Does the Right to Education have a Corresponding duty not to fail?

There is a very huge erroneous belief about failure, especially in academic circles today. Often times, it has shattered dreams and on various occasions blown away people’s self esteem. This delusion grows bigger with each level of advancement and so does the desire to pass. I have on a number of instances interacted with students who have been through schools that divide classes according to performance, create separate schedules for those considered weak and also go ahead to demand extra pay for the “slow learners” as they are often tagged. I for one think this is very wrong and have my reasons and it is this that has driven many out of school but also helped a few others succeed. But the question we need to answer today is, can there be a limit to such often misguided acts? Acts where certain students can’t be registered in a school for fear of making bad grades that may taint the school’s image, acts where others are not allowed to sit final exams by Uganda National Examinations Board (UNEB) because they have not passed internal school exams and many other acts of such a nature. I understand schools have a standard but to what extent do they exercise this standard?  Only last week, Hon Justice Stephen Mubiru pronounced himself on this matter in the case of Ayikoru Gladys vs The Board of Governors of St Mary’s Ediofe Girls Secondary School. I think this is a very welcome judgement especially in this era of cut-throat competition between schools at final examinations that has seen many come up with ingenious approaches of upstaging the system at the expense of the students.

This is a case where Gladys after being promoted to Senior Four at Ediofe Girls, was asked to sit what was called a pre-registration examination that would then qualify her to be registered for UNEB at the end of the year. She failed the said examination and the school henceforth refused to register her, prompting her to find another school. The basis of their refusal was premised on the fact that she was a very weak student who would taint the image of the school with her bad performance. They also offered her an option of allowing her attend classes at the school but be registered elsewhere. Justice Mubiru while castigating the actions of the school held that the school has acted arbitrarily and their actions amounted to discrimination towards Gladys. He ordered the school to pay 10 million in damages for all the suffering caused to her.

I must begin by saying that the case of Gladys was a very unfortunate one, it is however not only her who has gone through such a traumatizing and humiliating experience, but thousands others who have not had the opportunity of making formal complaints. However, we need to take a look at the legal regime of the right to education to clearly ascertain if it comes with an obligation to be wise or dull or a struggling student or perhaps a slow learner.

Article 30 of the Constitution which is the leading authority on this matter provides for a right to education for every person. It is on the basis of this that various acts of Parliament are founded to create the various academic stages. The Education (Pre-Primary, Primary and Post Primary) Act and the University and Other Tertiary Institutions Act are the main Acts that put in place all the existing major learning stages that exist in the country today. On the international plane, the UNESCO Convention against Discrimination in Education has provided explicitly for non-discrimination in the education sector, Article 17 of the African Charter creates a right to education and the UN Committee on Economic, Social and Cultural Rights has stated that education is a fundamental right that affects the growth, development and welfare of human beings, and as a human right, education is the primary vehicle by which economically and socially marginalized children and adults can lift themselves out of poverty and obtain the means to participate fully in their community. If there is a requirement for everyone to receive a basic education, how then does it fit within the standards that are set by certain schools and don’t their acts of registering their students elsewhere amount to discrimination? Does it also call for a certain level of brilliance to achieve this right?

Justice Mubiru in his very powerful judgement says that discrimination that is intrinsically morally wrong occurs when an agent treats a person identified as being of a certain type differently than he or she otherwise would have done because of unwarranted prejudice against persons of that type. He goes on to say that wrongful discrimination occurs when one is led to defective conduct toward another by unjustified hostile attitudes toward people perceived to be of a certain kind or faulty beliefs about the characteristics of people of that type. It is this that gives us an impression of where the acts of these schools fall. It is important to note that much as I may be against the separating of classes according to performance for personal reasons like lowering of esteem, it doesn’t in and itself come within the ambit of discrimination. This is basically because the motive is on helping the weaker students get to the same pedestal with the brighter ones, perhaps with more input and as the learned judge says, the disparate treatment is not motivated by feelings of resentment, detestation, hostility, prejudice, spite or malevolent ill will. Schools function as facilitators of teaching and learning and that necessitates multiple types of assessment to further society’s interests in educating its young people. It is clearly in the school’s interest to design a system that will permit excellent teaching and learning. More so, segregation in a school environment is not always negative. The provision of separate educational facilities, or by other discriminatory means, separation for special treatment or observation of individual students from a larger group for their benefit, such as segregation of gifted children into accelerated classes or remedial classes for those who are not equally gifted, is clearly responsive to their varied abilities and designed to enhance their skills optimally.

Justice Mubiru argues and I entirely agree, that in a school environment, students often identify themselves with a multiplicity of formal groups such as clubs, classes, sports teams as well as informal ones such as discussion groups, peer or friendship groups etc. Identity groups may also emerge on the basis of academic performance, hence the coining of the phrase “slow learners”.  He went on to say that although group identification is not always based on competition, identification is based on social comparison. Group identity is part of how people feel about themselves. These powerful emotional reactions and connections may produce feelings ranging from pride to prejudice. In situations involving intergroup competition, members may distance themselves from a group when it is performing less well than others. Group identity, precisely by creating an “us versus them” mentality, can produce conflict, discrimination, and prejudice in the school environment. Social identity theory states that the in-group will discriminate against the out-group to enhance their self-image. It is visible in various academic spheres today, that the administration and the teachers too often side with the “in-group” (who are the so called brilliant) as against the “out-group” who they consider as dull (as if it was a choice) and lazy and therefore can be done away with. It is therefore wrong to “ferry” students to be registered in other schools for fear of “contaminating” your grades because then it is a deliberate attempt to sideline them at the expense of the brilliant ones. And as the learned judge rightly points out, this is a vice that will lead to disproportionately targeting persistently low-performing students for expulsion from schools. There is no choice in being dull and therefore education is a right for us all!