Education and rights

I was working through some ideas for a paper I’m sketching out, and I thought I’d share a little bit of what I’d been thinking about.  Now, we’ve all heard about inalienable rights: life, liberty, and the pursuit of happiness.

And most of us have probably heard (ad nauseum) that education is a right.  We know because, among many other organizations, the United Nations tells us so.

Education is a fundamental human right and essential for the exercise of all other human rights. It promotes individual freedom and empowerment and yields important development benefits. Yet millions of children and adults remain deprived of educational opportunities, many as a result of poverty.

Normative instruments of the United Nations and UNESCO lay down international legal obligations for the right to education. These instruments promote and develop the right of every person to enjoy access to education of good quality, without discrimination or exclusion.


Article 26.

  • (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
  • (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
  • (3) Parents have a prior right to choose the kind of education that shall be given to their children.

There are manifold state Constitutional provisions, and a small host of legislative statutes and court decisions establishing various rights to education here in the United States, as well.

So what, exactly, is the extent of this right?  There’s an obvious legal-realism sort of answer that I want to put aside for now: I’m not interested in hearing how the extent of the right is whatever the courts say it is.  My question is aimed at the right not as a legal phenomenon, but as a moral one.  Let’s assume there’s a moral right to an education, a right that one holds against one’s parents, or against one’s society.  How far does such a right go?

Well, it’s not absolute, like life, liberty, and the pursuit of happiness.  Those rights are inalienable — partly because they’re negative rights.  It’s pretty clear that a right to education is a contextual sort of right,and that it varies based on the situation.  (This is true of many positive rights.)  You don’t have a right to a molecular biology class in 1450, because there’s no such thing.  Likewise, you don’t have a right to be trained as a warp-drive technician here at the dawn of the twenty-first century.

I suspect that the “right to education” is really reducible to a specific manifestation of right of social inclusion — a right to learn the sort of things that one needs to learn in order to be a functional, flourishing part of one’s social milieu, whatever that may be.  To exclude someone from education, on this view, is to exclude them from being able to participate in society without built-in-limitations.  (When you do not teach your slave class to read, for instance, they really do become “unfit” for civic life; that’s a big part of why people don’t teach their slaves to read, historically.)

But what about limitations to the right to education?   Can we simply take away a student’s rights to a public education?  That seems fairly extreme, but it certainly doesn’t seem fantastical to talk about limiting a child’s right to an education.

If a student insists on attempting to murder all of his or her classmates at every opportunity, for example, we’d not keep that student in the classroom.  That student would have forfeited his or her right to at least the typical sort of publically funded education.  That’s an easy case.  Maybe we could afford such a child some sort of education in their rehabilitative facility, but it’s something of a joke to think that we will be able to provide that child with a reasonable chance to be a productive, integrated part of society.  And even if that is what we’re trying to do, we’re not giving him unlimited opportunity anymore.  The quality of instruction he’s likely to receive is significantly lower.

So we’re OK with fairly harsh limits on the right to an education.

But this means we’re line-drawing.   At what point does a child lose their right to participate in the sort of mainstream educational opportunities available in our society?  Well, like most positive rights, it seems like it’s going to run up against other people’s rights and be limited in that fashion.   We seem to give the right to education an awful lot of leeway, though.  Kids seem to keep their right to education even when they’re pretty clearly impairing other students’ rights to education, by being disruptive in the classroom, soaking up an inordinate amount of the teacher’s attention, etc.   We give second, third, fourth, and fifth chances — maybe because we’re OK with hurting a few people’s rights to avoid destroying one person’s.  We’ll let a classroom or two get a marginal, substandard education if it means not having to totally exclude someone else.

Remember what we’re up to here: we’re trying to get children integrated into society in a meaningful way, and through a process that doesn’t place prior limits on the scope of their achievement.  That means we don’t want bakers’ sons to only be able to grow up to be bakers; if they want to be biologists, actors, or philosophers, we want them to have that opportunity.  To that end, it makes sense that we’d be willing to take smaller harms by the dozen to avoid really big ones like cutting off a student’s future entirely.

But do we want to avoid just placing prior limitations on their opportunities?  Or do we want to avoid placing limitations at all?

It’s a fact that not everyone is going to be a doctor, and not even everyone has the “right” to study to be a doctor.  (That’s why there are admissions committees for med school.)   We could very easily go into second grade and start sorting: you guys here, you are going to be doctors.  You girls over there, you’re going to be seamstresses.  But that’s not what we’re up to at all; that’s antithetical to the project in some important way.  We want to give everyone a fair chance.

