Right to Education

On January 6th, 2005 the committee debated the right to education.

Committee Chairman MK Michael Eitan called the right to education one of the most basic and detailed rights in the prospective constitution. How, he asked should it be defined- as a bare minimum or as the ideal level that society should support? How do we establish a clear minimum without conveying the message that the minimum is sufficient?

Professor Hagit Ginat (Professor of Law, Bar-Ilan University) stated the following points that need to be addressed:

1. Who receives public education? Citizens, residents, everyone? (Generally we want to be broad with this.)
2. What rights do children enjoy independently? (Most rights apply to adults or to parents.)
3. What level of education- from what age and to what age?
4. To what extent does the right to education imply the state must fund every stage of education?

The variety of public education and the status of non-public education: Who decides what curriculum is taught? (This raises questions of religious autonomy, equality, and autonomy of schools).

Ginat explained that most countries assign the right to parents rather than children and that most constitutions do not include high school. There is full consensus that some degree of education should be required, e.g., parents whose children do not attend school are breaking the law; and that level of education (usually through elementary school) is most often free. But free education often extends beyond the required level of education.

Aviad Bakshi (Doctoral student at Bar Ilan) discussed the tension between children’s rights and parents’ rights. He asked, “What if parents want their child to study only philosophy or religion?” While the parents may have that right, they exercise it at the expense of the child’s equal opportunities later on in the capitalistic market.

Yosef Juma’, head of the PTA in Jaljuliya, used his town as a case example. His community was not informed of their rights to education, he said, and the ministry of education did not even know that their town of 10,000 existed. He said they were never told they could go to the director of the education ministry to demand their rights – for example, the right to make sure teachers work all of their hours, the right to change up to 25% of the curriculum, the right to deal with delinquency, and the dearth of university students (<1%) emerging from their community. Juma’ said his community lacks people to oversee the system, protecting against delinquency and crime in schools. Juma’ also argued that the law should require parents to be more involved.

MK Tamir (Labor) responded that few schools actually give expression to the parents’ desires for special educational focuses. The fact that parents technically have up to 25% influence on the program of study is not well known. She argued that the minister should be required to consult with people outside the office thereby educating the public about their rights and ensuring some space for multicultural values as well.

MK Yuli Tamir (Labor) stated that the real argument here would not be about how much education people get, although she still wants to state the length of education in the constitution.] Tamir argued that in order to make this more substantial we need an additional law or article stressing the equality of education, something that goes beyond the overarching equality clause on the entire constitution.

Saul Wiesman (a private lawyer) discussed the right to education as part and parcel of the right to pursue happiness and sustenance. He argued that equality in education is the basis for equality later on, as it gives the citizen equal chances- not in the immediate social sense but in the sense of a prerequisite for equality later in life.

Dubit Ater, (Association for Civil Rights in Israel educational director) stated that education must be guaranteed to all; that this isn’t a “Highway 6” situation where either everyone drives slowly or just the rich can drive fast- where the option of everyone driving fast isn’t realistic. [Ater was referring to the Trans Israel Highway, Israel's only toll road, which generated public debate over whether the state should build a road which benefits rich and poor unequally, but where the choice is between unequal benefit and no benefit at all.] Ater said that children should not merit a proper education simply by virtue of their parents being able to afford it; the right is too fundamental.

The representative of the Public Committee for Education discussed the starting age for free education, a number on which politicians are unable to agree. She asked why 3 year-olds’ education is not guaranteed by law, and why the longer school day, which has been fully approved in Knesset, is held up by Education Minister Limor Livnat (Likud), who reserves the right to decide its applicability. She also pointed out that the inequality inherent in a system which depends on wealthy parents to protect the rights of their children.

MK Eitan (Likud) asked if we could accept a gap between high-level and low-level education; that is, whether, for example, the state could allow parents to establish specialty schools on their own (with no state funding), and using the money saved for poorer schools. This would benefit the rich more than the poor, but would provide some benefit for all –a “Highway 6 Situation.”

Ginat responded that education is not just a right; it is also something the state has a great interest in controlling for social power. The state must carefully consider what arrangements it should sanction. Ginat proposed two approaches:

1. Anyone can set up a special school system.
2. In order to set up special education you must provide a good social reason, some reason you want special education, to convince the government to hand over a piece of the “shaping-the-future-face-of-the-state” pie.

MK Eitan (Likud) asked the education ministry’s legal representative if is there any objection to a constitutional proclamation about the right to education, followed by a note that it will be implemented with affirmative action? MK Eitan explained that we are tending towards including affirmative action in the education section of the constitution. Weisman suggested the formulation, “In order to safeguard substantive equality”.

Shlomo Yishai, Deputy Secretary-General of the Teacher’s Union, added that no constitution would prevent parents from adding onto what the state gives; what the constitution should do is try to narrow as much as possible the inevitable gap between high and low. He argued that the state must promise through its constitution to do its best. The fact that parents can change 25% of the curriculum is a start, he said, but perhaps parents should also be allowed to fund supplemental educational programming as well.

Dina Zilber from the Ministry of Justice, a member of the Dovrat Commission (a group ordered by the Government to reexamine education in Israel), opined that the constitution’s language should be minimalist, and that affirmative action should not be included here in particular, if other rights make no mention of it. MK Eitan disagreed, arguing that without including it we will be ignoring a basic collision of rights. Zilber raised three questions for the committee to consider:

1. What is the viewpoint from which we arrive at the right to education? Is it paternalistic? MK Eitan answered that he believes that everyone here agrees that the parents, public and the state should share control. Zilber argued that the phraseology in the constitution must be flexible, allowing interpretation in either direction. [All agreed.]
2. What does the right include? It won’t have all the details, but it must answer the minimum/normative conflict. [Does the right reflect a bare minimum or a desired level for all that the state supports?]
3. The committee must consider the connection between state funding and the content of the educational materials. What should be controlled? To what extent should the law allow parents to decide – especially in affirmative action situations – and then fund their decisions?

Yitzhak Kadman, Director-General of the Council for Children’s Welfare, argued that the current educational system is full of “highway sixes,” except the state pays for it all, unlike the private backers of highway six. He continued by arguing that the constitutional text on this cannot be vague; he laid out six points that need to be included:

1. Age
2. Funding (Who funds education? We must fix the present system, which is not truly free.)
3. Content/meaning - we must make sure that 45 students, a blackboard and chalk does not fulfill the education requirement; additionally we must specify how many hours are in a school day. (MK Eitan claimed these details should not be included as the list of details is endless.)
4. Who benefits from the right
5. Accessibility (All children should have access to educational facilities within a reasonable distance from their homes; Bedouin children shouldn’t have to walk 5 km to school.)
6. Give the responsibility to someone- we must decide who is charged with fulfilling this right.