Saturday, February 3, 2018

Education v. Economy: Why the World Needs an Education Services Agreement


Education v. Economy: Why The World Needs an Education Services Agreement

Rachael Sedgwick

University of Arizona, James E. Rogers College of Law

Arizona Journal of International and Comparative Law

19 August 2016

Introduction

Many have discussed the conundrum of Donald Trump in American politics today.  Some claim his supporters are, by and large, poor and uneducated, which is why they fall for his “politics of resentment.”[1]  Others claim that, on the contrary, Trump appeals to those who are “better educated and wealthier than the American average.”[2]  In either case, Trump’s campaign has brought attention to the social divisions between the poor, working class, and elite in the United States—and people blame education.  Trump’s campaign has also sparked conversation about race in America,[3] as have international tragedies that have implicated stark racial divides in our world today.[4]  And the conversation about Trump implies that education is the solution—not just just to the mystery of Trump’s popularity but also to alleviating the ills of racism world-wide.[5]  Indeed, we can “arm [children] with information to resist and debunk racism and its myths, and to inculcate in them a knowledge about and respect for differences between people.”[6]  As such, it is vitally important that the international community shows its unanimous support for education by protecting the people's right to it.  It is already true that because education has such power—the power to distribute wealth, change perceptions, and bring about peace—the international community has determined that education is a fundamental human right under the United Nations Declaration and other legally binding treaties.[7] 
After all, education is essential to liberty.[8]  One cannot enjoy other human rights without an education, for one must know one’s rights before one can assert them.[9]  Because education is a fundamental human right under treaty, States have obligated themselves to provide a free, compulsory, quality education for all their citizens.[10]  As a result, education represents a lucrative investment.[11] 
Partnerships between States and education service providers, which are often multi-national corporations, have developed to provide educational services.[12]  When multi-national corporations sell their services—either to a foreign State or directly to foreign nationals—they do so under the international trade regime.[13]  So, for example, when the private, for-profit Bridge International Academies corporation opens “schools-in-a-box” in Africa, it is required to follow the rules of international trade, as expounded in the General Agreement om Trade in Services.[14] 
However, the GATS is an economic instrument with an economic focus.[15]  As such, the international trade regime is not adequate to ensure that international human rights law is honored.[16]  The GATS focuses on economic measures and quantities, whereas the main goal and purpose of a school revolves around quality and educating students well.[17]  But currently, quantitative measures like the numbers of children in school or the amount of money spent per student take precedence over qualitative measures.  Although sending more children to school is a positive step, it is not sufficient; simply spending more time in school is not enough to ensure effective learning. [18]  Therefore, measuring the cost per child or the time students spend in a classroom is not relevant to the commitment to education as a human right.[19]  Instead, students need to spend time in school on tasks that actually increase their learning, which occurs when teachers are well-trained.[20]  It is, for the same reasons, not enough to simply fund schools well—the countries that spend the most on education do not yield the best results.[21]  It is clear that success measures should comprise educational standards and academic achievement markers, and they should not focus solely on English and mathematics.[22]  After all, the most important factor in ensuring that students are well educated is the quality of instruction to which they are exposed.[23]
Currently, however, there is no regulatory mechanism or supervisory entity to ensure multi-national companies focus on more than just profits.[24]  As such, the international community should develop an Educational Services Agreement (EdSA) to ensure that education services meet quality standards, not just economic ones.  An EdSA would outline best practices, provide parameters, and protect the unwary when States and multi-nationals establish partnerships to provide educational services within a given State.  Education is essential to liberty, to society, and to our future.  It is worth expending the resources necessary to protect it—regardless of how potentially lucrative an investment education may currently be, in the absence of quality regulations.   
It is not possible to be free without an education.  That is,
[e]ducation is both a human right in itself and an indispensable means of realizing other human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities. Education has a vital role in empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth. Increasingly, education is recognized as one of the best financial investments States can make. But the importance of education is not just practical: a well-educated, enlightened and active mind, able to wander freely and widely, is one of the joys and rewards of human existence.[25]

