Last week, the United Nations (UN) Human Rights Council adopted a landmark resolution calling on UN Member States to make the right to education a reality for all, including by “monitoring private education providers and holding accountable those whose practices have a negative impact on the enjoyment of the right to education.” It also recognizes the various impacts that the commercialization of education has, many of which are apparent across the Americas.
In the United States, for example, student debt increased to over one trillion dollars in 2014 and continues to rise. Education constitutes the second biggest industry in the country after healthcare, and for-profit universities are the fastest growing of the industry. In 2014, David Halprin reported in The Nation that for-profit schools drive the national student debt crisis, absorbing a quarter of all federal student aid and diverting significant funds from programs in non-profit and public schools. In some cases, for-profit college companies received nearly 90 percent of their income from tax payers. In turn, the educational outcomes in higher for-profit education are worrying. A 2012 Senate committee report found that for-profit universities that received funds from the state spent significantly less per student on teaching, focusing instead on marketing and administration. In 2012, a Harvard University study found that people graduating from for-profit schools are less able to secure jobs that enable them to pay off the costs of attending them.
Meanwhile, the education system in Chile, which has the fourth highest proportion of private primary schools in the world, is considered the most segregated by household income, according to 2014 OECD data that compared 65 countries. The report states that Chile’s system is “highly discriminatory on socio-economic grounds,” with fees charged at both primary and secondary private schools used as a means by some schools to exclude undesired students. For-profit schools also show discriminatory practices in recruitment by selecting students based on “past performance, behavior, family income and other family characteristics.” At the university level, top-ranked schools are often prohibitively expensive for students with limited financial resources. Such students must turn to lower-quality universities where payment is the only entrance requirement, and where they accumulate millions of pesos of debt by the time they graduate. In this context, it is no wonder that in 2011 Chilean students took to the streets in protest and have stayed there ever since.
These are just two of countless examples of states failing to ensure respect for the right to education. According to international human rights law, when it comes to education and other human rights like housing, health and food, it is the duty of States to strive for the progressive realization toward the full realization of the right. States must also ensure that minimum core obligations are met, meaning that third parties, including businesses, respect the minimum levels of these rights.
While the recent resolution explicitly recalls this obligation in relation to education, the UN Human Rights Council had previously pronounced itself on the roles and responsibilities of states and business when it comes to human rights through its unanimous adoption of the UN Guiding Principles on Business and Human Rights in June 2011. The Guiding Principles provide a roadmap for states on how to ensure they meet their minimum human rights obligations in relation to business activities by elaborating on the implications of existing international human law that binds states in the form of recommendations across a broad spectrum of issues, including privatization.
According to Guiding Principles, “states do not relinquish their international human rights law obligations when they privatize the delivery of services that may impact upon the enjoyment of human rights.” States should know that tendering, contracting out and privatizing public services such as education may negatively impact their ability to provide these basic human rights particularly to the most vulnerable groups and individuals, and therefore must ensure that private providers comply with human rights standards. Enabling legislation or service contracts should therefore “clarify the State’s expectations that these enterprises respect human rights. States should ensure that they can effectively oversee the enterprises’ activities, including through the provision of adequate independent monitoring and accountability mechanisms.
In other words, private provision of education is not inherently wrong as some in my field would argue, the problem is the lack of effective legislation as well as monitoring and accountability mechanisms placed on private sector providers.
In practice, there are great, even inspiring examples of private institutions that provide affordable and in some cases free education. In the United States, The Cooper Union, an architecture, art and engineering school in New York City, is a prime example. Founded by Peter Cooper, an industrialist who believed in education as a human right, Cooper Union provides a full scholarship for every student to ensure that people can attend regardless of their background. To make this vision a reality, Peter Cooper provided an endowment that includes the land under the Chrysler Building, helping to ensure that the school would always remain free, sustaining the school’s mission for over 150 years.
At the international level, even some human rights bodies mandated to ensure the progressive realization of rights see the value of business involvement in the provision of human rights. In 2013, the UN Committee on Economic, Social and Cultural Rights declared, “fulfilling rights entails that States parties undertake to obtain the corporate sector’s support for the realization of economic, social and cultural rights.” Education is one such right.
Indeed, governments are coming together at the global level to do just this. UN Member States have been negotiating ways to implement and monitor the Sustainable Development Goals (SDGs), which will be at the heart of UN efforts to ensure sustainable development over the next 15 years. A paramount concern in discussions has been how to fund these ambitious goals, many of which aim at ensuring human rights like education are enjoyed by all. The problem? The price tag: some US$5 to US$7 trillion dollars of investment per year will be needed to reach the goals. Faced with these daunting figures, governments are looking to the private sector not just for financing the goals, but also to provide the rights underlying them.
The business of human rights, in other words, is on the rise – so too then is the need to address risks.
The underlying framework of the Guiding Principles provides the roadmap for achieving this both at the national and international levels. While governments in the United States and Chile have embarked on bold reforms that could tackle some of the challenges in private sector provision of education, it does not appear that these efforts will meet the standards laid out by the Guiding Principles. Therefore, both countries, now in the process of developing unrelated National Action Plans to implement the Guiding Principles, must revisit their reform efforts to identify gaps in human rights protection as seen through the lens of the Guiding Principles, and cease this historic opportunity to ensure equal access to education for all.