Educational Law

DISCUSS THE EXTENT TO WHICH THE LEGAL ENFORCEMENT OF SCHOOL ATTENDANCE IS THE MOST EFFECTIVE MEANS OF GUARANTEEING THE REALISATION OF THE CHILD'S RIGHT TO EDUCATION

INTRODUCTION

This essay will be divided into two parts. The first part will analyse the right of children to an education. The second part will examine the effectiveness of legal enforcement of school attendance and other methods as means of guaranteeing the realisation of this right. The essay will finish with a conclusion, summarising the main discussion on these two topics. The first part of the essay will be structured in four sections. The first section will elaborate on the importance of education for the individual and for society; the second section will discuss whether education is a right, a duty or merely something desirable, and the third section will examine UK, European and international law on the topic of the right to education and provision of this service. Finally, the essay will return to UK, European and international jurisprudence in order to assess what limits the law imposes on the right to education and on the duty of the state to guarantee the realisation of this right. The second part of the essay will also be structured in four parts: Factors limiting school attendance and jeopardizing the right (or duty) to education; methods used to improve school attendance; pros and cons of the use of legal enforcement to improve school attendance and; comparison of legal enforcement with other methods to improve school attendance. Our analysis of these topics will be limited to primary and secondary education. Geographically, although particular emphasis will be placed on the United Kingdom, the analysis will also cover other geographical areas.

CHILDREN'S RIGHT TO EDUCATION

IMPORTANCE OF EDUCATION

The importance of education has been highlighted by several prominent authors and diverse institutions working in the field of education. The following paragraphs offer a brief selection of some of these views on the topic. It is evident from the excerpts selected that a number of different rationales for the importance of education have been advanced: Society can survive only if there exists among its members a sufficient degree of homogeneity; education perpetuates and reinforces this homogeneity by fixing in the child, from the beginning, the essential similarities that collective life demands.[1] The right to adequate education is necessary for people to participate in the democratic process and for such process to function. [2] Schooling has unique power to contribute to equality of opportunity…[it] cannot create an equal society on its own; but unless we make the necessary changes in schooling, and specifically in the way that we organize teaching and learning, then we will not make a more equal society[3] Although offering different explanations of the importance of education, the three authors selected in this essay all focus on the importance of education as a key tool to successfully integrate an individual into society. Other authors highlight the importance of education with regards the empowerment of individuals and in allowing children and adults to reach their full potential.

EDUCATION: RIGHT OR DUTY?

As will be observed later in this essay, education is broadly considered by society and by regulators as a right. An overwhelming majority of the legal texts consulted for this essay present education, particularly in the case of children, as an inalienable right. However, other visions of the ontological status of education are under-represented in the literature covering this topic. It is therefore important not to view as settled that education is indeed a right, and to question the premise accepted by the majority. Instead of a right, education could be considered merely a desirable service to receive. However, in some societies or sections of society even the view that education is desirable is controversial. For example, within some extremist factions of Islam, education is not a right and not even desirable for certain segments of the population: i.e. women. By globalising the characterisation of education as a right, we may be disregarding the views of other cultures and religions on this issue. Another approach to the status of education is to consider it as a duty. Legislators have attached, as we will see later in this essay,much importance to guaranteeing universal access to education, to the extent that many governments nowadays make school attendance compulsory. Arguably, once a right or a desirable activity is made compulsory and the failure to perform this activity is punishable, the very activity is no longer a right but an obligation or a duty. Notwithstanding the value of the activity for the individual and for society, government imposition of an activity makes it a duty, not a right. However, unlike compulsory activities such as military service, where applicable, the duty associated with education is not placed on the individual participating in the activity, i.e. the child. In the case of education, the duty is placed on the state in terms of ensuring that individual children are provided with an education. In the UK and in other jurisdictions there is also a duty placed on the parents of the children to ensure that their children receive an education, either by ensuring they attending school or by providing the child with home schooling. This will be discussed further below.

INTERNATIONAL AND DOMESTIC LAW ON EDUCATION

In this part of the essay, we will examine both UK and international regulations and laws governing the legal consideration of education as well as its provision.