The excerpt, along with the remainder of Article 13 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR)[26]—which arguably provides the standards for the practice of all international law—asserts that education is a fundamental human right.[27]  Although there are numerous human rights instruments that have affirmed and reaffirmed the fundamental right to an education,[28] the ICESCR Article 13 is “the most wide ranging and comprehensive article on the right to education in international human rights law.”[29] 
The Article 13 premises reflect and are founded upon the Universal Declaration of Human Rights, the most widely accepted version of universally recognized human rights, which is itself founded upon notions central to free democratic society.[30]  The Universal Declaration reflects the language of such instruments as the Magna Carta, Bill of Rights, United States Constitution, and other national constitutions.[31]  There are four freedoms at the base of the Declaration: freedom of speech and expression, freedom of worship, freedom from want, and freedom from fear.[32]  These four freedoms were eventually included as part of the preambles to the International Bill of Rights, specifically: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.[33]  These documents together entail “the generations of human rights:” the first, classic political liberties; the second, economic and social entitlements; and the third, promoting peace.[34]  Education, is a foundational or “empowerment right.”[35]  As such, it lies at the heart of all human rights.[36]  It is “an economic, social, and cultural right.”[37]
Under the Universal Declaration of Human Rights: “Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.”[38]  The Declaration also provides that the purpose of a free, compulsory, appropriate education is “the full development of the human personality and [] the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.”[39] 
Under Article 13 of the Universal Declaration of Human Rights, the United Nations General Assembly is obliged to conduct studies and make recommendations for, among other things, “promoting international cooperation in the economic . . . educational, and health fields, and assisting the realization of human rights and fundamental freedoms for all . . . .”[40]  Further, UNESCO is committed to promoting collaboration among States to achieve world peace by way of “education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations.”[41]
In addition, Article 4 of the 1960 UNESCO Convention Against Discrimination in Education (CADE), which is legally binding, requires Members to: 1) provide free and compulsory primary education; 2) provide increasingly free and equally available secondary education; 3) provide increasingly free and equally available higher education; and 4) ensure minimum, substantially equivalent standards and conditions relating to the quality of education for all same-level public educational institutions; 5) educate those who have little or no basic educational skills; and 6) train teachers without discrimination.[42]  Such strictures are common to each of the pertinent international treaties.[43]
Education Achievement Gaps Persist, International Treaty Notwithstanding
Despite international agreement, the poorest people in the world receive little to no education.[44]  The lack of education creates a vicious circle because of the way the world works today; uneducated people tend to be poor, and the poor tend to be uneducated.[45]   The situation is exacerbated by what is known as the Matthew Effect: Students achieving at the lowest levels are likely to continue to perform at the lowest levels, whereas the highest achievers are likely to continue to outperform their peers, and at increasingly higher levels.[46]  
Further, globalization and international trade require international competition.[47]  Countries that expect to be economically successful must claim competitive and comparative advantages over others.[48]  Industry is essential to achieving such advantages, and high quality education and training systems are necessary to ensure that highly skilled workers are available to boost such industries.[49]  As such, raising educational achievement levels and high quality training systems are key to improving the success of a given country's economy.[50]  Indeed, education quality indicators, as measured by international test scores, indicate that countries with higher test scores experience higher economic growth rates than others.[51] 
In addition, “[t]he more open [an] economy, the more important it is that a country’s students are acquiring high levels of cognitive skills.”[52]  Most nations have relatively open economies, as there is economic pressure to liberalize trade at ever increasing rates.[53]  Even so, it is interesting to note that the major economic powers of the world, including the United States and Japan, claim less open economies than others.[54]  This seems to result from the political benefits to maintaining barriers to trade.[55]  In any case, the trend in the international community is towards increased openness and economic trade liberalization.[56]
Although openness to international trade has a clear positive impact on economic growth, there remains a question of how much growth will result.[57]  Many claim that the better a country’s education system, the more growth that will result.[58]  However, student achievement levels are greatly impacted by social and economic factors, such as home life, individual capacity, and personal health—which are impacted by a country’s economy.[59]  A catch-22 thus appears; the poorest countries are likely to have the lowest quality education systems, which negatively impact their economies and vice versa. 
Countries can learn from each other, however.  And, research indicates that adequately funded educational reforms that focus on raising student achievement levels result in higher student achievement levels.[60]  Tossing money at schools is not enough.[61]  Many countries have tried without success to solve their educational problems by merely increasing school funding.[62]  The lesson is: How much money that is spent is not as important as how money is spent.[63]  
The most successful school systems prioritize teacher quality over class size, promote the notion that all students can achieve, and provide students with opportunities to succeed.[64]  Teacher quality is the most important.[65]  “[T]the evidence is indisputable: you can’t improve student learning without improving instruction.”[66]  If instruction is effective, students will learn.[67]
Because of the power of effective instruction to raise student achievement, the leaders of high quality school systems invest in instruction. [68]  They excel at hiring high quality educators, supporting and investing in job-embedded training and professional development, and establishing teacher-created academic support systems that target at-risk students for extra assistance based on formative assessments.[69]  They also establish strong foundations for achievement, including “rigorous standards and assessments, clear expectations and differentiated support for teachers and students, and sufficient funding, facilities and other core resources.”[70] 
Government and Private Business Work Together Close Achievement Gaps
In an effort to improve academic achievement rates and provide increased educational opportunities, some States employ public-private partnerships.[71]   To form PPPs, States contract with private providers who supply specific services for an agreed upon price during a specific period of time.[72]  The contracts are individually tailored and list the rewards, sanctions, and potential liabilities of each party.[73]  Because of the potential to tailor each contract to parties’ unique situations, PPPs are varied and diverse.[74]  Given their flexibility, PPPs have the potential to increase peoples' access to high quality schools, especially poor children in underserved communities.[75]  They can also provide helpful examples of what kinds of partnerships have worked in other communities.[76]  Proponents frame PPPs as an effective way to escape ineffective government, introduce innovation, and help the government provide higher quality materials to more people.[77] 
However, PPPs may impact the poor and disadvantaged to a disproportionate degree.[78]  The concern is that the motivation behind the proliferation of PPPs in poor and disadvantaged areas is purely economic; human rights issues have not been involved in the PPP discussion.[79]  There remain questions about the consequences of PPPs because of the lack of regulation and resulting leeway parties have when contracting to trade in educational services.[80]
Another problem is that PPPs encourage economic models in education, as evidenced by tuition-based schools, which weakens the perception of education as a public good or fundamental right.[81]  States seem increasingly tempted to abandon their obligations to the public, and people have begun to perceive education as a market commodity, nothing more.[82]  We must not forget, however, that the right to an education is a fundamental human right.[83]  Thus, the results of privately operated, publically funded schools must be measured in terms of educational benefits to students, not just profits.[84]
Thus far, that is not the case.  PPPs have proliferated, and they “are inextricably linked with privatization” and the corporatization of schools.[85]  Corporations have injected themselves into the meshwork of education at every level, from developing policies and assessments to leading research and, even delivering instruction in schools.[86]  But private corporations and public schools have competing purposes: corporations are singularly focused on increasing profits, whereas schools are focused on developing young minds to, ultimately, shape society.[87]  Increased regulation of educational PPPs is called for. 
Parties to a PPP are not completely free to contract as they wish.  When anything is traded internationally, it is traded under the formal international trade regime known as the World Trade Organization.[88]  The General Agreement on Tariffs and Trade (GATT) provides the primary set of rules.[89]  The GATT was the product of extensive negotiations and the willingness of several governments, including the U.S. and other developed nations, to collaborate to lower economic trade barriers after World War II.[90]  Most countries agreed that protective barriers to trade (such as high tariffs on foreign products) in reaction to war helped bring in the depression of the 1930s and led, in turn, to World War II.[91]  State leaders thus struck a provisional economic agreement, the GATT, which became effective in 1948 and which served as the foundation for international trade until 1995.[92] 
The GATT is an economic instrument with an economic focus.[93]  The central premises of the GATT are manifested in its Most Favored Nation (MFN) and National Treatment clauses.[94]  The first article of the GATT outlines MFN; it is the sacrosanct concept that all members be treated the same in the market, like every other member’s most favored trading partner.[95]  However, there are exceptions allowed, so members are permitted to give special treatment to developing nations and to protect sovereign interests to some extent.[96] 
National Treatment (NT) is the concept that all members should apply restrictions on trade in an open and fair manner.[97]  Instead of trying to develop a set of complex and detailed rules, signatories chose a general obligation: If a domestic policy impacts trade, the policy must be applied such that no discrimination occurs, which is achieved when members regulate all products within their borders in an “origin-neutral” way.[98]  It follows then that according to MFN and NT, after companies have paid at the border to enter a product into a foreign market, the product should be treated exactly as any other product, domestic or foreign, in the market.[99]  Under the GATT, therefore, countries are not allowed to discriminate economically against foreign products in their national markets.
Beginning in the 1980s, in order to continue reducing barriers to trade, GATT signatory countries assembled regularly in “rounds” to negotiate changes to the GATT rules.[100]  The Uruguay  Round (1986-94) was the last because it led to the creation of the WTO.[101]  The World Trade Organization (WTO) is comprised of 161 member states,[102] and it is the only international trade organization that defines the rules of trade between countries.[103]  It both replaced and enveloped the GATT of 1948 and 1994.[104]  Again, the purpose of the GATT and WTO is economic and wholly market focused; the goal is to ensure that trade flows among nations with as few economic barriers as possible.[105]

The General Agreement on Trade in Services (GATS) governs international trade in services, including in the health and education sectors.[106]  It provides both a regulatory system for trade in services and sets the parameters for such trade.  The Preamble to the GATS provides that its goal is to establish an international mechanism regulating trade in services “with a view to the expansion of such trade under conditions of transparency and progressive liberalization and as a means of promoting the economic growth of all trading partners and the development of developing countries.”[107]  To fulfill that goal, member States commit to reducing tariffs on services; however, the GATS is exclusionary, so only those services States choose to list in addenda to their Agreement are included.[108]  Services that are not listed are not implicated.[109]  Importantly, however, the Agreement requires increasingly liberalized trade in services in committed sectors.[110]       
Four “modes” of services supply are covered under the GATS.  These include: mode one: cross-border trade, which covers exports; mode two: consumption abroad, which covers the movement of consumers; mode three: commercial presence, which covers foreign direct investment; and mode four: the movement of natural persons, which covers service providers.[111]  Service supplied “in the exercise of governmental authority” and specific air transport services are excluded from the scope of the GATS.[112]  Service supplied in the exercise of governmental authority is “any service that is supplied neither on a commercial basis nor in competition with one or more service suppliers.”[113]  However, States have changed the way they provide public services over the past quarter century, so services supplied only by government that lack any commercial basis or competitive characteristics are few, if any.[114]  It is this last premise that has received the most attention from critics in the education field.[115]

