the right to education, background paper submitted by Paul Hunt, UN Doc. E/C.12/1998/11/at 3 (16 July 1998). 26 . Ibid., 6. 27 . Kate Halvorsen, "Notes on the Realization of the Human Right to Education,” Human Rights Quarterly 12 (1990): 358-61.  28 . For a more detailed discussion of Nicaragua’s right to education compliance vis-à-vis its budget­ary allocations, see Baard-Anders Andreassen and Theresa Swinehart, eds., Human Rights in De­veloping Countries Yearbook 1991 (Oslo: Nordic Human Rights Publications, 1991), 281. copyright information UNDRIP Article 14: Right to Education Article 14 of the UN Declaration on the Rights of Indigenous Peoples states: 1. Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning. 2. Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination. 3. States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language. PRODUCTION Script by Shaldon Ferris (KhoiSan) Voiceover by Leigh-Anne Willemse MUSIC “Dannyco” by The Hot Shots Dance Band Article 14: The Right to Freedom of Thought, Conscience, and Religion Open Access First Online: 03 January 2022 Cite this chapter You have full access to this open access chapter Roberta Ruggiero 30   Part of the book series: Children’s Well-Being: Indicators and Research ((CHIR,volume 25)) 14k Accesses ‘There would be places of worship and religious texts from a variety of religions in each municipality.’ (Western Europe/Other) You have full access to this open access chapter,  Download chapter PDF Similar content being viewed by others Religion and Bioethics (See Bioethics and Religion) The Religious Thought of Confucius: Exploring the Place of Heaven, Destiny, and Spirits in the Analects John Duns Scotus States Parties shall respect the right of the child to freedom of thought, conscience and religion. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. ‘Libraries have child-friendly access to different religious texts.’ (Western Europe/Other) ‘We would know the right is being protected by ‘there being available world religion classes in schools for students to inform themselves, but also the possibility to opt out of any religion class (in schools).’ ’ (Western Europe/Other) ‘Laws are developed to prevent/discourage imposing religion on someone, partner, parents.’ (Eastern Europe) Article 14 of the Convention attributes to children the fundamental civil right to freedom of thought, conscience, and religion. As is the case for other autonomy and participation rights in the Convention, namely Articles 12 through 17, it represents a significant evolution for the recognition of children as an autonomous subject of law (Brems, 2005 , p. 1). It recognises the rights and duties of the parents, but in addition, it attributes them a ‘guiding role.’ Article 14(2) echoes Article 5 and reiterates the paradigm shift of the Convention, based on the respect for the responsibilities, rights, and duties of parents, Footnote 1 to provide, in a consistent manner consistent with the evolving capacities of the child, ‘appropriate direction and guidance in the exercise by the child’s rights as recognized in the CRC’ (Brems, 2005 ). Eva Brems, in her commentary on Article 14, defines the parental right outlined in Article 14(2) as an ‘accessory to the child’s right, rather than an autonomous right on an equal footing.’ The author justifies this assumption because, during the drafting of Article 14, the Working Group adopted at first reading a version including a fourth paragraph modelled on Article 18(4) of the ICCPR, Footnote 2 but adding the child’s choice on equal basis with that of the parents. Footnote 3 That this fourth paragraph was dropped in the final version underlines the intent of the drafters to attribute to children an autonomous position in the exercise of their rights. Although Article 14(1) and (3) are in line with the wording of Article 18 of the ICCPR, Article 14(2) has a different phrasing, in comparison with the other international treaties and conventions, and it fails to include explicitly the children’s right to adopt or change their religion. General Principles All rights should be recognised for each child without discrimination on the grounds of religion or opinions (including conviction and thought). Some groups of children can face direct or indirect discrimination in the exercise of Article 14. These include children belonging to a minority religious group, children with a specific diet regime imposed by their religion or belief, children wearing headscarves or other religious clothing or symbols, or in the exercise of conscientious objection in relation to compulsory education. Footnote 4 Article 14, in combination with Article 2, requires action from States Parties to remove all these forms of discrimination (Brems, 2005 , p. 9; UN Committee on the Rights of the Child, 2016 , para. 43). Footnote 5 The best interests of the child should be a primary consideration in all actions concerning children. In relation to Article 14, the preservation of the identity of the child (Article 8) plays a key role and must be respected and taken into consideration in the assessment of the child’s best interests. For example, when considering a foster home or placement for a child, ‘due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background (Article 20) and the decision-maker must take into consideration this specific context when assessing and determining the child’s best interests’ (UN Committee on the Rights of the Child, 2013 , para. 55). Article 14 contributes to the preservation and growth of the identity of the child. Its full exercise allows the child to achieve his/her complete development. The child’s views must be taken seriously. States Parties and parents should preserve the right of all children to express their views freely ‘in all matters affecting the child’, which includes in matters of freedom of thought, conscience, and religion, in terms of choice and manifestation (in particular in relation to conscience and religion). In addition, it introduces the obligation to provide opportunities to be heard in any judicial or administrative proceedings affecting the child. Articles Related or Linked to Article 14 Articles 5 and 18 are echoed by Article 14 (2) and require respect for the role of the parents’ direction to the child ‘in a manner consistent with the evolving capacities of the child’ (Brems, 2005 , p. 25). Article 8 protects the child’s rights to preserve his or her identity, including religious identity. Article 12 protects the rights to form and express views, to which is linked the concept of freedom of thought (Hodgkin et al., 2007 , p. 178). Article 13 protects freedom of expression, which extends to expression in the religious sphere (Detrick et al., 1992 , p. 247; UN Commission on Human Rights, 1989 , para. 284). Article 15 protects freedom of association and of peaceful assembly, which extends to the context of religion. Article 16 protects the child’s privacy right, which in the religious sphere implies that children cannot be forced to reveal their thoughts (Brems, 2005 , p. 8). Article 17 applies to adequate information about religious matters. Article 19 protects the child from all forms of physical or mental violence, including those perpetrated by States Parties and parents in exercising their guiding role under Article 14(2). Article 20(3) provides that alternative care arrangements must pay due regard to the child’s religious background and give continuity to this and the child’s cultural identity (Brems, 2005 , p. 8; Hodgkin et al., 2007 , pp. 179, 182). Article 23 for its emphasis on the right to specialised supports for the disabled child’s spiritual development and fullest possible individual development. Article 27 also contextualises Article 14 rights in relation to the right to a standard of living ‘adequate for the child’s physical, mental, spiritual, moral and social development.’ Articles 28 and 29 , and in particular Article 29(1)(d): The latter stipulates that education shall be directed to the ‘preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin’ (Brems, 2005 , pp. 8, 9; Hodgkin et al., 2007 , pp. 176, 177). Footnote 6 Article 30 protects the right of children belonging to religious minorities to profess and practice their own religion (Brems, 2005 , p. 8; Hodgkin et al., 2007 , pp. 179, 182; UN Committee on the Rights of the Child, 2009 , para. 16). Article 38 and Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict have some relevance for the protection of religious freedom and freedom of conscience: Article 38 and the Optional Protocol both refer to the international humanitarian law, which includes some provisions in respect of the ‘religious freedom of prisoners of war, civilian internees, protected persons and population of occupied territories’ (Brems, 2005 , pp. 8, 9) With reference to the freedom of conscience, an important aspect is the ‘conscientious objection’ to military service. In particular, for those countries that include some form of military training within the education system, when compulsory this could be in conflict with Article 14 (Hodgkin et al., 2007 , pp. 177, 178). Relevant Instruments The civil right to freedom of thought, conscience, and religion is upheld for everyone in the following international documents: UN Universal Declaration of Human Rights (1948), Article 18 UN Convention Against Discrimination in Education (1960) International Covenant on Civil and Political Rights (1966), Article 18 International Covenant on Economic, Social and Cultural Rights (1966), Article 13(3) Footnote 7 International Convention on the Elimination of all forms of Racial Discrimination (1966), Article 5 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), Article 12 European Convention on Human Rights (1950), Article 9 Charter of Fundamental Rights of the European Union (2000), Article 10 American Convention on Human Rights ‘Pact of San Jose, Costa Rica’ (B-32) (1978), Article 12 African Charter on Human and Peoples’ Rights (1981), Article 8 African Charter on the Rights and Welfare of the Child (1990), Article 9. It mentions only a parental duty and not a right. Attribute One: The Scope of Children’s Freedom of Thought, Conscience, and Religion Due to the similar wording of Article 14(1) and (3) of the Convention to Article 18(1) and (3) of the ICCPR, in most situations the Committee provides interpretation and recommendations quoting international instruments and recommendations issued by other treaty bodies in relation to Article 18 of the ICCPR. With reference to state legal regulation of Article 14, the Committee refers to the Human Rights Committee General Comment no 22 on Article 18 ICCPR (1993). Footnote 8 In it, the Human Rights Committee states that, ‘the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice does not permit any limitations whatsoever.’ Footnote 9 The use of this interpretative approach to Article 14 by the Committee clarifies the position of the States Parties, which hold not only an obligation to respect but also an obligation to fulfil and protect the exercise of the right of the child to freedom of thought, conscience, and religion (Hodgkin et al., 2007 , p. 186; Nowak, 2005 , p. 311). Consequently, the issues that may affect the full enjoyment of Article 14 are aspects of major concern for the Committee. Based on its Concluding Observations, they focus on the necessity of: Enacting legislation ‘guaranteeing the freedom of religion for those under 18 years’ (UN Committee on the Rights of the Child, 2005a , paras. 44, 45) Taking effective measures ‘to prevent and eliminate all forms of discrimination on the grounds of religion or belief’ (UN Committee on the Rights of the Child, 2000a , paras. 35, 36, 2005b , paras. 37, 38, 2005c , paras. 41, 42) Promoting ‘religious tolerance and dialogue in society’ (UN Committee on the Rights of the Child, 2000a , paras. 35, 36, 2005b , paras. 37, 38, 2005c , paras. 41, 42, 2006 , paras. 34, 35) Repealing any ban instituted ‘by local authorities on children of any age form participating in religious activities’ (UN Committee on the Rights of the Child, 2005a , paras. 44, 45) Preventing, prohibiting and punishing ‘any violent attack against religious activities, including demolition of places of worship’ (UN Committee on the Rights of the Child, 2006 , paras. 34, 35). Attribute Two: Protection Against State Indoctrination The Committee dedicates particular attention to the risk of state indoctrination of moral and religious beliefs in school systems. The Committee issued recommendations about two specific situations: freedom of religion and conscientious objection in school systems. In its first General Comment, issued in 2001, on the aims of education, the Committee emphasises that ‘children do not lose their human rights by virtue of passing through the school gates,’ and specific attention should be dedicated to children’s views in this setting ( 2001 , para. 8). As a consequence, it is necessary to take all required measures to ensure that ‘children may choose whether to participate in classes on religion or atheism’ (UN Committee on the Rights of the Child, 2005a , paras. 44, 45). Footnote 10 This should also apply to the content of moral education, as explained by the Human Rights Committee, which clarifies that Article 18(4) ‘permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way.’ Therefore, for the Human Rights Committee, ‘public education that includes instruction in a particular religion or belief is inconsistent with Article 18(4) unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians’ (United Nations, 2006 , p. 196). Moreover, a provision offering stronger protection against state indoctrination is included in Article 5(1)(b) of the UN Convention against Discrimination in Education (1960). It refers to procedures in domestic legislation that must ensure ‘the religious and moral education of the children in conformity with their own convictions; and no person or group of persons should be compelled to receive religious instruction inconsistent with his or their conviction.’ Footnote 11 With reference to the freedom of conscience, an important aspect is the conscientious objection to military service when it is not based on religion, but rather on other personal convictions such as pacifism. For those countries that include some form of military training within the education system, when this is compulsory, it could be in conflict with Article 14 (Brems, 2005 , pp. 14–15). Attribute Three: Protection Against Religious and Moral Instruction Imposed by Parents Article 14 of the Convention is the object of the largest number of reservations or declarations made by States Parties. Some of these reservations or declaration are meant to uphold parental rights and authority in relation to the civil rights of children (including Articles 13 and 15). Indeed, the most difficult issues are those in which children’s freedom of thought, conscience, and religion are opposed to the rights and interests of their parents or legal guardians. This situation is addressed by Article 14 (2). Unfortunately, little support for the interpretation of this provision can be found in the international treaties. With reference to the role of parents, in General Comment no. 20 the Committee urges States Parties to withdraw any reservations to Article 14 of the Convention and clarifies that ‘it is the child who exercises the right to freedom of religion, not the parent, and the parental role necessarily diminishes as the child acquires an increasingly active role in exercising choice throughout adolescence’ ( 2016 , para. 43). However, based on the wording of Article 14 of the Convention, Eva Brems notes the child’s freedom of thought, conscience and religion ‘can be restricted by their parents, and that States Parties may sometime interfere in the parents’ exercise of their duties in this respect’ in order to determine the child’s best interest, and allow the child to receive a religious and moral education better in line with their own convictions. Footnote 12 In these specific cases, the States Parties have the responsibility to ensure that the child is not compelled to receive religious or moral instruction inconsistent with their convictions and to protect the child from all forms of physical or mental violence, including those perpetrated by parents in providing directions under Article 14(2). Included members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child. Which reads as follows: ‘The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’. ‘The States Parties shall equally respect the liberty of the child and his parents and, where applicable, legal guardians, to ensure the religious and moral education of the child in conformity with convictions of their choice’ (Detrick et al., 1992 , p. 246). For more details, see the Report of the Special Rapporteur on freedom of religion or belief (Bielefeldt, 2012 , paras. 