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On Blindness: HCJ 5373/08 Abu Libdeh v. Minister of Education (Judgment of February 6, 2011)
Court Watch | 5373/08 | 1.1.2013 | Adv. Clara Unger

In 2011, the High Court of Justice (HCJ) issued a judgment in this case, which involves the right to education and equality in education for the children of East Jerusalem. It was issued after about a decade of deliberations. This commentary briefly addresses the results of this judgment, in the context of a previous case in which the HCJ intervened in order to uphold the right to education of the children of Poriya Illit, an Israeli community near Tiberias.

In 2000, the Poriya Illit parent council filed a petition against the state and the Ministry of Education. The main argument in the petition was that the parents of high school aged children were required to pay substantial tuition fees which ran counter to the notion of compulsory, free education. Since Poriya Illit does not have a high school, the community's children attend the Emek HaYarden regional high school. This school is not part of the official state education system, but it is an accredited institution that mostly serves local kibbutz communities. The school is informed by the values of the labor movement.

There are two types of institutions that receive accreditation from the Ministry of Education – official schools that belong to the state education program, and accredited unofficial institutions of various types (democratic schools, kibbutz movement schools, Christian schools etc.). Unofficial institutions receive substantial public funding, though still less than state run schools. Another category is unaccredited private schools that operate outside the state education system, without supervision, without licensing and, obviously, without public funding.

The parents of Poriya's children complained that they were required to pay substantial tuition fees and that they were unable to discern which program components were optional, enrichment elements and which were mandatory items for which the school was permitted to charge a fee. The petitioners referred to sections 6(c) and 6(d) of the Mandatory Education Law, which provide as follows:

  1. The provisions of Subsection (a) notwithstanding, the Minister may prescribe, by order, that in cases in which persons cannot, in the opinion of the Minister, be guaranteed education in an official educational institution, such persons shall attend alternative educational institutions, and the state treasury shall pay for their tuition fees in said institutions, under the conditions prescribed in the aforesaid order.

  2. Individuals entitled to free education under this Section shall not be required to pay enrollment fees or any other fees for attending an official educational institution or for attending an alternative educational institution whose fees are paid by the state treasury pursuant to Subsection (c);…

The parents argued that under this subsection, the state treasury should pay for the cost of attending the unofficial institution and that the parents should be entitled to decide whether or not to participate in the various optional program components.

Before making a decision, Honorable Justice Procaccia reviewed the status of the right to education. She noted:

In the post-World War II era, the social concept that the state has an obligation to ensure that individuals are provided with the basic means required for their physical and mental wellbeing gained increasing support. Protecting fundamental individual rights from government intervention was no longer deemed sufficient. The basic means for individual wellbeing included the right to education. This right was enshrined in the Universal Declaration of Human Rights of 1948. Article 26 of the Declaration stipulates the universal right to education and instructs that education shall be free and compulsory, at least in the elementary and fundamental stages and that technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups.[1]

Justice Procaccia also referred to the case law generated by the HCJ over the years, addressing the important, central role of the right to education, as well as the state's legal obligation to provide free education in official state institutions. In 2002, two years after the petition was filed, the HCJ instructed the state and the regional council to cover the students' tuition fees pursuant to Section 6(c), to clarify what part of the payment was compulsory and what part was optional and to stop charging the parents fees for the optional program components.

In the decade that has passed since, and more vigorously since the 2011 Israeli social justice protests, there has been a lively public debate about how broad the right to free education should be. This discussion has led to a reform in education programs for preschoolers aged 3 to 4 and an expansion of the right for younger ages. Education is perceived as one of the basic services a functional state must provide. Any inequality in education, particularly in an age of growing economic disparities, is perceived as a fatal blow to children and their ability to develop into productive, contributing members of society. To use an image taken from the world of botany, all garden beds have a right to water, sunlight and equal treatment, otherwise they would produce nothing but thorns and thistles. It was this belief that motivated many to take to the streets, for the first time in years, to protest Israeli government policies.

In an entirely parallel universe, in the shadows of the attention the media has given to the right to education, the failed education system of East Jerusalem has been struggling for years. In 2000, in view of what can only be described as a full systems failure, a number of HCJ petitions were filed by parents of children attending the East Jerusalem school system, City Council members and various civil society groups.[2] From that time and until the judgment in HCJ 5737/08 Abu Libdeh v. Minister of Education (Abu Libdeh), was handed down on February 6, 2011, for about a decade, these cases remained pending at various stages. Anyone who sings the praise of children's rights, and most prominently the right to education, should have been outraged by the state of affairs these petitions depicted.

There are about 80,000 children in East Jerusalem who are in the age bracket that comes under the compulsory education requirement.[3] There is no dispute that as residents of the country, they are entitled to free education. Half of these children do attend official education institutions, but the remaining half, about 40,000, have no spots in the state run schools. Many of them (about half) attend accredited non-state institutions and another half attends private institutions that are not recognized and operate without a license. The parents of these children, who are members of an extremely disempowered group socioeconomically, must pay tuition fees to these unofficial institutions, in stark contrast to the applicable statutory provisions.[4] In Abu Libdeh, a number of East Jerusalem parents sought reimbursement for tuition fees they had paid (thousands of shekels a year). The demand relied on the state's obligation, presented above, to pay for education in unofficial institutions. However, in the final outcome, this case demonstrates that the law is so far out of the reach East Jerusalem children that a decade of judicial oversight over the actions of the executive branch failed to bring about the necessary change.

