Right to education and Abidjan Principles | Check out our updated caselaw database!

GI-ESCR is excited to share with you summaries of six interesting cases from around the globe rendered by national and international courts on the right to education. A very interesting aspect shown by these cases is that, while they were determined prior to the adoption of the Abidjan Principles (2019), the principles already existed in regional and international legal frameworks, to which States are bound. In our summaries, we have therefore made an ex-post link between the reasoning and decisions of the courts and the various provisions of the Abidjan Principles.

The Abidjan Principles on the human rights obligations of States to provide public education and to regulate private involvement in education (Abidjan Principles) is a landmark text that unpacks existing human rights law in the context of the growth of private involvement in education.

What are the cases about?

The interdependence and indivisibility of the right to food, health, and education- even in a state of emergency:

In a very recent decision (Equal Education and Others v. Minister of Basic Education and Others (22588/2020) [2020] ZAGPPHC 306 (17 July 2020)), the High Court of South Africa, Gauteng Division, Pretoria held that deprivation of the right to basic nutrition detrimentally affects students’ right to health and education by jeopardizing their physical, mental, and emotional development (Guiding Principle 33 of the Abidjan Principles).

Quite importantly, the Court recognized the continuous enjoyment of the right to education even during this times of COVID-19 Pandemic (Guiding Principle 12). The court reasoned that those students that learn from their homes should continue to enjoy their right to education in full thus continue to receive State funded food.

What’s more, the Court went ahead to order that t shall judicially supervise the effective enforcement of its decision, which epitomises the role that the judiciary should play to effectively guard the full enjoyment of right to education.

The criteria of objectivity and pluralism of curriculum:

The European Court of Human Rights in the Norway and Turkey cases (Folgerø and Others v. Norway App no 15472/02 (ECtHR, 29 June 2007); Hasan and Eylem Zengin v. Turkey App no 1448/04 (ECtHR, 9 October 2007), respectively) affirms the requirement for the curriculum content of education to be all inclusive and accommodative of religious and cultural differences. It further emphasises on the rights of students and their parents or legal guardians to request the curriculum and substance of education to be delivered based on the criteria of objectivity and pluralism.

Regulation of private actors in education:

Even though the court does not agree with the local authorities, the French case (Council of State, 3rd / 8th SSR, 07/05/2014, 356813) shows the boldness of the State to regulate private schools that do not meet set standards even when the national legislation does not clearly provide for this. The overarching Principle 4 and Guiding Principle 55 of the Abidjan Principles reiterate the obligation of the State to take effective measures with the view to protect and promote the right to education during the licensing procedure and the operation of a private school.

State funding “private” education:

This is also another interesting case (Tengur S V the Ministry of Education & Scientific Research & Anor) because the Court dismissed the case at the preliminary stage on the basis of lack of legal right (locus standi). But the facts of this case elaborate the impact of State decision to finance private schools on the realization of the right to education. According to Overarching Principle 5 of the Abidjan Principles, states must give priority to funding public education and may only fund private schools when the later fully “comply with applicable human rights law and standards, and strictly observe all substantive, procedural, and operational requirements.” In this case, the State had removed funding from public school in order to fund these private schools. More so, these particular private school was discriminatory in the way it enrolled its students so that students of the Roman Catholic faith were preferred to children of other faiths.

The Louisiana Supreme Court agreed with this position in a similar case (Louisiana Federation of Teachers v. State of Louisiana, Nos. 2013–CA–0120, 2013–CA–0232, 2013–CA–0350) and held that funds constitutionally earmarked for the provision of public education system may not be diverted to private schools or other private actors such as online course providers.