From humble beginnings in the early 1990s, charter schools have grown explosively to become a pillar in a market-oriented national education reform in the United States. The fiscal fallout from the financial crisis of 2007-08 constricted educational budgets and intensified the public debate around directing resources to all aspects of educational reform, especially charter schools.
The human right to education is well established in a variety of international treaties and covenants, including the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. The right establishes the obligation of states to provide all young people with a quality education, as defined by the prevailing social and economic context of each country. Guidance provided by the Committee on Economic, Social and Cultural Rights, focuses attention on the acceptability, availability, adaptability and accessibility of education in every context.
The impact of charter school expansion on the ability of U.S. states to implement the right to education for all children has, to date, been little considered in the national debate around education reform. Given the diversity of the legal foundations of charter schools in the states, it is difficult to carry out such an analysis at the national level.
Despite the fact that its public education system is rated among the most effective in the country, the Commonwealth of Massachusetts has been the site of large-scale implementation of the charter school model. Prominent educational research institutes have analyzed Massachusetts charters and found them - especially the schools located in Boston - to be among the most successful in the country.
The experience of Massachusetts charter schools undoubtedly includes positive effects on the implementation of the right to education. A significant number of students who had difficulty accessing quality education in traditional public schools have been able to do so in charter schools. Many of those students are from racial or ethnic groups that have faced historic discrimination in U.S. public schools. In addition, charter schools are, by their nature, adaptations of the public education model and, therefore, increase the adaptability of the system.
At the same time, other aspects of the charter school model raise concerns from a human rights perspective, some of them serious concerns. The extreme school discipline models employed by some charters and the increased use of disciplinary exclusion to maintain social order in the schools both raise human rights concerns that go well beyond the right to education. Also, the existence of an “enrollment gap” between charter schools and traditional public schools, especially in relation to the enrollment of Students with Special Needs and English Language Learners is the source of further concern. Finally, the way in which charter schools are financed, in Massachusetts and in most other jurisdictions, gradually degrades the financial capacity of public school districts. This loss of financial capacity often leads to mass school closings or other major disruptions to the system. In districts with high charter density, this process can reach the point where the capacity of the district to provide for even the basic educational needs of all students comes into question.
Massachusetts and other states with relatively high charter density in urban centers should reinforce regulatory mechanisms in place to ensure the accountability of existing charter schools to legal and regulatory frameworks. In addition, legislative bodies considering laws to allow further expansion of charter schools should carefully consider the impacts of charter school growth on the human right to education of all children in their jurisdiction before enabling such expansion.
This guide is part of the series of Guides on the European Convention for the Protection of Human Rights and Fundamental Freedoms published by the European Court of Human Rights to inform legal practitioners about the fundamental judgments delivered by the Strasbourg Court. This particular guide analyses and sums up the case-law under Article 2 of Protocol No. 1 as at June 2015 or when subsequently updated.
The Washington Supreme Court ruled that an Act establishing and funding charter schools as common schools was unconstitutional. The Court held that charter schools are not ‘common schools’ under Article IX of Washington’s Constitution. Thus, the use of funds restricted by the Washington Constitution to support common schools under the Act was unconstitutional. Also, because the funding provisions were integral to, and not severable from, the Act, the Court held the Act to be unconstitutional in its entirety.
In these three related decisions, the Kansas Supreme Court held that legislative changes to K-12 school funding, which reduced state-aid payments augmenting funds generated through property taxation in school districts with lower property values, violated the Kansas constitution. Article 6 of the Kansas constitution has previously been interpreted by the Kansas Supreme Court to require equity and adequacy in the provision of financing for education. The Kansas Supreme Court found that the legislative changes violated the equity requirement because school districts did not have reasonably equal access to substantially equal educational opportunity through similar tax efforts.
France’s investment in the education multinational Bridge International Academies (BIA) has raised serious concerns regarding the extraterritorial obligations (ETOs) of France, in relation to the rights set out in the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly, the right to education.
Alternative report submitted in March 2020 by 13 civil society organisations, including the Right to Education Initiative, to the UN Committee on Economic, Social and Cultural Rights at the occasion of the review by the independent experts of the Committee of the implemention by France of its human rights obligations, as definied under the ICESCR.
L'investissement de la France dans la multinationale d'enseignement Bridge International Academies (BIA) a soulevé de graves préoccupations quant à ses obligations extraterritoriales (OET) vis-à-vis de l'ensemble des droits garantis par le Pacte international relatif aux droits économiques, sociaux et culturels (PIDESC), et en particulier en matière de droit à l'éducation.
Rapport alternatif soumis en mars 2020 par 13 orgnisations de la société civile, dont l'Initiative pour le droit à l'éducation (Right to Education Initiative), au Comité des droits économiques, sociaux et culturels à l'occasion de la revue par les experts du Comité de la mise en oeuvre par France de ses obligations en matière de droits de l'Homme, telles que définies par le PIDESC.