Education & Law Journal
December, 2010

Article

*87 Reflections on Education as a Fundamental Human Right

 Charles J. Russo [FNa1]

Copyright © 2010 by Thomson Reuters Canada Limited; Charles J. Russo

        In light of the significance of the right to education, this article reflects on its status as a fundamental right that can assist in the transformation and improvement of societies. To this end, the remainder of this article is divided into four parts. The first part, which is broken into two short sections, begins by placing the right to education in the context of compulsory attendance laws generally, the milieu within which the fundamental human right of schooling exists before briefly addressing the nature of student rights. The second section reviews the key elements of leading international covenants acknowledging education as a fundamental human right. The third part of the article reflects on why these internationally accepted agreements are important for all educational leaders. The final portion of the article offers recommendations as to how leaders can meet the educational goals enunciated in the international covenants in order to help build a better tomorrow for all.

1. INTRODUCTION

       For individuals who are interested in education, regardless of where one lives, the words of the United States Supreme Court's monumental 1954 decision in *88 Brown v. Topeka Board of Education, [FN1] in which the Justices ushered in an era of equal educational opportunity by banning racial segregation in American public elementary and secondary schools, are prescient. In Brown, a case known to legal scholars and educators throughout the word, [FN2] the Court unanimously declared that “education is perhaps the most important function of state and local governments.” [FN3] Clearly, the right to education is of paramount importance in all Nations since it holds the key to the future not only for personal growth and fulfillment but also because it provides countries with well-informed citizens who are prepared to take their place in the burgeoning world economy by helping to build a better future for all.

       The right to an education is crucial regardless of whether it is primarily a concern of state and local governments as in the United States [FN4] and Canada [FN5] or is directed largely at the national level as in most other Nations. [FN6] Yet, as well-established as the right to education is in the industrialized world, there are many places where it is neither as well-defined nor protected even though signatories profess their adherence to the array of international instruments on this essential fundamental human right.

       In light of the significance of the right to education, this article reflects on its status as a fundamental right that can assist in the transformation and improvement of societies throughout the world. To this end, the remainder of this article is divided*89 into four parts.

       The first part of the article, which is divided into two short sections, begins by placing the right to education in the context of compulsory attendance laws generally, the milieu within which the fundamental human right of schooling exists before briefly addressing the nature of student rights. The second section reviews the key elements of leading international covenants acknowledging education as a fundamental human right, highlighting key provisions from the 1948 The Universal Declaration on Human Rights, [FN7] 1959 Declaration on the Rights of the Child, [FN8] and the 1989 Convention on the Rights of the Child. [FN9] The third part of the article reflects on why these internationally accepted agreements are important for all educational leaders regardless of where they serve. The final portion of the article offers recommendations as to how leaders can meet the educational goals enunciated in the international covenants in order to help build a better tomorrow for all children.

2. EDUCATION AS A FUNDAMENTAL HUMAN RIGHT

(a) Generally

       The compulsory education laws of most nations, which require children to attend school typically starting from the age of five or six for varying lengths of time, often, but not universally, culminating in secondary education around the age of eighteen, operate in conjunction with or parallel to a variety of international covenants. The fact that international agreements are not typically entered into domestic legislation [FN10] notwithstanding, their principles reflect the long-standing view present *90 in many nations that the right to education for children, indeed, for all, is of utmost importance. [FN11]

       Attempting to identify the educational rights of children is difficult because they must be viewed in light of specific cultural and social contexts in nations with mixed histories at best with regard to ensuring the right to schooling for all young people. Too often, children have been denied access to schooling based on such demographic criteria as race, gender, and religion. In this regard, it should be kept in mind that compulsory education at public expense for children is a relatively recent phenomenon.

       By way of illustration, in Western Europe, “Prussia pioneered the development of national education in the eighteenth century, but it was [not until] ... 1840 that the national system was consolidated.” [FN12] France enacted a statute granting state control of secondary education in 1802 before placing primary schools under the auspices of communal committees in 1816. [FN13]

       Compulsory education became a statutory right in the United States starting with Massachusetts, the first jurisdiction to enact such a law in 1852. [FN14] Georgia, in 1916, became the last American state in the Union at that time to enact a compulsory attendance law. [FN15]

       Turning to developments in Canada, in 1852, Prince Edward Island became the first jurisdiction to employ province-wide taxation to pay for common schools with all but three provinces having similar laws in effect by 1873. [FN16] A year earlier, *91 in 1872, Ontario took its initial steps toward introducing the first compulsory statute [FN17] in Canada with most other provinces following suit by 1910. [FN18]

       Progress on compulsory attendance was not as rapid in other parts of the world. The United Kingdom, for example, only conferred the right to compulsory schooling in patchwork fashion, starting slightly later than the United States with the enactment of the Forster Elementary Education Act of 1870. The Forster Act mandated the creation of partially publicly funded state elementary schools as part of larger political, social, and industrial reforms of the late nineteenth century. Even so, attendance at elementary schools was not offered completely free of charge in Great Britain until 1891 while state-run secondary schools were not mandatory until 1902. [FN19]

       In other parts of the world the right to an education was recognized much later. It is also the case that recognition of the basic rights affecting the total physical and mental welfare of children has only received widespread international acceptance in very recent years. Even so, in many nations, the reality surrounding the need to provide children with a world class education remains very different from the political rhetoric.

b) Definitions and Categories of Children's Rights

       Rights may generally be categorized into welfare and liberty interests or, as more commonly stated in relation to children, protection and participation rights. The former are most frequently accorded children who are raised in safe and caring environments with access to appropriate education systems, health benefits, and sustenance. Participation rights address the full enjoyment of rights granted to adults, beginning with education as the key that opens the door to full citizenship. Issues surrounding these interests have engendered a considerable amount of controversy as critics have expressed concerns about the competency of children to engage fully in such rights as well as the extent to which adults might have to forego rights in order to make them available to children, especially in locales, such as inner cities, where financial resources are limited.