51–59) and the Implementation handbook for the convention on the rights of the child (Hodgkin et al., 2007 , pp. 186–87, 191–92). See, for example, Concluding Observations for Poland (UN Committee on the Rights of the Child, 2002a , paras. 32, 33) and Tunisia (UN Committee on the Rights of the Child, 2002b , paras. 29, 30). The Article 29 (2) provision requires specific mention here since it is the UNCRC echo to ICCPR Article 18(4) and ICESCR Article 13(3) expressed not as a right of parents but as the right of individuals and bodies to establish separate educational institutions, for instance vocational or denominational schools. Article 13(3) CESCR: ‘The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions’. To be integrated with the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, General Assembly resolution 36/55, the Resolution Commission on Human Rights 2000/33, the Human Rights Committee’s General Comment no. 22, and concurring with the findings of the Human Rights Committee, ICCPR /C/79/Add.25 and the Committee on Economic, Social and Cultural Rights, E/C.12/1993/7. This is assured by article 18 ICCPR (and Article 14 of the Convention) and by the right to privacy set out in article 17 of the ICCPR (child’s right to privacy is echoed in article 16 of the Convention) (United Nations, 2006 , p. 195). This applies also when the compulsory school curriculum does not provide for children’s freedom of religion (UN Committee on the Rights of the Child, 2004 , paras. 31, 32, 2005d , paras. 25, 26), or religious education in schools is not compulsory or there are arrangements for exemption but the choosing process is not adequate to achieve freedom of religion (UN Committee on the Rights of the Child, 2000b , paras. 26, 27, 2002a , paras. 32, 33, 2003 , paras. 29, 30, 2005e , para. 20) For a larger analysis, see Implementation handbook for the convention on the rights of the child (Hodgkin et al., 2007 , pp. 189–191). Article 5(1)(b) of the UN Convention against Discrimination in Education (1960) adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization on 14 December 1960. Convention against Discrimination in Education Adopted by the General Conference at its eleventh session, adopted on 14 December 1960 and entered into force on 22 May 1962. Bielefeldt, H. (2012). Elimination of all forms of religious intolerance, A/71/269 . UN. Accessed October 24, 2020, from http://digitallibrary.un.org/record/839421 . Brems, E. (2005). A commentary on the United Nations Convention on the Rights of the Child, Article 14: The right to freedom of thought, conscience and religion . Brill Nijhoff. Accessed October 23, 2020, from https://brill.com/view/title/11608 . Detrick, S., Doek, J. E., & Cantwell, N. (1992). The United Nations Convention on the Rights of the Child: A guide to the “Travaux Préparatoires.” Martinus Nijhoff. Google Scholar   Hodgkin, R., Newell, P., & UNICEF. (2007). Implementation handbook for the Convention on the Rights of the Child (3rd ed.). UNICEF. Accessed September 21, 2020, from https://digitallibrary.un.org/record/620060?ln=en Nowak, M. (2005). U.N. Covenant on Civil and Political Rights: CCPR commentary . N.P. Engel. UN Commission on Human Rights. (1989). Report of the Working Group on a Draft Convention on the Rights of the Child, E/CN.4/1989/48 . Accessed October 12, 2020, from https://digitallibrary.un.org/record/57437?ln=en . UN Committee on the Rights of the Child. (2000a, June 28). Concluding observations: Iran, CRC/C/15/Add.123 . Accessed October 12, 2020, from https://digitallibrary.un.org/record/422916?ln=en . UN Committee on the Rights of the Child. (2000b, June 28). Concluding observations: Norway, CRC/C/15/Add.126 . Accessed October 23, 2020, from https://digitallibrary.un.org/record/422919?ln=en . UN Committee on the Rights of the Child. (2001, April 17). General comment no. 1 (2001) Article 29 (1): The aims of education, CRC/GC/2001/1 . Accessed October 10, 2020, from https://digitallibrary.un.org/record/447223?ln=en . UN Committee on the Rights of the Child. (2002a, October 30). Concluding observations: Poland, CRC/C/15/Add.194 . Accessed October 24, 2020, from https://digitallibrary.un.org/record/481017?ln=en . UN Committee on the Rights of the Child. (2002b, June 13). Concluding observations: Tunisia, CRC/C/15/Add.181 . Accessed October 23, 2020, from https://digitallibrary.un.org/record/473484?ln=en . UN Committee on the Rights of the Child. (2003, March 18). Concluding observations: Italy, CRC/C/15/Add.198 . Accessed October 12, 2020, from https://digitallibrary.un.org/record/497795?ln=en . UN Committee on the Rights of the Child. (2004, February 26). Concluding observations: Armenia, CRC/C/15/Add.225 . Accessed October 11, 2020, from https://digitallibrary.un.org/record/530794?ln=en . UN Committee on the Rights of the Child. (2005a, November 24). Concluding observations: China, CRC/C/CHN/CO/2 . Accessed October 24, 2020, from https://digitallibrary.un.org/record/575653?ln=en . UN Committee on the Rights of the Child. (2005b, October 12). Concluding observations: Algeria, CRC/C/15/Add.269 . Accessed October 24, 2020, from https://digitallibrary.un.org/record/570473?ln=en . UN Committee on the Rights of the Child. (2005c, March 31). Concluding observations: Iran, CRC/C/15/Add.254 . Accessed October 12, 2020, from https://digitallibrary.un.org/record/557400?ln=en . UN Committee on the Rights of the Child. (2005d, September 21). Concluding observations: Costa Rica, CRC/C/15/Add.266 . Accessed October 11, 2020, from https://digitallibrary.un.org/record/570468?ln=en . UN Committee on the Rights of the Child. (2005e, September 21). Concluding observations: Norway, CRC/C/15/Add.263 . Accessed October 23, 2020, from https://digitallibrary.un.org/record/569887?ln=en . UN Committee on the Rights of the Child. (2006, June 2). Concluding observations: Turkmenistan, CRC/C/TKM/CO/1 . Accessed October 23, 2020, from https://digitallibrary.un.org/record/580376?ln=en . UN Committee on the Rights of the Child. (2009, February 12). General comment no. 11 (2009), Indigenous children and their rights under the Convention, CRC/C/GC/11 . Accessed October 24, 2020, from https://digitallibrary.un.org/record/648790?ln=en . UN Committee on the Rights of the Child. (2013, May 29). General comment no. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), CRC/C/GC/14 . Accessed October 12, 2020, from https://digitallibrary.un.org/record/778523?ln=en . UN Committee on the Rights of the Child. (2016, December 6). General comment no. 20 (2016) on the implementation of the rights of the child during adolescence, CRC/C/GC/20 . Accessed October 12, 2020, from https://digitallibrary.un.org/record/855544?ln=en . United Nations. (2006). Compilation of general comments and general recommendations adopted by human rights treaty bodies, HRI/GEN/1/Rev. 8 . UN. Accessed April 19, 2020, from http://digitallibrary.un.org/record/576098 . Download references Author information Authors and affiliations. Centre for Children’s Rights Studies, University of Geneva, Geneva, Switzerland Roberta Ruggiero You can also search for this author in PubMed   Google Scholar Corresponding author Correspondence to Roberta Ruggiero . Editor information Editors and affiliations. University of New Brunswick, Saint John, Canada Ziba Vaghri Jean Zermatten  & Roberta Ruggiero  &  Carleton University, Ottawa, Canada Gerison Lansdown Rights and permissions Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License ( http://creativecommons.org/licenses/by/4.0/ ), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made. The images or other third party material in this chapter are included in the chapter’s Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter’s Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. Reprints and permissions Copyright information © 2022 The Author(s) About this chapter Ruggiero, R. (2022). Article 14: The Right to Freedom of Thought, Conscience, and Religion. In: Vaghri, Z., Zermatten, J., Lansdown, G., Ruggiero, R. (eds) Monitoring