Abstract
Mushrooming of privatisation which one witnesses at all levels in education aggravates marginalisation and exclusion. It has a crippling effect on the principle of equality of opportunity in education, which is a fundamental principle established by almost all international human rights conventions. Instead of supplementing education, private providers are supplanting it. Rather than controlling this phenomenon, governments even provide subsidy to private providers. There is widespread concern with the negative effects of privatisation in education in scholarly writings by intellectual community, civil society organisations and international organisations.
Every child is entitled to education free of cost as an inalienable right, and access to education should not be based on capacity to pay fees which often are exorbitant. This also puts in jeopardy the principles of social justice and equity, which are key pillars of the United Nations system. Safeguarding education as a public good and fostering its humanist mission is of paramount importance. Under no circumstances education should be allowed to be mercantalised. States have the obligation to ensure that when education is provided by non-State entities, the principles and norms underlying right to education are respected, and education is not allowed to be reduced to business. They have the obligation to regulate and control all private providers in education and protect public interest in education. Abusive practices by private providers denote the failure of States to adequately monitor and regulate privatised education. This calls for strengthening human rights mechanisms to effectively address and sanction all abusive practices. In this, governments can be inspired by numerous decisions by courts and emerging jurisprudence.
Introduction
Education is a fundamental human right and a core responsibility of governments. However, taking advantage of the limitations of government capacities to cope with such surging demands, private providers of education have been mushrooming, with enterprises and individual proprietors entering this field. Privatisation is making inroads in education at all levels.
The phenomenon of education as an attractive business is assuming alarming proportions, with scant control by pubic authorities. Under the spell of neoliberal ideology, states are in fact withdrawing in favour of privatisation in education which aggravates marginalisation and exclusion in education, and creates inequities in society. It negatively affects the right to education both as entitlement and as empowerment. Moreover, it depletes public investment in education as an essential public service. Public policies should critically look into repercussions of privatisation in education, and put in place a strong regulatory framework, with sanctions in all cases of abusive practices by private providers.
Privatisation in Education: An Overview
Providing public education is the primary responsibility of states. Education can also be provided by non-state actors including religious institutions, 1 non-governmental organisations, community-based groups, 2 trusts, enterprises and individual proprietors.
International universal education targets in conjunction with economic liberalisation policies have led to the push for an increase in private provision as a way to introduce market competition into the education space. One can witness the explosive growth of privatised education, particularly for-profit education. As stated in the concept note for Commonwealth Ministerial Working Group on the Post-2015 Development Framework for Education (2013), the reconfiguration of public services within neoliberal globalisation has placed education squarely in the headlamps of the private sector. 3
A number of scholars have looked critically into the neoliberal model of schooling, entailing ‘State withdrawal in favour of privatization’ with ‘market-anchored conceptions of schooling’, and engineering and legitimising a departure from decades of the welfare state (Zajada, 2006: 4, 6, 9). Civil society organisations have also expressed concern with the profound impact of privatisation in education globally as a key emerging issue regarding the realisation of the right to education.
Private providers find it lucrative to provide early childhood care and education, which has remained scantly covered by public education system. In most developing countries, the public education system in this respect is rudimentary and private providers find this an open market for catering to the working families and the middle class.
One can witness growth of private providers in the field of basic education, although such education is a core responsibility of governments. Private education is being promoted due to the lack of sufficient public provision of education or underperforming public schools. The emergence of low-fee private schools further undermines public schools.
Private higher education has become the fastest-growing segment world-wide (Altbach & Levy, 2005)—in many countries, private higher education institutions ‘represent the clear majority’ (Kinser, 2010). Sponsored by a range of entities such as individual proprietors or profit-seeking business interests, such institutions ‘involve new international branch campuses and foreign investment and ownership of local institutions’. 4 New nomenclature of the head of private higher institution—‘chief executive officer’—denotes their conception analogous to those of enterprises and business.
