Ford v. Browning
The case emphasised that complying with due process is imperative when proposing constitutional amendments that would impact public funding of education, and which may make it possible to transfer public funds into private educational institutions. Such proposed amendments must be accurately communicated to the voters and explicitly formed in the documents. Transfer of public funds into private educational institutions was considered to be an important decision that cannot be taken without taking all the system of democracy into account. Read More
Michael Mashai
Gabriel Nyabola v. Attorney General & 2 others
This case clarified that under international human rights law there is no obligation on the state to fund private schools. The provision of resources to public schools only does not amount to a violation of the right to education or discrimination against children in private schools. The distinction is acceptable as it seeks to achieve a legitimate aim: the progressive realisation of the right to education for all children. Read More
Ashina Mtsumi
Bush v. Holmes
The decision in this case illuminates the extent of the state’s responsibility of provision of free education. Parents’ freedom to choose to send their children to private school was upheld but clarification was made on the implications of such choice - public funds could not be set aside to fund private education. Read More
Ashina Mtsumi
Scavella v. School Board of Dade County
The court upheld the right to free public education and the right to equal protection under the law. This judgement supports the use of public funding to subsidise private schools while cautioning that this should only be done in extraordinary situations where no alternative is available. Further, the court in this case permits states to reasonably regulate and cap the amount of public funding going into private schools. Read More
Ashina Mtsumi
Zelman v. Simmons-Harris
The Court clarified that in a voucher system offering participants a true choice of schools to attend including religious, non-religious and public schools, the preference for religious schools in a context where most of private schools are religious, cannot be considered an endorsement of such schools. The choice made by parents was distinguished from the state’s endorsement of religious private schools. Read More
Ashina Mtsumi
Norwood v. Harrison
The court affirmed that while private schools may operate, there is no obligation to the state to provide assistance to private schools equivalent to the assistance provided to public schools. Further, where there is a constitutional provision prohibiting financial support to students in private schools that discriminate on the basis of race, the state could not provide resources (in this case textbooks) to private schools that discriminate on the basis of race. Read More
Ashina Mtsumi
Lujan v. Colorado State Bd. of Educ.
Although the judgement was in favour of Colorado’s school funding system, question of the adequacy of the such a system remains unsolved. It is noteworthy that the Supreme Court remarked that they were in no way endorsing the finance system but merely ruling on whether or not it was constitutional. Read More
Michael Mashai
Decision N ° 356813, Council of State, 3rd / 8th SSR, 07/05/2014, 356813
The Code of Education establishes a declaratory regime for opening of private schools. The liberal character of this regime derives from one of the fundamental, constitutionally protected freedoms – freedom of education, encompassing amongst other the freedom to open schools. Hence, an opposition to such a declaration should be considered exceptional and the competent local authorities can only resort to it under the circumstances specifically foreseen by the Code of Education. The Council’s decision on the exhaustive character of the list of these circumstances considerably limits the power of local authorities, protecting the freedom of education from potentially abusive restrictions. This case reflects a growing tension between attempts of local authorities to prevent multiplication of private schools without State contracts with the initial will of the legislator to protect the liberty of establishment of schools. Read More
Michael Mashai
Decision 2016-745 of the French Constitutional Council from January 26th 2017
The Constitutional Council blocked a legislative attempt to allow the Government to impose a stricter control on establishment of private schools. The Court reiterated that such measures are to be undertaken by the primary legislator or, in case of a recourse to the ordonnances procedure, greater transparency is to be ensured. The Constitutional Court’s decision to strike down the law as unconstitutional prevents the primary legislator (i.e., the Parliament) from delegating to the executive (i.e., the Government) the power to decide on such a major issue as freedom of education. Although such transfer of competences remains legally possible (via the aforementioned regime of ordonnances) the Court reaffirmed its restrictive character, reiterating the need for further guidance from the legislature and the strict requirement for greater specificity and precision of actions from the executive. Read More
Michael Mashai
Forest Grove School District v. T. A
The Supreme court of the United States of America held that Federal Courts had discretion in providing equitable relief to an individual with a disability who could not find appropriate education facilities within the public-school system by providing for reimbursement for private education. That a school district had the duty to provide free and appropriate public education, but where it failed to do so such an individual has the right to access education at the expense of the State Read More
Sarah French
Norwood v. Harrison, 1973
In the context of the increased use of segregated private schools in Mississippi during desegregation of public education, the Court clarified that while private schools may exist and operate, the State is not obliged to fund these schools. Read More
Michael Mashai
Zelman, Superintendent of Public Instruction of Ohio, et al v. Simmons-Harris et al (2002)
The Court clarified that in a voucher system offering participants a true choice schools to attend including religious, non-religious and public schools, the preference for religious schools in a context where most of private schools are religious, cannot be considered an endorsement of such schools. The choice made by parents was distinguished from the state’s endorsement of religious private schools. Read More
Michael Mashai
Scavella v. School Board of Dade County 363 So. 2d 1095 (1978)
The Supreme Court of Florida acknowledges the right to free public education and the right to equal protection under the law. This judgement supports public funding of private schools’ programmes, however, the Court points out that this should only be done in extraordinary situations and where no alternative is available. Significantly, it sets precedent for allowing states to reasonably regulate and cap the amount of funding going into private schools. Read More
Michael Mashai
Gabriel Nyabola v. Attorney General
This case clarified that under international human rights law there is no obligation on the State to fund private schools. The restriction of government funds to public schools does not amount to a violation of the right to education or discrimination against children in private schools. The discriminatory treatment is acceptable as it seeks to achieve a legitimate aim; the progressive realisation of the right to education for all children. Read More
Michael Mashai