       Debate over what rights should be accorded minors has fluctuated in recent years as various Non-Governmental Organizations have become involved in protecting the interests of children. In this regard, the concept of “the best interests of the child” has become commonly accepted and used, in United Nations documents. [FN20] At the same time, the 1980s and 1990s witnessed the establishment of *92 such bodies as Commissions for Children in many nations which have carried out research into the rights of children while informing governments as well as their communities about the many issues concerning the protection of the interests of children, particularly relating to their physical, emotional, and educational well-being. [FN21]

       Amid on-going discussions over the rights of children, many advocates maintained that youngsters should be granted the opportunity to participate in all matters intimately involving them to be heard on matters dealing with their families, health, or education. In this debate, pro children's rights advocates have asserted that, at certain stages of development, students are equally as competent as adults to participate fully in rights that adults take for granted. Advocates of this position suggest that these rights include fundamental concerns such as political and free speech rights as well as the right to associate freely with whomever they wish, regardless of adult pressures. In brief, these advocates claim that children should have the same rights as adults, essentially rendering “the best interests of the child” as synonymous with “the wishes of the child” regardless of whether young people are ready, willing, or able to support themselves or face the consequences of their actions. While debate supporting this position appeared to be gathering momentum during the late 1980s, more recently it appears that the international covenants reviewed in the next section have returned to developing policies focusing on the more basic elements associated with child protection such as the right to education as directed by their parents.

3. INTERNATIONAL DOCUMENTS ON THE RIGHT TO EDUCATION

       In order to provide readers with an understanding of education as a fundamental right, this section briefly reviews the key features of the most important United Nations' instruments on point.

       Advocacy of the rights of children may be thought of as having a long existence. For example, for millennia, prominent philosophers throughout the ages and world, ranging from Plato [FN22] to Confucius [FN23] to Jean-Jacques Rousseau [FN24] to John *93 Dewey [FN25] among others, reflected on the crucial importance of education in opening the minds of children, thereby creating foundations for well-functioning societies. Yet, advocacy of the rights of children, particularly as it relates to education, is a relatively recent phenomenon.

       Two major factors contributing to placing a greater emphasis on the educational rights of children occurred in Europe were the reforms associated with child labor laws in the wake of the Industrial Revolution and the impact that modern warfare, especially World War I, had on the young. As such, in 1924, the League of Nations, an organization that the United States never joined, enunciated a “children first” policy in the Geneva Declaration of the Rights of the Child that brought concerns about education to the forefront. The Geneva Declaration recognized the rights of children to proper material, moral, and spiritual development; to have special help when hungry, sick, disabled, or orphaned; to be able to call for relief when in distress; freedom from economic exploitation; and to have upbringings that instill a sense of social responsibility. [FN26] Subsequently, in 1948, Article 25 in the United Nations Universal Declaration of Human Rights, which acknowledged that children are “entitled to special care and assistance,” signified the emergence of what can be defined as the beginning of the modern era of the rights of children as full members of the human family.

(a) The Universal Declaration on Human Rights

       The Universal Declaration on Human Rights, promulgated in 1948, was the first internationally accepted document to enunciate the value of education as a *94 basic human right. According to this Declaration:

        (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
        (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
        (3) Parents have a prior right to choose the kind of education that shall be given to their children.

(b) Declaration of the Rights of the Child

       The United Nations Declaration of the Rights of the Child in 1959 reiterated the rights of children to education and protection [FN27] but did not acknowledge a right to participate actively in matters affecting their well-being. This document is noteworthy because its Principle 7 reiterated the right to an education in asserting that:

        The child is entitled to receive education, which shall be free and compulsory, at least in the elementary stages. He shall be given an education which will promote his general culture and enable him, on a basis of equal opportunity, to develop his abilities, his individual judgment, and his sense of moral and social responsibility, and to become a useful member of society. The best interests of the child shall be the guiding principle of those responsible for his education and guidance; that responsibility lies in the first place with his parents.
       Further, Principle 5 of the Declaration maintains that “[t]he child who is physically, mentally, or socially handicapped shall be given the special treatment, education and care required by his particular condition.” [FN28]

*95 (c) The Convention on the Rights of the Child

       In 1979 the United Nations General Assembly adopted the Convention on the Elimination of All Forms of Discrimination Against Women in order to make leaders aware of the need to protect the human rights of girls and women. [FN29] In addition, the General Assembly declared 1979 as International Year of the Child, an action which set in motion the working group that drafted the Convention on the Rights of the Child.

