International LawThe right to education straddles the division of human rights into civil and political, on one hand, and economic, social and cultural, on the other hand, thereby affirming the conceptual universality of human rights. Both the right to education and rights in education thus ought to be recognized and protected. Moreover, many human rights can only be accessed through education.
Education is one of the most protected rights in international law. Fundamental to the right to education is the state's obligation to provide it in a non-discriminatory manner. The Universal Declaration of Human Rights, which establishes a right to education, explicitly prohibits discrimination and provides all persons equal protection under the law.52 Israel is a party to the International Covenant on Civil and Political Rights (ICCPR),53 the International Covenant on Economic, Social, and Cultural Rights (ICESCR),54 the Convention on the Rights of the Child (CRC),55 the Convention against Discrimination in Education,56 the International Convention on the Elimination of All Forms of Racial Discrimination (CERD),57 and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),58 which contain similar provisions.
The right to education is set forth in the Universal Declaration of Human Rights, the ICESCR, and the Convention on the Rights of the Child.59 Each of these documents specifies that primary education must be "compulsory and available free to all." Secondary education, including vocational education, must be "available and accessible to every child," with the progressive introduction of free secondary education.60 The Convention on the Rights of the Child further specifies that states must "make educational and vocational information and guidance available and accessible to all children" and "take measures to encourage regular attendance and the reduction of drop-out rates."61Everyone has the right to education.
The U.N. Committee on Economic, Social, and Cultural Rights has interpreted what is required to fulfill the right to education in a General Comment on article 13 of the ICESCR.62 According to the committee, educational institutions must be both available in sufficient quantity and physically accessible, that is, "within safe physical reach, either by attendance at some reasonably convenient geographic location (e.g. a neighbourhood school) or via modern technology (e.g. access to a `distance learning' programme)."63
Because different states have different levels of resources, international law does not mandate exactly what kind of education must be provided, beyond certain minimum standards. Accordingly, the right to education is considered a "progressive right": by becoming party to the international agreements, a state agrees "to take steps . . . to the maximum of its available resources" to the full realization of the right to education.64 But although the right to education is a right of progressive implementation, the prohibition on discrimination is not. The Committee on Economic, Social and Cultural Rights has stated: "The prohibition against discrimination enshrined in article 2 (2) of the [International Covenant on Economic, Social and Cultural Rights] is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination."65
Thus, regardless of its resources, the state must provide education "on the basis of equal opportunity," "without discrimination of any kind irrespective of the child's race, colour, sex, language, religion, political or other opinion, national ethnic or social origin, property, disability, birth or other status."66 In addition, the guarantees of equality before the law and the equal protection of law prevent a government from arbitrarily making distinctions among classes of persons in promulgating and enforcing its laws. A state will violate the prohibition on discrimination in education both with direct action, such as introducing or failing to repeal discriminatory laws, as well as when it fails to take measures "which address de facto educational discrimination."67 States must ensure that their domestic legal systems provide "appropriate means of redress, or remedies, . . . to any aggrieved individual or groups," including judicial remedies.68
The Convention against Discrimination in Education, ratified by Israel in 1961, spells out what constitutes discrimination in education. The convention defines "discrimination" as:
Specifically, the convention prohibits:any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular . . . [o]f limiting any person or group of persons to education of an inferior standard.69
any differences of treatment by the public authorities between nationals, except on the basis of merit or need . . . [and] in any form of assistance granted by the public authorities to educational institutions, any restrictions or preference based solely on the ground that pupils belong to a particular group.70
While the Convention against Discrimination in Education permits the establishment and maintenance of separate educational systems for religious or linguistic reasons, participation in these systems must be optional, the education offered must be "in keeping with the wishes of the pupil's parents or legal guardians," and the education provided must conform to standards for "education of the same level."71 Moreover, as a party to the convention, Israel has agreed to develop and apply a national policy that "ensure[s] that the standards of education are equivalent in all public education institutions of the same level, and that the conditions relating to the quality of education provided are also equivalent."72
International law also explicitly guarantees the right to education without discrimination for disabled children.73
The prohibition on all forms of discrimination does not mean that every distinction is impermissible. The U.N. Human Rights Committee has interpreted the ICCPR to mean that "not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant."74 Indeed, the principal of equality sometimes requires states "to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Convention."75
Israel is legally bound by the treaties that it has ratified. However, these treaties generally will not have the status of law in Israeli courts until the Knesset passes additional, enacting legislation. Nevertheless, the courts have cited international treaties, including the Convention on the Rights of the Child, in their rulings as having interpretive authority. The December 2000 Pupils' Rights Law, states that the law's aim is to determine the "principles for the rights of the student in the spirit of human dignity and the principles of the U.N. Convention on the Rights of the Child."76
Israel lacks an effective domestic legal framework for protecting all children from discrimination in education. Although many, including the Israeli government, argue that Israeli law as it currently exists should protect the right to education and freedom from discrimination, these rights are not being enforced for Palestinian Arab children.
