The exercise of the right to education without discrimination

Education is a fundamental human right that all States must guarantee. The scope of this right is wide because it depends and has an effect on culture, on the economic situation and in political decisions, and also because the enjoyment of this right will have an effect on the social life of people from an early age (^{INEE, 2019}). In this respect, it has been stated that “it would not be possible to repair the damage caused to a person in his or her life because of the lack of an education; whoever lacks an education in their childhood and youth will for that reason be excluded from society, exposed to poverty and relegated in comparison to other citizens” (^{Latapí, 2009: 258}).

The right to education is universal and for every person, regardless of his or her age, gender, language, social or ethnic background, condition of disability, religious belief, sexual orientation, political preference, social position or any other personal or group attributes, and it is the obligation of the State to provide education to all the population without discriminating against anyone. Education is a progressive right, in the sense that it must progress gradually to achieve its effectiveness and there can be no setback or decrease in its contents, at the same time that it is demandable and enforceable, since it can be claimed before a court and be the subject of legislative, political, administrative or social measures leading to make this right enforced.

However, enforcing the full enjoyment of this right for everyone, at all times and/or in all its dimensions (recognition, protection, guarantee and demandability) under the principle of equality in a national context of inequalities and system of privilege, limited State resources and institutionalized discriminatory practices, raises serious ethical dilemmas and problems of application of administrative criteria for governments. All this and more has been at the center of an intense and polemical public discussion that starts with the current normativity around human rights (including international commitments) and the alarming evidence of a reality of exclusion from education, but also, significantly and decisively, are the historical struggles for power among the actors who participate in educational processes (government, labor unions, civil society, parents and academia, among other agents). Nonetheless, it cannot be overlooked or denied that now the debate over education y la equality is within the framework of human rights, and that the contribution of the thinking and the non-discriminatory outlook in and from the social sciences is very important.

In Mexico, education is a fundamental right enshrined in Article 3 of the Mexican Constitution, from which the General Law of Education emanated to regulate the education provided by the State (the federation, the states, and the municipalities), its decentralized agencies and the private organizations authorized or recognized through the official validation of their programs. In tune with international organizations (UNESCO, OCDE, CEPAL and UNICEF, among others), the Mexican government and its educational sector institutions coincide in asserting that education must be universal, inclusive and of good quality (^{INEE, 2019}).

According to international standards, the education provided by the State in all its forms and levels must be attainable, accessible, acceptable and adaptable. These four elements constitute the essential components of the right to an inclusive education. Attainability refers to the obligation of the State to guarantee the availability of schools, teachers, curricula and educational materials, among other resources. Accessibility involves three dimensions: non-discrimination, physical accessibility and economic accessibility, and implies that all the people, especially those who live in conditions of vulnerability, may participate in the educational system. Acceptability refers to the obligation of ensuring that the curricula and pedagogical methods follow the minimum norms established for teaching, and that these are acceptable both for the CH/A and for their parents. Finally, adaptability implies a flexible education that responds to the needs of the communities and the students in different cultural and social contexts to guarantee, among other things, the permanence of the CH/A in the educational system (^{Tomasevski, 2004}).

Although the right to education is one of the basic obligations of the State and “it is increasingly recognized as the starting point and ultimate foundation of the educational policies of the States,” Mexican legislation does not impose any sanction on the authorities who constrain or violate the right to education (^{Latapí, 2009: 256}). On the other hand, it must be mentioned that, besides the State, other actors take part who are also responsible for fulfilling the right to education, which means that its fulfilment depends on the combination of governmental policies in the first place, but also of actions undertaken by society as a whole (families, economic forces, churches, civil society organizations and the media, among others).

While it becomes clear in this discussion that education is not a merchandise and that the right to education is not restricted to the provision of a public service, the fact is that state education has been valued and legitimized as the most efficient means to achieve social development, and multiple expectations for change in society in a democratic direction are placed on it. It is widely acknowledged, and with good reason, that schools are the only institutions with the capacity and the mandate to reach all people in a systematic and direct way, and also that they represent the fundamental space for citizen socialization and for learning what is common to all (^{González Luna, 2010}).

Indeed, from a sociological standpoint, it is asserted that education “is a part of or almost a synonym of socialization” and, since the second half of the twentieth century, the educational system (schooling) is considered the “main distributor and legitimizer of the differential social positions of people” (^{Planas, 2018: 33-34}). Thus, to the culture of privilege referred to by several analysis of discrimination, we must add the instrumental and utilitarian culture characteristic of educational systems, and especially of schooling.⁴ The fact is that changes in social life, in particular those that have to do with the world of labor, have repercussions in the field of education (both formal and informal) and give rise to new educational rationales within and without the school system, which must be managed. As ^{Planas (2018)} correctly suggests, it is necessary to move from the sociology of the school system to a sociology of education that incorporates the diversity of people, rationales and methods, but also the risk. The point is then to dimension the right to education and consider the different modalities and times in which its recognition and enjoyment are at stake, beyond schooling.