Yet at some point, we start to think of the limitations that get imposed on a student’s life as no longer “prior”, but rather as the result of their own choices, aptitudes, and behaviors.  At some point we say, “We’re not limiting you anymore by telling you that you can’t go to college; you’ve limited yourself.”   And then it becomes OK for us to take away their “right” to education, or to simply say that it doesn’t exist.  It would be needlessly cruel, though, to spring this on someone one day by surprise.

Age 6: You have been a really bad student and you mistreat your classmates.  But you have a right to an education, and we want you to be all you can be.  You can keep on learning.  No limits for you.

Age 9: You continue to disrupt the classroom and underachieve.  But you have a right to an education, and we want you to be all you can be.  You can keep on learning.

Age 15: You’ve got a petty criminal history, and you spend three days a week in detention.  You hate your teachers, and the feeling’s mutual.  But you have a right to an education, and we want you to be all you can be.  You can keep on learning, because we don’t want to limit the sort of opportunities that you’ll have in your life.

Age 18: Screw you.  You’re on your own.  There’s a job at the local car wash.

That, of course, isn’t really what happens.  It’s more gradual than that.  We start everyone out in the same classrooms, then we start sorting.  We foreclose certain opportunities to certain students because of choices they’ve made, or aptitudes they have or don’t have.  By high school, some students really have been completely cut off from the possibility of being a nuclear engineer.  They no longer have a “right” to such an education.  You don’t have a right to AP Calculus unless you’ve taken Trig.  You don’t have a right to AP Chemistry if you failed General Science 2.

We accept that children have a right to an education, that is, a right to assume some sort of integrated role in society.  But that right is not absolute and inviolate.  It’s a highly qualified right.

It’s probably a violation of that right, and thus immoral, to tell a first-grader that you won’t teach them how to read because they’re going to grow up to be a gum-scraper and reading won’t do them any good.  You’re seriously impinging on that first-grader’s ability to join society in a meaningful way (not that being a gum-scraper isn’t meaningful, mind you, but the joining of society under those conditions would not be).

At the same time, it’s probably not a violation of the right to education to tell a student they can’t sign up for AP classes if they failed everything in junior high except Remedial General Pre-Basic Reading Skills I, where they earned a C-minus.    The student has, by choice or performance, in some way vitiated his own right to an education, his own right to an open future in society, and made it OK for us to narrow the bounds of his future in important, far-reaching ways.

The upshot of my discussion is this: talking about ways in which we might institutionalize the limitation of educational rights is not, therefore, in and of itself talk of violating those rights.  It can be — and, I maintain, often is — an effort to pin down and articulate the frontiers of those rights, to understand what is right and what is wrong.  And because it’s not necessarily violating those rights, but rather can represent an honest attempt to establish their legitimate limits, it’s not always immoral to talk about tracking, or separate schools for special ed students, or any of a whole host of other practices that run counter to the modern prevailing wisdom among the educator class.  The moral principles at issue aren’t unqualified, and they aren’t without inherent limitations.  And because they’re “fuzzy” in this way, it’s understandable that we’re going to disagree about exactly where they begin and end.

Let’s all try to remember that.


  1. Christina Lordeman says:

    An excellent article. Thanks for adding perspective to the highly charged world of education policy.

  2. Roger Sweeny says:

    There is a certain surreal quality about talking about every child’s right to an education–by which we mean the right to attend an academic institution for 7 hours a day from the age of 5 to the age of 16 (or more). For some people in that age group, it’s like the right to be whipped 180 days a year.

    What?!? Did he really say that? Most of us reading this find that impossible to comprehend. We liked school. We used some of the knowledge we gained there.

    But that doesn’t change the reality that many people don’t and won’t. So we do them the great favor of making them go to school anyway. Not just until they have a basic literacy. But until they have endured years of courses like their teachers took in college, only less. And then we limit their opportunities to do a lot of things if they drop out or flunk out–even if those opportunities have nothing directly to do with the academic knowledge they were supposed to get when they exercised that “right.”

    • Michael E. Lopez says:

      Hated school. Most of it, anyway. I totally understand what you’re talking about.

  3. I think every child has the right to be educated, but I do not believe in compulsory schooling. The parents should have the right to choose the type of education that they believe is best for the child, and only in cases of demonstrated educational neglect of the child should the state interfere with that right.

    Additionally, I believe schools should have the right to enforce discipline and remove children who are unwilling to abide by the rules to the point where they are interfering with other students’ ability to learn.