       The Convention on the Rights of the Child (the Convention), promulgated in 1989, has had a significant impact on the legal duties of educators internationally. While the Convention is perhaps the most expansive instrument to achieve international recognition on the rights of children, sadly, many signatories have not acted in keeping with its spirit, let alone its letter, in safeguarding the educational rights of all children.

       Debate over rights as well as the reality experienced in many, if not all, countries, notwithstanding, the Convention addresses both the protection and participation rights of children. In brief, the Convention contains articles addressing the civil, economic, social, and cultural rights of children. The provisions may be seen as relating to rights to do with provision such as food, health, and education as well as protection from abuse and sexual exploitation, and rights to participate in such activities as freedom of expression and association.

       The Convention, then, is arguably the most expansive and, therefore, most important international document to achieve international recognition of the rights inhering in children. Yet, in reality, although the Convention was ratified by the vast majority of the world's nations, few have fully incorporated its provisions into domestic legislation. In fact, children in many of the signatory nations suffer from a lack of education, poverty, illness, and exploitation.

(d) Educational Provisions

       Among the more than thirty of the Convention's fifty-four articles addressing education, Article 3 states that in “all actions concerning children ... the best interests of the child shall be a primary consideration.” It is unlikely that these interests can be met without giving children some right to speak for themselves on a range of social and educational issues. In this regard, Article 12 claims just such a right in stating that a “child who is capable of forming his or her own views” has a right “to express these views freely in all matters affecting them.”

       Article 13 extends this concept in asserting that children “shall have the right to freedom of expression including freedom to seek, receive and impart information and ideas of all kinds.” While Article 13 is subject to restrictions, it nevertheless raises interesting and important issues, some of which have played themselves out *96 in the United States over such controversial topics as sexuality education. [FN30] More specifically, questions of this type lead to disputes over the nature of appropriate curricula, who should decide their content, and the rights of students and/ or parents to be excused from material that may differ from their own beliefs and values. To the extent that Article 14 stipulates that children have the right “to freedom of thought, conscience, and religion,” a key issue for educators is whether students can exercise this right in practice in many signatory nations.

       A major issue in contemporary societies is the right to privacy. Yet, as is well known, schools gather a considerable amount of information concerning children. In this regard, Article 16 declares that “No child shall be subjected to arbitrary or unlawful interference with his or her privacy.” This Article raises important issues that school officials have to consider about how, when, and what information is gained as well as from whom it is obtained along with how it is stored and retrieved and, importantly, to whom it might be divulged and for what purpose(s) it can be used.

       Article 19 refers to the physical welfare of students in requiring signatories to the Convention to “take all appropriate measures to protect children from violence, injury or abuse, maltreatment or exploitation and to undertake prevention and support programs.”

       Article 23 addresses the needs of children with special needs, calling on

        “1. State Parties [to] recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance, and facilitate the child's active participation in the community.”
       Moreover, Article 28 of the Convention stipulates that:

        1. State Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
              (a) Make primary education compulsory and available free to all;

              (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;

              (c) Make higher education accessible to all on the basis of capacity by every appropriate means.

              (d) Make educational and vocational information and guidance available and accessible to all children;

              (e) Take measures to encourage regular attendance at schools *97 and the reduction of drop-out rates.

       This section goes on to declare that

        2. States parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity.
       In this regard, since most nations agree that corporal punishment in schools is inconsistent with a child's human dignity, they have forbidden educators from engaging in the practice. [FN31] Even so, there is considerable inconsistency regarding this provision among signatories.

       Articles 32 through 34 address the physical welfare of children against harms occasioned by economic exploitation, drugs, and “all forms of sexual exploitation and abuse.” In a number of member nations, legislation has been introduced to provide enhanced protection to children to guard them against such harm. However, as judicial opinions in the United States [FN32] and Canada reveal that sexual harassment, [FN33] sexual abuse, and related forms of exploitation continue to be a problem in schools. Consequently, there is a need to ensure that policies and practices to prevent the problem are implemented and enforced. A growing concern in a number of countries is bullying; school officials need to have systems in place to protect students and staff alike.

(e) Status of the Convention

       The fact that the Convention is widely accepted, at least on paper, notwithstanding, in a dispute over the imposition of the death penalty, Justice Kennedy pointed out that “every country in the world has ratified save for the United States and Somalia [and that it] contains an express prohibition on capital punishment for *98 crimes committed by juveniles under 18.” [FN34] Although President Clinton signed the Convention in 1995, the Senate refused to ratify it [FN35] based on the fears that it “would become the supreme law of the land, taking precedence over State and Federal laws regarding family life.” [FN36] Selected members of the Senate were particularly concerned over whether educators could use corporal punishment to discipline students, a practice that is employed in about half of American jurisdictions. [FN37]

       In not acting since 1995, it could be that the Senate has rejected suggestions from Supreme Court Justices that the United States incorporate international covenants into American law, [FN38] since American standards of due process typically offer much greater protection than international agreements. Debates over the Senate's attitudes aside, few could argue that American educators fail to afford students significant protections that meet or exceed virtually all international standards. This is particularly true since a number of signatories fail to meet even the Convention's minimal expectations as to the quality and availability of schooling for children, particularly females. [FN39]

(f) Later Developments

       The children's rights movement was further enhanced in 1990 with the adoption of UNICEF's World Declaration on the Survival, Protection, and Development of Children. [FN40] Signatories of this Declaration agreed to introduce programs designed largely to protect children from poverty, disease and illness, and exploitation.*99 Two years later, in 1992, the United Nations Conference on the Environment and Development released the Rio de Janeiro Declaration, including the annex Agenda 21, which includes a range of proposals for developing the interests of children. [FN41] This Agenda recognizes that while all Nations face problems associated with globalization and concerns over protecting the environment, there is need to implement programs to protect the well-being of children.

