Introduction

In this paper, we argue that framing educational inequality through the concept of rights offers stronger prospects for equitable educational reform than alternative framings that have come to predominate in education policy in Australia, and in many other countries. The idea of a right to education has a long history, but gained impetus with the Universal Declaration of Human Rights (UN General Assembly, 1948), which dedicated several articles to education. Rights-based advocacy has continued to drive education reform in some settings, including through use of the legal system in countries like the United States (Russo et al., 1994). In Australia, advocacy has less often been framed through rights, and legislation (such as the Sex Discrimination Act, 1984) has excluded some rights from being enforced in schools. However, some movements have continued to frame their demands through rights, including those for inclusive education (Slee, 1999) and for Indigenous education (Anderson & Rhea, 2018; Moodie, 2021; Rigney, 2016). It is noteworthy that the Australian government initially refused to ratify the Declaration on the Rights of Indigenous Peoples (UN General Assembly, 2007), later signing on after a change in government.

Our purpose here is to cast light on the emergence and fortunes of rights-based accounts of educational inequality over time, and with reference to changing social conditions in Australia. Important to understanding the rise of rights-based accounts is the history of local and global political activism, connected to emerging counterpublics (Fraser, 1990). The term counterpublics refers to “parallel discursive arenas where members of subordinate social groups invent and circulate counterdiscourses, which in turn permit them to formulate oppositional interpretations of their identities, interests and needs” (Fraser, 1990, p. 67). Fraser (1990, p. 67) argues for historical importance of the emergence of such multiple publics, observing that “members of subordinated social groups—women, workers, peoples of colour, and gays and lesbians—have repeatedly found it advantageous to constitute alternative publics”.

Serious consideration of educational rights in relation to inequalities came into focus in Australia in the political context of the social movements of the 1960s and 1970s, in which new counterpublics began to emerge. Political activism has been connected to progressive educational reform in this era in historical analysis by McLeod (2014) and Campbell and Hayes (2019) and in first-hand accounts (Hannan, 2009). From the early 1980s onwards, the influence of social movements on education policy waned and rights were increasingly separated from the problems of inequality. Inequality, in the guise of relative disadvantage, was reduced to a problem for the efficiency of the education system, unrelated to individual or collective demands.

This narrow perspective has come under pressure from a third perspective, most strongly advanced by Indigenous scholars and activists, whose organising and demands show some parallels with the earlier era of the 1970s rights-focussed activism. As in this earlier moment, strategies advanced by Indigenous scholars and activists use a rights-based framing to centre the agency and humanity of oppressed groups (Moodie, 2021; Rigney, 2016; Watego, 2021). Unlike the previous rights-based perspective, the current body of Indigenous activist-scholarship presents educational inequality as constituting ontological and epistemic violence, calling for a much broader reworking of the legitimating foundation of rights.

Our analysis of the changing relationship between rights and education emerges from revisiting the 1970 book Rights and Inequality in Australian Education, edited by Peter Fensham (co-author of the present paper), 50 years after its publication. The 50-year period considered here biographically covers the period of active intervention of the authors in Australian education policy debates and represents a conversation across historical and contemporary perspectives as well as across generations. The paper was developed through correspondence exchanged between Joel Windle and Peter Fensham in the final year of Peter’s life (1927–2021), and concluded by Joel, who is Peter’s great nephew. Some of the context on the publication and reception of Rights and Inequality comes from autobiographical notes written by Peter. Beyond this, the paper is based on a close re-reading of Rights and Inequality as a way of drawing attention to subsequent developments, which have been summarised drawing on existing accounts presented in greater complexity and detail elsewhere (see, for example, Campbell & Proctor, 2014; McLeod, 2014).

Joel was given a copy of Rights and Inequality in 2010 by Professor Gerald Burke, as Burke was clearing out his office after 40 years at Monash University. Burke wrote the chapter on school vouchers, at a time when these were a novelty in US economic theory. By the time Joel had reached secondary school, a version of this economic theory was in full flight in Australia, with schools in Victoria compelled to compete against each other or face closure in the early 1990s. The state school he attended was the result of a series of mergers, with all campuses eventually being sold to neighbouring private schools or demolished. Peter completed his schooling in the second world war years, as part of a tiny minority, a scholarship holder at Melbourne Grammar. Peter’s academic and policy engagements grew from his intense and long-term involvement in progressive Christian and pacifist movements from the 1940s onwards. In the 1970s, he was concerned with inequalities in access to university as a Professor at Monash, and in the 1980s, he went on to play an influential role in state education policy reform in Victoria. By the time we thought to revisit Rights and Inequality, Joel was also heavily involved in efforts to reform university admissions, but in a completely different context, in Brazil. We shared an intellectual sensibility shaped by histories of engagement with major social movements of our times. In Joel’s case, this is influenced by contemporary rights movements for racial justice (Windle, 2019).

