Law Library Stacks

Back to Constitutional Right to an Education

This report describes the law of twenty jurisdictions on the right to education, and whether the right appears in the national constitution or in statutory law.  The jurisdictions selected for review have different constitutional arrangements and reflect diverse political, cultural, and economic experiences.  

All of the surveyed jurisdictions recognize the right to education.  Fifteen of them provide for the right in their national constitutions, while five provide for the right through legislation. 

While the several surveys in this report reflect interesting diversity in how the right to education is recognized in varied jurisdictions around the globe, some of the surveys are of particular interest. 

South Africa’s 1996 Constitution enshrines the right to education in the Bill of Rights chapter to that Constitution.  Courts in South Africa have held that the right to a basic education establishes an affirmative obligation on the state to provide a range of educational resources, including schools, classrooms, teachers, and textbooks.

In India, the right to education was added to the Constitution in a 2002 amendment; the Constitution now obligates the government to provide free and compulsory education to all children between the age of six and fourteen years, although the government may determine the manner in which such free and compulsory education is provided.   

The Russian Federation’s Constitution provides for a capacious right to education from preschool through the secondary level, as well as a right on a competitive basis to higher education.  Scholars have noted that while the government is obligated by statute to provide education in a manner free of discrimination, in reality there is a lack of equal opportunities in access to education attributable to factors including regional differences, a lack of teachers in some areas, differences in teachers’ qualifications, differences among schools in access to equipment and technology, and the unavailability of teachers and opportunities for learning in the languages of minorities living in Russia.

Two of the surveyed jurisdictions, New Zealand and England and Wales, have no written constitution.  Both have what are described as unwritten constitutions derived from certain fundamental statutes, common-law decisions, and institutional conventions.  In England and Wales, the right to education is found in the United Kingdom’s Human Rights Act 1998, a statute that codifies most of the substantive rights in the European Convention on Human Rights, including rights frequently found in written constitutions.  In New Zealand, the right to education is provided through the Education Act 1989, which is not a statute with constitutional status.  The New Zealand Court of Appeal has indicated that there is no freestanding, general, judicially enforceable right to an education that meets some abstract standard; only those rights established by the Education Act are justiciable.

In the case of Germany, the German Basic Law constitutes the federal republic’s national constitution.  The Basic Law provides that while the country’s educational system is supervised by the national government, education falls within the competencies of the individual German states.  While most of the German states in turn have chosen to provide for a right to education in their state constitutions, other states have provided for the right through statutory law.

 

Prepared by Luis Acosta
Chief, Foreign, Comparative and
International Law Division II
May 2016