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This chapter examines two challenges to promoting the right of education in India: economic and education policies, and the gender perspective used to justify a focus on women’s education. The capabilities framework is used to distinguish rights-based approaches to social development from the more conventional policy debates in the education sector. The application of the capabilities approach to arguments for the right to education is discussed.

This chapter applies the approach developed in this book to familiar topics of socio-economic rights, focussing on housing, education, and welfare, and drawing on comparative experience in selected jurisdictions. In each case, it considers how the infusion of values of positive freedom, solidarity, and equality opens up the possibility of recognizing positive duties even in relation to civil and political rights. The interaction between positive and negative duties is then considered: for example, the duty not to evict unlawfully is closely related to a duty to provide housing in the context of severe housing shortages, as in South Africa or India. The chapter then examines how the content of the positive duty can be ascertained; and the role of the minimum core. The role of courts in insisting on accountability, equality of participation and enhanced deliberative democracy is then evaluated. Finally, non-judicial compliance mechanisms are considered.

This chapter highlights how the concepts of globalization and human rights intersect with the right to education with particular reference to South Africa and Nigeria. The chapter is divided into seven parts. Following a general Introduction, it examines the brief profiles of the two countries. The third part discusses the meanings of the two dominant terms ‘education’ and ‘globalization’. The fourth part discusses the legal framework guaranteeing the right to education globally, while the fifth examines the right to education in South Africa and Nigeria. The sixth part assesses the impacts of globalization on the right to education in the two countries, while the seventh part concludes.

This chapter discusses provisions of the Indian Constitution concerning the right to free primary education and the co-relating rights to inclusive education guaranteed under Chapter V of the Persons with Disabilities (PWD) Act in India and the reasonable accommodation measures necessary to make the right to education a reality for children with disabilities. It compares segregated education and inclusive education and explains the provisions of Section 39 of Chapter VI of the PWD Act which provides for reservation of seats for persons with disability in educational institutions. It also discusses the provisions of the Right of Children to Free and Compulsory Education Act 2009 (RTE) and reviews court judgments addressing reservation for persons with disabilities in higher education.

Chapter 3 offers some guidance concerning the content of Article 21A. This question is approached purely legally, not politically. Therefore, the chapter does not describe what content would be desirable. Instead, it discusses which concrete legal obligations the article might impose on the state. It also highlights that Article 21A, read with Articles 32 and 226, clearly imposes an obligation on the state to provide accessible and effective enforcement mechanisms to right-bearers. The fact that the petitioners in none of the cases concerning Article 21A decided by the Supreme Court, and in hardly any cases decided by the high courts, were aggrieved children or their parents shows that the higher judiciary is not accessible enough.

Chapter 3 addresses a likely challenge to arguments for a right to education as a matter of equal citizenship: that they are just utopian musings. In response, the chapter focuses on select moments in American history that illustrate that arguments for a right to education have deep roots in our social and legal history. The chapter first considers education proposals from three historical periods during which foundational questions about rights, citizenship, and democratic entitlements were considered at the federal level: the Revolutionary period; Reconstruction; and the New Deal. It then focuses on the landmark Supreme Court case, San Antonio Independent School District v. Rodriguez(1973), which decided by a narrow 5-4 vote that education is not a right protected by the US Constitution. Although the efforts discussed in this chapter have not led to federal recognition of a right to education, they underscore that the idea is an enduring part of US politics that carries through to the advocacy efforts discussed in the next two chapters.

To examine the opportunities and challenges of attempting to secure educational rights through courts, Chapter 4 offers a case study of a landmark school finance lawsuit from Kentucky, Rose v. Council for Better Education.This case is often celebrated as the beginning of the “third wave” of school finance litigation, and it offers important lessons for ongoing school finance reform and for evolving conceptions of what the legal right to education entails. The chapter focuses on an under-analyzed feature of cases like Rose: how moral claims about educational entitlements can inspire citizens to mobilize and support litigation, which in turn can impact judicial outcomes and policy implementation. The chapter considers how particular educational rights claims figured into the Rosecase, and where they converged and diverged with moral claims about educational justice. This focus highlights the interplay between moral and legal conceptions of educational rights, and how the philosophical ideals advanced in the first part of the book may shape rights-based advocacy in practice.