State Compliance with the UN Convention on the Rights of the Child. Children’s Well-Being: Indicators and Research, vol 25. Springer, Cham. https://doi.org/10.1007/978-3-030-84647-3_9 Download citation DOI : https://doi.org/10.1007/978-3-030-84647-3_9 Published : 03 January 2022 Publisher Name : Springer, Cham Print ISBN : 978-3-030-84646-6 Online ISBN : 978-3-030-84647-3 eBook Packages : Social Sciences Social Sciences (R0) Share this chapter Anyone you share the following link with will be able to read this content: Sorry, a shareable link is not currently available for this article. Provided by the Springer Nature SharedIt content-sharing initiative Publish with us Policies and ethics Find a journal Track your research Give your feedback to help us improve our website This is the new Equality and Human Rights Commission website Article 14: Protection from discrimination Published: 4 May 2016 Last updated: 3 June 2021 On this page Article 14 requires that all of the rights and freedoms set out in the human rights act must be protected and applied without discrimination, the types of discrimination that the human rights act protects you from, indirect discrimination, using this right - example, what the law says, pages in this guide. The Human Rights Act Article 2: Right to life Article 3: Freedom from torture and inhuman or degrading treatment Article 4: Freedom from slavery and forced labour Article 5: Right to liberty and security Article 6: Right to a fair trial Article 7: No punishment without law Article 8: Respect for your private and family life Article 9: Freedom of thought, belief and religion Article 10: Freedom of expression Article 11: Freedom of assembly and association Article 12: Right to marry Article 1 of the First Protocol: Protection of property Article 1 of Protocol 13: Abolition of the death penalty Article 2 of the First Protocol: Right to education Article 3 of the First Protocol: Right to free elections What countries does this apply to? Discrimination occurs when you are treated less favourably than another person in a similar situation and this treatment cannot be objectively and reasonably justified. Discrimination can also occur if you are disadvantaged by being treated the same as another person when your circumstances are different (for example if you are disabled or pregnant). It is important to understand that the Human Rights Act does not protect you from discrimination in all areas of your life – there are other laws that offer more general protection, such as the Equality Act 2010 . What the Act does do is protect you from discrimination in the enjoyment of those human rights set out in the European Convention of Human Rights. Article 14 is based on the core principle that all of us, no matter who we are, enjoy the same human rights and should have equal access to them. The protection against discrimination in the Human Rights Act is not ‘free-standing’. To rely on this right, you must show that discrimination has affected your enjoyment of one or more of the other rights in the Act. However, you do not need to prove that this other human right has actually been breached. The Human Rights Act makes it illegal to discriminate on a wide range of grounds including ‘sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. The case law relating to this right has shown that the term ‘other status’ includes sexual orientation, illegitimacy, marital status, trade union membership, transsexual status and imprisonment. It can also be used to challenge discrimination on the basis of age or disability. The courts have also ruled that the human rights protection from discrimination includes indirect discrimination. This occurs when a rule or policy, supposedly applying to everyone equally, actually works to the disadvantage of one or more groups. For example, a requirement that all employees be over six feet tall may be indirect discrimination. Women and some disabled people will be disadvantaged and to be justified this would need to be a strict requirement for the job. A gay couple successfully used the anti-discrimination protection in the Act to receive the same treatment as a heterosexual couple in relation to the rules on the inheritance of the tenancy of a property. This text is taken directly from the Human Rights Act . Article 14: Prohibition of discrimination The enjoyment of the rights and freedoms set forth in the European Convention on Human Rights and the Human Rights Act shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Example case - R (L and others) v Manchester City Council and another case [2001] Manchester City Council paid lower allowances to foster carers who were family members, compared to carers who looked after children who were unrelated to them. Two families with foster children from their own families alleged that the rates were so inadequate as to be in conflict with the children’s welfare. They also argued that the rates were discriminatory; the council’s failure to base calculations on the families’ financial needs showed they had not considered the potential risk to Article 8 rights (right to respect for private and family life). The court held that Article 8 obliged the local authority to take ‘all appropriate positive steps’ to enable children to live with their families, unless their welfare was at risk. The payment of foster allowance fell within these positive duties and should not be done in a discriminatory manner. There had been a disproportionate difference in treatment on grounds of ‘family status’, which the council had failed to justify. This meant that the policy fell foul of Article 8 and Article 14. See the publication ‘ Human rights, human lives: a guide to the Human Rights Act for public authorities ’ for more examples and legal case studies that show how human rights work in practice. Page updates Last updated: 3 June 2021 Was this page useful? Yes No Thank you for your feedback Help us to improve this website Why isn't this page helpful. Please tell us more about why this page is not helpful. We can't reply, so, if you need help with a problem, find out where to go for advice. Do not include personal information such as e-mail, telephone number or address. What kind of problem are you experiencing on this page? Stay informed. Sign up to receive our email newsletter for the latest news, legal action and guidance. 877-757-8189 Student Login The 14th Amendment Protects the Right to a Public Education Over the years, the 14th Amendment of the United States Constitution has had an enormous impact on protecting individual rights in public elementary and secondary education. This has occurred through the United States Supreme Court’s interpretation of the Equal Protection Clause, the Due Process Clause, and the incorporation of other rights (like freedom of speech) to the states through the 14th Amendment. Equal Protection Clause The Equal Protection Clause of the 14th Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” It applies to public elementary and secondary schools, as they are considered to be state actors. In 1954, the Supreme Court interpreted the Equal Protection Clause’s requirements in  Brown v. Board of Education . In perhaps one of the most famous and important cases issued by the Court, it stated: We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs…are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the 14th Amendment. That language, and the Court’s decision, had a dramatic impact on public education. Schools were required to end the discriminatory practice of segregating students based on race. While segregation was more prevalent in some states than in others, all public schools in all states that had segregated students needed to desegregate, or face claims that they were in violation of the 14th Amendment. What followed was roughly 50 years of desegregation efforts in public schools, and numerous court decisions regarding the constitutionality of those desegregation efforts. Over time, the focus evolved from ending and remedying the vestiges of discriminatory practices to integration efforts that sought to promote the diversity of the student population in public schools. In some instances, these integration efforts were voluntary, meaning they were done by schools that had not