School Choice: Who chooses?
Parents were initially granted the right to choose the education of their children, but it is now the Child who has the Right to choose their own education (with appropriate direction and guidance by Parents).
Parents deciding on their children's education without listening to the opinion of the children is a violation of child rights.
Note: This article is written on the basis of International Human Rights law (it does not consider national or regional Human Rights law - for example, in Spain, parents have a constitutional right to choose the education of their children)
Parental Choice in 1948
The Universal Declaration of Human Rights was the first international recognition of education as a right. In drafting of Article 26, while there was an understanding that education was a right for all ages, the implicit assumption was that elementary education would occur during childhood (and those who reached adulthood without receiving it should have the opportunity to receive it as adults). While recognising that education was the absolute right of the child, there was much debate about how the right could be ensured, as the child was not able to claim the right for themself.
In order to explicitly avoid state monopoly on education (which had contributed to the rise of the Nazi regime), article 26 included the clause
"Parents have a prior right to choose the kind of education that shall be given to their children"
Right to Homeschool and the UDHR
While some Homeschooling / Parental Rights organisations refer to UDHR 26 (3) as a guarantee of the right to home school, it is clear from the minutes of the drafting that the intention was to have a choice of schools (including schools provided by non-state actors), but not to facilitate homeschooling.
Parental Choice in the 1960s
The choice of Parents (extended also to legal guardians) to choose the education for their children was first recognized in a binding treaty in Article 5 of the Convention against Discrimination in Education (CADE, 1960), which states:
(b) "It is essential to respect the liberty of parents and, where applicable, of legal guardians, firstly to choose for their children institutions other than those maintained by the public authorities but conforming to such minimum educational standards as may be laid down or approved by the competent authorities and, secondly, to ensure in a manner consistent with the procedures followed in the State for the application of its legislation, the religious and moral education of the children in conformity with their own convictions; and no person or group of persons should be compelled to receive religious instruction inconsistent with his or their conviction;"
This was reiterated in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), which states
(3) "The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians, to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions"
Maintained vs Established
Maintained - Who is paying for the upkeep; Established - Who founded it;
"Other than those maintained" in CADE can be interpreted to still mean a restriction on choosing schools established by public authorities, whereas "other than those established" in ICESCR also allows schools established by Non-State Actors.
Reference: Sorry, I remember reading about this distinction but I can't find the reference
The Right to Establish Schools
Parental Right to choose non-state schools is meaningless unless Non-State Actors have the right to establish schools, and this is recognized in Article 13 of the ICESCR:
(4) "No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph 1 of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State."
Note: Non-State Actors are not only private providers (for-profit or not-for-profit); it can include, for example, religious and charitable organizations.
Right to Choose and the Convention on the Rights of the Child (1989)
With the CRC, Children were recognized as the Subject of Rights for the first time.
So while Right to Establish Schools of ICESCR 13 (4) is still reiterated as Article 29 (2)...
"No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State."
...the Parents' / Guardians' Right to Choose was omitted. Instead, the CRC recognizes the Right of the Child to have and express their opinion (not just on education but on all matters affecting them) and have that opinion heard, with greater weightage as the child matures, with Article 12 stating
(1) "States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.",
Of course, the CRC does not expect that a child will choose their education without any guidance, so Article 5 provides for Parents/Guardians to support the child in the exercise of all their Rights (including the Right to be Heard):
"States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention."