Schools must steer their course towards achieving free education
The publication of the sentence passed by the Constitutional Court that reaffirms free education formalized a victory in the fight for the right to education of all people
July 30, 2010
|Sterlin does his homework with the help of his grandmother. Photo: P. Smith/UNHCR
Young Sterling could not achieve continuity in his educational trajectory. As a child, his grandmother insisted that he attended the school located in the African-Colombian settlement where they lived at the time, despite their lack of resources to pay the fees charged by the school. Since their financial difficulties were many, his education was interrupted frequently. Later on, due to the armed violence that arose in his homeland, he was forced to take refuge in one of Bogotá’s poorest neighborhoods. Studying became even more difficult.
Nowadays, there are 1.6 million children excluded from the Colombian education system. As in the case of Sterlin, the causes are multiple, but the situation has worsened due mainly to the complementary costs charged by public schools across the country. However, from now on children will not have to pay to attend State education institutions – this victory is formally recorded in a communiqué issued by the Constitutional Court of the country, which states the following:
“Free education is a principle proclaimed by the right to public education at all levels since it is a mechanism to achieve the accessibility of education for all. However, concerning its implementation, States should adopt different strategies, starting from the premise of free education as an unequivocal duty of immediate exigibility with regard to primary education, and the progressive implementation of free education at secondary and higher education levels.”
An achievement of the civil society – Such recognition is rooted in the long way paved by civil society’s policy advocacy. In August 2008, the Colombian Coalition for the Right to Education launched, jointly with CLADE, the Campaign for Free Education; this mobilization upheld the demands for free education as an irrevocable condition for the full realization of the right to education in Colombia.
In November 2009, the Coalition joined the lawyers from the NGO DeJusticia and the International Human Rights Clinic of Cornell Law School to file a complaint on grounds of unconstitutionality against Article 183 of Law 115 of 1994, through which the country’s Education Law was passed. This action meant a demand for free education and it represented a first formal step to end the charging of fees, which contravenes several regional and international treaties on human rights adopted by Colombia, such as the Universal Declaration of Human Rights (Article 23) and the International Covenant on Economic, Social and Cultural Rights (Articles 13 and 14), the Convention on the Rights of the Child (Article 28), the American Convention on Human Rights (Article 26) and its Protocol of San Salvador (Articles 13 and 16); the American Declaration of the Rights and Duties of Man (Article XII); and the Charter of the Organization of American States (Article 49).
In spite of all the legal support to ensure the duty towards free education, education centers continue to depend on students’ financial support for their upkeep. In 2010, the Colombian government not only authorized the charging of fees but in addition it decided to invest less in the education portfolio and more in defense. “14.2% will be spent on war, 21.12 billion pesos, approximately 11057 million dollars, while only 13.9% will be invested in education, some 20.58 billion pesos - equivalent to 10774 million dollars”, indicates Blanca Cecilia Gómez, from the Colombian Coalition (read the full analysis here). The author also affirms that “in the case of Colombia, 95% of the earmarked budget for education is allocated to pay teachers’ salaries , and only the remaining 5% is allocated to infrastructure and improvement of quality. This does not mean that teachers actually earn very good salaries; quite the opposite, resources are few, barely managing to pay for the teaching staff’s wages”.
According to the report Free Education is a Right, published by the Ombudsman’s Office, in 2008, 73.77% of the 1098 municipalities of the country charged fees for “complementary services” such as the systematization of grades and bulletins, report cards, appointment books including the rulebook for coexistence, certificates and certifications of any kind, among others.
After the decision of the Constitutional Court, the director of the Department of Provision and Equity of the Vice-Ministry of Preschool, Basic and Secondary Education, Patricia Camacho, stated in an interview with the press agency COLPRENSA that “the free education programme is already being implemented across the country and, specifically, 70% of enrolment fees is covered, not only in primary but also in secondary education”. The officer affirmed that “5.326 million students benefit from this programme” aimed at achieving free education and run by the government since 2008.
Furthermore, Camilo-Ernesto Castillo-Sánchez and Ethel-Nataly Castellanos-Morales, from Universidad del Rosario, affirm that “subsidies for low income families do not seem efficient enough in achieving the access of all children to primary education. On the contrary, a universal free education policy allows school to become a space for citizens to meet, where children from different social classes are able to interact and commit themselves to protect a public good”. Moreover, “it is important to recall that education, at constitutional level and in international human rights treaties as well, is dimensioned as a right and not as a commodity” (read the full analysis here).
However, the law opens a space for an interpretation according to which schools should charge academic fees to those who can afford them – something that the National Government, the territorial entities and the official education institutions have been doing indiscriminately – as shown by the above mentioned case of Sterlin. Even if this boy managed to complete his studies at 15 years of age – and thanks to a social project called Círculos de Aprendizaje (Learning Circles) – he is still the exception that proves the rule.
The next challenges – Despite the victory obtained at the Constitutional Court, challenges are still numerous. According to Ilich Ortiz, former coordinator of the Colombian Coalition, “the issue revolves around the constitutional acknowledgement of the open illegality of school fees charged to families. These fees, until just before the Court’s decision, were fully endorsed by the education law. This was true even for families with children in primary school, which fully contravenes the content of the right to education agreed upon in all international pacts”. Nonetheless, “the constitutional decision does not solve per se the real problem faced by rectors, principals, teachers and children when they find that their school is not sufficiently financed. In this regard, several studies have shown that the Colombian education basket is underfinanced in at least 40%; this percentage has to be financed by families or else schools with the resulting deterioration of the education process. In order to improve the real conditions, the government – at the same time that it stops collecting fees – must allocate fresh and sufficient resources for the education process to have the adequate conditions so that this right is fulfilled. Over the last years, public policy has actually developed along the inverse path, with legislative actions promoted by the executive power, which stopped conspicuously the growth of the resources that should have been allocated to education” (read the interview with Ilich Ortiz here).
The next steps consist in advocating for the immediate enforcement of the Constitutional Court’s decision on the part of the Government, making the most of the political opportunity posed by this new jurisprudence to open up a broad national public debate – from schools to the Congress – about the financing of education and State’s responsibility in it.
The Colombian case shows how it is possible to activate the vast legal framework in favor of all students, their families and all people, bearers of the human right to education, urging States to fulfill their commitments to education. The Campaign for Free Education carried out by a wide group of civil society stakeholders in Colombia, and led by the Colombian Coalition for the Right to Education, is a clear example of the results that can be obtained when a plurality of national and international stakeholders get together and do networking to set changes in motion under the human rights framework. According to Ilich Ortiz: “The role played by CLADE at regional and international levels through its justiciability initiative has been key, by contributing with the instruments and networking that otherwise would not have been available for the process. Furthermore, academic and professional analyses were crucial such as the ones conducted by DeJusticia, Centro de Estudios Escuela para el Desarrollo/ Center for Studies - School for Development (CESDE, for its acronym in Spanish), and the International Human Rights Clinic of Cornell Law School regarding the legal framework and the financing of education, and free education in particular. All these contributions were interlinked to nourishing and strengthening civil society, articulated around the Colombian Coalition”.
Access here the communiqué issued by the Colombian Constitutional Court (in Spanish).
Access the demand for free education in Colombia (in Spanish).
“Estado de la Situación del Derecho a la Educación en Colombia". Read here the analysis by Blanca Cecilia Gómez (in Spanish).
Read here the interview with Ilich Ortíz.
View here the analysis by Camilo-Ernesto Castillo-Sánchez and Ethel-Nataly Castellanos-Morales (in Spanish).