segregated students in the past. These integration efforts continue to this day, and the predominant legal issues revolve around the extent to which race can be used as a factor in the assignment of students to certain schools in order to diversify the student body. The language, and the logic, of the  Brown v. Board  decision also found its way into other types of Equal Protection claims. For example, in the mid-1970s, students with disabilities challenged their exclusion from public school on equal protection grounds. Two very influential lower court decisions,  PARC v Commonwealth of Pennsylvania , and  Mills v. Board of Education of the District of Columbia , relied on  Brown v. Board  and determined that students with disabilities could not be excluded from public school because of their disabilities. Those court decisions led to a federal statute that imposed similar requirements on all public schools that accepted certain federal funds. That law turned into the Individuals with Disabilities Education Act (IDEA), which today applies to all public schools. The law requires public schools to provide all students with disabilities with a  Free and Appropriate Public Education (FAPE) . It also prohibits schools from expelling or suspending students with disabilities for longer than 10 days, when the student’s actions are caused by their disability. Due Process Clause Due process is another area of the 14th Amendment that has had a dramatic impact on individual rights in public education. The Due Process Clause says that states may not “deprive any person of life, liberty, or property, without due process of law.” The Supreme Court has interpreted this clause to have substantive and procedural protections. With substantive due process, the 14th Amendment protects a parent’s right to direct the educational upbringing of their child. Because of this right, the Supreme Court ruled that a state statute that prohibited the teaching of foreign language, and a state statute that required all students to attend public schools, as opposed to private schools, violated the 14th Amendment. See  Meyer v. Nebraska  and  Pierce v. Society of Sisters . The Court also ruled that a state statute that required Amish children to attend school past the eighth grade violated the substantive due process rights, and the religious freedom rights, of Amish parents to direct the educational and religious upbringing of their children. See  Wisconsin v. Yoder . As a result of these substantive due process protections, all states currently have exceptions in their state compulsory attendance statutes that require students of certain ages to attend school. The exceptions allow for attendance at private schools, religious schools, and homeschool to meet the compulsory attendance requirements. The procedural due process protections of the 14th Amendment have also played an important role in public education, particularly in the areas of student discipline and teacher employment. With student discipline, the Supreme Court has ruled that students have a “legitimate entitlement to a public education as a property right.” See  Goss v. Lopez . That right may not be taken away without first providing due process protections, which are generally notice of what the student is accused of doing, and the opportunity to be heard before the student is disciplined. The required amount of notice and opportunity to be heard increases as the severity of the discipline increases. With minor disciplinary actions, an informal discussion with the principal may be sufficient to meet the requirements. For more severe discipline, such as expulsion, a more detailed hearing is generally required to give the student a chance to present evidence, and to cross-examine witnesses. As a result of these constitutional due process protections, all states have enacted statutes and regulations that provide due process protections for students during the discipline process. A similar due process right applies to tenured teachers at public elementary and secondary schools. Once a teacher receives tenured status, they have a property interest in their continued employment, and must be provided with notice and a hearing before it may be taken away from them. See  Perry v. Sindermann . Incorporation The third area where the 14th Amendment has impacted public schools is in the application of other constitutional rights to the states through the 14th Amendment, via a concept known as  incorporation . Perhaps the biggest impact here has been the First Amendment’s right to free speech, although other protections like freedom of religion have also made their mark on public education. In the area of free speech, the Supreme Court has said that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” See  Tinker v. Des Moines . While courts do give some deference to school administrators in making decisions about whether to prohibit certain student speech, the First Amendment requires schools to justify their decisions when they infringe on free speech rights. The level of justification required depends on the nature of the speech, and the nature of the restriction. For example, in  Tinker v. Des Moines , students were protesting the Vietnam War by wearing armbands, and the school disciplined the students for doing so. The Supreme Court ruled that the discipline violated the First Amendment, because the school could not show that the speech could reasonably be expected to cause a substantial disruption with school activities or the rights of others. By contrast, in  Morse v. Frederick , the Supreme Court deferred to a school administrator’s judgment that a sign that said “Bong Hits 4 Jesus” promoted drug use, and upheld the discipline of the students that displayed the sign at a school event. These are just a few examples of the many ways that the 14th Amendment impacts individual rights in public education. Many of these issues arise on a daily basis in public schools, and the 14th Amendment provides some constitutional protections of individual rights that schools must take into account when addressing them. Scott F. Johnson Scott F. Johnson is a Professor of Law at Purdue Global Law School (formerly Concord Law School), where he teaches Education Law and Special Education Law, among other topics. He has written a number of books and articles in the education law area. Professor Johnson’s law practice included education and special education cases, and he currently serves as a special education hearing officer for a state agency. The views expressed in this article are solely those of the author and do not represent the view of Purdue Global Law School. Employment and Career Advancement:  Purdue Global Law School cannot guarantee employment or career advancement. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. © 2024, Purdue Global, a public, nonprofit institution. Cookie Preferences Privacy Policy Terms of Use Commentary | Commentary: Students need trained counselors,… Share this:. Click to share on Facebook (Opens in new window) Click to share on X (Opens in new window) Daily e-Edition Evening e-Edition Letters to the Editor Scott Maxwell Commentary Central Floridian of the Year SUBSCRIBER ONLY Commentary | commentary: students need trained counselors, not volunteer chaplains. So said one of my teachers at seminary, on the very first day of class. It was a reminder that we would be heading out into the world, brimming with knowledge and insights, and that the most important thing we should remember is to know our limitations. Like most clergy, during my years of service to congregations and communities, I’ve counseled hundreds of people of all ages on a broad spectrum of questions, concerns, and crises. Yet, none of that makes me qualified to be a school counselor. In fact, it doesn’t even make me qualified to be a hospital or military chaplain. For any of those, I need specialized training, classroom hours, supervision, field work and certification. Trained and certified chaplains and mental-health counselors have the tools and skills to deal with a wide range of issues and are specifically trained to do so for those with spiritual orientations other than their own — or with no spiritual orientation at all. They also need approved continuing education units to maintain their