COVID-19 lockdowns have had momentous impact on children’s lives worldwide and in particular on the right to education. Save the Children reports that more than 1.6 billion learners globally have faced school closures due to the pandemic, resulting in at least 10 million children not returning to school.[1] Among key international stakeholders, there appears to be a consensus that the problem is lack of access to remote education.
Photo: Lucas Law via Unsplash
In the context of COVID-19, academics, policymakers and activists have given significant attention to digital learning and to the right to education.[2] However, the interlinkages between the two have been subject to little critical scrutiny. In this commentary, we interrogate how the problem of lockdowns as a barrier to education—and the proposed solutions to overcome this barrier—are defined, and the consequences for children’s right to education. Our argument is that a framing of remote learning, connectivity, and access to hardware as the solutions to lockdown unduly privileges certain understandings of how children’s right to education are violated.
We argue that the trend towards digital learning entails a platformization of education, engendering new problems, with respect to discrimination, data protection, the freedom of speech and of thought, and the right to culture. In combination, these digital platforms represent a fragmentation of the right to education. In contrast to the comprehensive and holistic understandings of the right to education developed by the UN treaty bodies, the fragmentation entails splitting the right into components, with “equal access” taking center stage. In the following piece, we consider the right to education in international law; explore the framing of the COVID-19 education challenge; and discuss how the focus on reachability and platformization—i.e. digital access—may adversely affect children’s rights. We hope that this analysis can also provide pointers for a post-COVID-19 research agenda on the right to education.
1. The right to education in international law
The right to education is articulated in several international human rights documents, most prominently the Universal Declaration on Human Rights article 26,[3] the Convention on the Rights of the Child (CRC) articles 28 and 29,[4] and the Covenant on Economic, Social and Cultural Rights (CESCR) articles 13 and 14. [5] Setting out to clarifying the scope and content of the right, the UN CESCR Committee adopted a “General Comment” in 1999. The Committee relied on its standard 4A-criteria: Availability, accessibility, acceptability and adaptability.[6] Functioning institutions and programs must be available in the state, but also physically and economically accessible for all—without discrimination in law or in fact. Acceptability requires that its form and substance, including curricula and teaching methods, is relevant, of high quality and culturally appropriate. Adaptable education is flexible enough to meet changing needs of societies, communities and students. The Committee emphasized that these four were “interrelated and essential features” for all forms of education.[7]
Rights discourses were not the only factors shaping global policies around education. A long-term staple of development programming, education has been increasingly included in humanitarian response.[8] In 2000, UNESCO, UNICEF, UNHCR and the International Rescue Committee co-founded the Interagency Network for Education in Emergencies.[9] These efforts to fit education into the humanitarian agenda emphasized urgency and humanitarianism, rather than rights, and framed education as “a service that could be packaged” like other forms of packaged emergency aid. The focus on service delivery distanced education from politics, and rhetorically, access was prioritized over quality.[10] The “Education Cannot Wait” fund, launched at the World Humanitarian Summit in 2016, also emphasized the need for convergence of humanitarian and development approaches to education in emergencies and protracted crises. While human rights occupied no prominent place in the founding documents, it was central in the UN’s recently adopted Social Development Goal 4 on “inclusive and equitable quality education … for all.”[11]
A convergence between humanitarian discourses on education in emergencies and human rights-based approaches to education initially surfaced in 2008. The then UN Special Rapporteur on the Right to Education devoted his annual report to the topic of “Right to education in emergency situations,”[12] retaining the 4A-criteria and critiquing both donors and large sectors of the international communities for formally committing to the right to education while failing it in practice (paras 69-81). The same year, the CRC committee similarly emphasized the need for a broad rights-based approach to education in emergencies—integrating the four general principles of the CRC: “the right to non-discrimination (article 2); best interests of the child (article 3); the right to life, survival and development (article 6); and the right to be heard (article 12).”[13]
Digital learning only made intermittent appearances in these early soft law documents on the right to education. One example is the CESCR Committee’s brief suggestion that physical accessibility to education could be achieved not only by attendance at a neighborhood school, but also via “modern technology.”[14] A sustained discussion of digitization and children’s rights only emerged around 2014, as the CRC organized a Day of General Discussion on “Digital media and children’s rights.”[15] A draft general comment from CRC on “Children’s rights in relation to the digital environment” is still under development.[16] The current draft, from August 2020, underlines the importance of quality and privacy concerns in digital education.[17] However, the Committee also suggests the potential of digital educational technologies for “children not physically present in school or living in remote areas or in disadvantage or vulnerable situations.”[18] This point echoes the Committee’s earlier statements on the role of digital media as a possible alternative to formal schooling for specific groups of children.[19] Thus, the Committee states, “At times of, for instance, public emergency or humanitarian situations, access to health services and information through digital technology may become the only option.”[20]
Hence, the relationship between the right to education and the global turn to technology-enabled distance learning is both in transition—and in need of further unpacking.