       In 1990 the largest gathering of world leaders in history assembled at the United Nations to attend the World Summit for Children. [FN42] Led by seventy-one heads of State and Government along with 88 other senior officials, mostly at the ministerial level, the World Summit adopted a Declaration on the Survival, Protection and Development of Children and a Plan of Action for implementing the Declaration in the 1990s. Ten years later the UN General Assembly adopted two Optional Protocols to the Convention on the Rights of the Child; the first prohibited the involvement of children in armed conflict while the other addressed the sale of children, child prostitution, and child pornography. [FN43]

       Two years later, in 2002, the UN General Assembly convened its first ever Special Session on Children at which the Nations of the world committed themselves to a series of goals to improve the situation of children and young people. [FN44] Subsequently, in 2007, more than 140 members of the General Assembly adopted the Declaration on Children which acknowledges progress achieved as well as remaining challenges while reaffirming its commitment to the World Fit for Children Compact, the Convention and its Optional Protocols. [FN45]

4. REFLECTIONS

       As widely recognized, at least on paper, as the right to an education is, [FN46] controversy has emerged insofar as two distinct perspectives evolved with regard to the educational rights of children. This debate includes differences of opinion over the extent to which students should have a say in directing the content of their education under Articles 3, 12, and 13 of the Convention on the Rights of the Child. More specifically, two primary positions have developed, disagreeing over whether the role of parents (and the state) should be that of protectors, safeguarding the right of children to learn or whether students should have the ability to decide for themselves what and where they will study. [FN47]

       From the perspective of those who view parents as the primary protectors of *100 the rights of children, [FN48] it is worth recalling the words on the United States Supreme Court in Tinker v. Des Moines Independent Community School District. [FN49] In striking down a policy which sought to prohibit students from wearing black armbands to school as a form of protest over American activity in Vietnam, the Court reasoned that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” [FN50] Yet, in conceding “the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools,” [FN51] the Court made it clear in the case at bar as well as in a series of later cases [FN52] that the rights of students cannot be treated as co-extensive with those of adults in the world beyond the confines of schools.

       The Supreme Court later, albeit in a case dealing with the ability of minors to procure abortions, in Bellotti v. Baird [FN53] offered a thee part rationale why the rights of children cannot be treated as equal to those of adults. According to the Court “the constitutional rights of children cannot be equated with those of adults [due to]: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.” [FN54]

       Not surprisingly, international organizations, often joined by corresponding judicial bodies, have adopted a similar perspective in determining that the right of children to an education is limited primarily to attending school and not selecting where or what they will study. As to participation rights, while the United States Supreme Court ruled in the case of In Re Gault [FN55] that the right to equal application applies to children, it accorded greater authority to school officials as they regulate student behavior. The legal justification for allowing educators to act “in loco parentis,” literally, in place of the parent when children are in school, is similar to positions taken by courts and legislatures in countries where protection, rather than participation, rights are those most usually recognized and upheld.

       On the other hand, pro-rights advocates maintained that, at some point, students are equally as competent as adults to participate fully in exercising their rights, including directing the content of their education. In brief, these advocates *101 essentially argue that the Convention's policy of the “best interests of the child” should essentially become one of “the wishes of the child.” Even though this perspective gathered some momentum during the 1980s, the utopian vision of treating children and adults as equals has been tempered by reality. In other words, in practical terms, leaders must act to meet the basic educational needs of students in many parts of the developing world where schools operate irregularly at best, the educational rights of females are often overlooked completely, and children are exploited in a myriad of ways.

       An applied example of the tension between the two positions with regard to rights of parents to direct the education of children and the rights of the young surfaced in Wisconsin (State) v. Yoder. [FN56] In Yoder the United States Supreme Court ruled in favor of Amish parents who challenged the denial of their request that would have excused their children from formal education beyond the completion of elementary school in eighth grade. The parents claimed that since their children would have received all of the preparation that they needed in their communities, it was unnecessary for them to attend public high schools. The Court agreed that the Amish community's almost three-hundred-year way of life would have been seriously endangered, if not destroyed, by requiring its leaders, members, and their children to comply with Wisconsin's compulsory education statute.

       Justice Douglas' partial dissent in Yoder, echoing the more utopian perspective, voiced his concern over whether children had rights apart from their parents. In his dissent, Douglas feared that students could have been wedded to the lifestyles of their parents without opportunities to express their own desires. In this regard, he wrote that “If he is harnessed to the Amish way of life by those in authority over him and if his education is truncated, his entire life may be stunted and deformed. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today.” [FN57] While Douglas raised an interesting question about the rights of children in the abstract, he failed to address in practical terms how this might be accomplished. Put another way, if educational and political leaders were to have pursued Douglas' position to its logical conclusion, it appears that the state would have to provide for the hosing and educational needs of emancipated thirteen and fourteen year-old students at a time when they were neither financially nor emotionally prepared to live independently of their families and the lifestyles within which they were raised. Moreover, this approach would have run the risk of placing the state in the position of serving as arbiter of “the best interests” of unemancipated, minor children in disputes with their parents over their short, and long, term well-being.