Repercussions of Privatisation on Principles and Norms Underpinning the Right to Education
A recent study, with an in-depth analysis of issues in private actors in education in the past decade, demonstrates how education itself is being recast as a sector and increasingly opened up to profit making and trade, and to agenda setting by private, commercial interests. Privatisation is penetrating into almost all aspects of the education endeavour—from the administrative apparatus to policymaking, and from formal provision in education settings to out-of-school activities, such as private tutoring. This study provides insights into different forms of the private in education, the consequences for individuals and societies, and stakes involved, and shows how the learner is increasingly conceptualised as a consumer, and education a consumer good (Macpherson, Robertson & Walford, 2014).
Another document prepared by the United Nations Educational, Scientific and Cultural Organization (UNESCO) International Institute for Educational Planning, and Organisation Internationale de la Francophonie also highlights similar developments, expressing similar concerns with privatisation in education, reducing education to a commodity:
with diversification in the field of education, the private providers—international or local—are more and more numerous. International consortiums have specialized in ‘selling’ education. Number of local personalities, (including many teachers, and even educational authorities) create schools for profit, turning to rather wealthy families with slogans extolling the quality, or turn toward the disadvantaged public with altruistic slogans, which hide often the profit or political character of their endeavours (…). One can witness above all the emergence of quasi market phenomenon.
5
Public policies should critically look into repercussions of privatisation in education, bearing in mind the principles and norms underpinning the right to education and the state’s responsibility under human rights law.
Principle of Non-discrimination
The UNESCO Convention against Discrimination in Education prohibits discrimination in education based, inter alia, upon ‘national or social origin’, ‘economic condition’ or ‘birth’ which has the purpose of nullifying or impairing equality of treatment in education. It provides that ‘Discrimination includes any distinction, exclusion, limitation or preference’ (Article 1). The United Nations Committee on Economic, Social and Cultural Rights has interpreted Articles 2 (2) and 3 (relating to non-discrimination) of the International Covenant on Economic, Social and Cultural Rights in the light of the UNESCO Convention. 6 Discrimination on grounds of ‘social origin’ and ‘property’ is prohibited under the Convention on the Rights of the Child. 7 ‘Property’ as a key element in capacity to pay is an impediment to universal access to education by every child.
Thus, access to private schools, based upon capacity to pay fees, which in many cases can be exorbitant, flies in the face of prohibited grounds of discrimination based notably on ‘social origin’, ‘economic condition’, ‘birth’ or ‘property’ in international human rights conventions. The increasing privatisation of fee-paying, for-profit schools entails discrimination and inequalities in education for disadvantaged children by creating a system that privileges the ‘haves’ over the ‘have-nots’, with the risk of developing a two-speed education system. 8
Principle of Equality of Opportunity in Education
Privatisation in education privileges access to education by the privileged. It throws overboard the fundamental principle of equality of opportunity in education, which is common to almost all international human rights treaties. 9 The Resolution on the Right to Education adopted by the Human Rights Council in 2011 urges ‘all States to give full effect to the right to education by, inter alia, promoting equality of opportunity in education in accordance with their human rights obligations’. 10
Privatisation is a key factor resulting in unprecedented disparities in access to education. ‘The difference between the poor man’s school and the rich man’s school is becoming starker with each passing year.’ 11 Inequalities in opportunities for education will be exacerbated by the growth of unregulated private providers of education, with economic condition, wealth or property becoming the most important criterion to have access to education.
Principle of Social Justice and Equity
Education is instrumental in ‘promoting development, social justice and other human rights’.
12
The principle of social justice, which is at the core of global mission of the United Nations to promote development and human dignity, is of perennial importance for bridging the widening gap between rich and poor and making education an equalising force and harnessing it for common well-being. This is crucial as the low-fee private schools ‘not only constrain social justice in education, privileging access for some over others, but also social justice through education’ as their raison d’être is ‘monetizing access’ to education.