The scope of the GATS has not yet been clarified vis-à-vis education services.[116]  Even so, the GATS has received much criticism because of the way changes to education systems have occurred throughout the world under it—with an eye on profits and not on education as a human right or inherently valuable public good.[117]  Indeed, the privatization of education is common across nations.[118]  This is so even though there may have been general agreement among negotiators that primary public education services, including those supplied by private industries for non-commercial purposes, were excluded from GATS rules.[119]
However, the GATS is an enabling instrument that is focused on increasing liberalization in committed sectors.[120]  Its purpose is to facilitate trade in services and, therefore, trade in education services.[121]  As such, it has led to “a dizzying range of exchange agreements, distance education programs, research collaborations and offshore partnerships to meet [businesses’] internationalization objectives and contribute to international development.”[122] 
Therefore, while there may have been tacit agreement that basic education was not to be traded under the GATS, a lack of any specific provision to that effect has resulted in many private investors entering the field via private-public partnerships.[123]  The result is that States’ duty of precaution under the ICESR’s Articles 2 and 13—the duty to ensure that any dealings with outside investors not interfere with States’ protecting and providing the right to education—has been implicated and, in some cases, clearly violated.[124]  Yet the consequences for those violations remain a mystery.[125] 
The lack of predictability regarding education services under the GATS has many anticipating educational doom.[126]  Critics allege that the GATS “could eventually cover all kind of measures taken by every state party at all levels of government, affecting trade in all services.”[127]  Further, the exception available to governments under the GATS to restrict application of the agreement to commercial endeavors may have little effect.[128]  Such exceptions are often interpreted strictly, and public services like education are increasingly provided by private investors, alone or in concert with the State.[129]  Private services providers are subject to GATS rules, and the PPPs that are increasingly prominent between education service providers and governments are probably “private” for GATS purposes; therefore, even primary education services may be subject to commoditization under the international trade regime.[130] 
Critics also fiercely decry the WTO’s “overt mission to encourage Western style capitalism across the globe and especially in countries who supply cheap labor.”[131]  That mission is particularly obvious in how higher education has been treated under the GATS in countries like China, for example.[132]  Because the GATS allows parties to contract for more specific agreements than are involved in WTO membership, “[the GATS] requires members to view higher education not as a public good but rather as a globalized trade commodity.”[133]   As such, the fear that only educational activities that are fully State-subsidized, like military academies, are excluded means all other educational services are treated as commodities, nothing more, under the GATS.[134]  What is certain is that the GATS can be “complicated, opaque and uncontrollable,” and many view it as problematic.[135]
The GATS Alone is Inadequate to Protect the Right to Education

The GATS provides some leeway for States to protect the right to education; however, States are limited.  For example, they can take care in restricting their commitments in the education services sector under the GATS.[136]  States can also insist on trade-offs when negotiating for GATS commitments with the goal of protecting knowledge acquisition, as opposed to skills acquisition, and socially important or sensitive goals.[137]  Also, courts can interpret trade obligations narrowly and interpret exceptions broadly when settling disputes.[138]  Further, under the GATS, States may establish regulatory systems before opening the education market for liberalization,[139] and they can better protect disadvantaged groups by involving them in the process of creating and establishing education systems.[140]  However, the GATS does not require States to honor these responsibilities, nor does any other existing institution or agreement.[141]
As trends toward privatization indicate, the GATS alone is inadequate; it frames education as an investment and nothing more, which is detrimental to education quality and achievement levels.[142]  Such trends enable the pursuit of money at the expense of human rights.[143]  The GATS is a powerful economic instrument, and there is little doubt that the world’s economic system is more powerful than the international human rights regime.[144]  Thus, “[f]ostering the humanistic mission of education is of paramount importance to counter the trend towards the pursuit of material values and a merely instrumental role for education. This is critically important, as the humanistic mission of education is being vitiated.”[145]

Bridge International Academies provides an example of the potential for problems under the current international trade regime.[146]  BIA is a corporation that runs private schools in Kenya, India, Uganda, and Nigeria.[147]  They are also set to manage primary education in Liberia, determined by a PPP between BIA and the government.[148]  Experts have balked at the partnerships; they urge governments to first seek to protect every child’s right to an education and denounce the notion that a country can afford a PPP but not to improve its own education system.[149]
The BIA system is offensive to many,[150] as the curriculum requires teachers to read a script delivered by electronic tablets.[151]  The curriculum is developed by BIA executives in the United States, who monitor from abroad the teachers and the material teachers recite to students.[152] 
The tablets teachers read from and the associated materials are called “schools in a box.”[153]  The corporation has grown quickly at low cost,[154] and the schools have been touted as a success by some.[155]  After all, BIA has developed a great business product—it is low cost, easy to use, and has attracted investor celebrities, including such billionaire financiers as Bill Gates and Mark Zuckerberg.[156] 
A quick look behind the glamor, however, reveals troubling trends.[157]  According to educational research and theory, the corporation has not developed a high quality educational product that is likely to raise student achievement in the target sales countries.[158]  There are several issues with the BIA curriculum and method.  These include that the process is primarily focused on teacher outputs, rather than on student outputs; teachers are not well-trained and often not certified; classes consist of 40 to 70 students; and teacher performance is evaluated based on an ability to read from a script, handed down to teachers from distant developers, at the same time and pace as all similarly situated teachers.[159]  BIA students are gathered en masse in large classrooms and learn English and mathematics by rote memorization.[160]  They are expected to improve in unison, just as their teachers are expected to recite their lessons to incite students’ uniform responses.[161] 
Such practices disempower teachers and further entrench the feminization of education at the expense of academic achievement levels.[162]  Further, the curriculum stands in stark contrast to the types of curricula that have been touted as necessary to teach students how to thrive in the modern world, i.e., those that lead students to develop critical and creative thinking skills.[163]  In fact, the practices BIA tout as highly successful have been denounced by educators for at least a century.[164]
In education, teacher output is important, but because the ultimate goal of education is learner-centered, the process should be as well.[165]  Nonetheless, BIA touts the success of their students, despite a lack of effective research or feedback.[166]  Notwithstanding a lack of results, the company’s economic success has created the perception that the school is of high educational quality.[167]  Proponents use an economic paradigm to gauge the quality of the schools, which is misplaced.[168]  The result is that BIA continues to attract investors despite that it is, at best, not successful at improving student achievement and, at worst, reinforcing and exploiting the very notions of inequality that schools are meant to remedy.[169]
BIA is also an example of how ESPs may encourage States to eschew their obligation to provide free public schools of increasingly high quality.  While States can certainly learn successful tactics from private enterprises like BIA,[170] it is important that States remain responsible for setting education standards, that local bodies develop the curriculum, and that scientific reason drives the process—that is, there should be reliable evidence that educational endeavors will produce desired results.[171]  Further, although BIA executives should hire educational experts, those experts should focus on improving pedagogy,[172] not on developing curriculum or on developing standards, which should be community-based endeavors.[173]
The World Needs an Education Services Agreement
To promote the humanistic mission of education, the GATS requires a supplement; it currently lacks appropriate parameters for trade in educational services, and the human rights regime needs support.[174]  Although the UN Committee on the Rights of the Child (CRC), the UN Committee on Economic, Social and Cultural Rights (CESCR), and the UN Committee on the Elimination of all forms of Discrimination Against Women (CEDAW) have together addressed the issue of privatization and education,[175] their suggestions bear only moral weight.  No formal body has been legally authorized to address the matter of education as a human right under the international trade regime.[176]  That the WTO has been accused of being incapable of managing diversity and of homogenizing practices in world markets and thus allowing multinational corporations to exploit developing nations is one result.[177]
Although the demand may outweigh a government’s capacity to supply education services and investors should be welcome to assist,[178] parameters are necessary to ensure that the right to education is not violated.[179]  National regulations like education standards are, appropriately, left to States to determine under GATS Article VII:5, for example.  However, while such provisions guarantee sovereignty, they are not sufficient to protect sovereigns from exploitation by private enterprise, as evidenced by current trends in education.[180]  After all, the principle role of the GATS is to ensure greater market accessibility to investors.[181] 
People have called to improve education quality worldwide.[182]  Yet education services around the world are deteriorating in quality.[183]  The GATS continues to encourage the privatization of education services internationally,[184] and the international trade regime maintains its focus on economic factors.  However, as trends indicate, the market is not the most appropriate instrument for ensuring high quality educational services that improve student achievement levels.[185]  Although governments should be empowered to invite financial assistance and partner with education service providers, either by PPP or otherwise, such partnerships should be formed within the parameters of an agreement that specifically focuses on the responsibilities of States and private investors under the  human rights regime.[186]  The issue demands immediate attention because the international community is currently in the process of developing post-2015 development goals for education.[187] 
Prominent institutions, scholars, and educational leaders have made suggestions for better protecting and enforcing the right to education.[188]  The World Bank, for example, has suggested, particularly in States without many PPPs, that governments update education and regulatory policies to create a robust enabling framework before establishing PPPs.[189]  It has called for States to: define a national education strategy, which sets the parameters for PPP involvement; set clear, measurable, standardized criteria that private investors are required to meet before opening or operating schools; introduce neutral, responsive, targeted education financing systems for both public and private schools; and establish an oversight or supervisory mechanism to ensure that all ESPs meet educational quality standards.[190] 
Additional suggestions include that States ensure PPPs are formed under “a transparent, competitive, and multi-stage selection process” to guard against discrimination or corrupt practices.[191]  Thus, States should separate government level education service purchasers and ESPs, and establish mechanisms to ensure that ESPs are capable of providing high quality education services.  Also, government education agencies must enhance their capacity, establish standards, develop ESP quality performance measures, and develop a system of incentives and sanctions to support high achievement levels.[192]  We must improve inter-ministerial coordination, encourage national ownership of the process,  and develop clearly defined measures for long-term PPP monitoring and systemic transparency that enables democratic participation.[193]  Finally, educators must lead the process.[194]
Despite helpful suggestions, the World Bank and others have left responsibilities to fulfill the human right to education unchecked, which is part of the problem.[195]  It follows that it is not enough to saddle the WTO or World Bank or other economic institution with the responsibility for ensuring that the right to education is not violated, given the profound importance of education to society and the purely commercial focus of the international trade regime.[196]  Nor is it enough to order States to simply do better, without more. 
Rather than burden the existing trade regime or individual States with additional responsibilities they have not felt obligated to undertake on their own,[197] a new solution is necessary.  After all, if the World Bank were allowed to withhold funding from countries, like Kenya for example, that are not able to fulfill the promise of their laws despite their best efforts,[198] the Bank would only be exacerbating the problem.  It would be withholding important funds from a needy State, which would then have to do without additional funding despite an inability to succeed even with the funding.[199] 
Currently, the GATS and WTO help to safeguard the right to education as an economic right, not a fundamental human right.  The GATS alone is not enough.  Currently, “by drawing education sectors into the economy as a direct contributor to accumulation, education is being asked to do more than develop human capital or contribute to nation building through the development of societal cohesion.”[200]  There is a solution, and we already have a template in the form of Sanitary and Photosanitary Agreement.
Education is a Human Right on Par with Health and Safety
Education is a human right, and as such, education is on par with human health.  The right to an education is provided for in most constitutions around the world, just as are the rights to health care, food, water, and social security.[201]  In addition, Article 13(1)(a)(1) of the United Nations Charter provides:
1. The General Assembly shall initiate studies and make recommendations
for the purpose of: (a) promoting international cooperation in the political field and encouraging the progressive development of international law and its codification;
(b) promoting international cooperation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.[202]

