An analysis of the right to education in Hurley and Moore v. Secretary of State for Business, Innovation & Skills and its application in the United States.

• Published date: 22 March 2014
• Author: Melton, Emma
• Date: 22 March 2014

In the past seventy years, the idea of education as a fundamental right has spread in democratic countries throughout the world. (1) Multiple constitutions and international treaties have codified an inalienable right to education provided by the government. (2) Recent litigation has highlighted a possibility that high tuition rates for universities may effectively serve as barriers to accessing higher learning and infringe upon this fundamental right to education.

This Note will address a 2011 case in the United Kingdom, Hurley and Moore v. Secretary of State for Business, Innovation & Skills, (3) which recognized the harm of increasing higher education tuition fees to low-income students, and analyze its applicability in the United States. Part I will outline the specifics of the case, the arguments made by each party, and the holding. Part II will examine the treaties and laws under which the plaintiffs claimed a cause of action. Part III will provide an overview of the educational system in the United Kingdom. Part IV will examine the effect of the Hurley holding in the United Kingdom. Part V will argue that the United States is bound to the terms of the International Covenant on Economic, Social and Cultural Rights as a signatory. Part VI will assert that the United States is violating the terms of the treaty by failing to provide a comprehensive system for students to access loans, and will analyze outcomes in the United States should liability under the treaty be recognized. (4)

I. THE FACTS AND HOLDING OF HURLEY AND MOORE V. SECRETARY OF STATE FOR BUSINESS, INNOVATION & SKILLS

In 2011, two students in England brought suit against the government for allowing institutions of higher education to increase tuition fees. (5) As students in the lower sixth form, (6) Callum Hurley and Katy Moore wanted to attend public university in the United Kingdom the following year, but claimed the government's increasing of the maximum tuition fee limit charged by public universities infringed upon their right to education. (7) In 2010, the government had passed the Higher Education Regulations 2010, which included a 9000 [pounds sterling]-per-year tuition maximum (increased from a previous limit of 3375 [pounds sterling]) to be implemented starting in September 2012. (8) The tuition maximum raise was accompanied by other measures intended to increase access to higher education for disadvantaged students, including easier access to student loans. (9) Even with these additional measures, Hurley and Moore argued the increase in tuition was a breach of their right to education conferred by article 2 of Protocol 1 of the European Convention on Human Rights and the Human Rights Act of 1998. (10)

The High Court ruled that the tuition fee increases alone did not infringe upon the right to education as protected by the European Convention on Human Rights. (11) The court discovered that the government's debate before passing the regulation was focused on how to provide educational opportunities for students with disadvantaged backgrounds, demonstrating intent to ensure university access for all eligible students. (12) Additionally, the court found the wide availability of student loans provided by the Student Loans Company allowed underprivileged students access to higher education. (13) The court held that the fee increase to 9000 [pounds sterling] was not prohibitively high. (14) The court's decision seemed to hinge on the availability of student loans to prevent the deterrence of underprivileged students from attending university. (15) The automatic and comprehensive availability of loans was frequently cited as a targeted measure that significantly lessened the burden of loans for low-income students. While the court found the increase in tuition maximums did not infringe upon the right to education, the court nevertheless agreed with the plaintiffs that the Secretary had not fulfilled the required Public Sector Equality Duty. (16)

Outlined in the Race Relations Act and the Equality Act statutes, the Public Sector Equality Duties require officials to evaluate whether policies are discriminatory in the decision-making process before passing the law. (17) The Public Sector Equality Duty requires public bodies to have sufficient awareness of the need to eliminate discrimination, advance equality of opportunity, and foster good societal relations when designing and implementing policies. (18) While the students affected by the increased fees were defined by their inability to pay tuition, the court recognized the applicability of the Race Relations Act because of the indirect discriminatory effect such policies could have on minority students. (19) The court found that the government had not conducted a sufficient Equality Impact Assessment to determine whether the policies would significantly affect access to higher education for underprivileged students, especially from ethnic minorities or disabled households. (20)

The decision was cited in the media both as an example of the expanding reach of judicial review in the UK and the difficulty in contesting governmental budget cuts. (21) After the court's ruling, Hurley and Moore both stated they would be attending university in the United Kingdom, despite the fees. (22)

II. INTERNATIONAL TREATIES AND BRITISH LAW

The right to education in the United Kingdom is ensured by two separate international agreements. The first is the articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), actionable in British courts under the Human Rights Act 1998. (23) The European Convention on Human Rights is an international treaty that protects the human rights and basic liberties of European people. (24) It was ratified by all Council of Europe member states in 1950, with Protocol 1 ratified in 1952. (25) The applicable protection of a right to education is found in article 2 of Protocol 1, stating, "[n]o person shall be denied the right to education." (26) The committee understood this text to mean that higher education should gradually be made free through targeted policies but could remain dependent on the capacity of the individual to pay. (27) The text of the article does not specify the extent to which the right to education applies in regards to the level of education or the ease of access for underprivileged students. (28)

Courts have interpreted article 2 to apply both to universities and to monetary fees for primary and secondary education. (29) In 2004, the European Court of Human Rights found that article 2 established an obligation to afford an effective right of access to institutions of higher education in Sahin v. Turkey. (30) Addressing the right of students to wear religious headscarves in public universities, the court interpreted the article to mean that countries that have public institutions of higher learning must provide equal access to all citizens. (31) The Turkish government did not make an argument on whether article 2 applied to public universities. (32) As the case applied to religious freedom of students enrolled at public universities, Sahin established that colleges and universities were included under article 2, but did not address to what extent a monetary fee might constitute an illegal barrier to education. In 2011, the European Court of Human Rights determined that fees could frustrate the right to access education in Ponomaryrovi v. Bulgaria, (33) The court found that the Bulgarian government infringed upon the article 2 rights of two Russian boys by charging them fees for their public secondary education. (34) The court did not entirely restrict countries from charging money for public education, but mandated that a country that provided free education to some citizens could not exclude a group of people from that privilege by charging fees. (35) In dicta, the court reasoned that fees for universities were more easily justified than fees for primary and secondary schools. (36) Nevertheless, the decision firmly established that in certain circumstances a financial burden could be found to violate a student's right to education under article 2. (37) As article 2 applies to all public education, including universities, this finding gives weight to a state's duty under article 2 to provide higher education at a low cost for students. (38)

The Human Rights Act, passed in the United Kingdom in 1998, made it illegal for a public entity to act in any way contrary to the articles of the European Convention on Human Rights. (39) The Act makes any breach of the articles of the Convention actionable within United Kingdom courts, eliminating the need to pursue a remedy exclusively in the European Human Rights Court, though an individual may still pursue a claim there. (40) The Human Rights Act does not apply to Parliament when acting as a legislative body but applies to all other governmental bodies exercising public functions. (41)

The International Covenant on Economic, Social and Cultural Rights is a multilateral treaty voted on by the United Nations General Assembly in 1966. (42) Article 13 recognizes the right to education as a necessity for human dignity and a means to enable all persons to participate effectively in society. (43) In regard to universities, article 13 states, "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." (44) While the article guarantees access to education, it also states, "[n]o part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions." (45) The International Covenant on Economic, Social, and Cultural Rights has been ratified by 160 countries. (46) The United Kingdom ratified the Covenant in 1976...