Equality and Non-discrimination
Non-discrimination and equality are core elements of the international human rights normative framework. Article 2 of the Universal Declaration of Human Rights (UDHR) states that every human being is entitled to all rights and freedoms “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Similarly, the International Covenant on Civil and Political rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) require the respective States parties to guarantee the enjoyment of all rights without discrimination of any kind. Both also have specific provisions for the “equal right” of men and women in the enjoyment of all rights. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Articles 11e and 14), the International Convention on All Forms of Racial Discrimination (CERD, Article 5) and the Convention on the Rights of Persons with Disabilities (CRPD, Article 28) likewise enshrine a prohibition of discrimination in the enjoyment of the rights set out in each Convention, including the right to social security. The right to equality and non-discrimination with respect to social protection has been underlined by ILO social security standards. While the focus of older instruments was on migrants and ensuring equality of treatment through the impetus of bilateral agreements (ILO Conventions No. 118 and 157), Recommendation No. 202 (para 3d) highlights the need to streamline the principle of non-discrimination throughout the life cycle, taking account while being responsive to special needs who may experience structural discrimination, when implementing comprehensive social protection systems.
Under international human rights law, States are expected to eliminate direct and indirect discrimination in law and practice; on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation, and civil, political, social or other status; when it has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to social security. It also requires states to take special measures to protect the most vulnerable segments of the population as a matter of priority (Committee on Economic, Social and Cultural Rights, General Comment 19, paras 29-30). States parties have the obligation to pay special attention to those individuals and groups who traditionally face difficulties in exercising this right (General Comment 19, para 31) throughout the processes of design, implementation and evaluation. The principles of equality and non-discrimination must be respected in all stages of a social protection programme, from the selection of the beneficiaries to the delivery system chosen. Giving priority to the most disadvantaged sector of society makes it critical to gather disaggregated data to be able to identify them.
Selection of beneficiaries
As stated previously (see universality of protection), States must ensure the right to social security, including social insurance, for all without discrimination of any kind. Article 2.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 26 of the Convention on the Rights of the Child (CRC) oblige States Parties to take effective measures, within their maximum available resources, to fully realize this right. From a human rights perspective, social protection programmes should also be child-sensitive in their design, implementation and evaluation. The CRC (the Preamble, Articles 2 and 23 in particular) emphasizes that the best interests of children should be respected at all times, and their special needs should be accommodated. A child-sensitive social protection programme is one which ensures the rights of the child, and takes into account all the factors that might place children in a vulnerable position (see also the joint publication Advancing Child-Sensitive Social Protection). Programmes are required to factor in age- and gender-specific risks and vulnerabilities at each stage of the life course, especially considering the needs of families with children. Special provisions should be made for children without parental care and those who are marginalized within their families due to gender, disability, ethnicity, HIV/AIDS status or other markers of identity. To achieve these ends, it is necessary that intra-household dynamics be carefully considered, including the balance of power between men and women. A child-sensitive programme must also include the voices and opinions of children and youth, and their caregivers in design and implementation processes.
Persons with disabilities face various impediments to the enjoyment of their human rights, and thus social protection programmes must employ the utmost sensitivity with regard to their needs. Programmes must ensure their effective coverage and access to social protection benefits, support services as well as to information related to assistive technology and other facilities. This requirement is laid down in the CRPD (Article 4). Article 3 states that social protection programmes must incorporate the chief principles of the CRPD:
- respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
- full and effective participation and inclusion in society;
- respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
- equality of opportunity;
- accessibility; and
- equality between men and women.
The CRPD also stresses that the special needs of women and children with disabilities must be duly taken into account (Articles 3, 6 and 7).
Various other characteristics, such as ethnicity, health status, sexual orientation or geographical location can also impede the equal enjoyment by some people of their economic, social and cultural rights, including their right to social security. Each of these characteristics must be taken into account when a social protection programme is designed and implemented. Inclusion of those who are disadvantaged and marginalized is the first step but it is not enough. The provision of quality social services needed by different groups is equally important. For example, building maternal health clinics in rural areas does not necessarily meet the state’s obligations if the services provided in those clinics are worse than in clinics elsewhere in the country or if they do not meet standards set in similar contexts.
Social protection programmes must work towards substantive equality, a concept which has been promoted in key human rights treaties to illustrate and address the fact that inequality can be structural and discrimination indirect, that equality has to be understood in relation to outcomes as well as opportunities, and that universal protection does not necessarily mean uniform measures. ‘Different’ treatment may be required to achieve equality in practice (UN Women’s Progress of the World’s Women, 2015-2016).
Substantive equality differs from formal equality in that the latter refers to the adoption of laws and policies that treat everyone equally, while substantive equality is concerned with the results and outcomes of these laws, policies and practices, in particular ensuring that they do not maintain, but rather alleviate, the inherent disadvantage that particular groups experience.
Policy makers must take into consideration the needs of different groups, and works towards rectifying the effects of past discrimination, social norms and power dynamics that contribute to inequality.
All social security policies and programmes must respect, protect and fulfil the rights of marginalized and disadvantages groups, ensuring non-discrimination and equality.
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The 14th Amendment Protects Individual Rights in Public Education
Over the years, the 14th Amendment of the United States Constitution has had an enormous impact on protecting individual rights in public elementary and secondary education. This has occurred through the United States Supreme Court’s interpretation of the Equal Protection Clause, the Due Process Clause, and the incorporation of other rights (like freedom of speech) to the states through the 14th Amendment.
Equal Protection Clause
The Equal Protection Clause of the 14th Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” It applies to public elementary and secondary schools, as they are considered to be state actors. In 1954, the Supreme Court interpreted the Equal Protection Clause’s requirements in Brown v. Board of Education. In perhaps one of the most famous and important cases issued by the Court, it stated:
We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs…are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the 14th Amendment.