2. Framing the problem: Education during COVID-19 in international law and policy instruments
From the outset of the pandemic, a range of global actors has been involved in providing policy advice.[21] A rapidly growing body of fact-sheets,[22] reports,[23] and compilations of online resources [24] have contributed to framing the problems of education during COVID-19. The absence or immaturity of digital transformation of education has been a key element.[25] In this section, we map out key understandings in current policy discourse on violations of children’s rights. In Section 3, we identify a set of issues critical to children’s rights to education missing from this conversation.
In the specific logistical context of lockdown, limited and unequal access to internet and hardware (“reachability”), as well as inadequate digital transformation of education more generally (including a lack of policies on digital learning) are the key features of the problem. UN Agencies and INGOs have repeatedly pointed out that the access to connectivity that exists is highly unequal and divided along a range of dimensions: between high- and low-income countries,[26] between poor and wealthy inside countries,[27] between rural and urban areas, and affecting girls in particular.[28]
Specific solutions emerge from this problem-framing. Actors such as the World Bank and OECD present remote learning as central, and technology as “one of the most critical tools.”[29] This framing reflects broader trends concerning intersections of technology with the human rights field, as well as the emergency education field.[30]Technological solutionism is premised on a view of technological progress as inevitable, apolitical, and able to mitigate political, economic, social, and cultural forms of human suffering. Self-responsibilization through technology involves an increasing emphasis on individuals actively taking responsibility—though technology—for their own welfare, health, education etc. An integral part of the framing is the opportunity to learn and experiment with educational technology.[31] The framing of tech solutions also distracts from the deficiencies that led to an inadequate “pandemic responses in the first place, such as broken public systems, lack of trust, or social inequalities.”[32]
While a prominent component of the global discourse on education and development, rights-based approaches have been remarkably absent from the COVID-19 statements on education by international actors. Where rights-based arguments are made, such as in the recommendations by UNESCO and the International Commission on the Futures of Education[33] and the UN Secretary General’s policy brief on “Education during COVID-19 and beyond,”[34] it is for the definition of the right to education to be expanded to also include “connectivity entitlements.”[35]
Statements from human rights institutions appear to make a similar shift: away from a comprehensive and holistic understanding of the right to education, towards a narrower focus on access. In March, all the human rights treaty bodies emphasized the equality in access in a joint statement on COVID-19.[36] Echoing this approach, the COVID-19 statement from the CRC (para 3) emphasizes inequalities in access, foregrounding online learning as the main tool, and alternative solutions as safety nets for those without tech tools and internet connectivity.[37] While the CRC Committee’s draft General Comment on “Children’s rights in relation to the digital environment” mentioned above encompasses a nuanced approach to technology,[38] the COVID-19 statement thus perpetuates an ‘access first’ focus with respect to emergencies. The CESCR Committee’s COVID-19 statement takes a similar approach.[39]
A notable exception is the Special Rapporteur on the right to education, who in the annual report for 2020 gave attention to problematic dimensions of digitalization of teaching. Going beyond issues of connectivity and access, the report points out “the patent global lack of preparedness for a crisis of this magnitude,” as well as the risks involved if temporary measures, such as reliance on distance learning and private actors, become permanent.[40]
3. Privatization, platformization, and children’s rights
As education has become an emergency matter, educational technologies have been positioned as a frontline emergency service. Edtech actors are “treating COVID-19 as a business opportunity to prove its benefits, extend its reach and grow market share,” with the dual aim of providing “a short-term response to the pandemic and a long-term ambition for whole education systems.”[41] The Special Rapporteur emphasizes that “the massive arrival of private actors through digital technology should be considered as a major danger for education systems and the right to education for all in the long term.”[42] To contribute to a future research agenda, here we identify three critical knock-on impacts on children’s rights.[43]
