Enshrined education rights: a three state comparison

Abstract

Enshrined Education Rights: A three state comparison This paper will examine enshrined education rights in three countries, Ireland, the United Kingdom and the United States of America which share many values and whose legal and education systems are not dissimilar. The comparative analysis will consider what constitutes education rights, what it means for rights to be enshrined and whether and where education rights are enshrined in these countries’ legal systems. It will ask: 1. Given their very different legal frameworks how is the right to education protected in each of these states? 2. Which framework, if any, is more conducive to the development of sustainable education rights? Article 42 of the Constitution of Ireland (Bunreacht na hEireann) guarantees a right to free primary education whereas there is no right to education per se in the United States Constitution. However, all be they argued on other bases, education rights have featured prominently in the jurisprudence of the United States Supreme Court. Whilst Irish litigation has been able to flesh out the scope of the right to free primary education contained within Article 42 those who would seek enshrined education rights in the United States would have to do so under the cloak of preventing racial or religious discrimination. The United Kingdom by contrast has no written constitution and until the introduction of the Human Rights Act 1998, if even then, arguably had no enshrined education rights. Notwithstanding this it is unlikely anyone with more than a cursory knowledge of the United Kingdom’s legal system would believe it is a country without a right to education. This paper will chart some of the major issues and cases pertaining to education rights that have been fought on both sides of the Atlantic and examine whether the explicit constitutional protection afforded to the right to free primary education by the Irish Constitution has proved to be a superior source of education rights than the United Kingdom’s less formal protection of education rights or the United States Constitution’s indirect protection of education rights. It will also consider whether it may be possible to achieve as much or more through aligning education rights to other rights as is necessitated by the nature of the United States’ Constitution as by upholding a right to education through non-constitutional or at least less formal constitutional means as in the United Kingdom. Finally this paper will consider whether the nature of rapidly changing societies, such as those examined in the paper, with ever evolving technologies is conducive to enshrining rights to education when the very nature of what constitutes education is transforming.