Special Advisor to SI Advocacy, Linda Witong summarises the report ‘Right to education: the implementation of the right to education and Sustainable Development Goal 4 in the context of the growth of private actors in education’, from the Human Rights Council’s Special Rapporteur.

“The Special Rapporteur on the Right to Education began their most recent report by acknowledging that international human rights law required States to provide free, quality, public education as a human right to every person without discrimination of any kind.^[1]  As education was a human right legally recognised by States in numerous human rights treaties and in national constitutions, the political goals set through Sustainable Development Goal 4: quality education, were to be considered as a means of implementing that right.^[2] Moreover, an essential condition for meeting Sustainable Development Goal 4 targets was that States had to allocate the maximum of their available resources to ensuring free, quality, public education for all, as required by international human rights law. However, the Special Rapporteur also expressed dismay that there continued to be a persistent under funding of public education as well as a rapid and unregulated growth in the involvement of private, in particular commercial, actors in education as it threatened the implementation of the right to education for all.

The Special Rapporteur was concerned that, for the moment, the review of national laws in the context of the implementation of Sustainable Development Goal 4 showed that most countries did not meet the requirement of legislation concerning free and compulsory education.^[3] According to this report, the last two decades had seen a significant increase in the scale and scope of private actors in education at the primary and secondary levels. Those changes were observed to have rapidly transforming education systems, including fragile systems in developing countries.^[4]

The report then discussed the scale of the changes at stake and the impact that this had on the implementation of Sustainable Development Goal 4 and of the right to education. For example, in Kenya, the share of private schools had increased from 2 per cent in 1998 to 30 per cent in 2013, an increase of 15 times in just 15 years.^[5] Moreover, in Morocco,  the percentage of private enrollment at the primary level had more than tripled in less than 15 years from 4 per cent in 1999 to 14 per cent in 2013. A coalition of organisations had calculated that, without taking into account the acceleration in the growth in private education since 2005, if private schools continued growing after 2013 at the same pace as during the years 2000 to 2013, the proportion of primary school students in the private sector could reach 30 per cent by 2023, 52 per cent by 2030, and 97 per cent by 2038.^[6]

So why was the Special Rapporteur having problems with the expansion of private education? It was recognised that States had the obligation to respect the liberty of parents or legal guardians to choose for their children an educational institution other than a public educational institution. So what was the problem? This liberty was not unlimited as human rights law explicitly required States to frame it through adequate regulations.^[7]

Why was the obligation of regulating for profit schools an issue? To begin with, concerns had been raised about the impact of the rapid growth in private schools in terms of educational content, quality, segregation and social inequalities.^[8] For example, the spread of private education, could lead to a form of segregation, with good quality education restricted to those who can pay for private, elite schooling.^[9] The report observed that the massive, unprecedented changes in the structure of education systems, whereby private actors had taken a stronger role in all countries, whether low- income, middle-income or rich, had created a large increase in fee-charging private providers which threatened the obligation and the objective to deliver “free” and “equitable” quality primary and secondary education for all, as well as equality between girls and boys.^[10]

Concerns had also been raised about the impact of the rapid growth in private schools in terms of educational content, quality, segregation and other social inequalities.^[11]A for-profit school might seek to maximise profits through high fees or to cut costs through reducing the most expensive parts of the curriculum, expelling learners that needed the most support, or not properly maintaining school premises. For example, Kenya raised its concerns about the substandard infrastructure and education provided in for-profit schools and their continued operation in contravention of State regulations and minimum standards. This particular profit-private school had provided poor-quality infrastructure for its educational “academies” which not only constituted a violation of health and safety standards but also provides such poor hygiene and sanitation that it put the life and safety of its school children in danger.^[12] In several other countries this particular profit-private school had also excluded the poor and marginalized, undermined labour rights, freedom of expression, the rule of law  and minimum educational standards, and had a negative impact on education quality, equity and social cohesion.^[13] To some, it was not a exaggeration to say that privatisation was supplanting public education instead of supplementing it. ^[14]

The report reminded all stakeholders that human rights obligations mandated that States had a obligation to regulate private involvement in education^[15] which included a obligation of the States to protect educational systems against commercialisation and a requirement that they must adopt specific measures that took into account the involvement of the private sectors in service delivery to ensure the rights enumerated in international human rights laws were not compromised.^[16]  Another way of describing this was that the States had a obligation to ensure that where private educational institutions operated, they lived up to these standards. ^[17]States also had a obligation to both fund and provide free public education “of the highest attainable quality … as effectively and expeditiously as possible, to the maximum of their available resources” ^[18] To be effective, this meant that public education had to be adequately funded.^[19] The report cites Regional Resolutions e.g. the adoption in November 2018 by the European Parliament of resolution 2018/2081 which banned funding to commercial schools or the latest draft of the private sector engagement strategy of the Global Partnership for Education which stated that the partnership would not fund commercial actors directly or indirectly but focus its funding on public education.^[20]