       Of course, as in many arenas, a kind of mid-way position has emerged in developed nations. This perspective recognizes that while older students should have some say in the content of their educational programs, perhaps starting with secondary schools, parents have the duty to interact with school officials in ensuring the rights of their younger children. Again, the words of the United States Supreme Court in Pierce v. Society of the Sisters of the Holy Name of Jesus & Mary, a case which not only upheld the right of religiously affiliated non-public schools to operate*102 but also addressed parental rights, are instructive. According to the Court, “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” [FN58] The challenge, then, is to get signatories, especially in developing nations to ensure the educational rights of all children regardless of such demographic characteristics as their ethnicity, gender, races, and/or religions.

5. RECOMMENDATIONS

       As discussed throughout this article, since education is a fundamental human right in a shrinking world, educational, political, and civic leaders must act to ensure the compulsory attendance rights for all children regardless of demographic characteristics such as race, gender, and religion. To this end, leaders must focus on developing laws and implementing policies designed to improve schooling in places where compulsory attendance laws have long been in place. Accordingly, leaders may wish to consider the following recommendations that are designed to enhance the quality of schooling.

        1. Consistent with the internationally accepted norms in the various covenants discussed earlier, leaders must take steps to have education explicitly recognized and safeguarded as a fundamental human right for all children. In other words, all nations must develop laws and policies designed to protect and enhance the rights of all students regardless of their ethnicity, genders, race, and/ or religion. Insofar as this can be a major challenge in parts of the world that have been reluctant to extend full rights to historically underrepresented groups such as women, religious, and ethnic minorities, political and educational leaders in particular must show their mettle if they are to help their citizens to reach their full potential.
        2. National leaders must provide adequate funding [FN59] designed to create schools to provide children with a world-class education. This is an especially important concern during a time when there is a growing cynicism about the need for education such that it must move beyond concerns over resources or capacity in order to focus on how systems can not only be funded but also be made accessible to all. Such funding must cover not only construction of facilities and purchasing instructional materials but also paying salaries designed to enhance “the best and brightest” to enter the field of education. Moreover, in making certain that all regions *103 of a country receive adequate minimum levels of resources for schools, funding mechanisms should consider providing additional allocations for more expensive locales such as cities as well as for children with intensive needs including those with disabilities [FN60] and/ or those who speak minority languages and need to be taught in national/ majority languages [FN61] so that they can adapt in educational settings.
        3. Education must be treated as an integrative factor, one that can help prepare all children to become productive members of their societies rather than set them apart from one another based on ethnicity, genders, race, and/ or religion.
        4. Re-conceptualized school systems must be open to all children wherein educators emphasize pluralistic, cross-cultural principles that respect internationally accepted norms, as well as national laws, as explicated in the various covenants discussed herein. In other words, systems must be inclusive, not exclusive.
        5. Laws and policies must be enacted to meet the needs of special student populations including, but not limited to, those who are disabled, of ethnic, religious, and linguistic minorities, and/ or are refugees.
        6. Institutions of higher learning must enhance teacher and administrator preparation programs, ensuring that they are at the “cutting edge” of school reform so that they can best help to educate children.
        7. Leaders should adopt proactive roles in helping to create shared values among all groups in developing educational curricular/ standards. It is essential that officials in central governmental ministries maintain leadership roles in education to ensure that policies and practices are adopted uniformly in all schools and areas.
        8. Educators must develop curricula, and accompanying texts, that are drafted primarily by appropriate professionals who can call on outside experts for assistance. Individuals from the respective governmental and educational ministries as well as from the university sector should provide leadership on this important project. At the same time, even as educational leaders work to develop curricula with an eye toward primarily satisfying what can be described as national needs, they must simultaneously challenge students to develop critical thinking skills befitting individuals*104 who are preparing to assume roles as full citizens.
        9. Leaders should implement curricula that all can accept. At the same time, educational leaders should provide some consideration for ways of permitting groups to preserve their independent heritages in the schools.
        10. Members of committees who are assigned the task of developing curricular materials should be selected from among a broad representation of stakeholders, including, but not limited to parents, students, teachers, civil leaders, interested in helping to ensure equal educational opportunities for all children.
        11. Leaders, particularly in developing nations, should schedule conferences/meetings on the right to schooling in an attempt to obtain input from all parties, again including, but not limited to parents, students, teachers, and civil leaders, who are interested in helping to ensure equal educational opportunities for all children. Further, in developed nations, educational leaders in particular should encourage parents to become more involved in the education of their children and citizens to vote to ensure that their school boards or governing bodies truly represent community interests while holing to appropriate educational standards.
        12. In light of the rapid pace at which change occurs, leaders should regularly re-evaluate and update educational goals to keep them current.

