Gratuitous Repost: Education and Rights

This is a gratuitous repost of one of the posts I put up during my recent spell of blogging over at Joanne's most excellent blog. This piece was called "Education and Rights". Only minor, cosmetic edits have been made.

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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.

Often.

 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 publicly 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 it seems that we’re OK with fairly harsh limits on the right to an education.

But if this is true, 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 an undeniable fact that not everyone is going to be a doctor, and even further -- 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.”  They've had their fair chance. 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 every single class 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. (You may want to think of this not as a narrowing, but as a withholding of assistance for the broadening of his future; negative and positive rights are tricky things and our language is sometimes geared to blur the distinction.)

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 and which regularly draw scorn and shocked glances.

The moral principles at issue aren’t unqualified or absolute, and they aren’t without inherent limitations. Even the most ardent defenders of these rights, if pressed, would have to admit this (despite their rhetorical protestations to the contrary).  And because they’re “fuzzy” in this way, it’s understandable that we’re going to disagree about exactly where they begin and end.

We should all try to remember that.