It was also observed that, when the human rights treaties were drafted, the intention was not to protect commercial interests in the area of education or to offer States a way to escape from their responsibilities through the implementation of austerity measures or neo-liberal policies.^[21]  As such, States had not only had a obligation to provide adequate funding for public education but also had the obligation to progressively minimise the requirements of minimum standards for education by funding public educational systems or provide other services or benefits to, for example, enable an “informal school system” to become a “formal” one.^[22]

The report also observed that States had “an immediate obligation to take all measures to address ineffective governance, the lack of transparency, the lack of accountability, or corruption that may affect the delivery of quality public education.” The report added that, given the number of tools available for meeting this guiding principle,” failure in public education” was “not an acceptable excuse for privatisation of education, which would be impairing the realisation of the right to education; lack of will had to be distinguished from the lack of capacity of States.^[23]

Public-private partnerships regarding the right to education or the funding of such institutions was also discussed within this report. It was also believed that any public-private partnership must be a “time-bound measure that the State can publicly demonstrate to be the only effective option to advance the realisation of the right to education” at that time and that the State should periodically reassess all options to advance the realisation of the right to education.^[24]

The Special Rapporteur was also concerned about the increasing repression of civil society and the shrinking civil society space, which also affected advocacy on issues relating to the right to education. These actions not only often breached human rights, but also rendered the implementation of the right to education and Sustainable Development Goal 4 less effective and encouraged corruption and ineffective governance, which in turn risked reducing the funds available to education from domestic sources and from donors.^[25]

How did civil society assist in reaching Sustainable Development Goal 4?

Support to private actors in education and public-private partnerships was often used as a justification as it was argued that it was a means of addressing ineffective governance and corruption. However, the Special Rapporteur observed that there was no other way to increase transparency and accountability in education but to have a vibrant civil society able to independently monitor and dialogue with the authorities.^[26] For example, Civil Society could help States to address corruption, identify demands from the population and design solutions and policy reform. Civil society could also help States by providing independent outside monitoring. Such monitoring was not to be seen as adversarial by States, but was to be considered as a tool to achieve their obligation to conduct impartial monitoring.^[27]  If States, donors and technical partners were serious about addressing corruption, they had to support and fund civil society, rather than resorting to privatisation and funding commercial schools, which was often used as a way to crush teaching unions and was accompanied by opaque deals and even greater risks of corruption.^[28]

The Special Rapporteur also presented its conclusions and recommendations. While some private actors might play a positive role, support the State in developing quality, public education and help to fulfil the right to education, others, in particular commercial actors, were seen to constitute serious threats to the right to education.^[29] While room was left for private actors to offer educational  alternatives, States were required to regulate private involvement in education strictly by making sure that the right to education is not undermined as, where private actors were involved in education, the human rights framework remained equally relevant and legally binding on States.^[30]

States had to ensure that private education conforms to educational standards; that its existence does not jeopardise the role of the State as educational guarantor; that it is not exploited to increase inequality or injustice; and that the recipients of private education were its principal beneficiaries. States were also required to reinforce public education systems and not to segment them by generating material inequalities.^[31] States also had to respect, protect and fulfil the right to education at all times and could not relinquish their responsibilities in any circumstances.^[32] In making a number of recommendations, the Special Rapporteur recommended that States use the Abidjan Guiding Principles as a useful guiding tool in meeting these goals including regulating private actors, providing accountability and remedies to address any violations.^[33]

In particular, it was observed that the right to education required States to deliver free, quality, public education for everyone. The commitment of States under Sustainable Development Goal 4 to “ensure the provision of 12 years of free, publicly funded, equitable quality primary and secondary education” must be understood to require free, publicly funded, quality public education.^[34]

It was also recommended that States “should significantly increase their funding for public education. While appearing attractive on the face of it, private funding linked to private provision of education to fill the funding gap is not sustainable and poses major risks. Public funding must meet not only the targets set out in the Education 2030 Framework for Action, such as 20 per cent of the budget for education, but also reflect the obligation to provide the maximum available resources for education. In some cases, this may mean a larger amount of funding, in particular in contexts where there are large untapped resources and the needs in public education are high.”^[35]

States were to also address the determinants of access to quality public education, as recalled in Guiding Principle 33. That required the adoption of effective measures to respect, protect and fulfill other rights, such as the rights to work, social security, food, housing, health and water and sanitation. In particular, desegregating housing policies were to be implemented, in accordance with the right to housing, and the allocation of space for public schools should be planned. Such plans for the development of public schooling must be made public.^[36]

With regard to public-private partnerships, the Special Rapporteur also emphasised that public-private partnerships in education that focus on involving private actors for service delivery had “empirically largely failed, in particular in fragile countries”. States had to prioritise the funding and provision of free, quality, public education and were to only fund private instructional educational institutions if they complied with human rights and observed all the substantive, procedural and operative requirements required by human rights law, as explained in overarching Principle 5.^[37] It also recommended that public money be allocated through international cooperation and should be exclusively used to build and strengthen free, quality and inclusive public education systems.^[38]

Finally, the Special Rapporteur urged all actors, States, donors and multilateral institutions, to collaborate actively with all components of civil society, including teaching and other education staff unions, in monitoring and designing education policies. She also emphasised that collaboration with civil society^[39] was the best means to achieve sustainable accountability and transparency in education, rather than the involvement of private commercial actors, which involves significant risks, including corruption.