certification. Yet, under a new Florida law, virtually anyone can, after a background check, serve as a volunteer chaplain in public schools, without any other education or training, and without any certification. One stated intent of this law is to provide additional mental and emotional health resources for students — a laudable and urgently needed step. But the best way to give students more emotional and psychological support is to provide more and better access to trained and qualified professionals. During the discussion of the bill in the state Legislature, it was suggested that volunteer chaplains could save schools and school districts money by replacing mental-health professionals. There is a clear religious aspect to the definition of the word “chaplain.” But whose religion will be represented — or not represented — by chaplains in public schools? And what about students who don’t identify with or believe in any faith tradition? Over the last four generations, affiliation with religions and religious institutions has steadily declined. Among millennials, for example — those born between 1981 and 1996 and the generation representing a significant percent of parents of school-aged children — just under one half identify with a religious tradition. Volunteer chaplains of any kind would not represent the majority of students or their families. To be clear, I am in no way devaluing pastoral counseling. On the contrary, as a member of the clergy and a practicing person of faith, I support it. I even wish more people would seek it out. However, guidance from clergy is already widely available for public school students in every community — at the house of worship or the center for the faith tradition or worldview of their choice. That’s one of the reasons why this law and others like it are opposed by actual chaplains and religious leaders — including the Association of Professional Chaplains, the Baptist Joint Committee for Religious Freedom, the Interfaith Alliance, and Pastors for Florida Children. We all care deeply about the emotional and psychological well-being of our youth. There are clear and appropriate roles for faith traditions and mental health professionals. In times of personal or community crisis, for example, clergy or other religious leaders can certainly be called upon as support for those who feel the need. It’s not an either/or proposition. On a day-to-day basis, though, students in our public schools need access to qualified professional counselors and therapists. We wouldn’t think of placing their physical health in the hands of untrained volunteers, no matter how well-intentioned they might be. Why would we want to do any differently with their mental and emotional health? David Kay is chair of the board of directors of the Interfaith Council of Central Florida. This column reflects the position of the board of directors. More in Commentary Commentary | Commentary: Emphasize employees’ financial wellness Opinion Columnists | Scott Maxwell: Flori-duh! Florida school board bans book about book bans | Commentary Commentary | Commentary: States must fight out-of-state influence in our elections Commentary | Commentary: Weatherization program helps Orange home-energy bills Everybody Wants to Sound Like Bad Bunny As bad bunny and other puerto rican musical artists explode in popularity, language instructors say more people want to learn how to speak the island’s slick, swaggering version of spanish.. By Eduardo Medina Eduardo Medina interviewed more than three dozen people for this article, including students, tutors and professors. Listen to this article with reporter commentary Sable Smith Ysa Pérez for The New York Times Rauw Alejandro performs during the 24th annual Latin Grammy Awards in Seville, Spain Jose Breton/Invision, via Associated Press Bridget Bennett/Agence France-Presse — Getty Images Christopher Polk/Billboard, via Getty Images Puerto Rican artist Daddy Yankee performs in San Juan, Puerto Rico in 2023. Thais Llorca/EPA, via Shutterstock The World According to Bad Bunny The Puerto Rican reggaetonero has come to dominate global pop on his own terms. By Carina del Valle Schorske Bad Bunny Looks Back and Hunkers Down On his fifth solo album, “Nadie Sabe Lo Que Va a Pasar Mañana,” the Puerto Rican megastar circles back to where he started. By Jon Pareles The Year of Bad Bunny With a blockbuster LP and a smash tour, the genre-melding superstar set a new bar for himself, and expanded the possibilities for Spanish-language pop worldwide. Share full article Advertisement AI and the next digital divide in education Subscribe to the center for universal education bulletin, michael trucano michael trucano visiting fellow - global economy and development , center for universal education. July 10, 2023 The evolution of the “digital divide”: The first digital divide : The rich have technology, while the poor do not. The second digital divide : The rich have technology and the skills to use it effectively, while the poor have technology but lack skills to use it effectively. The third digital divide? : The rich have access to both technology and people to help them use it, while the poor have access to technology only. The theme of the most recent Education World Forum (EWF), the world’s largest annual gathering of education ministers, was “ new beginnings .” The program featured perspectives from education leaders from all over the world on a variety of topics, many of them evergreen: access to education; educational quality; equity; jobs; skills; the role of teachers; gender; and sustainability. Post-pandemic, more attention was paid to issues of building resilience in education systems than it had been in past years. Reflecting larger societal trends, discussions of the role of education vis-a-vis climate change were heard more often, and at a higher volume. However, one new topic did serve as a sort of thematic connective tissue across all three days of discussions, infusing doses of concern, confusion, worry, and excitement into considerations of whatever was on the formal agenda for ministerial deliberation: the potential role and impact of artificial intelligence (AI) in education . I sat in on one well-attended and lively discussion session in which a participant recounted a recent assembly at a university in a lower-middle income country in Asia where a student asked a question about the use of ChatGPT—the chatbot that ignited the current explosion of excitement about AI use in education when it was released late last year. The head of the university quickly interrupted, noting that such questions were largely theoretical at the institution as the tool was not yet used in the country in any real way. The speaker then asked the few hundred students in the audience if they had ever used ChatGPT—100 percent of them raised their hands. (Eighty percent of the students kept their hands up when asked a follow-up question: “And how many of you have used it in the last 24 hours?”) Responses in the EWF event hall were a mix of looks of concern and knowing chuckles. In response, one minister expressed excitement about what new AI tools could do for students in his country, especially those not enrolled in school, those in classrooms where the student-to-teacher ratio often exceeds 60:1, or those in schools where teachers are inadequately trained or poorly supported. We don’t have enough qualified teachers for all of our students and aren’t likely to in the near future , he said . AI technology can bridge this gap. The promise of AI and personalized learning The promise of a personalized digital tutor or teacher, an always-on “ teaching machine ” that never sleeps and is responsive to the cognitive needs of an individual learner, has been a consistent theme across the history of educational computing. Influential academic papers and even science fiction books have inspired generations of educational software and hardware developers to create tools and devices to enable more personalized learning. While to date the impact of such efforts has been mixed , at best, and related rhetoric has often outstripped observable reality, progress is being made—and quickly. Tools like Khanmigo from Khan Academy, which is built on the AI technology that powers ChatGPT, offer tantalizing glimpses of what may soon be