13
This entrenches a neoliberal vision of society at the cost of a humanitarian view of society where human capital is prioritised
Principle of Preserving Education as a Public Good
The privatisation has profound adverse impact on education as it purports to ‘recast education not as a public or societal good grounded in democratic principles of justice and equal opportunity but as an individual, atomized and personalized private good…’. 16
The importance of preserving social interest in education while promoting the concept of education as public good is of paramount importance. This is invaluable in fostering the humanistic mission of education. This is also crucial for enhancing public investment in education. It provides a conceptual frame for regulating private providers of education so that the social interest in education is not sacrificed for the sake of private profit. The ‘State is the custodian of quality education as a public good’ 17 and this must become a guiding factor in public policies vis-à-vis private providers. The state is both guarantor and regulator of education. Understanding the multifaceted role of the state in education is a precondition for critically analysing educational institutions and their responsibility for preserving education as a public good. 18
Regulating Private Providers: State Responsibility
Legal framework or policy responses are inadequate or non-existent in private higher education where demand-absorbing institutions representing mostly lower-level and lower-quality institutions cater to the surging demands for education, many of these acting much like ‘for-profit form’ with ‘loosened government regulations’ or ‘in a regulatory vacuum’. 19
The state is primarily responsible for providing education. Article 13 of the International Covenant, mentioned above, clearly regards ‘States as having principal responsibility for the direct provision of education in most circumstances; States parties recognize, for example, that the development of a system of schools at all levels shall be actively pursued’ (Article 13 (2) (e)). 20 The state also has the obligation to safeguard the right to education in case of its violation. The ‘violations of article 13 include the failure to take “deliberate, concrete and targeted” measures towards the progressive realization of secondary, higher and fundamental education’. 21 Regulating private providers is one of the key challenges for public policy.
States must establish and maintain a transparent and effective system which monitors the right to education and regulates private providers. As the countries of the Francophonie have stated, the state is the legitimate authority which enjoys full prerogatives for exercising a regulation covering all levels of education system. The state must notably prescribe rules; define all levels and modalities of certification of students’ learning by legitimising the academic titles and diplomas, control and evaluate the activities of private providers and sanction the private providers who do not respect the rules. 22
States must accordingly develop national legislation. As an example, one can cite the Education Law (1995) of People’s Republic of China which provides that ‘Educational activities must conform with the public interest of the State and society’ (Article 8) and that ‘No organization or individual may operate a school or any other type of educational institution for profit’ (Article 25). Ecuador provides another example. Ecuador’s Constitution (2008) which ushered in a new model for the state 23 underscores that education shall respond to public interest and will not be subservient to individual or corporate interests (Article 28).
Some Key Issues Requiring Special Attention
State responsibility vis-à-vis private providers relates to the negative impact of these providers on the right to education, both as entitlement and as empowerment.
Impact of Privatisation on Right to Education as Entitlement
Entitlement to education in terms of universal access, especially to basic education, is an essential prerequisite for the exercise of the right to education.
One of the pernicious consequences of private education is that it undermines universal access to education as this is dependent upon high costs for education. This is beyond the reach of the marginalised and the poor who need education most. Often, admission criterion in private institutions is not based on merit or capacity, but the ability to pay, irrespective of merit. This is in contravention of the basic norm laid by the Universal Declaration of Human Rights and by the international human rights conventions. Those who are wealthy can afford to obtain education in spite of their being less meritorious as compared to those from lower economic strata.
Research shows that the scheme of ‘vouchers purported to provide economically disadvantaged parents the means to select a private school in fact promotes group differentiation’. 24 It has failed in quality education. The proposition in the Oxfam Briefing Paper 25 that it must be discontinued deserves full support. Courts have also declared in the United States that school voucher funding is unconstitutional, and that public money being used to pay private school tuition should instead be going to public schools. 26
Provision of basic education free of costs is not only a core obligation of states but also a moral imperative. Social protests against exorbitant fee increases in education, especially in privatised higher education, are well known. Chile became a glaring example of sacrificing social interest in education in favour of privatisation in 2011, where protests against such privatisation demanding an end to for-profit educational institutions involving high cost for students were violently suppressed by police forces resulting in killing of a student. 27
Impact of Privatisation on Right to Education as Empowerment
Privatisation in education also negatively affects the right to education as empowerment in terms of knowledge, values and skills acquired and their quality. The phenomenon of low-fee private schools is projected as an affordable means of getting quality education. However, there is no evidence that ‘private schools do anything different to induce more learning than do public schools, (…) many private schools do worse than public schools’ (Zajada, 2006: 9, 10). An unregulated free market in higher education may lead to investments in the sector by low-quality providers. There have been instances when fraudulent practices have come to light in which admission rules are relaxed, the evaluation process is distorted and examinations are faked in different ways. 28
Quality in private schools is also compromised by lack of respect for status of teachers. Many under-qualified and underpaid teachers are employed by low-fee private schools, which are run by small and large enterprises. Besides, in some cases, teachers are employed on a temporary basis with no perspective of career. Nor are they provided in-service training for professional development.