UNITED KINGDOM

With regards to the provision of education, the government and the parents / tutors of a child are subject, among others, to the following regulations: The Education Act of 1996 establishes that parents must provide full time education to their children who are of compulsory school age. This education should be adapted to the age, ability and aptitude of the child. It contemplates the provision of education to children with special needs and the possibility of parents enrolling their child in a regular school or facilitating access to education in a different form.[4]

INTERNATIONALLY

On a global scale, the most important set of regulations relating to education and its provision are found in the United Nations Convention on the Rights of the Child[5] and in article 26 of the Universal Declaration of Human Rights[6]. On a European level, the main provisions relating to the right to education can be found in the European Convention on Human Rights.[7] These texts present the right to education as universal. According to these texts, primary education (at least) should be equally accessible by all children in society. Primary education should be free of charge and compulsory. Again, this characterises education as a service that it is both compulsory to provide and to receive, which relates back to the previous discussion regarding whether education should be characterised as a right or a duty. It would appear that in fact the legal instruments relating to the provision of education characterise education as both a right and a duty. The right to education belongs to the child, while the duty to provide education is placed on the state or the parents of the child. On this particular point, it is interesting to note that the Charter of Fundamental Rights of the European Union[8] presents the right to education in the following manner: ‘Everyone has the right to education […]. This right includes the possibility to receive free compulsory education'. The first part of the last sentence seems to recognize education as a right that children (or parents) are free to exercise or not: ‘possibility'. The latter part of the sentence however introduces confusion with the word ‘compulsory'. The texts mentioned above also present directives for the provision of education. Some of these guidelines are: * UN Convention on the Rights of the Child o Encourages the provision, not only of primary compulsory education, but also of secondary education paired with financial assistance in cases of necessity. o Encourages the provision of educational and vocational assistance to children of school age. o Encourages the implementation of measures that favour school attendance and a reduction of the number of school drop-outs. o Encourages diversity in the provision of education, with educational initiatives adapted to children of different religious and cultural backgrounds. The Convention also asserts the duty of the authorities to provide adequate education for children with disabilities. * European Convention on Human Rights o Commends government authorities to ensure that educational institutions provide teaching that conforms to the religious and philosophical beliefs of individual children.

LEGAL LIMITATIONS ON EDUCATION

With regards to the principles and guidelines on education established by the legal texts above, it should be noted that those same legal texts also contain regulations setting some limitations to the provision of education and to the right of access to education. The main points to consider are: o With regards to the universal provision of education to children of school age by the state, article 4 of the UN Convention on the Rights of the Child states that the provision of such a service by states must be done ‘to the maximum extent of their available resources'[9]. This clearly establishes that the state cannot be expected to make provisions for access to education that are beyond the means of the individual state. Financial considerations will therefore affect expectations with regards the provision of education by individual states. o With regards to adaptations in the provision of education to accommodate religious and other beliefs, article 2 of the First Protocol of the European Convention on Human Rights establishes that only beliefs that are ‘serious, important and coherent will require respect under the provision'[10]. Therefore, the duty of the state to provide education that accommodates individual beliefs is not absolute.

ENFORCEMENT OF SCHOOL ATTENDANCE

FACTORS LIMITING SCHOOL ATTENDANCE AND THE RIGHT TO EDUCATION

Heck identifies, in his literature review on the topic, the following main causes of school absenteeism: Illness of the child, lack of legal attendance requirements, non-school work performed by the student, parental indifference[11]. Edmiston et al. adds three other potential causes of school absenteeism to those presented by Heck. Edmiston's new factors are: Social background, economic background and distance to school[12]. More recently, Devadoss and Foltz identify 6 factors having an impact on school attendance: Student's motivation, prior GPA, self-financing by the student, hours worked on other jobs, quality of teaching and nature of class lectures[13]. The suggested causes of school absenteeism are therefore numerous. Heck provides a literature review of studies on school absenteeism and shows figures for absenteeism ranging from 18% to 30% of students. These numbers vary from study to study, but what a number of studies agree on is the fact that significant divergences in absenteeism are found from one state to another. According to these studies, absenteeism also seems to be different for male and females students. Heck finds a positive correlation between school enrollment and literacy rates in a country. For this author, one of the main negative effects of low school attendance is a lower likelihood of academic promotion to the next grade. Heck finds that school attendance is highly and positively correlated with school achievement. Furthermore, the author presents chronic school absenteeism as a clear symptom of serious problems in the household of the child. Edmiston agrees with Heck in considering regular school attendance as an essential element in obtaining the full benefits of school education.