The state of Israel may use both constitutional law and ordinary statutes to protect children's rights. Israel has no formal constitution and no bill of rights. Rather, the Knesset (Israel's parliament) has enacted a series of Basic Laws that define the government's forms and powers.77 Only two Basic Laws address civil liberties expressly: the 1992 Basic Law: Freedom of Occupation, which establishes the right to choose one's occupation,78 and the 1992 Basic Law: Human Dignity and Freedom, which provides that "[a]ll persons are entitled to protection of their life, body and dignity."79
The Basic Laws, together with the decisions of the Israeli High Court, form a kind of unwritten constitution and are considered constitutional law.80 The High Court in a series of decisions has singled out and enforced certain basic civil rights in limited contexts, including the freedom of speech, the right to demonstrate, and the principle of equality. While these judicially recognized principles guide the Court's own decisions, the Court cannot use them to strike down primary legislation.81
Similarly, the extent of the Court's power to invalidate ordinary statutes on the grounds that they violate a Basic Law is not entirely clear. Before 1992, the High Court would only strike down legislation that violated the few provisions of the Basic Laws that it considered "entrenched," none of which contained civil rights. Following the passage of the 1992 Basic Laws, which contained provisions that appeared to limit the Knesset's power to infringe upon the rights the Basic Laws protect, the Court suggested that in some circumstances it could strike down laws that violate individual rights.82
The Basic Laws do not expressly mention the right to education, and the High Court has ruled that the right to human dignity does not encompass it.83 However, ordinary statutes mandate some basic requirements. Under the Compulsory Education Law, the state is responsible for providing free education.84 School attendance between the ages of three (kindergarten) and fifteen (grade ten) is compulsory and free for all. Grades eleven and twelve are also free by law,85 and "schools are obligated by the policy of the Ministry of Education to enable [pupils in grades 11 and 12] to study and encourage them to continue their schooling."86 The Pupils' Rights Law, passed by the Knesset in December 2000, also stipulates that "every child and youth in the State of Israel has the right to an education according to all instructions of the law."87
Israel does not categorize its citizens consistently. Frequently the government divides them into "Jews" and "Arabs." Sometimes it breaks them down on the basis of religion--"Jewish," "Muslim," Christian," and "Druze," or, simply, "non-Jewish." Other times it categorizes them by what appears to be ethnicity--Arab, Bedouin, Ashkenazi, and Sephardic (or Mizrahi). The education system is divided by language--Hebrew and Arabic. Regardless of how Palestinian Arab citizens of Israel are categorized--by race, religion, language, nationality, or ethnicity--international law protects them from discrimination on any of these and other grounds.
Of the ordinary law relating to education, Part II of the Compulsory Education Law prohibits local educational authorities from discriminating on the basis of ethnicity in the registration and admission of students, and in tracking or creating separate classrooms for students within a school.88 The Pupils Rights Law contains a similar provision.89 However, these laws apply only to local authorities or the schools themselves, and not to the central government.
There is no general prohibition of discrimination or guarantee of equality in any of Israel's Basic Laws. Indeed, equality was explicitly excluded from the Basic Law: Human Freedom and Dignity when it was drafted.90 Despite this, some argue that the Basic Law: Human Freedom and Dignity does create a constitutional right to equality.91 The Israeli High Court of Justice has specifically declined to address this argument.92
The High Court has recognized equality as a judicial principle and has declared that administrative discretion may not be used to discriminate on the grounds of religion or race.93 However, with the exception of a few cases, which are limited in scope, it has dismissed petitions dealing with equal rights for Palestinian Arab citizens.
