Sending children back to school during coronavirus has human rights implications

Debates about a return to classroom learning in Australia are fraught, and parents have mixed feelings as to what may be best for their children.

This confusion is likely influenced by a sense of mixed messages from different approaches around the country.

For example, term 2 began this week in New South Wales. From week 3, children in government schools have been allocated a day per week when they should learn on site. In Western Australia, parents have been asked to decide if their children will return to the classroom, learn online from home or learn from home with hard copy materials. The situation in both states is to be reviewed around week 3.

In contrast, all Victorian students who can learn from home must do so. The ACT is also proceeding with online learning for all children who can be supervised at home.

Human rights relevant to schooling

Australia lacks a comprehensive human rights framework, although human rights laws have been passed in the ACT, Victoria and Queensland. Little commentary to date has considered the return to school in a human rights context.

Human rights are interconnected values. Many are relevant to this issue and the pandemic more broadly.

Under international law, all people have the right to the highest attainable standard of physical and mental health. The right to health extends beyond access to health care. Importantly in the context of the coronavirus pandemic, it includes a right to the prevention, treatment and control of disease.

All people, and particularly children, also have a right to education. This right is described as essential for people to participate effectively in a free society. Countries are obliged to protect the right by ensuring, at a minimum, free and compulsory primary education and a system of schools to provide equitable access to education at each level.

International law also confirms the right of all people not only to work, but to enjoy just and favourable conditions of work. This includes a right to safe and healthy working conditions.

Human rights issues arising from a return to the classroom

How can we balance human rights implications of a return to classroom learning, when rights may come into tension with each other?

Most human rights can be constrained, although not to the point where their essence is denied. Limitations on rights must be necessary in response to a pressing public or social need. They must also pursue a legitimate aim and be proportionate to that aim.

When we consider rights in tension at this time, it is clear a right to health must be the primary focus. A weakening of protective measures may heighten the risk of a second wave of the virus.

A return to classroom learning should be made in consideration of the rights of both staff and children to enjoy the highest attainable standard of health. Australian parents and school staff are being encouraged to view schools as safe environments.

However, the advice for those who are at risk continues to be to stay at home. While some jurisdictions are moving to require in-person attendance, little has been said about how at-risk staff and students are to be protected at school or supported to continue in isolation.

Aspects of a return to school also pose mental health risks. Some students who require set daily routines may become anxious when required to attend only one day per week. Others, especially high school students in their final year, should perhaps be prioritised to return as a cohort in order to complete their education.

For teachers, there are significant workload implications in managing both in-class and online cohorts of students. The right of teachers to enjoy good mental health may also be compromised by a sense of risk in the return to classroom teaching. The potential for stress-related illnesses is obvious among parents, many of whom have found learning from home taxing on their mental health.

There is a widespread desire to support the right of students to education. Schools in Australia have mostly remained open throughout the peak of the crisis for children of essential workers and children who are safer at school than at home. This approach was a measured means of balancing rights to health and education and could be maintained for a longer period across the country.

It has been argued here that the “staggered” return to school in some states ought to prioritise the needs of children at certain key stages of learning.

We add that the most vulnerable children should also be prioritised. For example, greater equity in access to education at this time may call for special arrangements to include students with disabilities, chronic illnesses or mental health conditions. Students who lack at-home access to online learning could also be prioritised in a return to the classroom.

The physical environment in schools is a further complicating factor, particularly in terms of teachers’ rights to safe conditions of work. The prime minister is adamant schools are exempt from social-distancing requirements. Yet those states returning students to the classroom are implicitly undermining that message by setting maximum numbers and requiring staggered break times and other measures.

Many teachers feel confused and stressed about how they can do their work safely. This is unsurprising, given some states and other countries are taking much more cautious approaches to the health and safety of school staff.

No magic right answer

The balancing process between human rights values at this time is highly complex and beyond what we can hope to resolve in this article. And human rights analyses cannot deliver us a simple “right” answer as to how the return to classroom learning should be managed.

What human rights give us is another frame through which to consider these fundamental challenges. There are obvious economic and educational imperatives to prompt a return to classroom learning. Our national debate could be richer and more inclusive if it also included human rights claims.