Lady Hale’s role in shaping discrimination law has been unparalleled. Indeed, her foundational contributions to all aspects of discrimination law are too many to cover in depth in this chapter (see further Chapter 30, this volume). The chapter focuses instead on her contribution to article 14 of the European Convention on Human Rights (ECHR) jurisprudence, which has presented specific challenges. This is particularly striking over the last decade, when the burgeoning of article 14 claims has taken the courts into the heartland of government decision-making on a range of contentious issues, including spending. A key driver of this expansion has been the elasticity of the ‘gateway’ right which triggers the use of article 14, as well as the open-ended nature of the grounds on which a complaint of discrimination may be made under article 14. This all takes place in the context of the use of the judicial review procedure rather than traditional tribunal claims for discrimination under the Equality Act (EA) 2010 and its predecessors. The result has been that most of the weight of decision-making under article 14 has fallen on the justification defence. This chapter will analyse Lady Hale’s contribution to making sense of the new challenges represented by such claims. She stands out for her willingness to articulate and engage with the values behind the legal provisions, and her readiness to see the real human issues at stake, bringing in the context and the perspective that come from reaching to the reality of people’s lives.

Education is at the heart of the global struggle to alleviate poverty and reduce inequality. It has been demonstrated that one extra year of education is associated with a reduction in inequality (as measured by the Gini coefficient) of 1.4 percentage points. Yet it is precisely the most disadvantaged who face the greatest obstacles to accessing quality education. Although some progress has been made in recent decades, there were still as many as 57 million out-of-school children of primary school age in 2015. Many of these will never access education. What role, then, can human rights play in addressing these issues? Education has been recognised as a fundamental human right at least since 1948, when the Universal Declaration of Human Rights declared that everyone has the right to free and compulsory education. Importantly, the right extends beyond access to education. It also includes quality education. Education must be ‘directed to the full development of the human personality’ and ‘promote understanding, tolerance and friendship among all nations, racial or religious groups’. The right to education has also been recognised in the major international human rights instruments, and in the domestic law of numerous countries.

This volume asks what role human rights can play in addressing some of the most challenging issues in the quest for quality education for all. We provide case studies from both the global South and the global North. The challenges are surprisingly similar, despite marked differences in development. From the South, we focus on India, Kenya and South Africa. Both countries face an enormous chasm between the ideal of equal rights to quality education and the reality; each has relatively recently given entrenched constitutional status to the right to education; and both have seen human rights litigation play an important part. From the global North, we look at New York State, where educational disadvantage, in the midst of the richest country in the world, is even more striking. Although there is no constitutional right to education at federal level, the right is entrenched in the New York State constitution, and human rights litigation has been utilised in the quest for a better quality of education for disadvantaged innercity children.

This collection of essays has explored a range of challenges faced by minorities and disadvantaged groups in education. The book demonstrates how a human rights-based approach brings these challenges into sharper focus and offers a framework for addressing them so that we can achieve quality education for all. These insights are enriched through the comparative perspective provided by the range of jurisdictions featured in the collection. Such a perspective highlights the complexity of the challenges faced and presents contextualised responses to them. Human rights provide a common language to share and compare the experiences of minorities and disadvantaged groups in education. While requiring sensitive attention to be given to how these experiences are embedded in particular contexts, a comparative perspective also enables resonances to be felt across contextual divides. It is therefore capable of inspiring new ideas for overcoming long-standing challenges in education.

An increasingly pressing challenge faced by a human rights-based approach, covered in Part I of this collection, is the question of how to hold actors other than the state accountable for providing quality education to all. While remaining open to the potential benefits of private educational initiatives for disadvantaged and marginalised children who might lose out in the public school system (Smuts), the accountability deficit associated with the involvement of private actors in education needs to be addressed. This accountability deficit leaves minorities and disadvantaged groups most at risk that their right to education will not be realised, and the challenge moving forward is to develop robust accountability mechanisms for ensuring both the state and private actors uphold children's rights to and in education (O’Mahony).

Part II emphasised the importance of sensitive balancing of competing rights and interests in education, particularly with respect to the tension that often arises between the right to education and the freedom of religion and culture. An especially important insight offered by both chapters in Part II is that this balancing exercise requires acute awareness of the contextual and historical positioning of minority groups within the education system. While a human rights-based approach calls for protections to be extended to minorities and disadvantaged groups to ensure they are not marginalised by the education system, we should remain alert to such protections being subverted by groups seeking minority status in order to exclude other groups (Kothari) or being abused in order to preserve historical privilege or restrict access to education (Bishop).

Introduction

In September 2015, the world committed itself to ensure inclusive and equitable quality education and to promote lifelong learning opportunities for all by 2030. At the same time, it promised to achieve gender equality and empower all women and girls within the next 15 years. These ambitious proclamations came at the close of the 15-year period set by the Millennium Development Goals (MDGs) to achieve equality in primary education between boys and girls. Although the United Nations Development Program (UNDP) claims to have achieved that goal, a closer look reveals that there is still a long way to go. It is argued here that the notion of equality as parity, which has been used in measuring the achievements of the development goals, is too limited. Simply treating girls and boys equally will not address the gendered power relations which lead to ongoing inequality in education. Instead, it is argued that the principle of substantive equality should be the framework for evaluating progress towards equality in education. This requires attention to be paid to redressing disadvantage; addressing stigma, stereotyping, prejudice and violence; facilitating participation; and accommodating difference and achieving structural change.

Development goals and human rights

In 2015, the UNDP proudly proclaimed: ‘The world has achieved equality in primary education between girls and boys.’ Equality in primary education was one of the three targets set in 2000 to be achieved by 2015 as part of the third MDG goal of promoting gender equality and empowering women. However, a closer look at the statistics shows that in fact only 64% of countries in the developing regions had achieved gender parity by 2012. Nor do these statistics give a full picture. Statistics refer to enrolment rather than completion. In fact, the MDG 2015 report states that almost 100 million adolescents are still not completing primary school. More worrying still, there were 57 million out-of-school children of primary school age in 2015. Of these 55% were girls. Moreover, nearly half (48%) of out-of-school girls are unlikely ever to go to school compared to about 37% of out-of- school boys.

The Sustainable Development Goals (SDGs) agreed in 2015 are more ambitious. SDG4 commits the world to ensuring inclusive and equitable quality education and to promote lifelong learning opportunities for all by 2030.