The right to education and positive discrimination: a constitutional and legal analysis

Abstract

The article reveals the peculiarities of the constitutional and legal consolidation of positive discrimination in the field of education in foreign countries and in Ukraine. It is established that: 1) positive discrimination in the field of higher education is prohibited in the United Kingdom, Germany, Sweden, and Slovakia; 2) positive discrimination based on race in university admissions is prohibited in the USA; 3) positive discrimination is allowed and applied: in Canada to representatives of the indigenous population (indigenous peoples) when entering a university and when receiving special scholarships; in Bulgaria – only for one ethnic community – Gypsies when entering a university, in Hungary – for socially disadvantaged citizens and the ethnic community of Gypsies when entering a university, in Macedonia – for national minorities when entering a university; in Finland for applicants who speak Swedish when entering certain educational programs; in China – to representatives of ethnic minorities, in India – to representatives of classes and castes that, according to the Constitution of India, are disadvantaged; in New Zealand – to representatives of the indigenous Maori people and other Polynesians when entering higher education institutions and providing scholarships, in Sri Lanka – to applicants from areas with poor access to education, in Brazil – to representatives of racial and ethnic communities, people with low incomes and disabled people; 4) in Japan, in accordance with national legislation, it is forbidden to apply positive discrimination on the basis of gender, ethnicity, social origin (but not citizenship) when entering a university, but in practice there is a policy of granting preferential treatment when entering a university to representatives of the Burakumin national minority; 5) The French Constitution of 1958 prohibits discrimination on the basis of race, religion or sex, French legislation that develops provisions of the French Constitution prohibits direct and indirect discrimination in education based on race or ethnic origin, but allows positive discrimination in education that is based on signs of «belonging to a certain district of the city». In Ukraine, positive discrimination in the field of education when entering universities and receiving scholarships for representatives of indigenous peoples of Ukraine is not provided for by national legislation.

Keywords

• human rights
• the right to education
• discrimination
• the principle of equality
• positive discrimination
• the constitution