The Equal Rights Trust is an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice. The Trust focuses on the complex relationship between different types of discrimination, developing strategies for translating the principles of equality into practice. Learning InEquality There has long been a global commitment – in the context of both international human rights law and development goals – to “education for all”, and to universal primary education in USING EQUALITY LAW TO TACKLE BARRIERS particular. Yet in 2017, an estimated 61 million children of pri- TRUST RIGHTS EQUAL mary school age are out of school. This group is made up dis- TO PRIMARY EDUCATION FOR OUT-OF-SCHOOL CHILDREN proportionately of children from disadvantaged groups – girls, children with disabilities, ethnic and racial minority children, refugee children and the socio-economically disadvantaged. This report explores how both current and past patterns of A B D discrimination lead to children being out of school. It analy- আ ဍ ε ses existing data from across the world to explore and map ఎ C the various ways in which direct and indirect discrimination, འ harassment and failure to make reasonable accommodation 学 I ই 平 ה restrict access to education for certain children and identifies InEquality Learning Q A government failures to rectify the issue through positive ac- Y tion measures. From the direct and indirect costs of schooling to formal enrolment requirements and from geographical dis- tance to the curriculum itself, there are multiple discriminatory ស្មើ ሄ barriers to primary education to address. ε U L T The report provides more than a diagnosis. It also proposes ш ဧ a solution, illustrating how the adoption of an “equality law 같은 ج approach” to education is both necessary to achieve the ե ب ت ด ث goal of education for all and how such an approach can be ا strategically beneficial for those working to ensure children א can access school. With a focus on advocacy and strategic litigation interventions, the report explains how the equality law approach can lead to the identification and removal of the discriminatory barriers which lead to certain children being out of school. The report demonstrates how governments, civil society ac- tors and all those with a stake in education, can and should in- tegrate an equality law approach into their efforts to increase educational participation. In so doing, the report aims to demonstrate how we can move from learning inequality, to equality in learning. EQUAL RIGHTS TRUST Learning InEquality USING EQUALITY LAW TO TACKLE BARRIERS TO PRIMARY EDUCATION FOR OUT-OF-SCHOOL CHILDREN London, November 2017 EQUAL RIGHTS TRUST Learning InEquality USING EQUALITY LAW TO TACKLE BARRIERS TO PRIMARY EDUCATION FOR OUT-OF-SCHOOL CHILDREN London, November 2017 The Equal Rights Trust is an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice. © November 2017 Equal Rights Trust © Cover Photo: AusAID/Jim Holmes Infographics: www.vtype.co.uk Cover Concept: Camilla Alonzo and Pouya Fard Cover Design/Layout: Istvan Fenyvesi Printed in the UK by Stroma Ltd ISBN: 978-0-9957910-6-0 All rights reserved. No part of this publication may be translated, reproduced, stored in a retrieval system or transmitted in any form or by other means without the prior written permission of the publisher, or a licence for restricted copying from the Copyright Licensing Agency Ltd., UK, or the Copyright Clearance Centre, USA. Equal Rights Trust 314-320 Gray’s Inn Road London WC1X 8DP United Kingdom Tel. +44 (0) 207 610 2786 Fax: +44 (0) 207 833 0277 www.equalrightstrust.org The Equal Rights Trust is a company limited by guarantee incorporated in England, and a registered charity. Company number 5559173. Charity number 1113288. Supported by a grant from the Open Society Foundations. The contents of this report are the sole responsibility of the Equal Rights Trust and can in no way be taken to reflect the views of the Open Society Foundations. I was forced to leave by one of my teachers. He would kick me out of class saying that because I was Muhamasheen I did not deserve to study with white people. My white classmates would avoid sitting next to me and refuse to play with me. (…) I was the best behaved one in my class. I never hit anyone or caused any problems. (…) I hate school, I hate the discrimination and the marginalisation I faced there. The teacher expelled me because he said I said a bad word, but I didn’t. He said to me, “You don’t belong here, you Khadim [Servant]” (…) I was 5 years old. Equal Rights Trust interview with Abdullah Al-Masbah, Taiz Province, Yemen 13 December 2016 People have the equal right to receive an education, and can hold their Government to account to address discriminatory practices or the failure to provide for