Non-state actors important roles in realizing the right to quality education’.

 

The non-state sector provides a large and, in many countries, growing share of education provision. Non-state education is characterized by a diversity of actors, which could include religious institutions, non-governmental organisations, foundations, community-based groups, businesses, private proprietors and parents (UNESCO, 2015b). They have an important role in the provision of education in order to ensure parental choice and educational freedom and the Education 2030 Framework for Action, which lays out the roadmap to implement SDG 4 on education, further states that ‘Civil society, teachers and educators, the private sector, communities (…) all have important roles in realizing the right to quality education’ (para. 10).

Trends in privatization

In 2014, the Special Rapporteur on the right to education warned of the ‘explosive growth in private education providers’ (Singh, 2014). There are concerns that private education is rapidly in danger of supplanting public education in many countries, rather than supplementing it. The shares of private institutions worldwide increased from 10% in 2002 to 17% in 2013 in primary education and from 19% in 2004 to 26% in 2014 in secondary education (UNESCO-GEM Report, 2021b). The issue of privatization of education is increasingly complicated. Private provision of education can entail private regulation or decision-making, where education services are monitored by those who receive the services, ascertaining whether it is of a satisfactory standard and making decisions to exit or demand a better a service (Belfield & Levin, 2002). Funding for private education can come from a variety of sources, in many cases supported by private funding from the learner or their family, and in others, through government subsidies. A rise in public-private partnerships (PPPs), broadly defined as arrangements between public and private actors for the delivery of goods, services and/or facilities, is an emerging area of complexity. PPPs could cover merely the outsourcing of managing the school facilities or providing ancillary services such as school meals or transport but could also entail the private provision of core education services funded by the government. Finally, the COVID-19 pandemic and the shift to digital learning modalities has accelerated the proliferation of private technology providers (i.e. ‘EdTech’). Privatization can impact positively in some contexts, increasing the number of available schools that can have special significance for certain groups, expanding educational choice, increasing participation of parents in their children’s education and creating a perception of improved quality in education (Right to Education Project, 2014). However, privatization without regulation can also lead to discrimination and exclusion, create a two-tier system of education and adversely affect equality of opportunity. Commercialization can throw overboard the established position of education as a public good. An expansion of private education may even lead to the possibility of the State ‘exiting the field’ of education through public divestment and transfer of accountability to the private sector (Right to Education Project, 2014)

Examining the legal framework 

At the time of drafting of the right to education framework, there was a desire to protect the right to educational freedom regarding the provision of education by non-state actors. This led to the twinned recognition of the freedom to both establish or maintain private educational institutions (article 2(c) of the CADE) and a corresponding liberty of choice for parents to choose schools other than those established by the public authorities under article 5(1)(b) of the CADE and article 13(3) of ICESCR. These provisions also require States to implement minimum education standards with regard to private institutions. The legal framework on private education was developed to ensure parents’ liberty of choice as to private education was linked to the right of parents to ensure the religious, linguistic and moral education of their child(ren) (articles 2(c) and 5 (b)-(c) of the CADE) suggesting that it was originally intended to cater to diverse needs and convictions. Private institutions were to be set up ‘in addition’ (article 2(c) of the CADE) to those provided by public authorities, emphasizing the duty of the State to maintain its own offering. It seems unlikely, in the spirit of the CADE, that the rights and freedoms within were intended to open the door to a private sector that adopts a commercial approach whereby learners are seen as consumers or encourages divisions based on wealth and family background. 

Encouraging regulation of the non-state actors 

When it comes to public-private partnerships (PPPs), more clarity might be needed as to whether States are fulfilling their role as primary providers and regulators of education. General Comment No. 13 (CESCR, 1999) emphasizes that States have principal responsibility for ‘the direct provision in most circumstances’. This raises questions as to whether the rise in contracted and charter schools, or voucher systems (where private schools receive public funding for individual students) can be thought to amount to direct provision of State education. The Abidjan Principles (2019) offer guidance on funding private institutions. Relinquishing control to non-state actors of publicly-funded education can pose risks to the right to education – especially with regard to quality and equity (Zancajo et al., 2021). The second aspect of the international legal framework that would benefit from further clarity concerns minimum education standards. States have a responsibility in international human rights law to ensure that all education, including non-state schools conform to minimum standards. While they should cover dimensions such as prohibition of discrimination; minimum professional qualifications of staff; health and safety requirements, limitations on suspension and expulsion of learners; discipline and prohibition of corporal punishment; among others, they should also consider the quality of education outcomes. An imperative feature of these standards might lie in the prevention of exorbitant fees, which can never be in comfortable alignment with accessibility. 