Emerging rights and publics

The manner in which Rights and Inequality in Australian Education was produced in itself draws attention to community and political mobilisation as central to the constitution of publics in which rights advocacy gains space. The collected volume arose from activities promoted by the United Nations Association of Victoria on the 20th anniversary of the UN Universal Declaration of Human Rights (UN General Assembly, 1948):

After consultation with a small group of persons who belonged to educational groups active in the community, it was decided that what ought to be (rights) must be related to what is (existing inequalities). This decision helped in the planning of a series of public seminars which were then arranged and which took place late in 1968 at the Alexander Theatre, Monash University. (Fensham, 1970a, p. viii)

Through this process, the book was connected to an earlier era of progressive reform internationally, reflected in the Declaration of Human Rights, and to contemporary local networks of progressive educational activism through the public seminars held at Monash by Fensham.

The contents of Rights and Inequality further drew attention to the ways in which rights gain legitimacy and authority as sources of action only in relation to publics. The book begins with a reminder from René Matheu, the Director-General of UNESCO, that the force of the Universal Declaration of Human Rights relies on the emergence of a “common conscience” and a “court of world public opinion” (p. vii). Chapter authors debated the extent to which rights need wide public recognition in order to “exist” or hold value, and on how to balance competing rights of different groups. For example, the opening chapters argue that the right of the child to education should constrain parental rights and state interests in schooling. However, a number of authors believed that Australian public opinion did not yet support the redirection of resources to overcome disadvantage (Chapters by Johnson, Fitzgerald and Dunn).

The book debates rights as a dynamic concept, interpreted differently across social and political contexts, and subject to imagined authorising publics. These publics may shift their sensibilities when inequalities are laid bare, which is a clear goal of the publication. The book shifted attention from psychological, often deterministic accounts of disadvantage, to sociological and philosophical treatment of inequality as a collective problem open to political action and change. As such, Rights and Inequality speaks to concrete political debates then raging over state aid to private schools (Ashenden, 2016; Campbell & Proctor, 2014). This is evident in proposals to reconcile a parental right to school choice with caveats that seek to guarantee equity. For example, McCloskey presented choice as a right that should be available within the public system:

Until the state in its own schools fully acknowledges and recognises the rights of parents and children, offering free, to all who need it, the kind of education to which individuals have genuine rights, the state has no right to divert money to other systems and thereby deny many the legitimate enjoyment of their rights. (McCloskey, 1970, p. 17)

In common with other authors in Rights and Inequality, McCloskey insisted that a condition of government funding for private schools be needs-based admission. The education system in England, a key point of reference for the authors, had indeed already imposed conditions of this kind. Burke, proposing a voucher scheme in his chapter, argued for the elimination of government support to private schools that charged fees (Burke, 1970). Johnson went a step further in his chapter, raising the prospect of incorporating private schools into the public system (Johnston, 1970).

Beyond funding, framing inequality with reference to the rights of specific groups enabled structures of curriculum, pedagogy and examination to come under scrutiny. Identification of universal educational rights framed demands for a curriculum that more fully recognised a legitimate place for all young people in education. This had become an urgent task as retention rates for secondary education were rising sharply (Fensham, 1970b). McLaren (1970, p. 87) argued that making public schools responsible to “the whole community, and not just to those who are academically or technically inclined” would help to diminish utilitarian and competitive tendencies. The idea of community accountability found resonance with wider campaigns for more local and community control over the school curriculum led by teaching unions and the alternative schooling movement of the 1970s (Hannan, 2009; McLeod, 2014; Teese, 2000).

Contexts of change

Rights and Inequality helped to contribute to change because it was produced alongside policy and political movements that made use of it and went beyond it. Together with The Myth of Equality (Roper, 1970), Rights and Inequality provided a philosophical and empirical reference point for the Karmel Review of education funding (Interim Committee for the Australian Schools Commission & Karmel, 1973) and the permanent Commonwealth Schools Commission, which was also shaped by movements such as second-wave feminism and included community activists and unionists in its ranks. The Schools Commission was arguably the first Australian government body to take educational inequalities seriously, including through the Innovations and Disadvantaged Schools programmes.

The schools commission drew on Rights and Inequality to the extent that commissioner Joan Kirner referred to the book as being like a “Bible”, later challenging Fensham to produce a “New Testament” when she became Minister for Education in Victoria.Footnote 1 In the context of progressive political change, naming of rights was used to appeal to and shift public opinion and to connect to a growing number of counterpublics (Fraser, 1990).

The Schools Commission proved to be responsive to pressure from such counterpublics, including women and Indigenous communities, as connections between activists and policy makers grew. Complex accounts of inequality and rights emerged in work on gender undertaken by the Schools Commission, such as the Girls Schools and Society report led by Jean Blackburn (Commonwealth Schools Commission, 1975). The Schools Commission was also the context for attempts at reframing policies to combat Indigenous educational disadvantage in terms of community control and self-determination (Hogarth, 2016). Self-determination implied the existence of rights, including to education, independent of the European legal system. Through the Schools Commission, an Aboriginal Consultative Group called for a curriculum based on recognition of Indigenous knowledge and identities (Aboriginal Consultative Group, 1975), pursued in later initiatives such as Chris Sarra’s “strong and smart” programme (Sarra, 2011).

