The Main Problems Regarding the Right to Education, Equality of Opportunity, and Exam Law During the Ongoing COVID-19 Pandemic
Bilge Bingöl SchrijerThis article focuses on the possible effects of government measures against the Covid-19 pandemic on the right to education. Special emphasis is given to the principle of equality of opportunity. The first part is a discussion of the problems presented by the CESCR, CEDAW, CRC, OHCHR, and OECD concerning the right to education due to Covid-19. The second part of the article focuses on the case-law of the European Court of Human Rights on the right to education and compares previous cases to potential claims due to the pandemic. Potential claims might concern restricted access to education due to illness; unequal access to education due to disabilities or financial disadvantage; the lack of equality of opportunity in university entrance exams; and also concerns about school health services and their obligation of confidentiality. Complaints about these issues may concern government measures taken against Covid-19. Additionally, the right to education must be understood as the right to quality education. The final part of the study discusses the Turkish administrative jurisdiction and emphasizes the importance of a human rights-based approach to public order, and reviews various discussions concerning the eventual liability of the administration for losses resulting from Covid-19 measures. Finally, these claims are examined through a review of different examples, concluding with suggested solutions to the identified problems.
COVID-19 Salgını Süresince Eğitim Hakkı, Fırsat Eşitliği ve Sınavlara İlişkin Temel Problemler
Bilge Bingöl SchrijerÇalışmanın amacı COVID-19 nedeniyle okulların kapatılıp, zorunlu uzaktan eğitime geçilmesi ile birlikte ortaya çıkması muhtemel eğitim hakkı taleplerini irdeleyerek, çeşitli çözüm önerilerini tartışmaya sunmaktır. Bunun için öncelikle Birleşmiş Milletler (BM) sistemi içinde eğitim hakkının norm alanı açıklanmış ve BM’nin çeşitli insan hakları sözleşmelerinin denetim organı olan komitelerin ortaya koyduğu, COVID-19 salgınından kaynaklanan eğitim hakkı sorunlarına değinilmiştir. Çalışmanın ikinci bölümü Avrupa İnsan Hakları Mahkemesi’nin eğitime erişim kısıtlamaları ve eğitime erişimde ayrımcılık konuları hakkındaki içtihatları ile COVID-19 salgını nedeniyle ortaya çıkması olası güncel eğitim hakkı taleplerini karşılaştırmaktadır. Burada dikkati çeken hususlar eğitime erişim engelleri, eğitime erişimde fırsat eşitsizliği, üniversite sınavları ve fırsat eşitsizliği ve okul sağlığı hizmetleri ile okullarda sağlığa ilişkin bilginin gizliliğidir. İleride COVID-19 salgını süresince alınan önlemler nedeniyle, bu alanlarda uyuşmazlıklar ortaya çıkabilecektir. Bir diğer husus ise uluslararası hukukta eğitim hakkından değil, nitelikli eğitim hakkından söz ediliyor olmasıdır. Çalışmanın son bölümü Türk idare hukuku açısından hak ve özgürlük temelli kamu düzeni yaklaşımının önemini vurgulamaktadır. Bununla birlikte bir kamu hizmeti olarak eğitim alanında idarenin kusursuz sorumluluğu ile kusur sorumluluğuna ilişkin tartışmalar da ileride ortaya çıkacaktır. Bu hususlar çeşitli örnekler üzerinden irdelenmiştir.
This article focuses on the possible effects of legal measures that have been taken during the Covid-19 pandemic on the right to education. Special emphasis is given to the principle of equality of opportunity. The first part of the article emphasizes the scope and meaning of the right to education in the context of contemporary developments. According to General Comment No. 13 of the UN CESCR, state parties guarantee an education which in all forms and at all levels demonstrates the four interrelated features of the right to education: availability, accessibility, acceptability, and adaptability. The most recent General Comment No. 25 of CESCR stresses the effect of new technologies and scientific developments on economic, social, and cultural rights. Therefore, it highlights potential inequalities between different social groups in terms of their access to the benefits of scientific inventions and technology. CEDAW, OHCHR, and OECD have published reports on gender-based inequalities during the pandemic and have called for immediate remedies to genderbased violence, girls’ disadvantaged educational access, and working parents with children. Turkey should consider arranging all the regulations based on appointments and re-appointments in all performance-based work systems and prolong the periods of re-appointments up to six months or one year. Immediate solutions should focus on the most disadvantaged groups in Turkish society.
The second part compares previous ECHR precedents and the possible breaching of the right to education during the Covid-19 pandemic. For this purpose, four potential claims to the right to education will be classified. First, the restriction of access to education is due to a highly contagious disease. In the case of Covid-19, a person might be positive but show no symptoms. Therefore, the ECHR has acknowledged legitimate reasons for restricting the right to education including protecting public health and the rights of others. Although the ECHR also emphasizes the negative obligation of state parties according to Article 2 of Protocol No.1, unpredictable restrictions in access to education (such as undefined periods or a lack of certain processes) might cause the right to education to be breached (Memlika vs. Greece Case). Students must have sufficient opportunities for distance education and attending exams. The second potential claim is discrimination based on disabilities or financial status that limits access to distance education. The third potential claim is inequality of opportunity during university entrance exams. This claim was made recently in a case in Berlin, Germany. A school student who needed to attend the Abitur claimed that equality of opportunity was not upheld since she was unable to focus on her studies due to her home circumstances. Although the federal administrative court rejected this claim, it fundamentally agreed that Covid-19 measures did create inequalities of opportunity. At the same time, the court stated that the examinations administrators would not be obliged to provide absolute equality; rather, its emergency regulations were in place to ensure the healthiest possible conditions for exams. States are expected to take appropriate measures based on the latest scientific developments to secure equality of opportunity during exams. Therefore, special and separate rooms for the candidates from at-risk groups should be provided during the exams, so that they are not obliged to wear masks. In Turkey specifically, universities should provide more flexible solutions for grading students. There have been several claims that the availability of the internet and the related technology required was limited. The fourth potential claim addresses school health services and the school health service provider’s obligation to protect confidentiality. Students’ personal health data should only be disclosed to those individuals who need it to inform appropriate measures for the sake of the individual and others in the school. Turkish schools are not obliged to provide medicals; however, this might be necessary during the next semester to fight the pandemic and should be introduced in educational codes. An additional claim that might occur is the right to quality education.
Finally, this article focuses on discussions of Turkish administrative law. Health is one element of public order. In practice, maintaining public order often goes along with limiting human and civil rights. However, a human rights-based approach must be applied when maintaining public order. The Turkish administrative jurisdiction acknowledges the liability of the administration, yet it might also consider Covid-19 a force majeure and dismiss claims for compensation. In any case, the obligations of the administration to take preventive measures against risks and establish an organization for reducing risks endure.