In three recent cases, the High Court for the first time addressed in its rulings the unequal treatment of Palestinian Arab citizens. In the Qa'dan case, brought by Palestinian Arab citizens of Israel who were barred from purchasing a home in a cooperative Jewish community built on state lands, the Court stated that the principle of equality prohibits the state from distinguishing among its citizens on the basis of religion or nationality. Confining its decision to the facts of the case, it ruled that the authorities could not allocate land to citizens solely on the basis of their religion, though it noted that discrimination between Jews and non-Jews might be acceptable under unspecified "special circumstances." The Court then ordered the government to take such "special circumstances" into account when it determined whether it would allow the family to settle in the neighborhood; it did not rule that the family could move into the Jewish community.94
In Adalah v. The Minister of Religious Affairs ("Ministry of Religious Affairs case"), the Court found that the ministry's 1998 budget discriminated against Palestinian Arab religious communities:
Despite its finding, the Court refused to invalidate the provisions of the Budget Law at issue:We can say, unfortunately, that today there is no equality for Arab religious communities in budget allocations of the Ministry of Religious Affairs. This conclusion is evident in the gap between the percentage of resources allocated to the non-Jewish and Jewish sectors. . . . Thus, the Arab religious communities that comprise 20 percent of the state's population are allocated only 2 percent of the budget of the Ministry of Religious Affairs. This gap speaks for itself.
The Court found that the petitioner's requests were too general for the Court to give a "concrete and specific remedy."95[I]t is not enough to argue that the Arab community does not receive a portion of the budget of the Ministry of Religious Affairs which is proportional to this community's percentage in the population. Even if this is the case, it does not mean that substantive inequality exists. To establish the existence of substantive inequality, it is necessary to examine the religious needs of each religious community. Only after such an examination can we conclude that substantive inequality exists.
Adalah subsequently petitioned the High Court against the Minister of Religious Affairs to distribute funds for religious cemeteries equally to Jewish and Arab religious communities, and the Court ruled that the ministry should allocate the monies on an equal basis.96
The High Court of Justice has never ruled on whether the general education budget discriminates against Palestinian Arabs. Indeed, if the 1998 Ministry of Religious Affairs case is any indication, the Court might well find such a petition too general to provide a remedy. Discrimination cases are difficult to prove, in part because the Ministry of Education controls national education data and does not release budgets disaggregated by sector.97 Where parties have petitioned the High Court regarding a particular ministry policy, the Education Ministry typically corrects or promises to correct the inequality, and the Court accepts the ministry's promise without ruling that the change is legally required. For example, in the Shahar case, discussed above, the Ministry of Education conceded that it had not provided Shahar academic enrichment programs to the Palestinian Arab sector and promised to allocate 20 percent of that budget for the Palestinian Arab sector within five years. The High Court in its decision explicitly declined to consider "whether the state has a duty to include the Arab sector in the special programs that are part of the educational and welfare services that the Ministry of Education provides." The Court concluded that "it is superfluous, of course, to discuss in principle the question of the duty of the state to ensure parity in educational allocations for the Arab sector."98
Similarly, in The Parents Committee in Segev Shalom v. The Government-Appointed Council in Segev Shalom, the local Parents Committee sued to compel the establishment of kindergartens for all four hundred kindergarten-aged Bedouin children in the locality. The Court dismissed the case when the council and the Ministry of Education agreed to reopen kindergartens for two hundred children. Thus, the Court did not rule that the government was legally bound to provide kindergarten for the children.99
Moreover, when the High Court finds that differences between Palestinian Arabs and Jews justify certain privileges, it rules that government policies are not invalid because they further legitimate distinctions.100 In Agbaria v. The Minister of Education, the High Court considered a challenge to the government policy of implementing the Long School Day law in development areas which, at the time, included only Jewish localities. The Court upheld the policy on the grounds that providing benefits to those towns only was a legitimate distinction because educational support to development areas met national needs; it was not, therefore, discriminatory.101
Thus, the High Court, as well as the Israeli government, has recognized the legality and value of affirmative action.102According to Judge Eliahu Matza:
Whether caused by discriminatory laws which existed in the past and are no longer valid, or whether through faulty perceptions which have become engrained in society, a gap is evident in the equality of opportunity, which increases the chances of the stronger groups and decreases those of the weaker ones. Balance can be effected on this gap by affirmative action. It is based on the precept that certain members of society are in an inferior position and providing equal opportunity will no longer be sufficient to close the gap. Providing equal opportunity under these circumstances will only fulfill a formal theory of equality but will not afford the underprivileged groups a viable change to receive their portion of society's resources. Long-term implementation of formal equality only increases the danger that human nature and character will result in the perpetuation of discrimination. Remedying the inequities of the past and attaining actual equality can, therefore, be accomplished only by giving preference to the weaker group.103However, as the above chapters demonstrate, while Israel pursues policies of affirmative action in education, these policies have been applied primarily to benefit particular Jewish groups and to further discriminate against Palestinian Arab students.