This chapter discusses the development of Fourteenth Amendment jurisprudence in the area of students’ rights during the 1960s and 1970s. It focuses in particular on the courts’ interpretation of equal protection in regard to school desegregation, bilingual education, and students with disabilities. The chapter argues that, during the 1970s, the Supreme Court dramatically narrowed its interpretation of equal protection, and in doing so, it limited the ability of advocates for students of color to pursue racial discrimination cases in court. The chapter discusses how advocates for non-English-speaking students and students with disabilities sought to use the Fourteenth Amendment to make claims on behalf of these children, who were sometimes excluded from schools entirely. This chapter also examines the San Antonio v. Rodriguez case, in which the Supreme Court rejected the claim that the Constitution protects a right to education.

This chapter analyzes two social rights that are practiced on an individual basis: (1) the right to education and (2) the right to healthcare. It first describes the doctrinal nature of these rights, as well as how these relate to organizations’ ability to secure their enforcement. It then presents results from a global statistical analysis, which reveal that countries that constitutionalize the right to education and the right to healthcare do not dedicate more public funds to education and healthcare than countries without the right. In addition, this chapter presents a case study on the right to healthcare in Colombia, which reveals the difficulties inherent in enforcing the right to healthcare, even in the face of a highly activist judiciary.

In this introduction, Kimberly Jenkins Robinson explains that despite some gains from state school finance litigation, educational opportunity and achievement gaps remain prevalent throughout the United States. To address these enduring gaps, many scholars have argued that the United States should recognize a federal right to education, despite the United States Supreme Court’s refusal to recognize this right in San Antonio Independent School District v. Rodriguez. It also is important to note that after decades in state court litigation, advocates have recently returned to federal court to argue for a federal right to education. Therefore, this introduction outlines that the book takes up three timely and essential questions regarding a federal right to education: Should the United States consider recognizing a federal right to education? How could the United States recognize such a right? And what should the right guarantee? The introduction concludes with a summary of each chapter.

This chapter describes the extraordinary efforts made by Kapil Sibal to reform almost every aspect of education, and his refreshing courage in advocating polices shunned by the political class such as promotion of private participation, and encouraging reputed foreign institutions to establish campuses in India. It describes the successes he achieved like enactment of the RTE Act, and the heroic failure to enact as many as six acts which would have totally restructured the policy and regulatory framework of higher education. By focusing on the process and politics of policymaking it brings out that the failure was mainly due to strategic and tactical mistakes, and adopting a no-holds barred adversarial approach that is eminently appropriate in a courtroom is utterly inappropriate in policymaking. All in all, Sibal’s achievements and failure offer valuable lessons for policy entrepreneurship. It also describes the failed efforts of the Health Ministry to establish the National Commission for Human Resources for Health as a super-regulator in Medical Education in place of multiple regulatory authorities like the Medical Council, Dental Council and so on.

This chapter examines the approach of the European Court of Human Rights to cases concerning children’s education, and the interaction between parental rights and state obligations in this respect. It starts by looking at the jurisprudence concerning state versus private schooling, as well as the compatibility of prohibitions on home schooling with the Convention. It then goes on to consider specialised and segregated schooling, focusing on children with disabilities, migrant children, and ethnic minorities, and in particular the treatment of Roma children. The chapter further analyses the ability of parents to object to the content of education provided by the state, in the context of education in a chosen language, sexual education, and religious education. Finally, this chapter considers how Article 2, Protocol 1 of the Convention has been applied to higher education.

Chapter 1 gives an overview of the history and current status of the education system in India. It identifies parts of the society whom Article 21A is primarily aimed at, and what the most pressing issues to be addressed in the field of primary and lower secondary education are. It is quite clear that those who might profit from having a right to education are those who do not have the means to already afford quality education for themselves by obtaining it from the private market and who are, therefore, dependent on some form of state action. Strangely, it will be shown, even after years of education being a fundamental right, decent-quality education is still not seen as a ‘public good’ that the state ought to provide for free but something that is supposed to be obtained from the market, with the government education system being considered as something ‘meant for (very) poor children’.

Chapter 6 explains why the judiciary, when assessing the State’s measures for furthering access to justice, should focus on the RTE grievance redress system, and should order that it be improved in order to compensate for the current lack of access to justice. Strategic PIL litigation may play an important role. The chapter shows what alterations are necessary in order for the system to provide adequate and effective means of enforcement. It shall be concluded that a system of ‘micromanagement’ through grievance redress at the ‘bottom’, with right-bearers approaching the redress bodies themselves, and ‘macromanagement’ of systemic deficiencies through adjudication in the higher judiciary at the ‘top’, with advocacy groups raising issues at that level, might actually be superior to the system that was originally conceived by the Constitution.