their education. Governments in turn have the duty to provide education, and their obli- gations are based in national and international law. Kishore Singh Former Special Rapporteur on the Right to Education 2013 Table of Contents Acknowledgments Acronyms and Abbreviations Executive Summary INTRODUCTION 1 1. THE LEGAL FRAMEWORK 11 1.1 The International Human Rights Framework 12 1.1.1 The Rights to Equality and Non-Discrimination 12 1.2.2 Equality and Non-Discrimination in Primary Education 14 1.1.3 International and Regional Scrutiny and Accountability 20 1.2 Domestic Application of International Human Rights Law 21 1.2.1 Domestication of International Human Rights Obligations Generally 21 1.2.2 Domestication of the Rights to Equality and Non-Discrimination 1.3 Key concepts in equality and discrimination law 23 Specifically 22 2. WHY USE EQUALITY LAW TO TACKLE THE ISSUE OF OUT-OF-SCHOOL CHILDREN? 30 2.1 Links Between Equality and Education 30 2.2 Equality Law is Key to Achieving the Development Agenda 35 2.3 Legal and Rhetorical Force of the Rights to Equality and Non-Discrimination 39 2.4 Importance of Equality Law in Guiding the Allocation of State Resources 41 2.5 Examination of Intersecting Vulnerabilities 43 3. PATTERNS OF DISCRIMINATION AND INEQUALITY IN RELATION TO OUT-OF-SCHOOL CHILDREN 47 3.1 The Direct and Indirect Costs of Schooling 51 3.1.1 School Fees and other Costs 51 3.1.2 Child Work and Child Labour 61 3.2 Geographical Inaccessibility of Schools 65 3.3 Enrolment Requirements and Procedures 76 3.3.1 Documentation Requirements 76 3.3.2 Testing and Assessment Procedures 85 3.3.3 Uniform Requirements 89 3.4 Inadequacy of Physical and Human Resources 90 3.5 Issues Surrounding Language, Curricula and other Educational Materials 103 3.5.1 Language Barriers 103 3.5.2 Curricula and Educational Materials 108 3.6 School-Based Violence and Harassment 111 3.6.1 School-Related Sexual Violence 112 3.6.2 Corporal and other Physical Punishment 114 3.6.3 Harassment, Bullying and other Abuse 117 3.7 The Duty to Take Positive Action 124 3.8 Conclusion 136 4. STRATEGIES FOR CIVIL SOCIETY INTERVENTION 138 4.1 Advocacy 140 4.1.1 Introduction to Advocacy 140 4.1.2 Considerations for Advocacy 141 4.1.3 National Advocacy 142 4.1.4 International and Regional Advocacy 151 4.2 Strategic Litigation 157 4.2.1 Introduction to Strategic Litigation 157 4.2.2 Strategic Litigation for Equality in Education 158 4.2.3 Considerations when Embarking on Strategic Litigation 158 5. CONCLUSIONS AND IMPLICATIONS 5.1 Conclusions 185 5.2 Implications for States 188 5.3 Implications for International Education Stakeholders 190 Bibliography 193 Acknowledgments This report is published by the Equal Rights Trust. The lead researcher and coor- dinator of the project which led to this publication was Camilla Alonzo, Legal and Whiteman, the Trust’s Co-Director, acted as project director and provided direc- tionProgrammes and guidance Officer throughout at the Equal the Rights research Trust, phase, who as drafted well as this substantive report. Joanna edito- rial oversight. The Trust was greatly assisted throughout the project by an Expert Advisory Committee comprising Kate Lapham, Manos Antoninis, Colm O’Cinneide, whose wealth of expertise in socio-economic rights, equality law, and educa- tionShanelle was Vaninvaluable. der Berg, The Jacqueline Trust would Gallinetti, like to Nafisa thank Baboo, each individual and Sangeeta member Kamat, of the Committee for their contributions to the research for this report and their advice on the report’s form and content, as well as thanking the Committee as a whole for its collective counsel throughout the project. Throughout the course of the project, the Trust was greatly assisted by the work of a number of other individuals, many of whom generously gave their time on a voluntary basis. In conducting the research for this report, we received consider- Cook, Irene Kuse, James Leach, Lauren Meisner, Raluca Murg, Thomas Bond and Zsuzsannaable assistance Godany); from Gabriellemembers Holly of the and Trust’s members Equality of LSEVolunteers Pro Bono Network Matters; (Ffion Stas Kuzmierkiewicz, Amy Heading and the DLA Piper Pro Bono team; and the Trust’s interns and research fellows Stacy Stroud, Rosie Monaghan, Catriona Harris, Kevin Murphy, Elektra Clark and Pouya Fard. The Trust also received consid- erable assistance from its network of partner organisations and other contacts across the globe, many of whom provided substantive information for the report and thus greatly enriched the range of sources reviewed by the Trust; particular thanks are extended to Amjad Nazeer, Tamara Luksic Orlandic, Radhia Khairan, Rodrigo Soria, Tessa Wood and Fadia Farah for their support and input during the research phase.