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Statement by the Special Rapporteur on the right to education at the 69th session of the General Assembly

New York, 27 October 2014

Mr. Chairperson, Excellencies, Ladies and Gentlemen,

Today, I have the honour to present my report to the United Nations General Assembly on a theme of critical importance: the State responsibility of safeguarding the noble cause of education in face of its mercantalisation, and preserving education as a public good.

Mr Chairperson,

One witnesses explosive growth of privatization in education. Taking advantage of the limitations of Government capacities to cope with rising demands on public education, privatization is making its intrusion at all levels in education, and the phenomenon of education as an attractive business is assuming alarming proportions, with scant control by pubic authorities. There is widespread concern with the negative effects of privatization in education. Scholarly writings have looked critically into the neo-liberal model of schooling, entailing “State withdrawal in favour of privatization”. Civil society organizations have also expressed concern with the profound impact of privatisation in education globally as a key emerging issue regarding the realization of the right to education. I would like to applaud a UNESCO-Francophonie study which throws light on how all those involved in privatization of education are turning to rather wealthy families with slogans extolling the quality, or toward the disadvantaged public with altruistic slogans, which hide often the profit or political character of their endeavours.

As my report analyses, privatization negatively affects the right to education both as entitlement and as empowerment. Moreover, it depletes public investment in education as an essential public service. Regulating private providers has become one of the key challenges for public policy today as privatization is supplanting public education instead of supplementing it.

Mr Chairperson, Excellencies,

Privatization in education cripples universality of the right to education as well as the fundamental principles of human rights law by aggravating marginalization and exclusion in education, creating inequities in society. Research and reflections show how education itself is being recast as a sector and increasingly opened up to profit-making and trade, and to agenda-setting by private, commercial interests, and the learner is increasingly conceptualised as a consumer, and education a consumer good.

Access to education, based upon capacity to pay fees, which in many cases can be exorbitant, flies into face of prohibited grounds of discrimination. States have legal obligation under international human rights conventions to outlaw discrimination in education based on “social origin”, “economic condition”, or “property”, of which private schools are a glaring example. Often, admission criterion in private institutions is not based on merit or capacity, but on the ability to pay, irrespective of merit. This is in contravention of basic norm laid by the Universal Declaration of Human Rights and by the international human rights conventions. Inequalities in opportunities for education will be exacerbated if this is allowed to continue.

Education is not a privilege of the rich and well-to-do; it is an inalienable right of every child. State is both guarantor and regulator of education which is a fundamental human right and a public cause. Provision of basic education free of costs is not only a core obligation of States, it is also a moral imperative. The State is the legitimate authority which enjoys full prerogatives for exercising regulatory power covering all levels of education system. My report lays stress on the need for regulating privatization in education, bearing in mind the principles and norms underpinning the right to education and the State responsibility under human rights law.

Mr. Chairperson, Excellencies, Ladies and Gentlemen,

Driven by business interest, privatization by definition is detrimental to education as a public good, and vitiates the humanistic mission of education. We must recognize the importance of preserving the social interest in education, and uphold education as public good. This is invaluable for fostering the humanistic value of education for common well-being and pursuit of ideals of humanity. This should be a central concern in regulating private providers of education so that such a mission of education is not sacrificed for the sake of private profits. States have principal responsibility for the direct provision of education in most circumstances, and the development of a system of schools at all levels. We must always bear in mind that education is primarily the obligation of the State. States must prioritize public education funding and support to ensure its international obligations are met.

When privatization is permitted, it must be carefully regulated, and allowed only as a supplement to public education. The adverse effects of privatization in education must receive foremost consideration in public policies, bearing in mind principles and norms underpinning the right to education. The States have the obligation under human rights law to establish conditions and standards for private education providers and maintain a transparent and effective system to monitor these standards, with sanctions in case of abusive practices. Governments must ensure that private providers in education respect quality standards and norms and education provided meets its essential objectives. Public authorities must also ensure that private schools deploy only qualified teachers and that they provide them in-service training, with career development prospects.

Legal framework or policy responses are inadequate or non-existent in private higher education where demand-absorbing institutions representing mostly lower level and lower quality institutions cater to the surging demands for education. Many of these act much like “for-profit form” with “loosened government regulations” or “in a regulatory vacuum.” Abusive practices by private providers denote the failure of States to adequately monitor and regulate privatized education. This calls for strengthening human rights mechanisms to effectively address and sanction violations of the right to education by private providers.

I have accordingly offered a number of recommendations in my report.

Mr. Chairperson, Excellencies, Ladies and Gentlemen,

Guided by human rights law and inspired by general principles of social justice and equity as well as by education as a public good, States should develop a regulatory framework to govern the private providers of education. This is essential to hold them accountable for their operations with rigorous scrutiny. Such a framework should be comprehensive so as to apply to private education providers at all levels from preschool through basic education to higher education.

The governments should overcome limitations on public education system to provide quality basic education for all, free of costs. They should expand public educational opportunities for the marginalized, especially children from poor families, who remain deprived of education. This is their core obligation under human rights law. States should put an end to market-driven education reforms providing subsidies to private education. Taking into consideration research based evidence, they should not allow low cost private schools. Similarly, they should put an end to provision of school vouchers etc., nor should they allow ‘for-profit institutions’ in education.

If private sector has to be made a partner in development, then, public policies should be put in place to safeguard social interest in education, while encouraging corporate social responsibility schemes aimed at contributing to education. Principles of social justice and equity should be kept in forefront in introducing reforms in education system.

Abusive practices in education make it incumbent upon Governments not to allow private school or educational establishment to operate unless its credentials and standards are verified by designated public authorities. National authorities must address the complex challenges arising from abusive practices, including corruption in privatized education. States must ensure that any abuses are meaningfully addressed and prosecuted to the full extent of the law. Nationally designated authorities should undertake a full scale investigation of fraudulent practices including tax evasions by private providers who reap profits in the name of education.

It is equally important that States carefully enforce their regulations through monitoring and enforcement. While education ministries have the first responsibility to ensure that education within the country meets international obligations, governments should also strengthen human rights mechanisms to provide parents with a place to report suspected wrongdoing, and for such bodies to have the ability to conduct investigations into any such allegations.

Mr Chairperson,

Private providers in education are accountable to the State and to the public for their activities, as demonstrated by a large number of court rulings worldwide, cited in my Report. Public interest litigation should be supported when authorities are unwilling or unable to act against such malfeasance. This will reinforce the justiciability of operations of private providers in education. Regulating operations of private providers in education can be inspired by numerous decisions by courts and emerging jurisprudence.

I encourage civil society to be a strong voice against the commercialization of education, and to be vigilant observers and reporters of abusive practices in education. It is also important to encourage and support research, events and expert consultations on the adverse effects of privatization on the exercise and enjoyment of the right to education. I also believe that the Parliamentarians have a crucial role to play in promoting the right to education, through the passing of legislation, and the stimulation of public debate, centred around preserving education as a public good and ensuring that “for-profit” education is outlawed.

Mr Chairperson, Excellencies, Ladies and Gentlemen,

Before concluding my statement, I would like to emphasize that education is a public good that serves a greater social purpose that benefits all. Universal access at the minimum to free basic education of good quality for all provided by public schools must be an overriding development concern. In the context of the Post-2015 Development Agenda, it is important to ensure that States do not disinvest in public education by relying on private providers. Education deserves a high development priority, along with the responsibility for highest public investment in appreciation of the fact that both the individual and the society are its beneficiary.

I look forward to the dialogue with States and to continued interactions and invaluable support with a view to upholding and fostering noble cause of education.

Thank you.