53 International Covenant on Civil and Political Rights (ICCPR), arts. 2(1), 26, adopted December 16, 1966, G.A. Res. 2200A (XXI), 999 U.N.T.S. 171 (entered into force March 23, 1976, and ratified by Israel October 3, 1991). Although the ICCPR does not list primary education as a core civil and political right, article 24 guarantees each child "the right to such measures of protection as are required by his status as a minor on the part of his family society and the State." This provision of article 24 has been interpreted to include education sufficient to enable each child to develop his or her capacities and enjoy civil and political rights as a measure of protection. General Comment 17, Rights of the Child, U.N. Human Rights Committee, 35th sess., (April 7, 1989), paras. 3, 5, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 (1994), p. 23. On the right to education in international law, see, generally, Manfred Nowak, `The Right to Education,' in Economic, Social, and Cultural Rights, eds. Asbjorn Eide, et al. (Boston: M. Nijhoff Publishers, 1995), pp. 189-211.
57 The Convention on the Elimination of All Forms of Racial Discrimination obligates Israel to "guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of . . . [t]he right to education." Convention on the Elimination of All Forms of Racial Discrimination (CERD), art. 5(e)(v), adopted December 21, 1965, G.A. Res. 2106 (XX), 660 U.N.T.S. 195 (entered into force January 4, 1969, and ratified by Israel January 3, 1979).
64 ICESCR, art. 2(1). See Convention on the Rights of the Child, art. 28. But see General Comment 13, The Right to Education, Committee on Economic, Social and Cultural Rights, para. 44: "The realization of the right to education over time, that is `progressively', should not be interpreted as depriving States parties' obligations of all meaningful content. Progressive realization means that States parties have a specific and continuing obligation `to move as expeditiously and effectively as possible' towards the full realization of article 13"; and General Comment 3, The Nature of States Parties Obligations, Committee on Economic, Social and Cultural Rights, 5th sess., (December 14, 1990), para. 2: "Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant."
65 General Comment 13, The Right to Education, Committee on Economic, Social and Cultural Rights, para. 31. See also, General Comment 11, Plans of Action for Primary Education, Committee on Economic, Social and Cultural Rights, 20th sess., U.N. Doc. E/C.12/1999/4 (May 10, 1999), para. 10; and General Comment 3, The Nature of States Parties Obligations, Committee on Economic, Social and Cultural Rights, para. 2 (stating that the obligation to guarantee the exercise of rights in the International Covenant on Economic, Social and Cultural Rights without discrimination is "of immediate effect").
68 General Comment 9, The Domestic Application of the Covenant, Committee on Economic, Social and Cultural Rights, 19th sess., U.N. Doc. E/C.12/1998/24 (December 3, 1998), paras. 2, 9. See also, General Comment 3, The Nature of States Parties Obligations, Committee on Economic, Social and Cultural Rights, para. 5.
69 Convention against Discrimination in Education, art. 1. This convention was adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) on December 14, 1960 and entered into force on May 22, 1962. The full text is reprinted in the appendix. The Convention against Discrimination in Education and the subsequent Protocol Instituting a Conciliation and Good Offices Commission established a mechanism for states parties to enforce the convention against other states parties, but these provisions have never been used. Despite this relative lack of use, the convention remains an important source of international law on education, as attested to by recent references to it in the UNESCO Executive Board Decisions adopted at the 152nd session, Paris, October 16-17, 1997; at the Committee on Economic, Social and Cultural Rights, 21st session, November 15-December 3, 1999; and in the nine new signatories to the CDE since 1993, bringing the total number of states parties to ninety. In addition, the Committee on Economic, Social and Cultural Rights has interpreted the prohibition on discrimination and the rights to education in article 2(2) and 13 of the ICESCR in accord with the Convention against Discrimination in Education. General Comment 13: The Right to Education, Committee on Economic, Social, and Cultural Rights, paras. 31, 33, 34.
71 Ibid., art. 2(b). See General Comment 13, The Right to Education, Committee on Economic, Social and Cultural Rights, para. 33 (affirming article 2 of the Convention against Discrimination in Education).
74 General Comment 18, Non-Discrimination, U.N. Human Rights Committee, 37th sess., (November 10, 1989), para. 13, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, p. 26.
77 The Knesset originally intended the Basic Laws to be the basis of a constitution, but this has never occurred. See "The Harari Resolution," 5 Knesset Protocols 1743 (1950). The failure to enact a formal constitution is due, at least in part, to opposition from Jewish religious parties, who have opposed laws regarding civil liberties and human rights that might invalidate certain religious laws.
79 Basic Law: Human Dignity and Freedom, sec. 4 (1992). The law also prohibits the "the violation of the property of a person," and the deprivation of or restrictions on liberty; provides for a general right to leave Israel and for citizens' rights to re-enter; and establishes a right of privacy. Ibid., secs. 3, 5-7.