6. CONCLUSION

       As growing interdependence between and among nations shrinks the world community, a major challenge facing civic, educational, and political leaders is ensuring the educational rights of all children. At the same time, insofar as human dignity is closely related to the protection of the physical and mental well-being of students as they grow to become productive members of their societies, the quality education the education available to children is the key to the reduction and elimination of adult illiteracy and poverty in future generations.

       Given the importance that education has assumed in the twenty-first century, it all but goes without saying that improvements in basic schooling for all children are a prerequisite to sustainable personal and social development. In fact, individuals are ultimately unable to exercise their fundamental social, civil, economic, and political rights unless they have received an adequate basic education. To the extent that education is a lasting investment in the future of children, indeed of society itself, as well as sustainable development and social progress in general, it is critical to improving the lives of all helping them both to break the cycle of poverty and to lead lives of full participation in democratic societies.

       In the words of the United States Supreme Court, since “education is perhaps the most important function of state and local governments,” [FN62] it is imperative that civic, educational, and political leaders ensure that the educational rights of students remain protected as a basic component of their fundamental human rights. As daunting as the crucial challenge of safeguarding educational rights may be, it is one that all leaders should welcome as they seek to build a better tomorrow for all *105 children.

[FNa1]. J.D., Ed.D., Panzer Chair in Education & Adjunct Professor of Law, University of Dayton, Ohio. This article is an expanded version of a paper prepared for the Education Panel Session of the 2010 Beijing Forum, a multi-disciplinary international conference held at Peking University, Beijing, China, 5-7 November 2010.

[FN1]. Brown v. Topeka Board of Education, 347 U.S. 483 (U.S. 1954). For a history of Brown and its progeny, see Charles J. Russo, “Brown v. Board of Education at 50: One Step Forward, Half A Step Backward?” (2004) The Journal Of Negro Education, Vol. 73, No. 3, 174.

[FN2]. See, e.g., Charles J. Russo, Johan Beckmann, & Jonathan Jansen (Eds.), “Equal Educational Opportunities: Comparative Perspectives in Education Law: Brown v. Board of Education at 50 and Democratic South Africa at 10. (Johannesburg, SA: Van Schaik Publishers, 2005).

[FN3]. Brown, above note 1 at 493.

[FN4]. Insofar as education is not mentioned in the United States Constitution, it is a function of the States under the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The earliest federal enactment on schooling is the Northwest Ordinance of 1787 which encourages the creation of schools as the means of educating citizens. Pursuant to Article 3 of the Ordinance, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Robert C. Baron (Ed., 1994), Soul of America: Documenting Our Past, Vol. I: 1492-1870 at 86 Boulder, Col.: North American Press.

[FN5]. “... under the Canadian federal system of government, education is a responsibility reserved entirely to the provinces; there is no federal office or department of education.” see Charles Glenn & Jan DeGroof, Finding the Right Balance: Freedom, Autonomy and Accountability in Education, Canada, 141-183 at 141. Utrecht, NL: Lemma (2002).

[FN6]. For a comprehensive review of governance structures of twenty-eight national systems, Charles Glenn & Jan DeGroof, Finding the Right Balance: Freedom, Autonomy and Accountability in Education, Utrecht, NL: Lemma (2002).

[FN7]. Available at http://www.un.org/en/documents/udhr/

[FN8]. http://www.cirp.org/library/ethics/UN-declaration/

[FN9]. Available at http://www2.ohchr.org/english/law/crc.htm

[FN10]. But see the 1996 Constitution of the Republic of South Africa:
        231. International agreements
        1. The negotiating and signing of all international agreements is the responsibility of the national executive.
        2. An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).
        3. An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time.
        4. Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
        5. The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect.

        232. Customary international law
        Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.

        233. Application of international law
        When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.

Available at http://www.info.gov.za/documents/constitution/1996/96cons14.htm #231
[FN11]. For a discussion of the status of educational rights in Canada, see Michael Manley-Casimir & Kirsten Manley-Casimir, The Courts, the Charter, and the Schools (Toronto: University of Toronto Press, 2009).

[FN12]. Andy Green, Education and State Formation: The Rise of Education Systems in England, France, and the USA. (New York: St. Martin's Press, 1990) at 3.

[FN13]. Ibid. at 4-5.

[FN14]. Mass. Gen. Laws Ann. 76 § 1 (historical notes St.1852, c. 240, §§ 1, 2, 4).

[FN15]. Michael S. Katz, A History of Compulsory Attendance Laws. (Bloomington, IN: Phi Delta Kappan, 1976) at 18.

[FN16]. Philip Oreopoulos, Canadian Compulsory School Laws and their Impact on Educational Attainment and Future Earnings (Family and Labour Studies Division of Statistics Canada, Ottawa: Author, 2005) at 7.
        Available at http://www.statcan.gc.ca/pub/11f0019m/11f0019m2005251-eng.pdf

[FN17]. Ibid. at 8.

[FN18]. Ibid. at 10. See also Philip Oreopoulos, “The Compelling Effects of Compulsory Schooling: Evidence from Canada,” (2006) The Canadian Journal of Economics, Vol. 39, No. 1, 22.

[FN19]. For a history of the Forster Act and compulsory education in Great Britain, see Andy Green, Education and State Formation: The Rise of Education Systems in England, France, and the USA (New York: St. Martin's Press, 1990) at 6.