Raising Profile of Education as a Core Public Service and as a Social Responsibility
State remains primarily responsible for education on account of international legal obligations and cannot divest itself of such responsibility. This is its core public service function. As the Supreme Court of the United States of America stated in the historic judgement in the Brown v. Board of Education (1954), ‘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’. 29 State obligations remain in case of privatisation of education. 30 The state cannot abandon its primary responsibility, above all for free basic education of quality to the advantage of private providers, who find inadequacies of public education system a fertile ground for making money out of provision of education, reaping uncontrolled profits.
This is a violation of right to education, and an affront to human dignity in a world where more than 1.2 billion people are victims of poverty and where the richest 1 per cent of the world’s population owns 40 per cent of global assets whereas the bottom half of the world’s population owns just 1 per cent of global wealth. Prioritising education as an essential public service is imperative to stop society being tipped irrevocably into a world that only caters to the needs of the privileged few. 31 A universal approach to the provision of social services is essential to realising their full potential as a component of transformative social policy. 32
Privatisation and Public Investment in Education
Privatisation is correlated with shrinking public investment. It induces declining spending on public services, entailing decrease in education budget. Public investment in education is all the more important as education—of which both the individual and the society are beneficiaries—is a foundation for human development. As the Oxfam Briefing Paper, already mentioned, has warned, ‘Developing countries are at the greatest risk of rocketing poverty and inequality due to stagnating public spending on public services’, including education. 33
States have responsibility under international human rights law to provide resources for the right to education. Governments must devote maximum public funds to education as a high development priority as a matter of norm. 34 They must also mobilise maximum domestic resources for education on an enduring basis.
Recognition of Studies and Qualification in Private Higher Education Institutions
A large number of private providers operate in various technical areas such as management, marketing, accountancy, communication, etc. and award the diplomas and degrees, devoid of recognition in terms of equivalence or validity. Recognition of studies and qualifications in cross-border higher education is a critical area for regulations. This phenomenon refers to movement of people, projects, programmes and providers across political boundaries including exchange and study programmes, international branch campuses, some form of distant education, joint degree programmes and direct foreign ownership or investment in domestic educational institutions comparable to foreign investment in education. 35
Online or correspondence providers often operate from locations with no controls at all and offer their own award, free from regulation. Public authorities must find ways of preventing under-qualified or fraudulent providers from trading as universities and from issuing worthless qualifications when the providers are based overseas and operating via the Internet. 36
Private–Public Partnerships
If private sector has to be made a partner in development with social interest in education, then, public policies should foster contribution to education as a priority in terms of corporate social responsibility. 37
As in developed countries, governments should lay down a legal framework for fostering institutionalised collaboration with enterprises and industry, as this is weak in developing countries. Rich experience available in developed countries, along with the legal framework in particular with respect to the dual system of apprenticeship training in schools and in enterprises based on agreed framework, is most pertinent to the developing world for forging public–private partnership while preserving social responsibility in education. 38
Oversight and Regulating Mechanisms: Sanctioning Abusive Practices by Private Providers
One of the most significant failures of states in face of the privatisation of education is the lack of oversight and regulating mechanisms. A potential consequence of the lack of monitoring is that this can create or contribute to a culture that lacks accountability and encourages illegal or exploitative practices. In the absence of a regulatory framework, ill-informed and naive students can be duped by new private universities only in name, established without credentials and recognition.
‘The mercantalisation of education and its uncontrolled liberalization, open to all operators for lucrative purposes or objectives is contrary to international commitments by States and national values, and it must be stopped, and sanctioned.’ 39 The states have the obligation under human rights law to establish conditions and standards for private education providers and maintain a transparent and effective system to monitor these standards 40 with sanctions in case of abusive practices.
