A/HRC/23/35
monitoring of the right to education could have an important potential role in
developments in this respect. 43
VIII. Examples of jurisprudence on the right to education
44.
A selection of cases illustrates how courts have interpreted the right to
education worldwide.
A.
Equality of opportunity in education
45.
Rich jurisprudence exists regarding State obligations to respect the
fundamental principle of equality of opportunity in education. In his 2011 report to
the Human Rights Council on the promotion of equality of opportunity in education,
the Special Rapporteur highlighted a number of leading cases. 44 The fair and equal
right of access to education has been widely adjudicated. The United States Supreme
Court ruled in Brown v. Board of Education, that separate educational facilities for
white and black children are “inherently unequal”. Even where physical facilities
and other objective factors are equal, a segregated school system denies equal
educational opportunities to the minority group.
46.
The Supreme Court of India has interpreted the provisions on equality before the law
in article 14 of India’s Constitution to promote equality in both law and fact. A
Constitutional Bench of the Indian Supreme Court held that “What is fundamental, as an
enduring value of our polity, is guarantee to each of equal opportunity to unfold the full
potential of his personality”.45 Several other cases show how equality of opportunity in
education can be safeguarded by courts.46
B.
Protecting marginalized and vulnerable groups
47.
A number of decisions by judicial and quasi-judicial mechanisms show how
the right to education of marginalized and vulnerable groups can be protected.
48.
In a “collective complaint” by Autism-Europe to defend the rights of people
with disabilities in Europe, 47 the European Committee on Social Rights ruled that the
French Government's overall lack of progress in this area constituted a violation of
the European Social Charter. The French National Consultative Commission for
Human Rights has also defended the right to education for children with disabilities
by a number of its advisory opinions. 48
43
44
45
46
47
48
Report on the fourth meeting of the Joint Expert Group UNESCO (CR)/ECOSOC (CESCR) on the
monitoring of the right to education (2006), 175 EX/28, UNESCO, Paris.
A/HRC/17/29, para. 66-68.
Km. Chitra Ghosh and Another vs. Union of India and Others (1969) 2 SCC 228.
See S. Tengur v. the Minister of Education and Anor. See also judgment of the Constitutional Court of
Moldova of 4 November 2004 - Case 72/1995 published in Romanian Official Gazette,
167/31.07.1995; Judgment of the Constitutional Court of Romania of 18 July 1997 (Case 72/1995)
Published in Romanian Official Gazette, 167/31.07.1995.
International Association Autism Europe vs. France, Complaint No. 13/2002. European Committee
on Social Rights, 4 November 2003. Available at
http://www.coe.int/t/dghl/monitoring/socialcharter/complaints/CC13Merits_en.pdf.
See http://www.cncdh.fr/fr/publications/avis-sur-la-scolarisation-des-enfants-handicapes.
13
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