A fundamental human right

"Discuss whether the law goes sufficiently far in attempting to provide guarantees of equal access to education for all. " The importance of education as a fundamental human right is clear and engenders no debate. Education equips us to be aware and contributing members of society – and only through learning from and about others, we can liberate ourselves from the ignorance and prejudices of those before us1.

Seeing as education is universally accepted to be of great importance, there should be no doubt that the law should act in a way to protect and ensure that every member of society gets an unimpaired and equal access to education; as well as the chance to develop their intellect without discrimination2. It is this notion of equal access and opportunity that the Education Act and the relevant anti discrimination acts are based upon, and the notion remains the "philosophical lynchpin of the education system"3.

The law tries, to some extent, to guarantee education on the basis of equal access for all. There are innumerable reasons why equal access to education is important. One of them being that, not only does it benefit the individual – it has also been argued that equality in education is linked with equality in society4. Consequently, this leads to ripple effect because, by reducing disparities in society through education, more people are able to liberate themselves from destitution or deprivation.

I will now proceed to elaborate on the relevant laws that secure the right to equal access to education, and how far it goes to do so. Backed by relevant academic and legal opinion on the matter, I will aim to show that the law does not go sufficiently far enough in "attempting to provide guarantees to secure the right for equal access to education for all". In 1967 under the chairmanship of Lady Bridget Plowden, the Plowden report recognised that specific policies and provisions would be needed to increase equality in relation to education5.

Many international documents have also recognised the importance of the right to education, notably Article 28 of the United Nations Conventions on the Right of the Child which states the right should be achieved on the basis of equality of opportunity. Laws have to be in place to ensure that no one is precluded from education or have their access to education prejudiced by virtue of wealth or based on their characteristics, e. g. race, sex, disability or colour.

On the European Level, Article 14 read with Article 2 Protocol 1 makes it unlawful for member states to practice discrimination that may obstruct the enjoyment of the right to education. Nationally, section 13A (1) of the Education Act 19966 imposes a duty on local education authorities to ensure fair access to educational opportunities to applicants. There are also formal guarantees of equality to access through anti discrimination legislation. The European legislation is reflected in national law through specific anti-discrimination law, i.

e. Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995 and the newly introduced Equality Act 2006. By making discrimination unlawful, these measures aim to guarantee equal access to education, as it ensures equality in the admission of pupils to educational institutions and prohibits differences of treatment between individuals. For the purpose of this essay, I will only be concentrating on the national anti-discrimination laws that guarantee equal access to education.

In addition, I will also need to refer to case laws, in order to examine how the courts interpret the aforementioned anti-discrimination law and thus, determine whether or not the law goes sufficiently far enough to protect the right of equal access to education. Equal access to education can be guaranteed by making it unlawful for a responsible body, like local education authorities (hereafter LEAs) from discriminating against an applicant or a pupil on the grounds of her sex, sexual orientation or marital status7; race, colour, ethnic or national origins or nationality8; or because of any disability they may have9.

Educational discrimination is outlawed in sections 22, 23 and 25 of the Sex Discrimination Act 1975 (SDA 1975); in sections 17, 18 and 19 of the Race Relations Act 1976 (RRA 1976); and they newly inserted sections 28A to 28X of the Disability Discrimination Act 1995 (DDA 1995). In short, these sections prohibit responsible bodies from discriminating against a pupil that fall under the scope of the respects Acts "in the terms it offers to admit him or her to the establishment as a pupil"10.

Any provision, criterion or practice would also be deemed discriminatory if it would be applied differently to another person compared to the "discriminatee". Moreover, one could raise a victimisation claim or even a segregation claim under the RRA. I will now be addressing the criticisms of the respective anti-discrimination legislation in different sub-sections.