Rethinking the right to education

by Federico Sarchiapone, URG Geneva Thematic human rights issues

The COVID-19 pandemic has not only heralded a public health and economic crisis, but also triggered an educational emergency. Data collected by UNESCO shows that around the globe students lost on average two-thirds of their academic year as governments resorted to mandatory school closures in an attempt to contain the spread of the virus. However, this figure masks great disparities among students worldwide, with children in India hit the hardest at 51 weeks in 2020-2021, while pupils in Iceland ‘only’ lost six weeks.

In the meantime, countries have tried to fill this enormous educational gap by implementing remote learning solutions. This has exacerbated existing inequalities and led to an overall deterioration in the quality of education. Some of the obstacles are certainly new; in large measure, however, the pandemic has simply reinforced issues that were already leaving students behind. These extraordinary circumstances may present an opportunity to rethink our approach to the right to education. States should imagine a future where education does not only encompass institutional and formal elements but, more importantly, centres around equipping students with the life skills they need. Alternatives to the classic paradigm of school-centric systems should be developed with the aim of becoming the mainstream approach to ensure universal access to quality education for all.

The right to education

The right to education is enshrined in Article 26 of the Universal Declaration of Human Rights (UDHR), which, albeit not legally binding as such, has served as starting point and inspiration for similar guarantees in later human rights instruments, which do create obligations for State Parties under international law. Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which was signed in 1966 and entered into force ten years later, is an example of the latter and similarly recognises the universal right to education.

There are varying definitions of education used in different fields. A broad definition by UNESCO from 1974 identifies education as ‘the entire process of social life by means of which individuals and social groups learn to develop consciously within, and for the benefit of, the national and international communities, the whole of their personal capacities, attitudes, aptitudes and knowledge.’ While in international law, the meaning of education is much narrower: it encompasses formal teaching and instruction in specialised institutions, which may take the form of primary, secondary and higher education.

Taking these interpretations as a starting point, the Committee on Economic, Social and Cultural Rights and the UN Special Rapporteur on the right to education have further clarified the precise content of the right, including in General Comment 13 by the Committee. It stressed the importance of ensuring that educational institutions and programmes are accessible to everyone, especially vulnerable groups, without discrimination on any ground. The prohibition of discrimination ‘applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination,’ which in addition to race, colour, gender, language, religion, political or other opinion, national or social origin, property and birth also implies physical and economic accessibility.

In practice, States have a legal obligation not only to respect and protect, i.e., refrain from direct or indirect interference with the right to education, and to prevent third parties from doing so, but also to take active steps towards its full realisation. Accordingly, States are required to make primary, secondary, and tertiary education available and accessible for everybody, and to maintain that level of realisation. Indeed, one of the minimum core obligations under international human rights law with which States must comply immediately is ‘to ensure the right of access to public educational institutions and programs on a non-discriminatory basis’. States must implement these core obligations irrespective of their level of wealth or development.

The right of every person to access education of good quality is fundamental for personal, and professional development and is highly interlinked and interdependent with the enjoyment of other rights. Unfortunately, the outbreak of the COVID-19 pandemic has had a severe adverse effect on the enjoyment of the right to education worldwide, as will be discussed below.

Remote learning educational barriers

The COVID-19 pandemic has fundamentally altered the global education landscape. More than 90 per cent of educational programmes in the world now include remote learning modules such as print-based, radio-based, TV-based and online teaching practices. A new consensus seems to be emerging in this regard, but stark inequalities persist regarding access to, and quality of, remote education.

In its guidance for teachers to ensure effective distance learning, UNESCO has highlighted that even though technology cannot entirely substitute the classroom learning experience, online technologies are the best option available for emulating classroom settings. These technologies allow for live-streamed interactive lessons and on-demand controllable video programmes which provide a number of advantages, such as real-time online discussion and accessibility for people with hearing and visual disabilities. By contrast, TV and radio have several downsides, as they require programmes to be pre-recorded, thus severely limiting possibilities for interaction between students and teachers.