Paragraph 1(b) makes clear that each: economic, social, cultural, educational, and health are separate subjects, though share some overlapping qualities.[203]  Governments are permitted to protect against cultural harm by enacting laws that may otherwise hinder the economy, as provided in the GATS.  Governments are also permitted to protect against potential harm to human life or health, and thus harm the economy, under the Sanitary and Phytosanitary Agreement (SPS). 
The Sanitary and Phytosanitary Agreement: A Framework for an EdSA

The SPS provides a rough idea of the kinds of specific trade agreements that are possible when all negotiators perceive a particular right, human health for example, as being more important than economic gain.[204]  The SPS acknowledges that government regulations or industry standards may impact trade in positive and negative ways.[205]  Such regulations and standards may facilitate trade in that they provide a clear definition of product characteristics and thus improve compatibility and usability, and they establish minimum standards or safety requirements and thereby advance social goals like human health and safety.[206]  However, they can also veil protectionist policies enacted only to guard a national industry from competition in the marketplace.[207]  Thus, the SPS provides that government members are permitted to enact scientifically based measures to protect human health and safety, if based on international guidelines and risk assessment procedures.[208]  If no such guideline exists, States are to gather scientific evidence as justification for the measures.[209]  The goal is to restrict economic trade as little as possible while ensuring that citizens are safe and healthy.[210]  In sum, the SPS represents a compromise by WTO members that allows governments to protect the health and safety of their citizens, as based on scientific research, and thus honor their human rights obligations.   
An EdSA to supplement the GATS is a natural development.  Under such an agreement, the international community could establish a framework to guide both State and ESP behaviors.  It could set out the parameters for States to fulfill their many obligations.  An EdSA could also set the framework for assembling educational experts into an official committee.  The EdSA Committee could work within the WTO to collaborate with States and help them follow the suggestions that have been lauded upon them and discussed above.[211]  An EdSA would also serve to symbolize the importance of the right to education in the world today. 
Conclusion

States have agreed to respect, protect, and fulfill the human right to education.[212]  To that end, they are to guard against discrimination or corrupt practices, ideally by ensuring transparent, competitive processes to fulfill their obligations.[213]  States have agreed to reorganize government, establish collaborative mechanisms, and cooperate at the international level.[214]  States must also establish education standards and ensure they are met, and also enhance local authority to tailor curricula.[215]  They have many obligations, yet States have received little or no guidance, save in the form of PPPs, which are widely variable.[216]
The lack of guidance has defaulted in a spread of corporatist culture.  This is becoming more apparent in developed nations like the United States, and has created a focus in schools on marketable skills, such as on mathematics and English.[217]  That focus is transferred abroad by corporations, like BIA, which promulgate the corporatist culture to the detriment of others, particularly in developing nations.[218] 
As a result, corporations have been permitted to determine curricula, choose pedagogical style, and create standardizing instruments in the absence of any quality-verifying mechanism.[219]  The power to direct children’s learning—and thus, the future of a society—extends from the power to control the curriculum, pedagogy, and standards.[220]  But under the current regime, materialism is valued over humanism in education and, thus, corproations and other market forces control and subvert the mission of national school systems in the name of profits.[221]  The result is ideological warfare between human rights advocates and private investors.[222]
An EdSA to supplement the GATS is a natural development.  Under such an agreement, the international community could establish a framework to guide both State and ESP behaviors.  It could set out the parameters for States to fulfill their many obligations.  An EdSA could also set the framework for assembling educational experts into an official committee.  The EdSA Committee could work within the WTO to collaborate with States and help them follow the suggestions that have been lauded upon them and discussed above.[223]  An EdSA would also serve to symbolize the importance of the right to education in the world today. 