In this respect, what makes school education democratic is its concretion in a place and a service in which all people find the space for the full development of their capacities. In this context, education “is public because it does not exclude anyone, and ceases to be public at the moment it segregates those who do not fit certain homogenizing purposes that seek to equal everyone into a student-type that does not exist in reality. What exists in reality is diversity and difference. They exist among students, just as they exist among teachers” (^{Sansano, 2014: 39}).

However, insofar as inequality in treatment finds its strength in the symbolic representations that individuals have of human groups, in prejudice and the processes of stigmatization of the “others”, education plays a crucial role. The facts show that discrimination is learned through the early socialization of individuals that takes place in institutions and through informal practices, but also through formal processes such as elementary education and religious indoctrination (^{Rodríguez, 2011}).

From this perspective, education is the most important right in the struggle against discrimination. It is the social right par excellence, since it synthesizes significantly the modern notions about liberty and equality, visibilizing and invigorating the exercise of all rights as a whole and of all people without any kind of distinctions.

Although the phenomenon of discrimination has been present for centuries in Mexico, it was not until the early twenty-first century that it appeared in the public sphere as a major social and political problem, and also as a juridical injunction after the Constitutional recognition of the right to not be discriminated against. The process of the construction of this right has been gradual and has had to overcome different kinds of difficulties, resulting in a legal definition:

all discrimination motivated by ethnic or national origin, gender, age, disability, social status, health conditions, religion, opinion, sexual preferences, marital status or any other that infringes upon human dignity and seeks to nullify or undermine the rights and liberties of people is forbidden” (Article 1 of the Mexican Constitution).⁵

Without a doubt, the normative structure of society is historically variable and has an influence on the ideas people have about human rights, equality and education.

The right to education and the right not to be discriminated against form an essential combination for the construction of a democratic society. These rights share principles and complement each other on the level of discourse and the norms that regulate and support them, but the fact is that their relationship is difficult and not without dilemmas and problems that generate tension in their fulfillment, putting their effectiveness to the test. The contents of both rights is complex, especially the analysis of their respective scopes given their close connection to each other and to other human rights, in particular the social rights that are a condition to make their fulfillment possible (^{Gutiérrez y Salazar, 2011}).

As can be seen in the criteria of Mexican and international educational policies, to the traditional claims for access to education other demands have been added regarding the inclusion of differences and the quality of education to make the full enjoyment of this right effective. In recent decades, great efforts have been made in Mexico to ensure access to education, improve its quality, extend the years of compulsory education, increase its coverage, fight school dropout, upgrade the infrastructure, design new curricula and train teachers, among other things. However, major problems persist to make the education to which everyone has a right to be a quality education, based on the respect of differences, the freedom of people and a plurality of educational possibilities that reflects the diversity of people, aspirations and projects (^{INEE, 2019}). The opposite of equality is inequality, not social diversity.

Inclusion vs. exclusion: a dilemma between objectives and educational inequalities

The terms ‘poverty’, ‘inequality’ and ‘exclusion’ are revealing of a serious problem in contemporary societies, and they become clearly manifest in the realm of education. They have become commonplace in the political, academic and media discourse as the “breakage of links” that puts social cohesion in question. ‘Rights’, ‘development’, ‘equality’ and ‘inclusion’ are some of the words that express, to the contrary, the intention and the public objectives to revert and solve these social issues. But these structural phenomena are not limited to the dimension of the economy: it is necessary to include in the debate, the studies, the public policy design and the educational processes themselves other cultural, educational, social, political and even identity factors that are decisive to understand the reality and be able to transform it. After admitting that social inequalities and imbalances are also culturally produced, new conceptual knots and problematic practices arise in the current educational scenarios and policies that must be considered when addressing the link between the rights to education and non-discrimination. Among them, and especially, is the growing inclusion/exclusion tension between the human rights being asserted (recognition, deepening and/or extension) and the forces in the economy that prevail, do not decrease, and tend towards exclusion.