possible and accessible for millions of learners around the world. In a world experiencing a global learning crisis , where as many as 70 percent of 10-year-olds in low- and middle-income economies can’t read and understand a basic text, over 244 million children and youth are out of school , and there is a projected global teacher shortage of almost 70 million teachers by 2030, a new wave of AI-enabled educational technology innovations can’t come too soon. Digital divides in education The existence of a “ digital divide ” in education—the idea that some children, families, teachers, and schools have access to information and communications technologies to support learning and others do not—has been observed and lamented for over a generation. As access to computing devices has improved, a “ second digital divide ” has emerged which, according to the OECD , “separates those with the competencies and skills to benefit from computer use from those without.” Increasingly recognizing this, education systems around the world—rich and poor alike—consider difficult trade-offs related to investing in computing infrastructure and the cultivation of teachers’, learners’, and administrators’ skills to make productive use of this infrastructure. This often happens in fiscal environments where resources are constrained , related know-how is scarce, and the challenges affecting the sector remain abundant. At the same time, it’s hard to go a day without reading a headline speculating about the potential for new advances in artificial intelligence to transform education . Might access to AI represent a new (third?) digital divide in education? Might access to AI represent a new (third?) digital divide in education? To be clear: The existing digital divides in education, gaps traditionally measured in the number of computing devices available to support teaching and learning and the availability, speed, and reliability of internet connectivity, aren’t going away any time soon. While access to educational computing tools is near ubiquitous in countries like South Korea and Estonia , stubborn gaps remain across education systems even in the “advanced” economies of the OECD in terms of both access and skills. The reality in less developed countries in Africa , Asia , and Latin America is worse. And even where schools are well-resourced and connected to the internet, access at home is another matter , as the recent global experiment in emergency remote learning made clear . While progress in this area isn’t being made fast enough for many learners—especially those in marginalized communities and in the poorest countries—the playbook for progress is largely known. Even where components of a solution may involve getting internet access from satellites orbiting the earth, this isn’t rocket science: Related progress is a function of a combination of money, planning, and political will. Whether measured in days or decades, the related trend line over time is positive. Let’s posit that the connectivity challenge in education can be solved, and will be, and that students will (eventually) have access to their own devices for learning, turbocharged in various ways by AI. What then? Let’s further hypothesize that students will possess the skills and competencies that will enable them to take full and productive use of the technology available to them. Might this mean the end of the “digital divide”? Looking forward Closing the digital divide in education has traditionally been about eliminating a gap between the rich and the poor, where, to oversimplify, rich kids have access to lots of devices and fast, reliable connectivity, and poor kids do not. Is it possible to imagine a future in which a new digital divide emerges: where the rich have access to technology, increasingly powered by artificial intelligence, and to teachers to help them use this technology as part of their learning, while poor kids just have access to the technology? From the perspective of 2023, when limited access to reliable connectivity and sufficiently powerful computing devices for learning remains the norm in so many schools and communities around the world, this may perhaps sound far-fetched. That said, some experiences during the COVID-19 pandemic might offer a potential glimpse of things to come. Even in countries where access to devices and the internet at home was widespread and (relatively) equitable, there were still noticeable gaps in achievement between rich kids and poor kids in many places engaged in remote learning. Many plausible reasons have been advanced to explain gaps that occurred during the pandemic related to lack of access to digital learning opportunities and the quality of those opportunities. In addition, an emerging body of research from around the world during the pandemic (in places as diverse as Ghana , Indonesia , Poland , Saudi Arabia , and the United States ) explores how, even when the use of technology played a dominant role in education, the involvement of parents and tutors in the learning process—in other words, people —was often consequential. It’s been observed that, “The mediocre teacher tells. The good teacher explains. The superior teacher demonstrates. The great teacher inspires.” Proponents of increased use of AI education claim that various flavors of AI will soon be able to perform the first three duties. But what about the fourth? Education is, after all, a fundamentally human endeavor. What if, in the future, access to technology is something available to all, and not only the privileged, while access to people (engaged parents, private tutors, trained teachers) is limited? What might this mean—and what might we do about it? 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Ganimian, Andreas de Barros August 1, 2023 154 IMAGES Article 14 Education, Science and Technology, Arts,Culture and Sports What is Article 14: Right To Equality Article 14 Article 14 Education, Science and Technology, Arts,Culture and Sports Right To Equality Article 14 to 18, Explanation & Importance Article 14 Education, Science and Technology, Arts,Culture and Sports VIDEO Article 3 Explanation, #constitution #educationalvideo by VK eBook right to property article 300A #ballb #law #constitution #lawlicious 2014 ABE Conference Demystifying Article 14: Equality under the Indian Constitution Article12 fundamental right Of our constitution explain by Satyasir #viral #shorts #educationalvideo article 14 doctrine #rule #education COMMENTS Article 14 Article 14 - sections with explanation - Free download as Word Doc (.doc / .docx), PDF File (.pdf), Text File (.txt) or read online for free. The document discusses the Philippines' policies on education as outlined in the constitution. It establishes the state's role in (1) promoting quality, affordable, and relevant education for all citizens; (2) maintaining a public education system ... PDF Article 14. Right to education The right to education under international law. The UDHR, the CESCR and the CRC stipulate certain aims of education. Article 26(2) of the UDHR regards the objective of education as "the full development of the human personality and [the] strengthening of respect for human rights and fundamental freedoms.! Article 13(1) CESCR defines the goals ... 1987 Constitution of The Republic of The Philippines Section 1. The State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all. Section 2. The State shall: (2) Establish and maintain, a system of free public education in the elementary and high school levels. Article 14 1. Everyone has the right to education and to have access to vocational and continuing training. 2. This right includes the possibility to receive free compulsory education. 3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their ... Article Xiv Education, Science and Technology, Arts, Culture and Sports The State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all. Section 2. The State shall: 1. Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society; 2. Commentary on the EU Charter: Article 14: The Right to Education Commentary explaining the scope and content of the right to education (Article 14) in the EU Charter. Includes detailed sections on the main aspects of Article 14 including: non-discrimination in access to education, right of access to education, possibility of compulsory free education, freedom to found educational establishments and respect of parents' convictions. Guide on Article 14 and on Article 1 of Protocol No. 12 1. The ancillary nature of Article 14 2. Article 14 of the Convention enshrines the right not to be discriminated against in ^the enjoyment of the rights and freedoms set out in the onvention _. 