The privatisation of education is a growing and complex issue.

Privatisation is a process, which can be defined as the 'transfer of assets, management, functions or responsibilities [relating to education] previously owned or carried out by the State to private actors' (Coomans & Hallo de Wolf, ‘Privatisation of Education and the Right to Education’ in de Feyter & Gomez (eds.), Privatisation and Human Rights in the Age of Globalisation, 2005).

Private actors may include companies, religious institutions, or non-governmental organisations. There are many different ways in which privatisation can occur, through for example, the development of public private partnerships. Additionally, the unmonitored and unregulated expansion of private sector provision of education, such as for profit schools or low fee private schools, may have a privatising effect if students have no other choice of school. See PERI website for more details on the types of privatisation.

Private actors have the liberty to establish and direct educational institutions, under international human rights law. This liberty is subject to the requirement that these private actors must conform to minimum standards laid down by the State. It is also closely associated with the State’s obligation to respect the liberty of parents to choose schools other than public schools for their children if they wish to do so. The educational choice of parents ensures that families can choose education that is in line with their own religious and moral convictions.

While international human rights law does not clearly state who the direct provider of education services should be, CESCR General Comment 13 states: 'it is clear that article 13 [of the ICESCR] regards States as having principal responsibility of direct provision of education in most circumstance. States parties recognise for example, that the "development of a system of schools at all levels shall be actively pursued"' (paragraph 48).

The State is ultimately responsible for ensuring that the right to education is upheld regardless of the provider of education. Under international human rights law, States have the obligation to regulate and to monitor private education institutions. The State must ensure that private providers meet minimum standards, as laid down by the State, and that educational freedoms do not lead to extreme disparities of educational opportunity for some groups in society (Article 13, ICESCR; paragraph 30, CESCR General Comment 13).

Privatisation of education is sometimes promoted as a means of filling gaps in the provision of education. However, the ongoing trend of privatisation of education raises serious concerns about its negative impacts on the enjoyment of the right to education, particularly regarding the availability and accessibility of free education, equality of educational opportunities, and education quality.

Private actors that provide educational services must respect the right to education, and the State must ensure that all private actors that play a role in education provision are accountable. Guidelines have been developed to provide a framework to better define the role of private actors with regards to human rights, including the right to education. See, for instance, the UN Guiding Principles on Business and Human RightsGeneral Comment 16 of the Committee on the Rights of the Child on State obligation regarding the impact of business sector on children’s rights, and the Committee on Economic, Social and Cultural Rights' draft general comment on 'State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities.'

In addition, the Human Rights Council has established an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. For further information, see ESCR-Net and FIDH's Treaty Initiative.

 

The following case-law relevant to privatisation of education and the regulation of private providers of education includes decisions of national, regional and international courts as well as decisions from national administrative bodies, national human rights institutions and international human rights bodies.

Mohini Jain v Karnataka (Supreme Court of India; 1992)

In this decision, the Supreme Court of India held that private institutions, acting as agents of the State, have a duty to ensure equal access to, and non-discrimination the delivery of, higher education.

Bush v Holmes (Supreme Court of Florida; 2006)

In this decision, the Florida Supreme Court held that a voucher program providing public funds to students to obtain private education failed to comply with article IX, section 1 of the Florida Constitution, which requires the state government to make adequate provision for education though a uniform system of free public schools.

Juma Musjid Primary School v Essay (Constitutional Court of South Africa; 2011)

In this decision, the Constitutional Court of South Africa held that an eviction order obtained by an owner of private land on which a public school was located could not be enforced where it would impact students’ right to basic education and the best interests of the child under the South African Constitution (sections 28 and 29).

Society for Unaided Private Schools v India (Supreme Court of India; 2012)

In this decision, the Supreme Court of India held that the authority of the State to fulfil its obligations under the right to education can be extended to private, non-State actors. The Indian govenrment can therefore require all schools, both state-funded and private, to accept 25% intake of children from disadvantaged groups.

Environmental & Consumer Protection Foundation v Delhi (Supreme Court of India; 2012)

In this decision, the Supreme Court of India held that, under the Right of Children to Free and Compulsory Education Act (2009) and the Indian Constitution, central, state and local governments have an obligation to ensure that all schools, both public and private, have adequate infrastructure.

Louisiana Federation of Teachers v Louisiana (Supreme Court of Louisiana; 2013)

In this decision, the Supreme Court of Louisiana held that public resources constitutionally reserved for public schools cannot be allocated to private school, either directly or indirectly through a voucher programme.

Since 2015, various education stakeholders have been working together to develop guiding principles that would compile together existing customary and conventional human rights law as it relates to private actors in education. These guiding principles are tentatively called 'Human Rights Guiding Principles on the obligations of States regarding private schools.' They are intended to be operational in and adaptable to different contexts and to provide a basis for advocacy, policy development, and litigation.

The secretariat for this work is hosted by the Global Initiative for Economic, Social and Cultural Rights (GI- ESCR), the Right to Education Project (RTE), and the Open Society Foundation Education Support Program (OSF-ESP). As part of a broad consultative process to develop the guiding principles, various regional and thematic consultations are being convened over the course of 2016 and 2017 with a range of stakeholders, including: civil society organisations, State representatives, human rights organisations and experts in the fields of education and law, academics, international and regional organisations and other actors. 

For more information on the guiding principles and the consultation process, see the concept note and GI-ESCR's dedicated webpage.