[1] Jennifer C. Kerr, Trump Overwhelmingly Leads Rivals in Support From Less Educated Americans, PBS (Apr. 3, 2016 6:52 PM EDT), http://www.pbs.org/newshour/rundown/trump-overwhelmingly-leads-rivals-in-support-from-less-educated-americans/; see also Derek Thompson, Who Are Donald Trump’s Supporter, Really?, The Atlantic (Mar. 1, 2016), http://www.theatlantic.com/politics/archive/2016/03/who-are-donald-trumps-supporters-really/471714/.
[2] Jeet Heer, Are Donald Trump’s Supporters Idiots?, New Republic, https://newrepublic.com/minutes/133447/donald-trumps-supporters-idiots (last visited Aug. 17, 2016 9:34 PM (MST); see also Kelly Riddell, Donald Trump Wins More Demographics Than Just Poor, Uneducated, The Washington Times (Apr. 20, 2016), http://www.washingtontimes.com/news/2016/apr/20/donald-trump-wins-more-demographics-just-poor-uned/.
[3] David Lauter, How do Americans View Poverty?  Many Blue-Collar Whites, Key to Trump, Criticize Poor People as Lazy and Content to Stay on Welfare, Los Angeles Times (Aug. 14, 2016), http://www.latimes.com/projects/la-na-pol-poverty-poll/. 
[4] Anup Shah, Racism, Global Issues (Aug. 8, 2010), http://www.globalissues.org/article/165/racism; Deroy Murdock, Invisible Men: Black Victims of Black Killers Remain in the Shadows, National Review (Jul. 15, 2016 3:28 PM), http://www.nationalreview.com/article/437937/black-lives-matter-21-black-men-killed-over-two-days-july-draws-silence.
[5] Office of the High Commissioner for Human Rights, Educating Children and Youth Against Racism, United Nations World Conference Against Racism, https://iearn.org/assets/general/racismreportfinal.pdf (last visited Aug. 19, 2016 7:11 PM MST).
[6] Id.
[7] Pierrick Devidal, Trading Away Human Rights? The GATS and the Right to Education: A Legal Perspective, in Ravi Kumar & Dave Hill, Global Neoliberalism and Education and Its Consequences 37 (2009), http://www.jceps.com/wp-content/uploads/PDFs/02-2-02.pdf.
[8] United Nations Educational, Scientific and Cultural Organization (UNESCO), The Right to Education: Law and Policy Guidelines 10, UNESCO (2014), http://unesdoc.unesco.org/images/0022/002284/228491e.pdf.
[9] Id.
[10] Office of the High Commission for Human Rights, CESCR General Comment No. 13: The Right to Education (Art. 13), Document E/C.12/1999/10 (Dec. 8, 1999), http://www.refworld.org/docid/4538838c22.html.
[11] UNESCO, supra at note 4; see also Pierrick Devidal, Trading Away Human Rights? The GATS and the Right to Education: A Legal Perspective, in Ravi Kumar & Dave Hill, Global Neoliberalism and Education and Its Consequences 37 (2009), http://www.jceps.com/wp-content/uploads/PDFs/02-2-02.pdf.  Clearly, Trump is aware that education is a lucrative investment, despite his failed attempt at operating a school of his own. Greg Moran, Judge Tentatively Denies Dismissal of Trump U. Suit, The San Diego Union-Tribune (Jul. 22, 2016 6:13 PM), http://www.sandiegouniontribune.com/news/2016/jul/22/judge-not-dismissing-trump-university-lawsuit/.
[12] Id.
[13] Ana Christina Paulo Pereira, The Liberalization of Education Under the WTO Services Agreement (GATS): A Threat to Public Educational Policy (2009), http://www.ufjf.br/eticaefilosofia/files/2009/11/11_2_ana.pdf (“The education sector was included in GATS among the twelve services sectors.  Therefore, education service is subject to GATS’ general rules and principles, which operate independently of a specific commitment.”
[14] Fred van Leeuwen, Strengthening Our Public Education Systems, Education International: Worlds of Education (Feb 2016), https://worldsofeducation.org/new/pdf/135/Magazine_en.pdf. 
[15] Susan L. Robertson, Globalisation, GATS and Trading in Education Services, Centre for Globalisation, Education and Societies (2006), https://susanleerobertson.files.wordpress.com/2009/10/2006-kallo-gats.pdf
[16] see e.g., van Leeuwen, supra at note 10 at 40 (“The government is expected to concede its sovereign power over matters of educational governance in order to serve the interests of private enterprise. . . .”). 
[17] See e.g., Florida Education Association, Time-on-Task: A Strategy that Accelerates Learning, FEAWeb.org, https://feaweb.org/time-on-task-a-teaching-strategy-that-accelerates-learning (last visited Aug. 19, 2016 12:46 PM MST).
[18] Id.
[19] See id.
[20] Id.
[21] OECD, Does Money Buy Strong Performance in PISA, PISA In Focus (Feb. 2012), https://www.oecd.org/pisa/pisaproducts/pisainfocus/49685503.pdf (“The countries that are the strongest performers in [the Program for International Student Assessment] are not the wealthiest, nor do they allocate more money to education.”).
[22] Broader Measures of Success: Measuring What Matters in Education, People for Education (June 2013), http://www.peopleforeducation.ca/broader-measures-of-success-2013.pdf (“When there is too much emphasis on narrow goals, important priorities can be overshadowed. . . .The goals must cover a range of dimensions of learning that are critical to students’ overall success. . . . [which] overlap, interconnect, and are mutually reinforcing. And each is significant for students’ individual experience and knowledge, as well as for the public interest in ensuring graduates who are knowledgeable, healthy, creative, and positive about the practices of citizenship.”).
[23] UNESCO, Understanding Education Quality, EFA Global Monitoring Report 27, 28 (2005), http://www.unesco.org/education/gmr_download/chapter1.pdf.
[24] van Leeuwen, supra at note 10. 
[25] United Nations Educational, Scientific and Cultural Organization (UNESCO), The Right to Education: Law and Policy Guidelines 10, UNESCO (2014), http://unesdoc.unesco.org/images/0022/002284/228491e.pdf.UNESCO, Right to Education, supra note 2, at 10; Pierrick Devidal, Trading Away Human Rights? The GATS and the Right to Education: A Legal Perspective, in Ravi Kumar & Dave Hill, Global Neoliberalism and Education and Its Consequences 37 (2009), http://www.jceps.com/wp-content/uploads/PDFs/02-2-02.pdf.
[26] Id.
[27] Devidal, supra note 23, at 36.
[28] Special Rapporteur on the Right to Education, Promotion and Protection of Human Rights: Human Rights Questions, Including Alternative Approaches for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms, Human Rights Council, U.N. Doc. A/70/150 (Aug. 26, 2015) (by Kishore Singh) [hereinafter Singh II]; Special Rapporteur on the Right to Education, Justiciability of the Right to Education, Human Rights Council, U.N. Doc. A/HRC/23/35 (May 10, 2013) (by Kishore Singh) [hereinafter Singh I]; Office of the High Commission for Human Rights, CESCR General Comment No. 13: The Right to Education (Art. 13), Document E/C.12/1999/10 (Dec. 8, 1999), http://www.refworld.org/docid/4538838c22.html; Susan L. Robertson, Globalisation, GATS and Trading in Education Services, Centre for Globalisation, Education and Societies (2006), https://susanleerobertson.files.wordpress.com/2009/10/2006-kallo-gats.pdf;.
[29] General Comment N°13 on the Right to Education, Committee on Economic, Social and Cultural Rights, 21st Sess., U.N. Doc. E/C.12/1999/10 (1999), at ¶ 2.  The right to education has similarly been asserted in: UNESCO’s Convention against Discrimination in Education, UNESCO, Comparative Analysis: UNESCO Convention Against Discrimination in Education and Articles 13 and 14 (Right to Education) of the International Covenant on Economic, Social and Cultural Rights, United Nations Education, Scientific and Cultural Organization 49-55 (2006), http://unesdoc.unesco.org/images/0014/001459/145922e.pdf.; the International Covenant on Economic, Social and Cultural Rights, Id. at 57-58; the Convention on the Rights of the Child, [29] CRC Articles 28–30; Waddington, supra note 12, at 20-21.; the Convention on the Elimination of All Forms of Discrimination against Women, Art. 10; the Convention on the Elimination of Racial Discrimination, Art. 5(e).; and others. Art. 24.   Further, regional human rights treaties provide for a right to education, including in Europe, the Americas, and Africa. Waddington, supra note 12, 14; Singh I, supra note 2, at 6.  Last, almost every nation in the world provides for a right to education in its constitution. Singh II, supra note 2, at 6; Singh I, supra note 2.  The United States Constitution does not provide for a right to education, but each individual state constitution does.
[30] The Universal Declaration of Human Rights: The Travaux Préparatoires, lxxiv (William A. Schabas Ed. May 2013), http://dx.doi.org/10.1017/CBO9781139600491.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Lisa Waddington, Moving Towards Inclusive Education as a Human Right, Maastricht Faculty of Law Working Paper 2014/7, 28 (Dec. 2014), http://ssrn.com/abstract=2535198
[38] Id.
[39] Id.
[40] Travaux Préparatoires, supra note 5, at 6.
[41] UNESCO Constitution, UNESCO Art. I(1) (1945), http://portal.unesco.org/en/ev.php-URL_ID=15244&URL_DO=DO_TOPIC&URL_SECTION=201.html.
[42] UNESCO, Right to Education, supra note 12, at 10.
[43] Id. at 11-12.
[44] Anup Shah, Poverty Facts and Stats, Global Issues, http://www.globalissues.org/article/26/poverty-facts-and-stats (“Based on enrollment data, about 72 million children of primary school age in the developing world were not in school in 2005; 57 per cent of them were girls. And these are regarded as optimistic numbers.”) (last updated Jan. 7, 2013).
[45] Education, One.org, https://www.one.org/international/issues/education/ (“Lack of access to quality education is preventing millions of people from escaping the cycle of extreme poverty around the world.”) (last visited Aug. 19, 2016 3:03 PM MST); Arye L. Hillman & Eva Jenker, Educating Children in Poor Countries, International Monetary Fund (2004), http://www.imf.org/external/pubs/ft/issues/issues33/. 
[46] Matthew S. Bothner, Richard Haynes, Wonjae Lee & Edward Bishop Smith, When do Matthew Effects Occur?, Journal of Mathematical Sociology, 80-114 (2010), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1646328.
[47] Brent Radcliffe, How Education and Training Affect the Economy, Investopedia (2016), http://www.investopedia.com/articles/economics/09/education-training-advantages.asp.
[48] Id.
[49] Id.
[50] Id.
[51] Eric A. Hanushek et al., Education and Economic Growth, Education Next 62, 66 (Spring 2008), http://educationnext.org/files/ednext_20082_62.pdf.
[52] Id. at 64.
[53] See e.g., U.S. One of World’s Most Open Economies New Reports Says Average Goods Tariff 1.7 Percent, Office of the United States Trade Representative (July 2002), https://ustr.gov/about-us/policy-offices/press-office/press-releases/archives/2002/july/us-one-worlds-most-open-economies-new-report. 
[54] Howard Schneider, Study: The United States Has a Less Open Economy Than Romania, The Washington Post (June 13, 2013), https://www.washingtonpost.com/news/wonk/wp/2013/06/13/study-the-united-states-has-a-less-open-economy-than-romania/; Richard N. Cooper, The United States as an Open Economy, in R. W. Hater, ed,. How Open is the U.S. Economy? 3-24 (1986), http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.199.9949&rep=rep1&type=pdf.