In this respect, Autés points out that “exclusion is a name given to the misfortunes of our times, which damage the articulations between the different spheres of social life, between different universes, between the different worlds” and appears as an “imaginary of social fall”. In short, ‘exclusion’ refers to a breakage between the economic and the political spheres that takes place in the symbolic one, and its result is the inability to produce meaning and subjects or actors. In this context, “inclusion” appears as a new management category that responds to this evil (exclusion) and penetrates public policies, creating complex problems for the State (^{Autés, 2004: 17 and 24}). One of the risks pointed out by the author and worth reflecting on is the pretense of classifying or categorizing the population, which is already heterogeneous, and giving rise to legitimized and stigmatizing statutes (“the poor”, “the disabled”, “the women”, “the minors”, “the migrants” or “the indigenous people”, etc.) in order to be able to deal with diversity and manage from the public power the differences it may find unbearable.

Exclusions are forms of direct or indirect discrimination, intentional or by neglect, personal or institutional, situated or multiple, regulated by laws and/or normalized and legitimized through cultural practices. Nevertheless, Castel refuses to call all forms of social imbalance ‘exclusion’ and warns about a careless, even dangerous, use of this notion that characterizes certain populations that are or have been on the margins of society, thus naming a multiplicity of diverse situations whose specificity becomes diluted, making more penetrating analysis of the different situations of people impossible and resulting in “dealing separately with certain borderline situations that only acquire meaning when they are inserted in certain processes. The ‘excluded’ are the result of histories, all of them different. No one is born excluded: one is excluded” (^{Castel, 2004: 57}).

In this view, generic references to exclusion and inequality of treatment in education may become a trap for the thinking on and the analysis of reality, giving rise to interim and focalized insertion or inclusion policies that help or may be used to cover up a false understanding of these social phenomena. It is not about dispensing with these policies that respond to groups of the population characterized by a specific problem or shortage and given a special status - which seems necessary - but about warning of the risks and preventing them from increasing or leading to new forms of discrimination.

One of the risks is, according to ^{Castel (2004)}, to invisibilize or be unaware of the profile and circumstances of the “new publics in trouble” and their irreducible differences from the groups that, for the time being, are part of the typology of the population discriminated against.⁶ Another present risk is that, insofar as the special social treatment stigmatizes the populations involved, other forms of discrimination may be generated based on the labels officially given to certain social groups, even if the purpose of the policies is their inclusion (^{Castel, 2004: 69}). On the other hand, it is necessary to avoid situations of “permanently inserted” people who never become integrated and are then stigmatized, and taking into account the fact that a number of people are temporarily excluded, but around whom mechanisms are deployed that are, however, permanent or of indefinite duration.⁷

However, the current paradigm of development in the Latin American region, based on human rights, requires generating new policies that contribute to support and build conditions to overcome social inequalities and structural discrimination. ^{CEPAL (2018)} underscored the potential of the concept of inclusion for the design of public policies aimed at social development, since it helps to address the effects of social exclusion as an interlinked phenomenon, gives more depth to the design and implementation of actions seeking to improve people’s quality of life, and engages the institutions.

The notion of inclusion is featured in debates on social development, and it is highlighted in the Agenda 2030 for Sustainable Development. It is a multidimensional concept that involves several realms of action (social, economic, labor, and educational, among others) and whose scope and potential have not been clearly defined. ^{CEPAL (2018)} defined inclusion as

The fulfillment of rights, participation in social life, access to education, health and care, as well as the basic services of infrastructure, and the availability of material resources such as housing and income. It involves a process of improvement of the economic, social, cultural and political conditions for the full participation of people in society, which has both objective dimensions and perceptions (^{CEPAL, 2018: 16-17}).

Other international organizations define social inclusion as the process of improving ways of participation in society, especially those of people disadvantaged for reasons of age, sex, disability, race, ethnicity, origin, religion or socioeconomic status through better opportunities, access to resources, expression of their voice and respect for their rights.

Indeed, inclusion in education is one of the main issues in the current debate on education. Its horizon of reference has been gradually widened: at first, inclusion referred to compulsory education for people with disabilities; now it encompasses all levels of education, including higher education, and the groups that for different reasons are at risk of any kind of exclusion (^{Dovigo, 2014}). Consequently, inclusive education seeks to eliminate all excluding processes expressed in responses towards the different, the alien other, and is justified as a project of broad struggle against failure and exclusion, a cultural change in current and future schooling, a political commitment for a more fair world (^{Azorín, 2017}). Also, based on the principle of education for all, it is believed that a) invigorating inclusive processes may be the most efficient means to fight discriminatory and excluding practices and attitudes; b) the restructuring of educational institutions is needed to guarantee proper attention to all the students, and c) exclusion from school is often a prelude to other stories of exclusion (^{Gairín & Suárez, 2014}).