[FN20]. See, e.g., Principle 7 of the Declaration of the Rights of the Child (“The best interests of the child shall be the guiding principle of those responsible for his education and guidance”);
        Articles 3 (“the best interests of the child shall be a primary consideration)” and 21 (“State Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration”) of the Declaration of the Rights of the Child.

[FN21]. See, e.g., The Canadian Commission for UNESCO, accessible at http:// www.unesco.ca/en/default.aspx; in the United States, the National Commission on Children [act], 42 U.S.C. 1320b-9, was re-written as the Improved Access to, and Delivery of, Health Care for Indians Under Subchapters XIX and XXI. On July 21, 2010, a new bill to reauthorize The National Commission on Children and Disasters, was read for the second time in the United States Senate, 2009 US Cong. H.R. 5266.

[FN22]. Plato, The Republic, H.D.P. Lee (translator) (Baltimore, Md.: Penguin Books, 1967).

[FN23]. Confucius, The Analects of Confucius, Burton Watson (translator) (New York: Columbia University Press, 2007).

[FN24]. Jean Jacques Rousseau, Emile, Allan Bloom (translator) (New York: Basic Books, 1979).

[FN25]. John Dewey, Democracy and Education: An Introduction to the Philosophy of Education (New York: Free Press, 1997).

[FN26]. Available at http://www.un-documents.net/gdrc1924.htm In its entirety, the Geneva Declaration of the Rights of the Child, adopted by the League of Nations on 26 September, 1924, reads:
        By the present Declaration of the Rights of the Child, commonly known as “Declaration of Geneva,” men and women of all nations, recognizing that mankind owes to the Child the best that it has to give, declare and accept it as their duty that, beyond and above all considerations of race, nationality or creed:
        1. The child must be given the means requisite for its normal development, both materially and spiritually;
        2. The child that is hungry must be fed; the child that is sick must be nursed; the child that is backward must be helped; the delinquent child must be reclaimed; and the orphan and the waif must be sheltered and succored;
        3. The child must be the first to receive relief in times of distress;
        4. The child must be put in a position to earn a livelihood, and must be protected against every form of exploitation;
        5. The child must be brought up in the consciousness that its talents must be devoted to the service of fellow men.

[FN27]. The Preamble to the Declaration stipulates that: “Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth ....”
        Further, Principle 7 declares that:
        The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.

Principle 8 adds that “The child shall in all circumstances be among the first to receive protection and relief.”
[FN28]. Two documents initially appeared in 1966. The United Nations General Assembly adopted the International Covenant on Civil and Political Rights on 16 December 1966, entered into force on 23 March 1976, available at http:// www2.ohchr.org/english/law/ccpr.htm. The International Covenant on Economic, Social and Cultural Rights, adopted as a resolution on 16 December 1966; available at http://www.un-documents.net/icescr.htm, Both Covenants advocate protection for children from exploitation while promoting the right to education.

[FN29]. Available at http:// www.un.org/womenwatch/daw/cedaw/text/econvention.htm

[FN30]. Charles J. Russo, “‘The Child is Not the Mere Creature of The State:’ Controversy over Teaching About Same-Sex Marriage in Public Schools,” (2008) 232 Education Law Reporter 1; Charles J. Russo & William E. Thro, “Curricular Control and Parental Rights: Balancing the Rights of Educators and Parents in American Public Schools.” (2007) Australia & New Zealand Journal of Law and Education, Vol. 12, No. 2 at 91.

[FN31]. See Alice Farmer, “Failing the Grade: How the Use of Corporal Punishment in U.S. Public Schools Demonstrates the Need for U.S. Ratification of the Children's Rights Convention and the Convention on the Rights of Persons with Disabilities,” (2009-2010) 54 New York Law School Law Review 1035. See also Angela Bartman, “Spare the Rod and Spoil the Child: Corporal Punishment in Schools Around the World,” (2002) 13 Indiana International and Comparative Law Review 283 at note 1 for a discussion of international covenants prohibiting corporal punishment in schools.

[FN32]. The Supreme Court has addressed sexual harassment in K-12 schools in three cases: Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992); on remand 969 F.2d 1022 (11th Cir.1992) (the first case permitting a student's claim for sexual harassment against a public school teacher to proceed under Title IX of the Education Amendments of 1972); Gebser v. Lago Vista Independent School District, 524 U.S. 274 (U.S. 1998) (holding that a public school board was not liable for a teacher's acts of sexual misconduct with a student since educational officials responded appropriately when his misdeeds came to light); Davis v. Monroe County Board of Education, 526 U.S. 629 (1999); on remand 206 F.3d 1377 (11th Cir.2000) (setting the legal parameters for liability for peer-to-peer sexual harassment in public schools).

[FN33]. See, e.g., Brianne I Weiss, “Title IX Versus Canadian Human Rights Legislation: How the United States Should Learn from Canada's Human Rights Act in the Context of Sexual Harassment in Schools,” (2002) 11 University of California-Davis Journal of Juvenile Law and Policy 55.

[FN34]. Roper v. Simmons, 543 U.S. 551, 576 (2005).