Justice Procaccia defines education in East Jerusalem as a "high priority national goal", while severely criticizing the authorities that have neglected the issue for years.[5] Over the years, the state and the City of Jerusalem had made countless promises to the justices that they would build schools that would add hundreds of classrooms in East Jerusalem, but the judgment expressly says:

Along with the progress and the efforts invested by the respondents in finding solutions for the problem of the shortage of classrooms in East Jerusalem, their progress has been too slow; even if we take into consideration the logistic and economic difficulties and the special conditions in East Jerusalem. In any event, the result is that many children in East Jerusalem remain without appropriate education facilities. This outcome is unacceptable.[6]

A review of a report submitted to the Knesset Education Committee in 2010, as well as reports written by the NGO Ir Amim paint a similarly grim picture. More than four decades after the eastern part of Jerusalem came under Israeli occupation, and a decade after the HCJ addressed the issue, the shortage of classrooms is still dire and the classrooms that are available do not begin to satisfy the need.

What is the High Court of Justice to do in a case in which an entire sector of the population suffers from systemic discrimination, its fundamental constitutional rights violated, while the state fails to meet a target that should be a "high priority national goal"? If a small number of children got a positive judicial outcome in the Poriya Illit case, it stands to reason that the court would instruct to fund schooling in accredited, non-state run institutions.

But this case shows again just how exterritorial East Jerusalem is, if not in theory, then in practice. Unlike the Poriya Illit case, where it was clear that the children had no choice but to attend the unofficial education system (because there was no official high school), in East Jerusalem the situation is much more complicated.

First, it is plausible that some East Jerusalem children attend unofficial and unaccredited institutions voluntarily and in this case, there is no expectation that the state should foot the bill for their education (although, it may be worth asking how many of them would have enrolled in the official, free, education system if the option was available). How would the Jerusalem Municipality Department of Education know which of the parents tried to enroll in the official education system and got rejected? An Ir-Amim report indicates that the City of Jerusalem was not in the habit of providing confirmation of attempts made by parents to enroll their children in official schools.[7] The city added that any judgment that would instruct the authorities to implement a mechanism that would see the local councils and the Ministry of Education covering tuition fees would be problematic, as East Jerusalem children would then flood the authorities with "dishonest claims". What would constitute a dishonest claim? Would it be dishonest for parents who "suddenly" become eligible for tuition funding to wish to transfer their child from an unofficial, unlicensed private school to an accredited but non-state run one? What exactly is the percentage of East Jerusalem parents who send their children to private schools as a matter of choice and pedagogic preference?

It seems that complicated questions such as this one led the HCJ to rule differently than it did in Poriya Ilit and to give the State of Israel and the City of Jerusalem more time to resolve the classroom shortage in the city. The HCJ ruled that if the matter were not resolved within five years, a mechanism would be put in place to cover the unofficial school tuition costs of East Jerusalem's children.

Though the court exhibited unusually active involvement during the proceedings over a long period of time, and though it put pressure on the executive branch, it ultimately allowed a situation that it, itself, considers unacceptable to continue for five more years. Could the court have acted differently? This question seems to have more to do with judicial politics and the interrelationships between the various authorities than with issues of justice. This is why this judgment exemplifies, to a great extent, the limits of the HCJ's power, in the sense of how far it is willing to go to protect the rights of "transparent" sectors, like the residents of East Jerusalem.

Finally, it is difficult not to remember other high priority national goals in the name of which the executive, with backing from the HCJ, changed the demographic, geopolitical reality in East Jerusalem beyond recognition – during the very same decade.

Adv. Clara Unger

The author is a lawyer, formerly on staff at the State Attorney's Office. She is currently a licensed tour guide and blogger.

HCJ 4363/00 Poriya Illit Committee v. Minister of Education (2002), judgment of May 2, 2002 (in Hebrew), para. 8 of the opinion of Justice Procaccia.
See, e.g., HCJ 5125/00 'Awaida v. Municipality of Jerusalem (on the 2001 conclusion of this case, see below note 5, para. 8 of the opinion of Justice Procaccia); HCJ 3834/01 Hamdan v. Municipality of Jerusalem (2011).
Since then, there has been about a 10% increase, but the breakdown is similar – see note 4 below.
See Knesset Research and Information Center, The Education System in East Jerusalem: Classrooms and Curricula (2010; in Hebrew); the report mentions a shortage of about 1000 classrooms and substandard conditions in existing classrooms. See also Ir Amin and the Association for Civil Rights in Israel, Education Report 2011 – The East Jerusalem School System (2011); the report also mentions that there are 5,000 children who are entitled to free education who do not attend school at all.
HCJ 5373/08 Abu Libdeh v. Minister of Education (2011), Judgment of February 6, 2011, para. 57ff. of the opinion of Justice Procaccia.
Ibid., para. 4 of the opinion of President Beinisch.
On enrollment irregularities in East Jerusalem, see Ir Amin and the Association for Civil Rights in Israel, The Arab-Palestinian School System in East Jerusalem (2009). (02) 627 1698   (02) 627 6317

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