Inclusive education faces great challenges, among them the institutional exclusion that rests on regulations, rituals, specialized apparatuses and procedures, and the fact that it always appears in a justified and legitimized fashion, which does not mean that it is fair, ethically acceptable or politically defensible. From this standpoint, exclusion is rationalized by mental schemes and consolidated by administrative, institutional and juridical mechanisms, not to forget that it is the State who holds the official and dominant viewpoint (^{Castel, 2004: 82}).

Establishing and disseminating a clear and unequivocal discourse that rejects any kind of discrimination is controversial and generates resistance. According to ^{Aguilar Villanueva (2005: 17)}, “in the realm of human rights, and specifically of equality and non- discrimination, what is needed is a State that is active, committed, a promoter and a facilitator, not an abstaining State that avoids dealing with the social facts of inequality or a ‘police State’ that intervenes only when notorious and intolerable violations must be punished”. In this respect, what is required is a general directive that reflects the priority and the political willingness of governments to modify a discriminatory reality, i.e., public policies that enable the State to guarantee human rights by linking short-term social needs to a medium and long term political vision in order to eliminate inequities (^{Aguilar Villanueva, 1993}).

In short, focusing on human rights demands a model of State that is not neutral nor blinded to difference; to the contrary, from its “function of effective protection”, it cannot remain inactive and must take egalitarian measures to protect the groups of population who are disadvantaged in the exercise of their rights. As ^{Amabrovich (2009: 8)} argues, “human rights lead the State to take responsibility, but say nothing about how States should guarantee these rights”.

Final considerations

Education is a sociocultural phenomenon crisscrossed by multiple structural determinations that expresses the relationships that take place in the whole of life in society and gives rise to a specific field of study and action. Addressing it as a right opens up possibilities to generate new meanings about the relationship between education, State and society, educational policies, and the obligations of public power to ensure the full enjoyment of the right to education for everyone (^{Ruiz, 2012}).

From the different social sciences and analytic perspectives that have worked with and think about the phenomenon of education (history, philosophy, anthropology, sociology, economy, law, psychology, pedagogy and political science), but especially from recent specific studies that address it from an anti-discriminatory perspective, it seems necessary to believe genuinely that education has a value in itself, beyond schooling (formal education), but also analyzing the central role played by schooling in the educational histories of people and its social outcomes. It is essential to consider the strong links between the educational system and other educational modalities, both traditional (families and communities) and neither formal nor traditional (communication technologies and the media), that socialize and educate people throughout their lives and may take into account the diversity of student and educational processes to become part of the inclusive development of societies.

The causes of inequalities are generally searched for in the different resources and capabilities that people have, in the relationships between them, and in social structures. Although each perspective sheds light on an aspect of the phenomenon of social inequality, it is necessary to combine them and to incorporate new elements in order to have a multidimensional framework that, besides analyzing economic variables, identifies the political, social and cultural factors that intervene, and considers the different types of inequalities (racial, ethnical, of age, gender, class, gender identity, beliefs, etc.) supported by discriminatory prejudice, stereotypes and stigmas (^{Reygadas, 2004}). The goal is to explore the relationships between the right to not be discriminated against and the whole of human rights, especially in the analysis of their contents and scopes, given their close interdependence. Understanding the relationships between human rights from and anti-discriminatory perspective as well as their junctures with and between social issues opens up a field of reflection and action for public policies.

When legally safeguarded, human rights generate opportunities to act and demand from public power equal and effective conditions to fulfill them and achieve new rights. In this respect, the struggle for a right serves as a starting point to conquer others, and once recognized these rights not only protect but also empower citizens. However, we must constantly be alert to the risk that the language of human rights becomes a distraction from attending thoroughly to the problems derived from inequalities and leaving the organization of power and economy untouched. The goal is to go beyond mere political correctness or being rhetorically “right”, and preventing them from overshadowing the stereotypes and prejudice that nourish discriminatory practices (personal, social and institutional), concealing the system of privilege that does not allow for the effective exercise of the rights of all the people in conditions of equality. We have seen that constitutional norms have been modified many times to modernize them and add to the list of rights, among them the right not to be discriminated against, but we also notice that the established political and economic order is preserved.

Faced with the wide gap between norms and their concretion, between rights recognized and their actual conditions of effectiveness, it becomes evident that it is not enough to have legislation that, although necessary, has merely symbolic value and may generate or force to make institutional changes, which are not sufficient. It is necessary to work in the realm of conviction and in the cultural dimension through education to make deep transformations and strengthen an inclusive, democratic culture. Specifically, educational policies aimed at the construction of individuals with the capability for agency in a context of exercise and demandability of rights becomes crucial.