Access to Higher Education and Equality of Opportunity in Education Ryo SASAKI Project manager of RIJUE, Hiroshima University Adjunct lecturer of International and Public Law, Atomi University LLM in International Human Rights Law (York)

Focus of previous research Studies on the right to education more focuses on primary and secondary education Studies on higher education policy and management oriented lack of perspectives of ‘education as a right of individuals’ → Studies on higher education also requires viewpoints of ‘education as individual rights’

Legal framework (1) Article 26 of the Constitution of Japan (1) All people shall have the right to receive an equal education correspondent to their ability, as provided by law. All people shall be obligated to have all boys and girls under their protection receive ordinary education as provided for by law. Such compulsory education shall be free.

Legal framework (2) Article 13 of the International Covenant on Economic, Social and Cultural Rights (2) The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right [to education]: […] (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

Reservation of Japanese Government to the ICESCR Reservation – A State can exclude legally-binding effect of a particular provision of a convention which it ratifies as far as compatible with its intent and purpose Article 2 (2) (c) of the ICESCR (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; (reservation retracted in 2012)

Cf. the Convention on the Rights of the Child Articles 28 and 29 of the CRC provide the right to education but, Article 1 of the CRC, For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Hierarchical structure of legal system Constitution Ratified international treaties & established international custom Legislation by the National Diet Administrative regulation, legal act, etc.

Implementation of fundamental (human) rights through legal system Constitutional and administrative complaint in domestic courts Review of Report submitted by the State parties by a Committee established on the basis of a treaty Concluding observations by the Committee * Individual complaint to the Committee (not applied to Japan)

Core elements of the right to education Right to receive an education (access to education) Non-discrimination and equality (equality of opportunity) Academic freedom or autonomy of education

Specificity of higher education in terms of ‘equality of opportunity’ 19. The third and most significant difference between article 13 (2) (b) [secondary education] and (c) [higher education] is that while secondary education “shall be made generally available and accessible to all”, higher education “shall be made equally accessible to all, on the basis of capacity”. According to article 13 (2) (c), higher education is not to be “generally available”, but only available “on the basis of capacity”. The “capacity” of individuals should be assessed by reference to all their relevant expertise and experience. General Comment No. 13 of the ICESCR

Barriers against equality of opportunity in education Physical barriers Financial barriers Linguistic and cultural barriers [K. Singh 2011(Report of the UN Special Rapporteur on the right to education)]

Social context of higher education in Japan (1) Type of Univ. Tuition fee Admission fee National \535,800 (£3,857.80) \282,000 (£2,030.40) Local \537,857 (£3,872.60) \397,721 (£2,863.60) Private (Humanitarian and Social Sciences \746,123 (£5,372.10) \242,579 (£1,746.60) (Natural Sciences) \1,048,763 (£7,551.10) \262,436 (£1,889.60) (Benesse 2015)

Reason for giving up higher education Survey to 1,297 high schools by License Academy Co. Ltd. (2010) Students give up applying to higher education due to financial reason rather than academic outcome. Strongly Agree So-so Partially disagree Others 19.3 (%) 52.8 12.1 12.7 1.1 Why students giving up applying to higher education? [multiple answers allowed] Academic outcome Fees Parents’ expectation Occasional reason Location Subjects chosen in exam Future plan Environment of univ. Others 79.9(%) 76.3 31.5 25.4 14.2 11.5 6.8 2.4 1.1

Concerned affairs in Japan - Expensive fees (national universities are not cheap any more!) other costs Lack of scholarship system Student loan similar to debt As to internationalisation, cultural and linguistic barrier against primary and secondary education may affect accessibility to higher education

Significance of legal perspective in higher education studies Add the viewpoint of the ‘right to education’ to higher education studies/policy etc. Debates on higher education tend to be close to effective management, economical affairs, etc., but individual rights shall still be respected. Barriers against higher education are not only academic outcome or capacity but also external factors such as financial situations.

Thank you! sasaki7097@atomi.ac.jp