The first issue concerns how discrimination is exacerbated in the education context through two interlinked trends: platformization and privatization. The rise of corporate and state-controlled platform ecosystems[44] has caused concern about how the ‘platformization of schooling’ reinforces traditional exclusions, by leaving out students without access to digital gadgets or connectivity.[45] COVID-19 can also facilitate long-term privatization of education,[46] as an alternative business model is emerging: selling Edtech to students and parents in a new direct-to-consumer model of education.[47] According to critics—with whom we sympathize—thinking around digital inequalities must move beyond issues of access, and focus on supporting, regulating and designing “an inclusive digital future for us all.”[48]
The second issue relates to data protection and privacy. From a commercial—and governmental—point of view, digital education is not only about delivering educational content to children, but also about improving learning management systems and monitoring tools to track student learning.[49] Thus, in practice, digital education . The scale and depth of intrusive data collection and the involvement of additional actors raises questions about protection of children’s rights to privacy and data protection[50] and whether due diligence is undertaken to maintain the integrity of children’s digital bodies. Children’s digital bodies are constituted through the images, information, biometrics, and other data stored in digital space. [51]
The final issue arises with reference to freedoms of thought, of speech, and of access to the cultural life of the community. The values of public education, and the integrity of national or minority and indigenous education systems are affected if platformization and stated goals of ‘transforming cultures’ of education through technology[52]restructure the content of education. Technology is not neutral. An increase in personalized adaptive learning systems can undermine or reshape curricular values or flatten contextually driven approaches to education: technology platforms orient teachers to see student data as interchangeable with students, which we believe highlights the need for greater scrutiny of technology platforms’ role in the classroom.[53] We propose that while private sector actors play a crucial role in delivering education, the question of democratic process and democratic control is becoming increasingly acute—as noted by commentators, “The risk is that curricular values that have hitherto beendemocratically processed and negotiated may be replaced by de facto curricular values co-created by commercial interests and algorithmic powers.”[54]
Concluding thoughts
This commentary—which can hopefully also serve as a future research agenda—argues that the digital transformation of education through Edtech and remote learning, and the normative emphasis on access to hardware and software, fragments the right to education in ways that are precarious to the best interest of the child. As noted above, the notion of ‘building back better’ signal the experimental tenor of Edtech in emergencies. This echoes observations that emergency remote teaching has been positioned in ‘experimental’ terms with respect to what schools, the idea of education, and learning looks like.[55] At present, many policy decisions can be construed as experimental. Yet, in the context of emergency education, there are experimental attributes that go beyond the pedagogic politics of the pandemic, to serve the political and economic interests of Edtech itself. Beyond the questionable ethics underlying this type of experimentalism,[56] what is problematic here is the apparent abandonment of a holistic and multi-dimensional approach to the right to education in favor of an emphasis on digital access. At the beginning of 2021, the CRC Committee is finalizing its general comment on children and the digital environment. This document can be enormously important in putting the right to education in emergencies back on a rights track.
This piece has been reposted from the Yale Journal of International Law blog. You can find the original post here.
Notes
[1] Jess Edwards, Protect a Generation, Save the Children (2020), https://resourcecentre.savethechildren.net/node/18218/pdf/vr59-01_protect_a_generation_report_en_0.pdf.
[2] Netta Iivari, Sumita Sharma & Leena Ventä-Olkkonen. Digital Transformation of Everyday Life—How COVID-19 Pandemic Transformed the Basic Education of the Young Generation and Why Information Management Research Should Care?, 55 Int’l J. Info. Mgmt. (2020); Ellen Kollender & Maissam Nimer, Long-term Exclusionary Effects of Covid-19 for Refugee Children in the German and Turkish Education Systems: A Comparative Perspective, IPC-Mercator Policy Brief (2020), https://ipc.sabanciuniv.edu/Content/Images/CKeditorImages/20200717-00071708.pdf; Shanti Raman et al., Where Do We Go From Here? A Child Rights-Based Response to COVID-19, 4 BMJ Paediatrics Open 1 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7299026; Titus Corlatean, Risks, Discrimination and Opportunities for Education During the Times of COVID-19 Pandemic, Proceedings of the 17th Research Association for Interdisciplinary Studies Conference (June 1-2 2020), http://rais.education/wp-content/uploads/2020/06/004TC.pdf.
[3] G.A. Res. 217 (III) A, Universal Declaration of Human Right (Dec. 10, 1948).
[4] Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3.
[5] International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 999 U.N.T.S. 171.