[55] Liberty Fund, Barriers to Trade, Library of Economics and Liberty (1999-2010), http://www.econlib.org/library/Topics/HighSchool/BarrierstoTrade.html (“Barriers to trade are often called ‘protection’ because their stated purpose is to shield or advance particular industries or segments of an economy.”).
[56] Gary Clyde Hufbauer & Barbara Kotschwar, The Future Course of Trade Liberalization, Peterson Institute for International Economics (Oct. 1, 1998), https://piie.com/commentary/speeches-papers/future-course-trade-liberalization
[57] [57] Eric A. Hanushek et al., Education and Economic Growth, Education Next 62, 67 (Spring 2008), http://educationnext.org/files/ednext_20082_62.pdf.
[58] Id. at 69-70.
[59] Id. at 69.
[60] Id.
[61] Id. at 70.
[62] Schleider, supra at note 19, at 8-10.
[63] OECD, supra at note 15, 1.
[64] Id.
[65] Id.
[66] Schleider, supra at note 19, at 12.
[67] Id. at 13 (“In every school system visited during the benchmarking, head teachers reported variations in the amount of learning that occurred in different classes, and those variations depended mainly on the quality of teaching in different classrooms.”).
[68]Id. at 15.
[69] Id.
[70] Id.
[71] Harry Anthony Patrinos, Felipe Barrera-Osorio, & Juliana Guaqueta, The Role and Impact of Public-Private Partnerships in Education, The World Bank 2 (Mar. 30, 2009), http://www.ungei.org/resources/files/Role_Impact_PPP_Education.pdf.
[72] Id. at 1.
[73] Id.
[74] Id. at 2.
[75] Id. at 6.
[76] Id.
[77] Singh II, supra note 24, at 7.
[78] Id.
[79] Id. at 8.
[80] Id.; see also Patrinos et al., supra at note 77, at 6.
[81] Online Workshop Report, The Challenges of Public-Private Partnerships in Realizing the Right to Education, Oxford Human Rights Hub (Jul. 29, 2015 2 Pm BST), http://www.periglobal.org/sites/periglobal.org/files/Summary%20Report%20from%20PPP%20Online%20Workshop.pdf.
[82] Id.
[83] Id.
[84] Id.
[85] Singh II, supra at note 24, at 3.
[86] Id. at 6.
[87] Id. at 7.
[88] Andrew T. Guzman & Joost H.B. Pauwelyn, International Trade Law (2d ed. 2012).
[89] Ian F. Fergusson, The World Trade Organization: Background and Issues, Congressional Research Service CRS-1 (May 9, 2007), http://www.nationalaglawcenter.org/assets/crs/98-928.pdf.
[90] General Agreement on Tariffs and Trade, 33 I.L.M. 1125 (1994) [hereinafter GATT]; Ferguson, supra note 62.
[91] Ferguson, supra note 62.
[92] Id.
[93] Guzman, supra note 61, at 303-28.
[94] World Trade Organization, Understanding the WTO, WTO.org 10 (2015), https://www.wto.org/english/thewto_e/whatis_e/tif_e/understanding_e.pdf; Andrew T. Guzman & Joost H.B. Pauwelyn, International Trade Law 303-28 (2d ed. 2012).
[95] Id.; Guzman, supra note 61, at 32.
[96] Ferguson, supra note 62.
[97] Id. at 1; see also Guzman, supra note 61.
[98] Petros C. Mavroides, The General Agreement on Tariffs and trade Commentary, in International Trade Law 246, 246 (2d ed. 2012).
[99] Id.
[100] Ferguson, supra note 62; Understanding the WTO, supra note 67, at 11; World Trade Organization, Understanding the WTO: Basics: The GATT Years: From Havana to Marrakesh (2015), https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact4_e.htm; See GATT, supra note 63.
[101] World Trade Organization, supra note 67.
[102] World Trade Organization, What is the WTO? (2015), https://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm.
[103] Id.
[104] From Havana to Marrakesh, supra note 77; GATT.
[105] Understanding the WTO, supra note 67; Raymond Saner & Sylvie Fasel, Negotiating Trade in Educational Services Within the WTO/GATS Context 59 cid.harvard.edu (2003), http://www.cid.harvard.edu/cidtrade/Papers/Saner-Fasel.pdf.
[106] GATS art. I:1.  Please note that there are other international trade agreements that impact trade in education services or products, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 320 (1999), 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994), for example, which covers trade in copyrighted information, including textbooks and education programs. See e.g. Melissa Staudinger, A Textbook Version of the DOHA Declaration: Editing the TRIPS Agreement to Establish Worldwide Education and Global Competition, 55 IDEA 319 (2015). 
[107] GATS Preamble.
[108] Choudhury, supra note 52, at 259; Devidal, supra note 23, at 32.
[109] Id.
[110] Id.
[111] GATS art. 1.2; Saner & Fasel, supra note 78, at 59.
[112] GATS art. 1.3(b)-(c).
[113] GATS art. 1.3(c).
[114] Robertson, supra note at 2, at 9.
[115] Id.
[116] Eric H. Leroux, Eleven Years of GATS Case Law: What Have We Learned?, 10(4) J Int Economic Law 749 (2007).
[117] Saner & Fasel, supra note 78, at 59; Robertson, supra note at 2, at 473.
[118] Romero, supra note 2.
[119] Id; Pierre Sauvé, Trade, Education and the GATS: What’s In, What’s Out, What’s All the Fuss About? OECD/US Forum on Trade in Education Services 1, 3 (May 23-24, 2002), http://www.oecd.org/education/skills-beyond-school/2088515.pdf (“[A]sk any negotiator in Geneva and he/she would be prone to regard primary and secondary schooling, so called basic/compulsory education, as lying outside the scope of the GATS.”).
[120] Romero, supra note 2, at 24.
[121] Id.
[122] Id.
[123] See discussion of Bridge International Academies, infra.
[124] Devidal, supra note 23, at 38.
[125] Id.
[126] Id. at 41.
[127] Id. (emphasis in original).
[128] Id.
[129] Id. at 42.
[130] Id.
[131] Tim Hatcher, Shanghaiing America's Best Thinking: Musings on University Corporatization, Chinese Partnerships, and Embracing Critical Theory, 39 McGeorge L. Rev. 763, 773 (2008).
[132] Id.
[133] Id.
[134] Id.
[135] See e.g., Devidal, supra note 23, at 32-33.
[136] Choudhury, supra note 52, at 258.
[137] Id. at 259.
[138] Id.
[139] Id. at 261.
[140] Id.
[141] Sauvé, supra note 89, at 17.