That language, and the Court’s decision, had a dramatic impact on public education. Schools were required to end the discriminatory practice of segregating students based on race. While segregation was more prevalent in some states than in others, all public schools in all states that had segregated students needed to desegregate, or face claims that they were in violation of the 14th Amendment. What followed was roughly 50 years of desegregation efforts in public schools, and numerous court decisions regarding the constitutionality of those desegregation efforts.
Over time, the focus evolved from ending and remedying the vestiges of discriminatory practices to integration efforts that sought to promote the diversity of the student population in public schools. In some instances, these integration efforts were voluntary, meaning they were done by schools that had not segregated students in the past. These integration efforts continue to this day, and the predominant legal issues revolve around the extent to which race can be used as a factor in the assignment of students to certain schools in order to diversify the student body.
The language, and the logic, of the Brown v. Board decision also found its way into other types of Equal Protection claims. For example, in the mid-1970s, students with disabilities challenged their exclusion from public school on equal protection grounds. Two very influential lower court decisions, PARC v Commonwealth of Pennsylvania, and Mills v. Board of Education of the District of Columbia, relied on Brown v. Board and determined that students with disabilities could not be excluded from public school because of their disabilities.
Those court decisions led to a federal statute that imposed similar requirements on all public schools that accepted certain federal funds. That law turned into the Individuals with Disabilities Education Act (IDEA), which today applies to all public schools. The law requires public schools to provide all students with disabilities with a Free and Appropriate Public Education (FAPE). It also prohibits schools from expelling or suspending students with disabilities for longer than 10 days, when the student’s actions are caused by their disability.
Due Process Clause
Due process is another area of the 14th Amendment that has had a dramatic impact on individual rights in public education. The Due Process Clause says that states may not “deprive any person of life, liberty, or property, without due process of law.” The Supreme Court has interpreted this clause to have substantive and procedural protections. With substantive due process, the 14th Amendment protects a parent’s right to direct the educational upbringing of their child. Because of this right, the Supreme Court ruled that a state statute that prohibited the teaching of foreign language, and a state statute that required all students to attend public schools, as opposed to private schools, violated the 14th Amendment. See Meyer v. Nebraska and Pierce v. Society of Sisters. The Court also ruled that a state statute that required Amish children to attend school past the eighth grade violated the substantive due process rights, and the religious freedom rights, of Amish parents to direct the educational and religious upbringing of their children. Wisconsin v. Yoder.
As a result of these substantive due process protections, all states currently have exceptions in their state compulsory attendance statutes that require students of certain ages to attend school. The exceptions allow for attendance at private schools, religious schools, and homeschool to meet the compulsory attendance requirements.
The procedural due process protections of the 14th Amendment have also played an important role in public education, particularly in the areas of student discipline and teacher employment. With student discipline, the Supreme Court has ruled that students have a “legitimate entitlement to a public education as a property right.” Goss v. Lopez. That right may not be taken away without first providing due process protections, which are generally notice of what the student is accused of doing, and the opportunity to be heard before the student is disciplined.
The required amount of notice and opportunity to be heard increases as the severity of the discipline increases. With minor disciplinary actions, an informal discussion with the principal may be sufficient to meet the requirements. For more severe discipline, such as expulsion, a more detailed hearing is generally required to give the student a chance to present evidence, and to cross-examine witnesses. As a result of these constitutional due process protections, all states have enacted statutes and regulations that provide due process protections for students during the discipline process.
A similar due process right applies to tenured teachers at public elementary and secondary schools. Once a teacher receives tenured status, they have a property interest in their continued employment, and must be provided with notice and a hearing before it may be taken away from them. Perry v. Sindermann.
The third area where the 14th Amendment has impacted public schools is in the application of other constitutional rights to the states through the 14th Amendment, via a concept known as incorporation. Perhaps the biggest impact here has been the First Amendment’s right to free speech, although other protections like freedom of religion have also made their mark on public education.
In the area of free speech, the Supreme Court has said that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines. While courts do give some deference to school administrators in making decisions about whether to prohibit certain student speech, the 1st Amendment requires schools to justify their decisions when they infringe on free speech rights. The level of justification required depends on the nature of the speech, and the nature of the restriction.
For example, in Tinker v. Des Moines, students were protesting the Vietnam War by wearing armbands, and the school disciplined the students for doing so. The Supreme Court ruled that the discipline violated the 1st Amendment, because the school could not show that the speech could reasonably be expected to cause a substantial disruption with school activities or the rights of others. By contrast, in Morse v. Frederick, the Supreme Court deferred to a school administrator’s judgment that a sign that said “Bong Hits 4 Jesus” promoted drug use, and upheld the discipline of the students that displayed the sign at a school event.
These are just a few examples of the many ways that the 14th Amendment impacts individual rights in public education. Many of these issues arise on a daily basis in public schools, and the 14th Amendment provides some constitutional protections of individual rights that schools must take into account when addressing them.
Scott F. Johnson is a Professor of Law at Concord Law School at Kaplan University, where he teaches Education Law and Special Education Law, among other topics. He has written a number of books and articles in the education law area, including Education Law: A Problem Based Approach, 3rd Edition, Carolina Academic Press (2015), and Special Education Law, 5th Edition, Sage Publications (2014). Professor Johnson’s law practice included education and special education cases, and he currently serves as a hearing officer for a state agency. The views expressed in this article are solely those of the author and do not represent the view of Concord Law School at Kaplan University, including its parent companies, subsidiaries, and affiliates.
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