[6] With small variations, these criteria have been used by the Committee to clarify the normative content of various rights, including housing (General comment no. 4, 1991), food (General comment no. 12, 1999), education (General comment no. 13, 1999), health (General comment no. 14, 2000, and General comment no. 22, 2016), water (General comment no. 15, 2002), social security (General comment no. 19, 2008), participation in cultural life (General comment no. 21, 2009) and scientific progress and research (General comment no. 25, 2020). They now appear as a framework of general applicability for economic, social and cultural rights.
[7] Committee on Economic, Social and Cultural Rights, General Comment no. 13 (1999), The Right to Education (Article 13 of the Covenant), para. 6, U.N. Doc. E/CN.12/1999/10 [hereinafter Gen. Comm. 13].
[8] World Education Forum, Thematic Studies: Education in Situation of Emergency and Crisis: Challenges for the New Century, UNESCO(2001), https://inee.org/system/files/resources/UNESCO_Education_in_Situations_of_Emergency_and_Crisis_2000_en.pdf; see also Dana Burde, Amy Kapit, Rachel L. Wahl, Ozen Guven, & Margot Igland Skarpeteig, Education in Emergencies: A Review of Theory and Research, 87 Rev. Educ. Res. 619 (2017); Fumiyo Kagawa, Emergency Education: A Critical Review of the Field, 41 Comp. Educ. 487 (2005); World Education Program, The Dakar Framework for Action: Education for All: Meeting Our Collective Commitment, UNESCO (2000).
[9] INEE, Minimum Standards for Education in Emergencies, Chronic Crises and Early Reconstruction, UNESCO (2004), https://www.refworld.org/pdfid/41f627494.pdf.
[10] Burde et. al, supra note 10, at 623.
[11] Susan Nicolai et. al., Education Cannot Wait: Proposing a Fund For Education in Emergencies, Overseas Dev. Inst. (May 2016), https://www.odi.org/sites/odi.org.uk/files/resource-documents/10497.pdf.
[12] Vernor Muñoz (Special Rapporteur on the Right to Education), Right to Education in Emergency Situations, U.N. Doc. A/HRC/8/10 (20 May 2008), https://www.ohchr.org/en/issues/education/sreducation/pages/annualreports.aspx.
[13] The recommendations were drafted following a CRC Day of General Discussion on “The right of the child to education in emergency situations,” where presentations were made by the INEE, UNESCO, UNICEF and the Special Rapporteur on the Right to Education. Day of General Discussion on “The Right of the Child to Education in Emergency Situations” Recommendations, Comm. on the Rights of the Child, 3 October 2008,
https://www.ohchr.org/Documents/HRBodies/CRC/Discussions/Recommendations/Recommendations2008.doc.
[14] Gen. Conm. 13, supra note 13, para. 6.b.
[15] CRC, Day of General Discussion 2014: Digital Media and Children’s Rights, OHCHR (12 September 2014),
https://www.ohchr.org/EN/HRBodies/CRC/Pages/Discussion2014.aspx.
[16] The draft General Comment on Children’s Rights in Relation to the Digital Environment is available on the Committee’s webpage, alongside submissions and comments. See CRC, Submissions on Concept of GC digital Environment, OCHCR https://www.ohchr.org/EN/HRBodies/CRC/Pages/Submissions_Concept_GC_Digital_Environment.aspx; see also CRC, Draft General Comment No. 25 (202x): Children’s Rights in Relation to the Digital Environment, U.N. Doc CRC/C/GC/, 14 August 2020, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC/C/GC/25&Lang=en [hereinafter Draft Gen. Comm. Digital Environment].
[17] Id. at paras. 111-112.
[18] Id. at para 110.
[19] Such statements have included out-of-school girls (see CRC & CEDAW, Joint General Recommendation No. 31 of the Committee on the Elimination of Discrimination Against Women/General Comment No. 18 of the Committee on the Rights of the Child on Harmful Practices, CEDAW/C/GC/31-CRC/C/GC/18, para. 64, 14 November 2014); children in street situations (see CRC, General Comment No. 21 (2017) on Children in Street Situations, CRC/C/GC/21, para. 54-55); and indigenous children (CRC, General Comment 11, Indigenous Children and Their Rights Under the Convention, CRC/C/GC/11, para. 61).
[20] Draft Gen. Comm. Digital Environment, supra note 18, para. 101.
[21] See, for example, the cooperation between the Harvard Global Education Innovation Initiative, HundrED, the OECD Directorate for Education and Skills, and the World Bank Group Education Global Practice. Lessons For Education During the COVID-19 Crisis, World Bank(22 June 2020), https://www.worldbank.org/en/topic/edutech/brief/lessons-for-education-during-covid-19-crisis [hereinafter Lessons for Education].