[142] For an example of the problem, see Catrina Stewart, Bringe International Academies: Scripted Schooling For $6 a Month is an Audacious Answer to Educating the Poorest Children Across Africa and Asia, Independent (July 27, 2015), http://www.independent.co.uk/news/world/africa/bridge-international-academies-scripted-schooling-for-6-a-month-is-an-audacious-answer-to-educating-10420028.html (“But Bridge, which has expanded at such a rapid rate in six years that it is present in more than 400 locations across Kenya and Uganda, faces a potent threat to its survival in the shape of radical new teacher training proposals that would drive up the cost and put it beyond the reach of those that need it most.  ‘This could literally put every school in the [low-cost] sector out of business tomorrow,’” said Whitney Tilson, who sits on Bridge’s board. “It would send a signal to the world that Kenya is a country you should never invest in as a private investor.”  The statement belies the issue, however, by blaming the market and the economic climate in Kenya rather than the fact that BIA teachers do not have to be certified because they are expected only to read from a script.  A government, under the human rights regime, has a duty to regulate the practice of educators to ensure that the right to education is not violated and that students are learning the skills and ideologies necessary to their culture’s survival.  As such, it has a right to regulate the certification of teachers and require that they be certified.  BIA should not have a right to contest a State’s practice of doing just that because it may harm their investment.  “Even as Bridge gets its chance to prove whether its model works, regulatory hurdles threaten to be its undoing. The Kenyan government is setting out new proposals that would radically recalibrate the financial calculations on which these schools operate. Most sweeping of all is a stipulation that half of all teachers in any one school should have a recognised teaching qualification and be paid accordingly.” 
[143] Singh technology at 13.
[144] Robertson, supra note 2, at 13.
[145] Singh II, supra note 2.
[146] Emma Rumney, UN Education Chief Slams Liberia Over Schools PPP Plan, Public Finance International (Mar. 31, 2016), http://www.publicfinanceinternational.org/news/2016/03/un-education-chief-slams-liberia-over-schools-ppp-plan (“Over 100 organisations later signed or supported a statement critical of the privatisation of education in Kenya and Uganda. This slammed Bridge International specifically and condemned the World Bank for financing its operations.”). 
[147] Center for Education Innovation, Bridge International Academies, EducationInnovatoin.org (2015) (last visited Mar. 1, 2016).
[148] Rumney, supra at note 137; U.N. Rights Expert Urges Liberia Not to Hand Public Education Over to a Private Company, United Nations Human Rights Office of the High Commissioner (Mar. 22, 2016), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=18506&LangID=E (discussing Kishore Singh criticizing the decision to outsource operations of its elementary schools to BIA.)
[149] Id.
[150] Education in crisis, Two Expert Human Rights Bodies Worried About the Commercialization of Education in Kenya, Education in Crisis (Nov. 20, 2015), https://www.educationincrisis.net/articles/item/1263-two-expert-human-rights-bodies-worried-about-the-commercialization-of-education-in-kenya. 
[151] Bridge International Academies, Philosophy (last visited Mar. 3, 2016 2:15 PM), http://www.bridgeinternationalacademies.com/academics/philosophy/ (“Teacher scripts are delivered through data-enabled tablets, which seamlessly sync with our headquarters, giving us the ability to monitor lesson pacing . . . recording attendance, and tracking assessments . . . .  We also create our own books, manipulatives, instructional songs, symbols for enforcing positive behavioral management, and more . . . .”).
[152] Id.
[153] Jason Beaubien, Do For-Profit Schools Give Poor Kenyans a Real Choice? NPR (Apr. 22, 2014 1:54 PM ET).
[154] Center for Education Innovation, supra note 134.
[155] Terrance F. Ross, Is It Ever Okay to Make Teachers Read Scripted Lessons?, The Atlantic (Oct. 10, 2014), http://www.theatlantic.com/education/archive/2014/10/is-it-okay-to-make-teachers-read-scripted-lessons/381265/.
[156] Bridge International Academies, Investors (last visited Mar. 3, 2016 3:00 PM MST), http://www.bridgeinternationalacademies.com/company/investors/. 
[157] David Zaremba, #370: The McDonaldization of Education in Kenya, Reports from Kenya (Jan. 15, 2016), http://aglifpt.org/rfk/?p=756.
[158] Schleider, supra at note 24, at 10-14; see also Madeline Hunter, Enhancing Teaching (2007); Farrell, supra note 106.
[159] V. Kasturi Rangan & Katherine Lee, Bridge International Academies: A School in a Box, Harvard Business School (Sept. 27, 2010), http://www.bridgeinternationalacademies.com/wp-content/uploads/2013/01/2010-Harvard-Business-School.pdf.
[160] Compare these tactics to those suggested by UNESCO. United Nations Educational, Scientific and Cultural Organization (UNESCO), A Human Rights-Based Approach to Education for All, United Nations Children’s Fund (UNICEF) 7 (2007), http://unesdoc.unesco.org/images/0015/001548/154861E.pdf; see also Rangan & Lee, supra note 142.
[161] Ross, supra note 138 (“This system all but guarantees consistent results: If you were to walk into any location on a given day (and in the same level class) the teachers would be giving the same lesson. But by its nature, this approach stymies individuality and spontaneity.”).
[162] Elizabeth Boyle, The Feminization of Teaching in America, MIT Program in Women’s and Gender Studies Kampf Prize (last visited Mar. 3, 2016 111:51 AM MST), https://stuff.mit.edu/afs/athena.mit.edu/org/w/wgs/prize/eb04.html (“Teaching is one of the highly feminized ‘semi-professions,’ like nursing and library-keeping. Feminization has contributed to teaching's low status. . . . and these factors have interacted to perpetuate the secondary role of women and teaching in society. . . .”); Freire, supra note 148.
[163] UNESCO, EFA Global Monitoring Report: Education for All 2000-2015: Achievements and Challenges, UNESCO 206-7 (2015), http://unesdoc.unesco.org/images/0023/002322/232205e.pdf; see generally The Jossey-Bass Reader on Educational Leadership (Wiley ed. 2000); see also The Jossey-Bass Reader on the Brain and Learning (Wiley ed. 2007).
[164] John Dewey, Democracy and Education (1916); John Dewey, Experience as Education (1938); Paulo Freire, Pedagogy of the Oppressed (1970); Pedro A. Noguera, The Trouble with Black Boys (2008); Daniel T. A Willingham, Why Don’t Students Like School? (2009).
[165] Id.; see also Schleider, supra at note 24, at 13; EFA Global Monitoring Report, supra note 147, at 208.