A UNICEF report published in March 2021 shows that the countries most affected by school closures are located in Latin America, the Caribbean, South Asia, and Eastern and Southern Africa. Sadly, these countries tend to also have low rates of school-age children with a fixed internet connection at home, rendering ‘virtual learning’ difficult. Indeed, in East Asia and the Pacific, as well as West, Central, Eastern and Southern Africa, an estimated 900 million children and young people lack internet access at home. Stark disparities also persist between developed and developing countries. Among children and young people aged 25 years or less, only 6 per cent in low-income countries have internet access at home, compared to 87 per cent in high-income countries.

The most important factors that contribute to lack of internet access are place of residence and household wealth. In developing countries, the rural-urban digital divide is particularly pronounced. For example, in Ethiopia, the coverage of grid electricity in urban areas is 97%, compared to only 12% in rural areas, which dramatically limits the possibility for students to shift to ‘virtual learning’.

While the pandemic has undoubtedly created new and unprecedented obstacles to remote learning, the digital divide and unequal access to remote learning have reinforced and deepened a global learning crisis that existed long before COVID-19 upended our lives. ‘Access to the technology and materials needed to continue learning while schools are closed is desperately unequal. Likewise, children with limited learning support at home have almost no means to support their education. Providing a range of learning tools and accelerating access to the internet for every school and every child is critical,’ said UNICEF Chief of Education Robert Jenkins.

In June 2020, a study conducted by UNICEF in South Asia further illustrates this point. It found that only 65 per cent of households from the poorest quintile have electricity, compared to 98 per cent of households from the wealthiest quintile. Such inequalities are not limited to the Global South. In Europe, students from lower economic backgrounds in Bulgaria, Lithuania, Slovakia, Hungary, Italy, Spain, and Portugal are between 5 and 11 percentage points less likely to have access to the internet compared to their peers from more affluent backgrounds. Taking all these factors together, it is thus very likely that the pandemic will have a long-term negative effect on students’ competencies and will increase existing education inequalities. Thereby, potentially rippling further through their lives and future educational, job and life opportunities.

Collateral effects

While lack of internet access is a very visible and immediate driver of inequality in times of remote education, many other important factors that exacerbate the global learning crisis are equally relevant. The importance of support at home has been widely documented in the scientific literature. Parents play a pivotal role in a child’s education. There is a direct link between the literacy environment at home and children’s reading scores, for example. Both the level of education and profession of the parents play a crucial role in this regard. As a recent study conducted by UNICEF has shown, ‘the lack of education of mothers/caregivers also impedes the support they are able to provide to their children’s learning, with the high risk of perpetuating an intergenerational learning poverty cycle.’ This dynamic is exacerbated for the children of ‘frontline workers,’ meaning those who due to the nature of their job are not able to work from home. Substantial disparities will emerge between families, depending on whether parents are able to support their children’s virtual learning efforts.

Moreover, the wider societal function of schools is not limited to the mere provision of education: in poorer parts of the world, schools often provide a child’s only certain meal of the day, essential childcare and health care (in the form of medical checks and vaccination against childhood diseases), and, perhaps most importantly, a key social network for students. Globally, the UN has estimated that over the course of the last year, 370 million children who were benefiting from school feeding programmes have missed 39 billion in-school meals during lockdowns. Likewise, the adverse psychological impact of school closures on the mental health of children has been well-documented and an issue of increasing concern amongst experts.