METHODS FOR INCREASING SCHOOL ATTENDANCE

In addition to the legal enforcement of school attendance, several other methods for promoting and increasing regular school attendance have been identified. This section will present a brief description of the views of several twentieth century authors on this topic. At the beginning of the twentieth century, Lleras-Muney conducted research into the effectiveness of legislation relating to educational attainment. The author identifies three main types of laws as conducive to increased levels of educational achievement. The first type are laws regulating the age at which a child is required to be enrolled in the school system. The second type of laws are those specifying a minimum legal age for employment. The last type of laws are known as continuation school laws, which refers to laws governing the compulsory enrollment in part-time education for children working before a determinate age. These three types of laws have been proved to increase the average level of education in a country by extending the number of years that children spend in the school system. In addition to achieving this benefit, continuation school laws also have an effect on the distribution of education, increasing the level of education of lowers segments of society. In this vein, Angrist and Krueger found that compulsory schooling laws can be found behind the decision of 25% of potential school dropouts to remain in the school system longer[14]. Heck identified a quick and continuous follow up on all cases of school absenteeism as an effective measure to improve school attendance, by discouraging repeat absenteeism and providing a deterrent to absenteeism. Heck also suggests that the adjustment of school work to the child is a factor in improving school attendance, because it encourages the child to feel more engaged at school and therefore gives less reason for the child to absentee. Edmiston suggests 5 potential measures to be implemented in order to improve school attendance: Improvement of health services, improvement of transportation, implementation of attendance laws, development of effective means of enforcement of these laws, and more parental education on the importance of school attendance. Epstein and Sheldon, in a recent paper published in 2002, present an innovative idea to improve school attendance. They suggest the development of partnerships between schools, families and communities in order to foster daily attendance at school and to curb chronic absenteeism. Epstein and Sheldon base this new approach on the results of their empirical study on the issue. According to Epstein and Sheldon, as part of the partnership initiative, schools should implement specific family and community involvement activities.[15]

LEGAL ENFORCEMENT OF SCHOOL ATTENDANCE

According to the studies carried out by Lleras-Muney and Edmiston, compulsory school attendance laws have proven to be effective at increasing school attendance rates. Edmiston notes that compulsory school attendance laws are, however, of little use if they are not complemented by effective means to enforce those laws. This section will therefore focus on methods for enforcing rules relating to school attendance. In the United Kingdom, school attendance is regulated by the law[16]. Parents are obliged to guarantee the provision of full time education to children between the ages of 5 and 16. If parents choose to enroll the child in a school, they must ensure that the child attends school regularly. Although the law on this matter seems imprecise, it contemplates that the child can only miss school when he/she is too ill to attend or when parents have requested an absence for the child for other reasons and the school has granted that request. The law also provides that if a child misses school without a valid reason, schools and local authorities hold a range of powers that they can use to intervene in the matter. The law makes school attendance orders, educations supervision orders and penalty notices are available as courses of action for schools and authorities in cases of school absenteeism. Local authorities are able to financially penalise parents who fail to secure the attendance of their children at school with a penalty of 50 pounds. If parents fail to pay the fine, they can be prosecuted. As we see in the case of the UK, the law is drafted with the purpose of encouraging school attendance. However, financial penalties of 50 pounds seem insufficient when a right as important as the right of a child to education is at stake and as such they are far from being effective. In the research conducted for this essay,no empirical research on the effectiveness of legal enforcement of school attendance through the use of penalty fines was identified.

COMPARATIVE ANALYSIS OF THE EFFECTIVENESS OF MEASURES TO IMPROVE SCHOOL ATTENDANCE

This area constitutes a field in which further empirical research is needed. There is currently a lacunae in recent academic research, with little comparative analysis having been conducted into the effectiveness of different approaches topromoting school attendance. Our opinion is that non-legal methods for promoting school attendance are preferable to a legal enforcement of the regulations on compulsory school attendance. It must not be forgotten that education is considered by most nations and international organisations as a right. The imposition by the Government of laws regulating school attendance may in some cases alienate the freedom of the parents or legal guardians of the child to make decisions regarding the life and education of the child. We believe that education should therefore remain a right to be exercised by parents and their children and not an obligation regulated by the Government. On the issue of the effectiveness of legal versus non-legal methods to promote school attendance we believe that the current system in the UK is ineffective in promoting school attendance due to the insufficient size of penalties imposed on parents who repeatedly fail to secure the attendance of their children at school.