[166] Bridge International Academies, The Bridge Effect: Comparison of Bridge Pupils to Peers at Nearby Schools (2013), http://www.bridgeinternationalacademies.com/wp-content/uploads/2013/01/Bridge-International-Academies_White-Paper_The-Bridge-Effect_Nov-2014_Website.pdf.  The BIA research states: “Bridge’s [Early Grade Reading Assessment and Early Grade Math Assessment (EGRA/EGMA)] programme includes a multi-year, pupil-matched study. Working in partnership with a third-party company, each pupil is given a 30-minute, one-on-one oral assessment upon entry into the study by a trained external assessor.  The study then aims to track the same pupils over time and measures their annual performance at each of the participating schools.”  The article continues on to describe cohorts, not individual students, and makes no attempt to scientifically account for changes in individual students, which are inevitable.  The article does state, however: “While we acknowledge that our results are not part of a randomised controlled trial, we use rigourous, quasi-experimental methods to assess our efficacy. As Bridge has grown tremendously over the past few years, we have also expanded our measurement and evaluation programme in early grades to track effectiveness as we scale. We now follow and assess over 8,000 randomly sampled pupils, covering over 170 schools across 17 counties, investing over $100,000 annually in this study. Endline results for these pupils will be available in 2015.”  This author could not find any such results.  BIA also compares itself to Knowledge Is Power Program (KIPP) schools.  However, a comparison between the BIA research and the KIPP research reveals stark differences. Christina Clark Tuttle et al., KIPP Middle Schools: Impacts on Achievement and Other Outcomes, Mathematica Policy Research (Feb. 27, 2013), http://www.mathematica-mpr.com/~/media/publications/PDFs/education/KIPP_middle.pdf.  The KIPP research also focuses on schools and assessment of student subgroups; however, the KIPP data collected is at the level of each individual student. Id. at 5. The KIPP “study estimates the impact of KIPP middle schools using a hybrid approach that takes advantage of the best features of two distinct methods: (1) an experimental design using randomization based on admissions lotteries at eligible KIPP schools; and (2) a matched comparison group design that compares the outcomes of KIPP students to a group of students with similar observable baseline characteristics at a large number of KIPP schools.”  The KIPP research approach is vastly superior to the BIA research approach and so does not provide an appropriate basis for comparison.  It is, therefore, misleading to compare BIA results to KIPP results; see also Rangan & Lee, supra note 142.
[167] Leigh Buchanan, The Mission: Teach 10 Million Kids—and End Poverty, Inc. (Apr. 23, 2014), http://www.inc.com/audacious-companies/leigh-buchanan/bridge-international-academies.html.
[168] UNESCO, UNICEF, supra note 145, at 7.
[169] Education in crisis, supra at note 165.
[170] Ross, supra note 138.
[171] See generally John D. McNeil, Contemporary Curriculum: In Thought and Action 1, 139 (7th ed. 2009).
[172] Pedagogy is the subject of much educational research, which experts can help teachers apply. See e.g., Karla A. Smith et al., Pedagogies of Engagement: Classroom-Based Practices, Journal of Engineering in Education (Jan. 2005), http://personal.cege.umn.edu/~smith/docs/Smith-Pedagogies_of_Engagement.pdf.
[173] The School Reform Landscape: Fraud, Myth, and Lies (Eds. H.D. Tienken & Donald C. Orlich) (“Curriculum design has the greatest influence on learning when it is created closer to the students—at the local level.  Curriculum must be designed and developed collaboratively and locally, by the teachers, administrators, and students who use and experience it, to have the greatest influence.”
[174] Singh II, supra note 2; Robertson, supra note 2, at 11; Office of the High Commission for Human Rights, supra note 2.
[175] The Global Initiative, supra note 44, at 1.
[176] Singh II, supra note 2.
[177] Singh II, supra note 2; Robertson, supra note 2, at 11; Office of the High Commission for Human Rights, supra note 2.
[178] The Global Initiative, supra note 44.
[179] Robertson, supra note 2, at 2.
[180] Singh II, supra note 2; Castellano & Bradshaw, supra note 13, at 465.
[181] GATS, Preamble; Sauvé, supra note 89; Robertson, supra note 2.
[182] How to Scale John Dewey: A Conversation About Innovation From the Margins with John Seely Brown, International Education News (Dec. 9, 2015), http://internationalednews.com/2015/12/09/how-to-scale-john-dewey-a-conversation-about-innovation-from-the-margins-with-john-seely-brown/.  
[183] Castellano & Bradshaw, supra note 13, at 464; Sauvé, supra note 89, at 24.
[184] The Global Initiative, supra note 44.
[185] Castellano & Bradshaw, supra note 13, at 459.
[186] Sauvé, supra note 89, at  24; see also Choudhury, supra note 52, at 260.
[187] Romero, supra note 41, at 11.
[188] UNESCO, UNICEF, supra note 145, at 7; Romero, supra note 41, at 24-26.
[189] See Herbling, supra note 155.
[190] Patrinos, Barrera-Osorio, & Guáqueta, supra note 77 at 5.
[191] Id.
[192] Id.; Romero, supra note 41, at 26.
[193] Id.
[194] [194] Schleider, supra at note 24, at 15.
[195] Bellitto, supra note 2, at 27; Singh II, supra note 2; Castellano & Bradshaw, supra note 13, at 24; Choudhury, supra note 52, at 259.
[196] Devidal, supra note 23, at 45.
[197] Bellitto, supra note 2, at 101.
[198] Kiran Bhatty, The UN Report on Out-of-School Kids is Bad News for India. The Real Picture May Be Worse, The Wire (July 7, 2015), http://thewire.in/2015/07/07/the-un-report-on-out-of-school-kids-is-bad-news-for-india-but-the-real-picture-is-worse-5671/; United Nations, The Millenium Development Goals Report, 17-19 (2014), http://www.un.org/millenniumgoals/2014%20MDG%20report/MDG%202014%20English%20web.pdf.
[199] Id. 
[200] Robertson, supra note 2, at 14.
[201] UN Treaty Collection: International Covenant on Economic, Social and Cultural Rights, UN. (Feb. 24, 2009); Angela Melchiorre & Ed Atkins, At What Age? . . . Are School-Children Employed, Married, and Taken to Court? Trends Over Time, Right to Education Project 12 (2011), http://www.right-to-education.org/sites/right-to-education.org/files/resource-attachments/RTE_At_What_Age_Report_Annotated_Version_2011.pdf; Walter Kalin & Jorg Kunzli, The Law of International Human Rights Protection (2009) (discussing the extensive international human rights regime).
[202] Art. 13 (1)(a)(1), Repertory, Suppl. 9, vol. II (1995-1999).
[203] Different trade agreements deal with each field in a unique manner, like the TRIPS Agreement.
[204] Guzman & Pauwelyn, supra note 61.
[205] David G. Victor, The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment After Five Years, 32 N.Y.U. J. Int’l L. & Pol. 865.
[206] Id.
[207] Id.
[208] Id.
[209] Id.
[210] Id.
[211] Patrinos, Barrera-Osorio, & Guáqueta, supra note 40, at 5.
[212] Devidal, supra note 23, at 39.
[213] Id.
[214] Id.
[215] Singh II, supra note 2.
[216] Patrinos, Barrera-Osorio & Guáqueta, supra note 77.
[217] Singh II, supra note 2.
[218] Id.
[219] Id.; Saner & Fasel, supra note 78.
[220] Dewey, supra note 148; Dewey, supra note 148; Freire, supra note 148; Willingham, , supra note 148.
[221] Singh II, supra note 2; Castellano & Bradshaw, supra note 13, at 459.
[222] Castellino & Bradshaw, supra note 13, at 461.
[223] Patrinos, Barrera-Osorio, & Guáqueta, supra note 40, at 5.

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