[22] COVID-19: At Least a Third of the World’s Schoolchildren Unable to Access Remote Learning During School Closures, New Report Says, World Bank (26 August 2020),
https://www.unicef.org/press-releases/covid-19-least-third-worlds-schoolchildren-unable-access-remote-learning-during; COVID-19: Are Children Able to Continue Learning During School Closures?, World Bank (August 2020), https://data.unicef.org/resources/remote-learning-reachability-factsheet.
[23] Fernando M. Reimers & Andreas Schleicher, A Framework to Guide an Education Response to the Covid-19 Pandemic of 2020, OECD (2020), https://read.oecd-ilibrary.org/view/?ref=126_126988-t63lxosohs&title=A-framework-to-guide-an-education-response-to-the-Covid-19-Pandemic-of-2020; Emma Wagner & Hollie Warren, Save Our Education: Protect Every Child’s Right to Learn in the COVID-19 Response and Recovery, Save the Children (July 13, 2020), https://www.savethechildren.net/save-our-education-report.
[24] See Fernando Reimers et. al, Supporting the Continuation of Teaching and Learning During the COVID-19 Pandemic, OECD (2020),
https://www.oecd.org/education/Supporting-the-continuation-of-teaching-and-learning-during-the-COVID-19-pandemic.pdf; Remote Learning, Distance Education and Online Learning During the COVID19 Pandemic : A Resource List by the World Bank’s Edtech Team, World Bank (26 March 2020), https://documents.worldbank.org/en/publication/documents-reports/documentdetail/964121585254860581/remote-learning-distance-education-and-online-learning-during-the-covid19-pandemic-a-resource-list-by-the-world-banks-edtech-team.
[25] As early as March, the World Bank’s “multi-sectoral task force,” anticipating a global wave of school closures, identified the unequal access to technological devices and high bandwidth internet as a key issue to be addressed in the preparative phase. Kalipe Azzi-Huck & Tigran Shmis, Managing the Impact of COVID-19 on Education Systems Around the World: How Countries Are Preparing, Coping, and Planning for Recovery, World Bank Blogs (March 18, 2020),
https://blogs.worldbank.org/education/managing-impact-covid-19-education-systems-around-world-how-countries-are-preparing.
[26] Wagner & Warren, supra note 25.
[27] Edwards, supra note 1.
[28] Building Back Equal: Addressing the Gender Dimensions of COVID-19 School Closures Through Technology, UNESCO (September 10, 2020),
https://en.unesco.org/news/building-back-equal-addressing-gender-dimensions-covid-19-school-closures-through-technology; see also Bridging the Gender Digital Divide, Plan Int’l, https://plan-international.org/education/bridging-the-digital-divide; Phumzile Mlambo-Ngcuka & Anne-Birgitte Albrectsen, We Cannot Allow COVID-19 to Reinforce the Digital Gender Divide, Devex (4 May 2020), https://www.devex.com/news/opinion-we-cannot-allow-covid-19-to-reinforce-the-digital-gender-divide-97118.
[29] Lessons for Education, supra note 31.
[30] Research Handbook on Human Rights and Digital Technology: Global Politics, Law and International Relations (Ben Wagner, Matthias C. Kettemann & Kilian Vieth, eds., 2019); Kristin Bergtora Sandvik, Wearables for Something Good: Aid, Dataveillance and the Production of Children’s Digital Bodies, 23 Info., Comm. & Soc’y 2014 (2020); Karen Yeung, Algorithmic regulation: A Critical Interrogation. 12 Reg. & Governance 505 (2018).
[31] See, e.g., Lessons for Education, supra note 31 (“The COVID-19 crisis is an opportunity for policy makers to learn from each other and co-operate to mitigate the effects of the pandemic and maybe even ‘build back better.’”); David Edwards & Guy Ryder, see also Reimagine Education to Achieve Quality Learning for All, UN and Partners Urge, UN News (5 October 2020),
https://news.un.org/en/story/2020/10/1074652; Teachers: Leading in Crisis, Reimagining the Future, UNICEF (5 October 2020), https://www.unicef.org/press-releases/teachers-leading-crisis-reimagining-future.
[32] Antoine de Bengy Puyvallée, Book Review: Data Justice and COVID-19. Global Perspectives, Security & Dialogue (Nov. 4, 2020),