CONCLUSIONS

The examination of UK and international law on the provision of education demonstrates that education is generally considered to be a universal right. Laws on compulsory education and school attendance, however, seem to transform the ‘right to education' into a ‘duty of education'. Measures to improve school attendance can be categorised into direct and indirect measures. The first group includes measures such as financial penalties for parents whose children do not attend school. The second group encompasses activities which promote the involvement of parents and the community in school activities, better transport to/from school, and parental education. Academic literature lacks detailed empirical analysis comparing the effectiveness of these two categories.

REFERENCES

1. Angrist, J. & Krueger, A., ‘Does Compulsory School Attendance Affect Schooling and Earnings?', The Quarterly Journal of Economics, vol. 106, no. 4, November 1991, pp. 979-1014 2. Charter of Fundamental Rights of the European Union, Art 14 (1) 3. Devadoss, S. & Foltz, J., ‘Evaluation of Factors Influencing Student Class Attendance and Performance, American Journal of Agricultural Economics, vol. 78, no. 3, August 1996, pp. 499-507 4. Durkheim, E., Education and sociology, 5th edn, The Free Press, New York, 1956 5. Edmiston, R. et al, ‘Special Emphases to Improve Attendance, The Journal of Educational Research, vol. 41, no. 1, September 1947, pp. 35-40 6. Epstein, J. & Sheldon, S., ‘Present and Accounted for: Improving Student Attendance through Family and Community Involvement', The Journal of Educational Research, vol. 95, no. 5, May - June 2002, pp. 308-318 7. European Convention on Human Rights, Art 2 (1) 8. Fabre, C., Social rights under the constitution, 1st edn, Oxford University Press, Oxford, 2000 9. Heck, A., ‘School Attendance', Review of Educational Research, vol. 3, no. 3, June 1933, pp. 186-193 10. Millibrand, D., Excellence or equity, 3rd Chesworth Memorial Lecture Toynbee Hall, 2004 11. UN Convention on the Rights of the Child (UNCRC), Art 28, 29 12. United Kingdom Education Act, 1996, s 7 13. United Nations, Universal Declaration of Human Rights, Art 26 (1) [1] E Durkheim, Education and sociology, 5th edn, The Free Press, New York, 1956 [2] C Fabre, Social rights under the constitution, 1st edn, Oxford University Press, Oxford, 2000 [3] D Millibrand, Excellence or equity, 3rd Chesworth Memorial Lecture Toynbee Hall, 2004 [4] United Kingdom Education Act, 1996, s 7 [5] UN Convention on the Rights of the Child (UNCRC), Art 28, 29 [6] United Nations, Universal Declaration of Human Rights, Art 26 (1) [7] European Convention on Human Rights, Art 2 (1) [8] Charter of Fundamental Rights of the European Union, Art 14 (1) [9] UNRC, Art 4 [10] ECHR, Art 2 (1) [11] A Heck, ‘School Attendance', Review of Educational Research, vol. 3, no. 3, June 1933, pp. 186-193 [12] R Edmiston et al, ‘Special Emphases to Improve Attendance, The Journal of Educational Research, vol. 41, no. 1, September 1947, pp. 35-40 [13] S Devadoss & J Foltz, ‘Evaluation of Factors Influencing Student Class Attendance and Performance, American Journal of Agricultural Economics, vol. 78, no. 3, August 1996, pp. 499-507 [14] J Angrist & A Krueger, ‘Does Compulsory School Attendance Affect Schooling and Earnings?', The Quarterly Journal of Economics, vol. 106, no. 4, November 1991, pp. 979-1014 [15] J Epstein & S Sheldon, ‘Present and Accounted for: Improving Student Attendance through Family and Community Involvement', The Journal of Educational Research, vol. 95, no. 5, May - June 2002, pp. 308-318 [16] Education Act 1996, s 7