Education is unfortunately becoming a victim of corruption 41 and corruption by private providers remains unscathed due to the lack of financial regulations, lack of scrutiny of their operations and of control mechanisms. As a result, delivery of primary or basic education can be made as a family business by running a school in a private house. Besides, in some cases, teachers in private schools get in hand less than what the proprietors make them declare on paper. Private schools even engage teachers employed by public schools to teach, which is not above board.
By definition, business is profit oriented. Education is all the more attractive as it denotes a certain respectability, which can be projected to disguise business interests, fraudulent practices and corruption. Huge amount of donations demanded by private providers in India as contribution to school development, etc. are practices which require strict regulation and sanctions. As a regulator, states must sanction abusive practices by private education establishments. The president of Ecuador closed after investigation and evaluation in 2012, in conformity with constitutional law and Higher Education Act, 42 14 universities devoid of quality and engaged in education as business.
Role of the Judiciary with Respect to the Justiciability of Operations by Private Education Providers
Private providers in education are accountable to the state and to the public for their activities as demonstrated by a large number of court rulings worldwide. The Supreme Court of Nepal issued a verdict demanding that educational authorities devise reform programmes to control private schools—regulating fees, prohibiting the sale of unregistered and overpriced textbooks, and limiting the number of private schools gaining accreditation. 43 In another case, the South African Constitutional Court found that the primary positive obligation with respect to the right to education rests on the state. 44 In a landmark decision, the Supreme Court of India ruled that when the government grants recognition to private educational institutions, it creates an agency to fulfil its obligation to enable the citizens to enjoy the right to education. ‘Charging a capitation fee in consideration of admission to educational institutions is a patent denial of a citizen’s right to education under the Constitution.’ 45
Existing jurisprudence enables us to better understand obligations which the right to education imposes upon private providers. For example, the Constitutional Court of Colombia ruled in 1997 that excluding pupils on an economic basis only from schools violates their right to education. 46 The court also ruled that because of the fundamental character of the right to education, private schools are bound by specific obligations. 47
Since education is a social responsibility, involving parents, community, teachers, students and other stakeholders—they can have recourse to complaints procedures and human rights protection mechanisms in cases of violation of the right to education, abusive practices and corruption by private providers. A system which provides the possibility for any entity or individual to initiate legal action in case of abusive practices by private providers as public interest litigation should be encouraged.
Conclusions and Recommendations
There is a growing recognition that market-centred approaches to development have exacerbated various forms of inequality. Abusive practices by private providers denote the failure of states to adequately monitor and regulate privatised education. This calls for strengthening human rights mechanisms to effectively address and sanction violations of the right to education by private providers. In this, governments can be inspired by numerous decisions by courts and emerging jurisprudence. It is imperative to create a global movement which urges all the governments of the world to take seriously the task of regulating privatisation in education, respecting the principle of social justice.
Primary Responsibility of States for Provision of Education
States remain primarily responsible for providing education on account of their international legal obligations. They should not abandon their primary responsibility, above all for the provision of free basic quality education, to the advantage of private providers, who find inadequacies of public education a fertile ground for making money out of the provision of education, reaping uncontrolled profits.
Comprehensive Regulatory Framework Governing Private Providers of Education
States should develop a regulatory framework which should govern the privatisation of education. Such a framework should be inspired by general principles of social justice and equity as well as by education as a public good, subjecting private providers to full accountability of their operations and to rigorous scrutiny. It should be comprehensive so as to apply to private education providers at all levels from preschool through basic education to higher education, including cross-border higher education and online or correspondence providers. No private higher education institution should be allowed to operate without prior approval and recognition by competent public authorities.
States should put an end to market-driven education reforms providing subsidies to private education. They should not allow and promote low-cost private schools and the provision of school vouchers, etc. nor should they allow ‘for-profit institutions’ in education.