80 For more information generally, see Kretzmer, The Legal Status of the Arabs in Israel, pp. 7-8; and Daphne Barak-Erez, "From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective," Columbia Human Rights Law Review, vol. 26, pp. 312-317.
83 Shocharei G.I.L.A.T. Association v. Minister of Education, Culture and Sport, 50(3) P.D. 2, 24-26 (1996). The Israeli government reported to the Committee on Economic, Social and Cultural Rights in 1998:
While it is impossible to contest the legal existence of the right to education, the scope of constitutional protection accorded to it has not yet been defined by the courts of Israel. On one occasion, a Supreme Court judge held that the right to education is not a constitutional right, citing the absence of a positive constitutional rule to that effect. However, the President of the Supreme Court in a recent case expressed the opinion that the matter is not yet settled and that the above-mentioned judicial opinion is not binding upon the full court.Committee on Economic, Social and Cultural Rights, Initial Report: Israel, U.N. Doc. E/1990/5/Add.39(3) (January 20, 1998), para. 609.
The local education authority and an education institution will not discriminate on the basis of ethnicity in any of the following areas:Compulsory Education Law, part II, 3B(a) (1949) (English translation by Human Rights Watch). The provision resulted from an amendment to the law passed in May 1991 following a lawsuit brought by Mizrahi parents from B'nai Brak whose children had not been admitted to a local Orthodox parochial school due to a quota of 30 percent for Mizrahi children. See Adva Center, Israel Equality Monitor, no. 1, September 1991, p. 4.1) registration and admission of students;
Local education, the education institution or its functionary, shall not discriminate against a student on the basis of ethnicity, on the basis of socioeconomic background, or on the basis of political affiliation of the child or of his parents in each of the following:Pupils' Rights Law, art. 5(a) (2000) (English translation by Human Rights Watch).1) student registration, acceptance into, or rejection from the education institution;
90 The religious lobby in Israel opposed the inclusion of a principle of equality in the Basic Law because it might have invalidated religious law, particularly in the area of family law. Generally speaking, Israeli citizens are subject to the family law of their own religion. See U.N. Human Rights Committee, Initial Report of States Parties Due in 1993: Israel, para. 823.
91 Although the High Court held in 1948 that the Declaration of Independence by itself is not "constitutional law which determines the validity or invalidity of ordinances and statutes" (Zeev v. Gubernik 1 P.D. 85, 89 (1948)), the 1994 amendment to the Basic Law: Human Dignity and Freedom states that fundamental human rights "shall be upheld in the spirit of the principles set forth on the Declaration of the Establishment of the State of Israel," which states that the "State of Israel will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; . . . and it will be faithful to the principles of the Charter of the United Nations." 1 Laws of the State of Israel (L.S.I.) 3, 4 (1948).
97 Human Rights Watch telephone interview with Yousef Taiseer Jabareen, formerly an attorney for the Association for Civil Rights in Israel (ACRI), Washington, D.C., July 17, 2001. For information about the difficulties in proving discrimination under Israeli law, see Kretzmer, The Legal Status of the Arabs in Israel, pp. 128-29.
100 For cases upholding differential treatment, see Bourkan v. Minister of Finance, 32(2) P.D. 800 (1978) (upholding the restriction of sales of apartments in the Jewish Quarter of the Old City of Jerusalem to Jews); Wattad v. Minister of Finance, 38(3) P.D. 113 (1983) (upholding a government policy of paying extra child allowances to Jewish religious students who had not served in the army despite a provision in the law that payments be made only to students who had completed army service, which, thus, excluded Palestinian Arab students); and Avitan v. Israel Lands Administration, H.C. 528/88 (unreported judgment) (October 25, 1989) (upholding the Israel Lands Administration's refusal to lease to a Jewish citizen property in a Bedouin settlement set up by the government on the grounds the government policy was legitimate, that it was justifiable for government to offer special terms to Bedouin, and that there was no discrimination based on ethnic or national group because the Bedouin were favored not because they were Arab but because of their nomadic lifestyle).
101 Agbaria v. The Minister of Education, 45 P.D. 222 (1990). In 1991 government renewed the program, the petitioners re-filed, and the Court again dismissed the case. Agbaria v. The Minister of Education, 45(5) P.D. 742 (1991).
103 Judge Eliahu Matza, Israeli Women's Lobby v. The Government, 48(5) P.D. 529 (1994), quoted in Sikkuy's Report on Equality and integration of the Arab Citizens in Israel 1999-2000, (Israel: Sikkuy, June 2000), p. 8.