On July 11, 2019, the UN Human Rights Council adopted a Resolution which questioned how private educational institutions might affect the right to education. It reminded States of “the importance of implementing the 2030 Agenda for Sustainable Development, including Sustainable Development Goal 4, in accordance with human rights law and standards, in order to ensure inclusive and equitable quality education and to promote lifelong learning opportunities for all.”^[41]  It also reminded the States that experts had developed guiding principles and tools for States, such as the Abidjan principles, on the human rights obligations of States to” both “provide public education and to regulate private involvement in education.”^[42] As such, it then called upon States to take all measures to implement Human Rights Council resolutions on the right to education by, inter alia, complying with their obligations to respect, protect and fulfil the right to education by all appropriate means,^[43] including by taking measures such as:

• Develop adequate standards and regulations for the involvement of private educational actors and institutions in education, and providing the resources necessary to implement these regulations;^[44]
• Support the compliance of applicable standards and regulations by private educational institutions through such measures as appropriate advice and management assistance and support tools;^[45]
• Consider setting an accountability framework that is aligned with human rights law and standards for both public education and private involvement in education;^[46]
• Consider and assess the short and long-term systemic impact of private educational institutions with a view to evaluate the need for adjustments in regulations that respond to such systemic impact;^[47]

This Resolution also urged all States to recognise the significant importance of investment in public education, to the maximum of available resources; to increase and improve domestic and external financing for education, as affirmed in the Incheon Declaration: Education 2030.^[48]

It further urged all States “to regulate and monitor education providers and to hold accountable those whose practices have a negative impact on the enjoyment of the right to education, and to support research and awareness-raising activities to better understand the wide-ranging impact of the commercialisation of education on the enjoyment of the right to education.”^[49]

It also urged “States to put in place a regulatory framework to ensure the regulation of all education providers, including those operating independently or in partnership with States, guided by international human rights law and principles, that establishes, at the appropriate level, inter alia, minimum norms and standards for the creation and operation of educational services, addresses any negative impact of the commercialisation of education and strengthens access to appropriate remedies and reparation for victims of violations of the right to education”^[50]“.

^[1] ‘Right to education: the implementation of the right to education and Sustainable Development Goal 4 in the context of the growth of private actors in education’, paragraphs 4-6

^[2] Ibid paragraph 6

^[3] Ibid paragraph 7

^[4] Ibid paragraph 8

^[5] Ibid paragraph 9

^[6] Ibid paragraph 10

^[7] Ibid page 46

^[8] Ibid paragraph 12

^[9] Ibid paragraph 10

^[10] Ibid paragraph 12

^[11] Ibid paragraph 12

^[12] Ibid paragraph 15

^[13] Ibid Paragraph 20

^[14] Ibid Paragraph 31

^[15] Ibid Paragraph 33 and Paragraphs 46-53

^[16] Ibid Paragraph 29

^[17] Ibid Paragraph 49

^[18] Ibid Paragraph 43

^[19] Ibid Paragraph 45

^[20] Ibid Paragraph 68

^[21] Ibid Paragraph 28

^[22] Ibid Paragraphs 49-53

^[23] Ibid Paragraph 44

^[24] Ibid Paragraphs 54-70

^[25] Ibid Paragraph 72

^[26] Ibid Paragraph 73

^[27] Paragraph 71

^[28] Ibid Paragraph 73

^[29] Ibid Paragraph 76

^[30] Ibid Paragraph 76

^[31] Ibid Paragraph 74

^[32] Ibid Paragraph 75

^[33] Ibid Paragraphs 77-101

^[34] Ibid Paragraph 80

^[35] Ibid Paragraph 81

^[36] Paragraph 82

^[37] Ibid Paragraph 91

^[38] Ibid Paragraphs 95-97

^[39] Ibid Paragraph 98

^[40]Human Right to education: Follow-Up to Human Rights Council Resolution 8/4 Draft Resolution – adopted July 11,2019 without a vote

^[41] Ibid Paragraph 8

^[42] Ibid Preamble

^[43] Ibid Paragraphs 1 and 2

^[44] Ibid Paragraph 2(a)

^[45] Ibid Paragraph 2(b)

^[46] Ibid Paragraph 2(c)

^[47] Ibid Paragraph 2(d)

^[48] Ibid Paragraph 3

^[49] Ibid Paragraph 4

^[50] Ibid Paragraph 5