Monitoring and Controlling Private Providers: Transparent and Effective System
States have the obligation under human rights law to establish conditions and standards for private education providers and to maintain a transparent and effective system to monitor these standards with sanctions in case of non-adherence. Such monitoring should also include teaching profession. To that end, states should strengthen human rights control mechanisms to look into the negative impact of privatisation, especially to ensure that private providers remain respectful of minimum standards in education and of quality norms, and that they are not allowed to charge exorbitant fees.
Controlling Abusive Practices by Private Providers
Corruption by private providers remains unscathed due to the lack of financial regulations, lack of scrutiny of their operations and of control mechanisms. Nationally designated authorities should undertake a full-scale investigation of fraudulent practices including tax evasions by private providers who reap profits in the name of education. States should ensure that financial operations of all private providers are regularly scrutinised.
Governments should foster the possibility for any entity or individual to initiate legal action in case of abusive practices by private providers as public interest litigation.
Revitalising and Valourising Education as an Essential Public Service
Learning from the devastating impact of structural adjustments on education as an essential public service and in face of the prevalent market ideology and privatisation in education, countries must recognise the paramount importance of public investment in education as an essential obligation of the state, and as a foundation for development. Instead of giving subsidies to private providers, governments should provide the maximum possible resources to public education, with equity-driven initiatives to expand educational opportunities for the marginalised and the poor. A paradigm shift is required so that instead of providing financial support to private providers, states must regulate them. Under no circumstances should a state provide financial support to a private provider of education.
Public–Private Partnership and Mobilising Investment in Education as a Social Responsibility
States should devise innovative mechanisms for mobilising national resources for education as part of public–private partnerships. If private sector has to be made a partner in development, then, public policies should seek to harness corporate social responsibility to foster contribution to education as a social welfare priority. In all types of partnerships with industry and the private sector, overall responsibility of states remains.
Education is a core public function of the state. It is also a social responsibility, and when states encourage the private sector to be a partner in education development, it should ensure full respect for the public interest. Education is a public good. As a noble cause, it can generate social support and induce public contribution in a philanthropic spirit, if properly encouraged by policies of good governance in the education system.
Making Education System an Equalising Force
The monitoring function of the state should aim at upholding the fundamental principles of non-discrimination and of equality of opportunity in education. A daunting challenge for public policy makers is to transform education systems into a force for equality. This must be of particular concern to education policy planners to address the impact of privatised education to aggravate inequalities and marginalisation in societies.
Preserving Education as a Public Good and Fostering Humanistic Mission of Education
Education benefits both the individual and the society, and it must be preserved as public good so that the social interest is protected against the commercial interests in privatised education. Public authorities should not allow private providers to vitiate the humanistic objectives of education. Humanistic mission of education should be valued and preserved not only by state but also by all key players and stakeholders in education.
Reporting Obligations of Private Providers
It should be obligatory for all private providers to report regularly to designated public authorities on their financial operations including the proceeds of profit and dividends. Such authorities should scrutinise their financial accounts, guided by the principle of human right and of social responsibility in education. Information on operations of private provides in education so scrutinised should be disseminated at large in public interest.
No private school or educational establishment should be allowed to operate unless its credentials and standards are verified by designated public authorities.
Strengthening Human Rights Control Mechanisms
In an endeavour to regulate private providers in education, governments should strengthen existing human rights mechanisms or create special mechanisms, with the mandate to regularly oversee operations of private providers. Such mechanisms should have suo moto investigatory power. Governments should implement recommendations made by such mechanisms.
Government should also establish a mechanism to register and process any complaints received with respect to abusive practices by private providers of education and investigate all violations of the right to education.
Fostering Public Interest Litigation
Numerous decisions by courts exist to safeguard the right to education. Public interest litigation centring around breaches of the right to education and abusive practices by private providers must be promoted and supported.
Encouraging and Supporting the Role of Intellectual Community and Civil Society Organisations
The intellectual community and the civil society organisations should be encouraged to expose the negative effects of privatisation in education, upholding the principles of social justice and equity. Research, events and expert consultations on the effects of privatisation on the exercise and enjoyment of the right to education should be encouraged and supported.
Footnotes
Acknowledgements
This article is based on the Report (A/69/402, 24 September 2014), presented to the United Nations General Assembly on 27 October 2014 by the United Nations Special Rapporteur on the Right to Education.