Religious and Non-Religious Minorities, State Neutrality and Access to Public School Education

State duties in the area of education consist of obligations to refrain from interferences but also, importantly, of obligations to proactively guarantee availability and access. Negative state obligations in the present context are clear and hardly disputed: public school education, it goes without saying, should be open to all children regardless of religious affiliation. The state may not interfere with someone’s right to education by barring this person from public school education on account of his or her (parents’) religion. Also, in terms of negative state obligations, the state must respect the right of parents not to avail of the schools Abstract: 262 established by the public authorities and their right to (establish or) opt for private educational institutions ––i.e. denominational schools–– so as to ensure the religious and moral education of their children in conformity with their own convictions. Turning to positive obligations, if the state is to respect every child’s right to education, it must at the very least make available free primary education to all. Although on the face of a self-evident notion, state practice shows that implementation of this norm leaves a lot to be desired. It is argued in this paper that the international standards on the right to education imply that the state is under a positive obligation to ensure that sufficient public schools with appropriate curricula are available at all times. A number of states, for different reasons, fail to properly implement this norm. This paper addresses the main failures and objectionable policies that can be discerned in the field of public school education that affect the rights of religious and non-religious minorities, including the following state practice: • Religious education is made compulsory for children; • The state has ‘contracted out’ the issue of education to religious institutions, thus not actively making available sufficient adequate ––in terms of international obligations–– education; • The state fails to frame a supposedly neutral subject on religion truly in a non-confessional manner; • The state practices defective opt-out policies; • The state tolerates traditional forms of religious symbolism, affecting the compulsory non-confessional character of state schools; or: • The state de facto bars access to public school education by virtue of other policies, for instance regulations on dress codes. This paper is intended to assess relevant state practice so as to identify contemporary obstacles to access to adequate public school education with a particular focus on the rights of religious and nonreligious minorities. The principal objective of this paper is to formulate recommendations, informed by the emerging notion of state neutrality in public school education, to overcome such obstacles. This paper will, at the same time, scrutinize the rationale and justification of the emerging norm of state neutrality

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