Gender disparities between pupils have also worsened In Uganda, for instance, it is estimated that thousands of school girls will not finish their education, having gotten married or pregnant during school closures. In Afghanistan, there is fear that because of an increase in early marriage, the dropout rate of teenage girls will rise. Indeed, according to an October 2020 study by the World Bank that focused on Bangladesh, several factors lead girls to drop out of school. As already mentioned, child marriage is one of them, in addition to early pregnancies, sexual violence, and the prevalence of conservative social norms regarding girls’ education. Once married, girls are often expected to bear children and abandon the pursuit of personal goals, forcing them to remain at home instead of continuing their education. Furthermore, girls who fall victim to sexual harassment are not only traumatised but subjected to public derision and shaming. In some cases, girls decide to no longer attend school due to fear and shame, while in other cases, it is the family that puts pressure on them to get married or decides to pull girls out of school. The aftereffects of the pandemic, with its prolonged periods of lockdowns stand to compound the problem.

A different approach to the right to education

If we are to take seriously a human-rights based approach to education, the detrimental effects of the COVID-19 pandemic should provide ample impetus for States to start rethinking their educational models.

First, given its crucial importance for remote learning, States should recognise the right to internet access as part of the right to education. Even if this has not been recognised as a self-standing human right for lack of a formal convention, reports from the UN and OSCE have acknowledged that it is an essential requirement to ensure the enforcement of other rights. A report of the Special Rapporteur on the promotion and protection to the right to freedom of opinion and expression issued on 16 May 2011 stated in this regard that ‘given that the Internet has become an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the Internet should be a priority for all States.’

Second, we have seen how school closures not only affected the right to education, but also impacted other rights, e.g., the right to food, to work and to healthcare. Accordingly, States should promote legislation and policies aimed at developing a more holistic approach to the right to education, one that would consider education not only as a means of knowledge acquisition, but also a more meaningful learning experience. In other words, policymakers should take into account the socialisation needs of young people as well as their psychological and physical well-being and move towards a more student-centred approach. This could encompass didactic methodologies, such as cooperative learning (based on student collaboration), and a wide range of collective activities, including debates, small working groups, authentic learning activities (simulating real-life situations), storytelling, role playing, educational games and simulations, audio and visual laboratories, or arts, music, theatre, and dance.

Third, we should not forget the wider role that schools play in the lives of parents and guardians. The closing of schools left a ‘childcare’ gap for many parents, with those who were unable to ‘work from home’ especially affected by the restrictions. Even before the pandemic, parents struggled to balance work responsibilities and childcare duties, with a disproportionate burden placed on women. As recent studies have shown, COVID-19 has increased the gender-pay gap as women left their jobs to care for children. As an analysis by the World Bank has shown, the pandemic has increased the gender gap by a generation from 99.5 years to 135.6 years. This happened because women had to disproportionately take care of children at the expense of their professional life. Accordingly, is not only essential to continue to measure how women are experiencing the pandemic, but also to change employment arrangements to enable mothers to remain in, or return to, employment, to improve the valuation of women’s work through strengthening legal and collective regulation and facilitate access to paternity leave in order to balance the burden of childcare.

Future perspectives

When rethinking the right to education, we should keep in mind its importance for all members of society and for future generations. That is why it is also one of the key principles underpinning the Education Agenda and Sustainable Development Goal 4 (SDG4) of the United Nations. The COVID-19 pandemic has worsened an already worrying situation affecting many students around the world and depriving the most vulnerable of quality education. The aim of States and international institutions should be not only to try to recuperate what has been lost but also to transform our current approach to education. Instead of focusing on a formal and narrow conception of education, they should ensure that the well-being of students is protected, that their learning is not disrupted, and that their personal and social capacities are fully developed.

It is time to kick-start a discussion about a more holistic conceptualisation of education that goes beyond formal instruction and takes into consideration socio-economic and cultural aspects. Initiatives such as ‘Education: From disruption to recovery’ promoted by UNESCO – whose goal is to support countries in mitigating the effect of school closures, addressing learning losses and adapting educational systems – are a good first step for building a better future which does not overlook the importance of individual educational needs.

Featured photo: A young girl attends one of the thousands of community based schools, supported by the United Nations Children’s Fund to make formal education accessible to children. 24 April 2008. Nangarhar, Afghanistan. UN Photo/Roger Lemoyne. Licensed under CC BY-NC-ND 2.0.

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