While absolute minimum education standards may be established at the international level, governments need to further contextualize and adapt them in order to account for the specific country and local contexts, as well as the reality of operating environments. Care needs to be given to ensure that the regulations establishing the minimum education standards consider the rights of the child and should not impede a pluralistic education system. Beyond compliance, regulations also could aim to foster school improvement by encouraging a developmental approach to support actors in meeting the established standards. There would also be some benefit to outlining the concrete obligations of States on monitoring these minimum standards. Another avenue of exploration is how the international legal framework could redress the balance between non-state actors having increasing control and a larger share of the sector. This must be examined sensitively, with respect to the fact that some non-state actors have represented great value in certain contexts by filling genuine gaps in education provision, for example for disadvantaged groups in informal settlements, or those in crisis or emergency contexts. One response might be to consider formally setting limits to for-profit education institutions at compulsory levels. The UNESCO-GEM Report ‘Non-state actors in education’ found that ‘Profit making is inconsistent with the commitment to guarantee free pre-primary, primary and secondary education’ (2021, p. 25). The Abidjan Principles call for States to avoid commercialization of education (Guiding Principle 48) and emphasizes states that they must not fund or support private institutions that are commercial and ‘excessively pursue their own self-interest’ (Guiding Principle 73). For-profit education may conceptualize the learner as a consumer. A market approach to schooling means that companies no longer have the best interests of the child at the heart of their agenda-setting. Cost-cutting is likely to be a principal objective, competing with aims to improve the quality of education. Addressing and regulating profit-making is therefore necessary to ensure that the right to education is not infringed upon. Some might argue that private schools offer education of better quality and are the solution to the out-of-school challenge in some local contexts, filling gaps where the State is unable to provide education. This is not altogether convincing, as most private schools are prevalent and continue to expand in urban areas, where there exists already close to universal enrolment (UNESCO-GEM Report, 2021b). Regardless, the only way for States to respect, protect and fulfil the right to education, which is their primary duty, is by ensuring that they maintain overall control of the entire education system and aim to reduce their dependency on non-state actors and strengthen the reliability and sustainability of the public sector to guarantee freedom of choice. 

Private tutoring

 Private tutoring can have significant impact on the right to education, creating a potential divide in access to learning opportunities. Prevalent in Asia, it is increasing worldwide and can understood as extra lessons on academic subjects that are provided by specialist companies, teachers working on a part time basis and university students, in exchange for a fee (Mark Bray, 2014). While some argue that private tutoring enhances educational outcomes by providing personalized attention and supplementary support, it can exacerbate existing inequalities and even weaken the quality of formal education, due to the reliance on private tutoring. Affluent families can afford these additional resources, giving their children an unfair advantage over their less privileged counterparts. Advertising practices, while creating awareness of the availability of services, can also contribute to the commercialization of education, where quality education becomes contingent on one’s ability to pay for private tutoring. This can also create societal pressure and expectations. Despite the evident repercussions on the right to education, international norms and standards are silent on this issue which would greatly benefit from regulation. 

Homeschooling 

Homeschooling is far from a recent practice. However, the COVID-19 pandemic provided the opportunity to parents and caregivers to simulate homeschooling, as they were required to fill the role of primary guides for their children’s learning at home. While international human rights law is silent on the issue of homeschooling, the principles referred to earlier such as on educational freedom, minimum education standards but also regarding ‘the best interests of the child’ (article 18(1), CRC), can be applied to homeschooling. Furthermore, the education provided should conform to the aims of education laid out in the CRC, including that education is directed to ‘the development of the child's personality, talents and mental and physical abilities to their fullest potential’ (article 29 (1)(a)). Besides these general principles and obligations, the international human rights framework could further detail how to ensure they concretely apply in the context of homeschooling and could provide further guidance with regard to its regulation to ensure quality education and the protection of learners.

 Digitalization in education

 Finally, more attention must be paid to the regulation of EdTech but also, more generally, the use of technology in education. Non-state actors have performed a crucial role in maintaining access to education during the COVID-19 pandemic when face-to-face learning was not possible. Education management, infrastructure and delivery, curricular content and connectivity provided by private providers kept access to education open, as well as lines of communication between learners and teachers. However, private providers taking more responsibility for the provision of education is not without risks. Without strong regulation, there are concerns relating to the quality of education, online learner’s protection and privacy and the financial burden placed on parents and students. These issues also can emerge regarding the use of digital tools in education. Technology is increasingly an area where public funding is being diverted to private interest, so education stakeholders must monitor that education resources and tools that are used in advancing the interests and capabilities of teachers and learners; and be vigilant of corruption and the diversion of resources to advance private aims.