    • tim-10-ber says:

      Well said…

    • I agree with you, but to play devil’s advocate here: Who gets to determine when educational neglect of a child is occuring? For example, the whole creation vs. evolution debate… (Why can’t the latter be due to the former? Creating something that can evolove on its own takes a special kind of genius!)

  4. It is not a right if somebody else has to pay for it…

    • Sean Mays says:

      Do you have to pay full freight, or just buy in under an “insurance model”?? Our society maintains law and order; if I were murdered (deprived of civil liberty), there’d be an investigation, and hopefully charges made. I certainly didn’t pay for the prosecution or the court except in a small way through my taxes.

      But then, nearly 50% of the population pays no federal income tax; do we say – “Sorry Timmy, you’re a gum-scraper and didn’t pay in; so we won’t investigate your wife’s murder.”

      I wish Michael had used public telephone sanitizers rather than gum-scrapers; we know what happens when society treats them poorly; thanks to the works of Douglas Adams.

      • Roger Sweeny says:

        I suddenly have a great desire to take a bath.

      • Look up the difference between positive and negative rights.

        I refer to negative rights. You refer to positive rights, which are (from a libertarian viewpoint, anyhow) utterly invalid.

        It would probably be regarded as threadjacking to go into detail here, but I would be glad to continue the discussion on my website (I post there as ‘boocubed’)- just sign up and I will be happy to explore the topic (and show you the error of your ways, or not, as the case may be!).

      • I have started a thread on the topic, for your convenienve should you decide to drop in!

      • Our society maintains law and order; if I were murdered (deprived of civil liberty), there’d be an investigation, and hopefully charges made. I certainly didn’t pay for the prosecution or the court except in a small way through my taxes.

        But then, nearly 50% of the population pays no federal income tax; do we say – “Sorry Timmy, you’re a gum-scraper and didn’t pay in; so we won’t investigate your wife’s murder.”

        While you conflate federal taxes with the state and local ones used to fund most police, it’s perfectly possible for this to happen.

        The cops are charged with maintaining order. They’re under no obligation to protect *you*. Take, for example, the Gonzales case from Colorado:

  5. Gary Baker says:

    Frankly, I can see no practical way that education can be a “right.” Neither can health care, marriage, universal respect for that matter. Anything that requires the labor of others cannot be guaranteed. It can be mandated, but that doesn’t mean that it will be accomplished, and that certainly doesn’t mean that it will be accomplished well. And education is especially impractical because the individual must not only participate, but dedicate himself to the task. I am all in favor of breaking down every possible barrier to access. But if the individual will not work or worse, prevents others from learning, then I have neither patience nor sympathy for them. As a nation, we have wasted too many resources on those who feel entitle to achieve without effort. Let’s invest in those who want to succeed, first, and then perhaps we will have more for those who decide later it might be a good idea to catch up.

    • well said, gary!

    • Indeed, well said. As I said on another blog post here, we’re investing all our resources into those that can’t, don’t want to, and would never be able to do, while literally throwing away by the curbside those that can, want to, and are capable of doing. It’s going to lead to a slow destruction of our society.

  6. Richard Aubrey says:

    A positive right is something which must be done for you by a government, which means resources must be taken from the population at large to do so.
    IOW, the right to an education means there is a right, superceding local law and custom, which means the government must take money from the population to educate kids.
    It would be interesting to see if the UN and others would think private education satisfied that right. They’re usually about using such constructs to increase the power of the state, and private efforts at anything run counter.

  7. Nice to see the U.N.’s on board with parental choice.

    • Unless the U.N. has real power over the U.S. that I’m not aware of (other than pure influence), this is just their opinion. Not enforceable in any way.

  8. “Education is a fundamental human right and essential for the exercise of all other human rights” this is not new for us, we all listening this since our childhood. But one thing i like to share that there should be some freedom in education. Some student they don’t have freedom to choose their subject, they have to follow their parents decision which is truly not good. Really interesting to hear that UN and others would think private education satisfied that right.

  9. Wwe operate an educational system for the benefit of the students and also for the beneift of society as a whole. So it’s partly about rights and partly about societal well-being. But to the extent that it’s an individual right, I think what the student has a right to is an eduational plan that is keyed to what s/he is prepared to learn (prepared academically and motivationally). When the children are younger, we don’t allow them to opt out for lack of motivation, but as they approach adulthood, we do. If they’re causing trouble, we make that decision for them (or should). But even taking motivation out of the picture, we should be spending a lot more time figuring out what each student is ready for rather than trying to squeeze all of them through the same curriculum in the name of equity. We don’t have the ability to cxreate equal outcomes, and we should stop pretending we do.