A/HRC/17/29 VII. Legal enforcement of equality of opportunity 65. Judicial systems play an essential role in protecting and enforcing the right to education as an entitlement. The enforcement of legal mechanisms guaranteeing equality of opportunity in education is crucial in safeguarding such entitlement. In the case of violation of the right to education and denial of equality of opportunity, everyone must be able to have recourse before courts or administrative tribunals on the basis of international legal obligations as well as to existing constitutional provisions on the right to education. Decisions by courts across regions demonstrate how courts have upheld the right to education and equality of opportunities in education. Case law from several countries shows that individuals can claim their entitlement to equality of opportunity in education. 66. In the historic ruling of Brown v. Board of Education, the Supreme Court of the United States of America emphatically declared 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.54 Other cases have noted that “providing public schools ranks at the very apex of the function of a State,” and “education is perhaps the most important function of State and local governments.”55 The right to equal educational opportunity in mixed-race and mixed-gender schools has since been codified through the establishment of the Equal Educational Opportunities Act.56 67. In India, jurisprudence also underlines State obligations relating to the right to education and the equality of educational opportunities. 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 law and in fact. Equality in law must ultimately find its raison d’être in equality in fact.57 A Constitution 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. […] The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed.”58 68. In 1997, the Constitutional Court of Colombia ruled that by excluding pupils on an economic basis, schools violate their right to education.59 The Constitutional Court of South Africa held that “affirmative action in education, which would give preference to previously disadvantaged persons to gain admission (to university), is allowed by section 9(2) of the Constitution.”60 Other rulings from the same court in South Africa also protect the right to education and language rights.61 69. Regional human rights systems have also adopted decisions relevant for the protection of equal opportunities in education. The European Court of Human Rights recently held that the right to education was violated by the placement of a Croatian 54 55 56 57 58 59 60 61 Brown v. Board of Education, 347 U.S. 483, 74 S.Ct.686, 98 L.Ed.873 (1954), as cited in Education Law, Education Series, Chapter 4, ‘Students Rights’, Law Journal Press, New York, 2002. Wisconsin v. Yoder, 406 U.S.205, 92 S. Ct. 1526, 32 L.Ed.2d 15 (1972), as cited in Education Law, Education Series, op. cit. 20 U.S.C. paragraph 1701-1758, cited in Education Law, Education Series, Chapter 4, op. cit. See Pradeep Jain v. Union of India, (1984), 3 SCC 654. Km. Chitra Ghosh and Another vs. Union of India and Others, (1969) 2 SCC 228. Sentencia C-560/97, Demanda de inconstitucionalidad contra el artículo 203 (parcial) de la Ley 115 de 1994. Motala and Another v. University of Natal, (1995) (3) BCLR 374 (D). Constitutional Court, Gauteng provincial legislature, South Africa, (1996) CCT 39/95. 17