3. The Court has frequently underlined that Article 14 merely complements the other substantive provisions of the Convention and the Protocols (Molla ... Demarcating the Margin: Positive Obligations under Article 14 of the Moving beyond negative duties under Article 14. Article 14 of the ECHR prohibits discrimination, and provides that: ... illiterate or of a low level of education and generally without any independent source of income." (¶ 194). ... a degree of confusion can be seen in some of the academic commentary on the margin of appreciation and judicial ... Education, Science and Technology, Arts, Culture and Sports (Article ARTICLE XIVEDUCATION, SCIENCE AND TECHNOLOGY,ARTS, CULTURE AND SPORTS (1987 Philippine Constitution) Education Section 1. The State shall protect and promote the right of all citizens to quality education at all levels and shall take appropriate steps to make such education accessible to all. Section 2. The State shall: (1) Establish, maintain, and support a complete, […] Official Gazette of the Republic of the Philippines Read the full text of the 1987 Constitution of the Philippines, which covers education, science, culture, arts, and sports. Educational Opportunity, Wealth, and Equal Protection Plaintiffs had sought to bring their case within the strict scrutiny—compelling state interest doctrine of equal protection review by claiming that under the tax system there resulted a de facto wealth classification that was suspect or that education was a fundamental right and the disparity in educational financing could not therefore be ... The 1987 Constitution of the Republic of the Philippines Zephie Andrada. The document summarizes key provisions around education, science and technology, arts and culture, and sports contained in the 1987 Constitution of the Republic of the Philippines. It outlines the state's responsibilities to establish and support an accessible education system from elementary to higher education. Module 16: The Right to Education The Purpose of Module 16. The purpose of this module is to clarify the scope of the right to education. The module. details the international standards related to the right to education; discusses components of the right to education and related state obligations; and. identifies tools and techniques that may be used to propagate the right. UNDRIP Article 14: Right to Education Article 14 of the UN Declaration on the Rights of Indigenous Peoples states: 1. Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning. 2. Indigenous individuals, particularly children, have the right to all levels and forms of ... 1987 Philippine Constitution Article XIV Education, Science 1987 Philippine Constitution Article XIV Education, Science & Technology, Arts, Culture, and Sports (with cases) - Download as a PDF or view online for free ... Article 14 Education, Science and Technology, Arts,Culture and Sports. ... A commentary. Manila, Philippines: Rex Book Store. Bernas, J. G. (2011). The 1987 Philippine Constitution: A ... Equality: legislative review under Article 14 Adult Education and Continuous Learning. Care and Counselling of Students. Early Childhood and Elementary Education. Educational Equipment and Technology. ... It first provides an overview of the traditional narrative on the transformation of Article 14, before turning to a discussion of two doctrines that have evolved to test the ... Article 14: The Right to Freedom of Thought, Conscience, and Religion Eva Brems, in her commentary on Article 14, defines the parental right outlined in Article 14(2) as an 'accessory to the child's right, rather than an autonomous right on an equal footing.' ... or in the exercise of conscientious objection in relation to compulsory education. Footnote 4 Article 14, in combination with Article 2, requires ... Article 14: Protection from discrimination Article 14: Prohibition of discrimination. The enjoyment of the rights and freedoms set forth in the European Convention on Human Rights and the Human Rights Act shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national ... Right to education: scope and implementation; General comment ... In general terms, fundamental education corresponds to basic education as set out in the World Declaration on Education For All. (14) By virtue of article 13 (2) (d),14 15 individuals "who have not received or completed the whole period of their primary education" have a right to fundamental education, or basic education as defined in the ... Article 14, Education Science Technology Arts Culture and Sports Section 1. The State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all. Section 2. The State shall: (1) Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and ... Article Xiv: Education, Science and Technology, Arts, Culture and Art. 14 - Free download as Powerpoint Presentation (.ppt / .pptx), PDF File (.pdf), Text File (.txt) or view presentation slides online. This document outlines the education provisions in the Philippine constitution. It establishes the right to quality education for all citizens at all levels and mandates a complete and integrated public education system from elementary through high school. The 14th Amendment Protects the Right to a Public Education The Equal Protection Clause of the 14th Amendment provides that a state may not "deny to any person within its jurisdiction the equal protection of the laws.". It applies to public elementary and secondary schools, as they are considered to be state actors. In 1954, the Supreme Court interpreted the Equal Protection Clause's requirements ... Universal Declaration of Human Rights: Article 14 30 Articles on the 30 Articles - Article 14: Right to Asylum Explanatory articles on each right contained in the United Nations' Universal Declaration of Human Rights. Video: What does it mean to be a refugee? - Benedetta Berti and Evelien Borgman via TedEd A short video which clarifies the terms refugee, migrant, and asylum-seeker. Fans Beg for Explanation as Kacey Musgraves Bares It All in ... Fans Beg for an Explanation as Kacey Musgraves Bares It All in New Photo. The 35-year-old singer-songwriter is teasing fans with a spicy new selfie. Author: Marisa Losciale. Jun 14, 2024. What Was Hunter Biden Convicted Of? Hunter Biden, the president's son, was convicted on Tuesday of three felonies: lying to a federally licensed gun dealer, which carries a maximum penalty of 10 years in jail; making a false claim ... Federal Judge Blocks Biden Administration's Title IX Rules in 4 States June 14, 2024, 2:33 p.m. ET. The Biden administration's new Title IX regulations that expanded protections for L.G.B.T.Q. students have been temporarily blocked in four states after a federal ... Commentary: Students need trained counselors, not volunteer chaplains Yet, under a new Florida law, virtually anyone can, after a background check, serve as a volunteer chaplain in public schools, without any other education or training, and without any ... Bad Bunny and Reggaeton Have Sparked a Puerto Rican Spanish Renaissance With a blockbuster LP and a smash tour, the genre-melding superstar set a new bar for himself, and expanded the possibilities for Spanish-language pop worldwide. undefined. Jan. 6, 2023. Produced ... AI and the next digital divide in education The existence of a " digital divide " in education—the idea that some children, families, teachers, and schools have access to information and communications technologies to support learning ... What Is Artificial Intelligence? Definition, Uses, and Types Artificial intelligence (AI) is the theory and development of computer systems capable of performing tasks that historically required human intelligence, such as recognizing speech, making decisions, and identifying patterns. AI is an umbrella term that encompasses a wide variety of technologies, including machine learning, deep learning, and ... assignment essay homework paper phd report resume review speech thesis