The Human Rights Committee has held that a
government ‘cannot be deemed to act in a discriminatory
fashion if it does not provide the same level of subsidy for the
two [public and private] types of establishment, when the
private system is not subject to State supervision.’ In a similar
case, which dealt with the provision of free textbooks and
school meals to children in public but not in private schools,
the Committee has affirmed its previous view, adding that ‘the
preferential treatment given to public sector schooling is
reasonable and based on objective criteria.’16 This affirmation
of the priority for public over private schools goes beyond
funding: the role of education in the socialization of children
prioritizes inclusiveness over segregation. In the well-known
words of the US Supreme Court, ‘separate educational facilities
are inherently unequal.’17
The European Commission on Human Rights has during
its previous existence affirmed that the state has no obligation
to subsidize private schools while it has the right to subject
such schools to regulation and supervision because it is
responsible for ensuring that all education complies with the
16
Human Rights Committee – Carl Henrik Blom v. Sweden, Communication No.
191/1985, Views adopted on 4 April 1988, Selected Decisions of the Human Rights
Committee under the Optional Protocol, Seventeenth to thirty-second sessions (October
1982 – April 1988), United Nations, New York, 1990, p. 219, para. 10.3; G. and L.
Lindgren and L. Holm et. al. v. Sweden, Communications Nos. 298/1988 and 299/
1988, Views of the Committee adopted on 9 November 1990, U.N. Doc. CCPR/C/
40/D/298-299/1988 of 7 December 1990, para. 10.3.
17
Brown et al. v. Board of Education of Topeka et al., Judgment of 17 May 1954, 347
U.S. 294.
prescribed standards.18 Domestic courts have been dealing
with this subject-matter in different countries and have
followed the thrust of international human rights law. The
Supreme Court of Canada, having examined a complaint
against a denial of public funding to private religious schools,
has affirmed that the purpose of public schools is provision of
education for all members of the community. The exercise of
the parental freedom to educate their children in accordance
with their religious beliefs in separate schools (or at home)
prevents their children from taking advantage of public schools
and creates costs for the parents; such exercise of parental
freedom does not entail an entitlement to public funding,
however.19
1.2 Teachers
There is a myriad of human rights issues which particularly
affect teachers but these attract little attention in the literature
on the right to education, which is focused on children. If the
rights of teachers are not respected and protected, it is
impossible to imagine that this may be different for the rights of
children.
To begin with, teachers have to be educated and trained to
teach, and there has been no hesitation on the part of courts to
18
Eur opean Commission on Human Rights – Decisions concerning applications
Nos. 6857/74 and 11533/85, Decisions and Reports, vol. 9, p. 27 and vol. 51, p. 125.
19
Supreme Court of Canada – Adler v. Ontario, Judgment of 21 November 1996,
[1996] 3 S.C.R. 609, (1996) 140 DLR (4th) 385.
Right to Education Primers No. 3
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