Migration & Equal Opportunity in Education – a human rights law analysis

Belgium is a country of immigration. Labor migration, colonial migration, the arrival of different international institutions and membership of the EU, have brought a growing amount of non-Belgians into the country. Their influence on Belgian demographics is significant, most importantly so among children. Almost thirty percent of Flemish children have a foreign background, with ten percent having no Belgian nationality. However, the Flemish educational system has only in a limited fashion been adapted to these changes. In ‘Migration and Equal educational opportunities: a human rights analysis’, different aspects of this problem have been examined.

Firstly, the book studies the absence of schools organized by members of minority communities. Only a handful of projects exist, which is remarkable considering the long tradition within international human rights law of protecting the freedom of education. This freedom is considered to be an important guarantee that educational projects can be developed that are adjusted to the needs of minorities, including communities with a migration background.  More than in most states, the Belgian constitution contains guarantees to realize this educational freedom, a.o. by guaranteeing access to subsidies. In practice however, only a handful of projects see the daylight, suggesting that these guarantees are insufficient.

This research project has evaluated the existing legal framework by interviewing all aspiring providers of education from communities with a migration background who have sought recognition and subsidies from the Flemish Community. That analysis has uncovered different obstacles: finding suitable buildings for the project, bringing together qualified teachers and gathering sufficient funds seem important bottlenecks. Providers also have to tackle these obstacles in a very short period of time: the recognition procedure forces them to comply with all conditions early on, in order to get access to funds. It does not provide a track that really allows them to gradually work towards recognition; one misstep could cause a negative decision. The result is that aspirants become more dependent on (local) governments, and their goodwill. In case they lack this goodwill, which seems to be the case for Islamic initiatives, they are at a significant disadvantage.

Secondly, this project studied the development of language policies in Flemish schools. Starting in the 90’s, different initiatives were taken to integrate children with a migration background in the Flemish educational system, mostly by promoting the education of the official language, Dutch. That goal is grounded in human rights law, considering it provides children with the perspective of successful integration in society. At the same time the method to reach that goal, education in Dutch, is disputed. A growing body of research suggests that education that includes pupils’ first language, can boost learning opportunities. This has many argue in favor of the inclusion of other languages than Dutch in the Flemish educational system.

This new understanding on the use of first languages, should shed a new light on how we interpret the right to education. That right, contained in the ECHR and ESC-Covenant, requires states to adjust their education to the needs of their pupils. That means that states have the obligation to work with the first languages of children in education. Traditionally, it is accepted that an interpretation that recognizes an automatic, individual right to education in or of the first language, is disproportionate. Therefore, this project proposes an alternative approach, that of a sliding scale. It proposes to consider, among other things, the sustainable presence of a community, their size and concentration, and the individual needs of pupils.

That sliding scale entices import consequences for the Flemish context. It asks that the Flemish Community also creates space for first languages in its education. An important first step would be to create more leeway for education providers who would like to work with first languages, to do so. At this point, providers are limited by the existing legal framework, which forces them to stick with Dutch for educational purposes, and makes it very difficult to teach other first languages.

The right to education, but also the freedom of education, require this legislation to be adjusted. The right to education of children with a migration background would benefit from allowing schools more liberty to draft their own language policies. The Council of State’s advisory practice, shows that our constitution allows for policies that find a better balance between territoriality on the one hand, and the right to and freedom of education on the other hand. Crucially, the freedom of education seems to prohibit the Communities from limiting the educational freedom as they do now. As the Constitutional Court has found, policies for recognition and subsidization cannot lead to the erosion of the freedom of education. Yet current policies seem to do exactly that, by fully taking away schools’ liberty to make choices on language (education). The choice of language is a fundamental methodological choice, and providers are supposed to be able to freely choose their methods of education – as enshrined in the 1958 School Pact.

This book puts the ball in the court of different legislators: they should intervene to make sure that the Belgian educational systems can adjust to the needs of children with a migration background. In the meantime, it is up to judges to include the findings of this research project into case law on education and diversity. Increasingly, matters regarding the establishment and recognition of schools lands on their plates. In addition, pupils and parents ask judges to assess individual school policies that seem to conflict with their needs. The arguments in these cases often build on misconceptions; misconceptions that this work helps remedy. One example is that schools and governments often argue, and judges hold, that parents and children can always find or start another school where there preferences are respected. However, this project shows that the establishment of own schools is not as straight-forward as it seems, showing the malfunctioning of the educational market. Hence judges need to more critically assess which schools exist, and if what is on offer does not accommodate the pupil’s or parents’ preferences, they must ascertain that non-accommodation does not create a disproportionate limitation to the access to quality education.