This chapter begins to advance the book’s main argument: that we should regard the education that prepares individuals for equal citizenship as a fundamental right that is shielded from majoritarian politics far more than existing practices permit, and far more than most theory recognizes is necessary. Concern for this right is motivated by the worry that leading accounts of democracy often fail to protect the interests of marginalized students. In this and subsequent chapters, arguments about a right to education are located in a deliberative democracy. As education scholars and reformers increasingly look to deliberative ideals to improve the education policy process, it is especially important to consider how well this approach to policy-making serves less advantaged students. The chapter first calls attention to the opportunities and challenges that deliberative theory presents for advancing just education policies. It next shows how leading conceptions of deliberation fail to ensure that all students receive a high quality education due to the wide discretion they give democratic bodies to determine public provisions for education. Finally, it discusses the unique relationship between educational opportunity and political equality, which underscores the need for a right to education that is set above democratic decision-making.

The phenomenon of child labour, estimates on its magnitude, available statistics, its causes and consequences, girl child labour and domestic child labour are discussed in this chapter. The link between out-of-school children and child labour has been established and all out-of-school children must be treated as child labourers or potential child labour. The evolution of the Policy on Child Labour in India has been traced. The legal regime and the judicial response relating to Child Labour and Bonded Child Labour are analysed. The Child Labour (Prohibition and Regulation) Amendment Act, 2016 is critically reviewed. This chapter includes a section on international legal interventions, strategies and movements on child labour and bonded children. The chapter includes non-governmental organizations, government initiatives, programmes and schemes relating to child labour and bonded labour. The chapter concludes with recommendations for law reform.

This chapter argues that coercive, paternalistic regulations are warranted to address indifference to privacy and data protection concerns spawned by internet and web use; but that even such laws aimed at young children raise serious practical and fairness concerns, pointing to roles for non-legal normative solutions. An analysis of the Children’s Online Privacy Protection Act suggests that paternalistic legislation aimed at older teens and young adults could be justified on grounds friendly to liberal political theory. For mature adults the web is a place to work, socialize and do business. Travel arrangements and shopping for consumer goods takes place online. Many people do virtually all of their banking and bill paying online. They assume common ethics, data security, privacy policies, and laws protect their financial privacy. Internet and web users of all ages give away vast quantities of personal information to internet service providers, website operators, social networking companions and the general public. They give away some of this data intentionally. It often appears that internet/web users are indifferent to privacy. It very least, they over-rely on others’ good will, on posted privacy notices, and on unstable assumptions of trust, reciprocity and civility. Governments readily protects from inadvertent access to adult-themed spam email; and punishes data breaches, identity theft and computer hacking. There may be broader protective roles for public regulation if internet/web users continue to allow others seriously to exploit or harm them and if they make choices that threaten their future flourishing as free moral agents. Voluntary conduct online is exposing data to third-party wrongs and is eroding the public’s taste both for privacy and modest self-restraint. Public regulators could in theory enact strong laws targeting website operators and internet service providers, aimed at benefitting internet/web users. They could even make laws targeting users themselves with strong duties of self-care. It appears that only very strongly coercive measures and censorship could fully protect children and adults. Such measures would be flatly inconsistent with western liberalism. Yet some coercive regulation is possible and justifiable, even though important tasks relating to promoting privacy values are arguably best left to non-coercive schemes and non-government sectors. To address problems of lost privacy resulting from internet/web use, policymakers in EU countries have made their populations the beneficiaries of weakly coercive privacy and data-protection legislation. In the US the Children’s Online Privacy Protection Act (COPPA), a major federal statute which prohibits websites from collecting personal information from children under the age of 13. COPPA is the best example of a willingness to enact paternalistic privacy statutes. COPPA is a case study in justified and unjustified state paternalism in the face of unpopular privacy. The Harriton High School scandal, in which Lower Merion, Pennsylvania public school officials admitted remotely activating school-issued laptop webcams capable of spying on teenagers in their homes, reveals that public authorities can be dangerously reckless with the privacy of youth. Still, assessing COPPA reveals that paternalistic liberty and opportunity-promoting legislation aimed at children, teens and adults is warranted under liberalism.

This chapter evaluates the case law of the House of Lords and Supreme Court on rights guaranteed by Protocol No 1 to the European Convention—the right to property, education, and free elections. After noting how the domestic law on property largely ignored human rights arguments prior to the commencement of the Human Rights Act, the chapter considers the key case of Pye, which involved the law on adverse possession, and the subsequent rush of cases in which Article 1 of Protocol No 1 was examined. These embraced topics such as the taxation of building societies, the obligations imposed by private law and regulatory law, and the entitlement to welfare benefits. The chapter then looks at the few cases that have dealt with the rights to education and to free elections, two areas which the European Court itself has not greatly developed to date.