The protection of children's human rights in the context of the privatisation of education

Thesis

The privatisation of education has mushroomed in recent years. As a phenomenon, it covers a vast range of different situations, and in some contexts is widely thought to have deleterious consequences for children’s rights, including segregation, marginalisation, and inequality. This Thesis deals with human rights law’s response to this state of affairs in England, India, and South Africa.

Any approach to children’s rights in private education should be based on the premise that children are worthy of respect as people, which requires respect for their vulnerability and the nurturing of their capabilities. This claim is as strong in private schools as it is in public schools, but in general, the legal relationship between child and private schools is not conceptualised as a ‘vertical’ one which attracts the application of human rights law. Instead, these relationships are seen as ‘horizontal’, and therefore regulated by the ordinary law.

This ordinary law must be rigorously scrutinised for its compliance with children’s rights. The approach in this Thesis moves past the distinction between the direct and indirect effect of human rights law, and between horizontal and vertical obligations, by recognising that, in truth, even purely vertical human rights texts make demands of horizontal relationships.

The Thesis undertakes a close review of case law and commentary to identify the factors which are relevant to determining what those demands are in the three jurisdictions, and identifies certain analytical challenges which courts’ attempts to answer this question reveal. It proposes a new approach to determining the human rights duties of private actors which can overcome those challenges, by applying a three-factor test based on power, vulnerability, and social role. These modalities indicate human rights obligations on private schools, to which, even where there is no explicit textual mandate for horizontal duties, the state must give effect.

Authors: Lowenthal, T

• DOI: 10.5287/ora-wxemaanm4
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: education law; human rights; comparative law; public law; education; privatisation; children's rights
• Subjects: Law