[FN35]. Jo Becker, “World Summit on Kids, Do We Care? As leaders Gather at the UN, the U.S. has yet to Ratify the World Treaty on Children's Rights,” (May 5, 2002) Newsday, p. B 4.

[FN36]. S8400 Senate Resolution 133--Relative to the United Nations Convention on the Rights of the Child, 141 Cong. Rec. 28400-01, 1995 WL 356610 (June 14, 1995). For an article supporting the Senate's action, see Andre R. Imbrogno, “Corporal Punishment in America's Public Schools and the U.N. Convention on the Rights of the Child: A Case for Nonratification,” (2002) 29 Journal of Law and Education 125.

[FN37]. In Ingraham v. Wright, 430 U.S. 651 (1977) the United States Supreme Court determined that whether corporal punishment could be used in schools was at the discretion of state officials. For a discussion of the status of this practice, see Charles J. Russo, “Spare the Rod and Spoil the Child? The Law and Corporal Punishment,” (2009) School Business Affairs, Vol. 75, No. 10, 30.

[FN38]. For a discussion of the role of the judiciary and the use of non-domestic law, see Charles J. Russo, “Judges as Umpires or Rule Makers? The Role of the Judiciary in Educational Decision Making in the United States.” (2009) Education Law Journal, Vol. 10, No. 1 at 33.

[FN39]. See, e.g., Jessica Leeder, “Experts' Call to Action: Invest in Women, Reverse Poverty Support Women; Educated Third World Girls will be Healthier and will Improve Lives of Others to Create Economic Change, Report Says.” (Sept. 22, 2009) Globe and Mail at A1; available at 2009 WLNR 1861034 (discussing Because I am a Girl: The Status of the World's Girls 2009 and, in part, difficulties associated with ensuring that females can attend school). The report is available at http://plan-international.org/files/global/publications/campaigns/BIAAG%202009.pdf

[FN40]. Available at http://www.unicef.org/wsc/declare.htm

[FN41]. Available at http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm

[FN42]. Available at http://www.unicef.org/wsc/declare.htm

[FN43]. Available at http://www.un-documents.net/a54r263.htm

[FN44]. See http://www.unicef.org/specialsession/

[FN45]. Available at http://www.unicef.org/media/media_42155.html

[FN46]. For a discussion of a range of issues on point, see Louis LeBel, “Supreme Court of Canada Case Law Regarding Fundamental Rights in Education,” (2010) 16 Educ. & Law J. 137 (reviewing cases on minority language education rights, denominational, freedom of religion, freedom of expression of teachers, protection of students against unreasonable searches; and students' equality rights to educational services).

[FN47]. For discussion of this tension in Canada, see Paul Clarke, “Parental Rights, the Charter, and Education in Canada: The Evolving Story,” (2010) 19 Educ. & Law J. 203.

[FN48]. The right of parents in Canada to direct the education of their children is explicated in the Canadian Charter of Rights and Freedoms at sections 2(a) and 7. For a review of these provisions see ibid. at 204-206.

[FN49]. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (U.S. Sup. Ct., 1969).

[FN50]. Ibid. at 506.

[FN51]. Ibid. at 510.

[FN52]. See, e.g., New Jersey v. T.L.O., 469 U.S. 325 (U.S. (1985)) (upholding searches of students based on reasonable); Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) (permitting educators to limit the content of a school-suspicion sponsored newspaper).

[FN53]. Bellotti v. Baird, 443 U.S. 622 (U.S. 1979).

[FN54]. Ibid. at 634.

[FN55]. 387 U.S. 1 (1987).

[FN56]. Wisconsin (State) v. Yoder, 406 U.S. 205 (U.S. 1972).

[FN57]. Ibid. at 245-246.

[FN58]. Pierce v. Society of the Sisters of the Holy Name of Jesus & Mary, 268 U.S. 510 (U.S. 1925).

[FN59]. In the United States, for example, the Supreme Court refused to address the merits of a case on how to fund public schools, a field known as “school finance.” In San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), the Court ruled that “[e]ducation, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.” In the interim, more than half of the states have revised their systems of funding public education via legislative change spurred on by what typically consists of multiple rounds of litigation aimed at ensuring equity in school spending.

[FN60]. For an article examining the rights of students with disabilities in Canada, see William J. Smith & William F. Foster, “Educational Opportunities for Students with Disabilities in Canada: How Far Have We Progressed?” (1996-1998) 8 Educ. & Law J. 183.

[FN61]. For a discussion of the contentious issue of minority language rights in Canadian schools, see Susan Luft & Gregory M. Dickinson, “Supreme Court Holds Charter Protection Rights Does Not Guarantee Instruction in Language of Choice,” (2006) 15 Educ. & Law J. 293 (reviewing Gosselin c. Québec (Procureur général), 2005 SCC 15, 2005 CarswellQue 763, 2005 CarswellQue 764, [2005] 1 S.C.R. 238 (S.C.C.); affirming 2002 CarswellQue 776, [2002] Q.J. No. 1126, [2002] R.J.Q. 1298 (Que. C.A.); affirming 2000 CarswellQue 2416, [2000] Q.J. No. 4688, [2000] R.J.Q. 2973 (Que. S.C.).

[FN62]. Brown, above note 1 at 493.
 
20 Educ. & L.J. 87

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