Disconnecting rights and inequality

Rights and inequality began parting ways in Australian education policy in the late 1970s, in both funding and curriculum. With the fall of the Whitlam government in November 1975, the Fraser government redirected funding to support a parental right to subsidised private school choice. A 1978 ministerial guideline defined funding priorities as follows, “The Government wishes to encourage choice and diversity in education and to assist parents to exercise the right of choice of schooling for their children in either government or non-government schools” (Carrick, 1978).

Rather than being predicated on need, Federal funding was directed to even the most high-fee and exclusive private schools. This trend has continued unabated, to the extent that funding inequalities identified in the 1960s have been maintained and even exacerbated (Rowe & Perry, 2020). While compensatory funding also remains, it is dwarfed by the inequalities between schools created by a market framework oriented towards parental choice in which publics are replaced by consumers (Connell, 2013; Windle, 2014, 2015).

Further, a narrowing conception of inequality means that rights to recognition, voice and control in curriculum are no longer prominent in policy agendas. The Schools Commission, which had championed rights-based approaches, was sidelined and founding commissioners linked to social movements, such as Jean Blackburn and Joan Kirner, were removed. With educational quality judged on competitive advantage rather than responsiveness to community rights, the curriculum was narrowed and subordinated to an examination system that facilitated quantitative comparisons (Connell, 2013).

Comparing school funding in 1967, prior to needs-based and compensatory programmes, and in 2018, can help to shine light on the effects of promoting a sole right of parental choice divorced from other rights or consideration of inequality (Table 1, below). The 1967 data in Table 1 come from McLaren’s (1970) chapter in Rights and Inequality and show the lower resourcing of public schools catering for working-class and migrant populations at a time of sharp growth in enrolments. The 1967 figures also point to inequalities in educational outcomes. The relative advantage of the private schools has been maintained over time and is underwritten in 2018 by public subsidies and the ability to selectively enrol students. However, despite lower resourcing levels, Public School 2 has changed its position and has become a ‘school of choice’, partly through neighbourhood gentrification and partly through selective enrolments. As a high-demand school in a now exclusive neighbourhood, the school has a more similar socioeconomic profile to the private schools than to public schools in poorer neighbourhoods.

Table 1 Between-school inequality 1967 and 2018
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In the 1960s, McLaren’s data showed there was little difference in local fundraising across the state schools. By 2018, however, the funds raised by parents of the more affluent eastern suburbs state school were more than double those raised in the working-class north, typical of a wider pattern found by Rowe and Perry (2020). In 1967, private schools had no recurrent public funds, but by 2018 could count on considerable support from federal sources. By 2018, public funds ranged from 12 to over 90% of private school expenditure. This allowed all the private schools to spend more per student than government schools could, and in the case of School 1 to spend more than double the total per student of the government schools. The low socioeconomic status, Catholic school in the northern suburbs, like many similar local Catholic schools, now raises only a small proportion of its revenue from fees—similar in amount to the voluntary fees raised by the eastern suburbs state school. Instead, in 2018, it operated essentially on its public funding, which it received at a higher per-student rate than the neighbouring state school (AU$16,164 compared to AU$13,998).

The historical and contemporary inequality between schools illustrated by this comparison is maintained not just through funding, but through an increasingly conservative curriculum that advantages middle-class students and excludes others. What the table does not capture is the curriculum experimentation that flourished in some inner city, working-class and migrant schools in the 1970s (McLeod, 2014), and which has been wound back as inequality has come to be defined more in terms of standards, gaps and benchmarks rather than the establishment of meaningful connections between students and curriculum.

The Australian National Curriculum initiatives which began in 2008 further shifted control away from teachers, schools and students and towards market-oriented bureaucracies (Fensham, 2013). As state and federal governments have turned their attention to standardised testing and curriculum alignment, the pressures on “underperforming” schools have increased. In a new era of big data and accountability that was heralded internationally by TIMSS and PISA, and nationally by NAPLAN and the My School website, out-of-school inequalities were often bracketed out from analyses, which focus on apparently more policy-accessible elements such as teacher and school quality (Riddle, 2018; Sellar & Lingard, 2014). Current policy trends, building on advances in learning analytics and a continued concern with national competitivity, locate solutions in individual attention to, and monitoring of, learning progress. Inequalities arising from the curriculum are taken off the table as progress through that curriculum rather than the curriculum itself, becomes the centre of attention, as evident in the second Gonski Review, for example (Gonski et al., 2018, p. 27).

Some minoritised groups have been able to make use of the Australian funding model to establish their own schools or to gain support for experiments in public schooling. However, such schools operate on the margins of the system and are pressured to compete on the same narrowed curriculum as the wider system. A clear example of this is the Cape York Aboriginal Australian Academy (CYAAA) (Australian Council for Educational Research, 2013; Coughlin, 2011; McCollow, 2012). Based on the USA Charter school model and standards-based curricula, the CYAAA aimed to provide scripted learning that would counter disadvantage. Rather than community control, the Academy was inspired by corporate and think-tank policy initiatives led by Indigenous policy entrepreneur Noel Pearson. The school does not appear to have met its goals by its own measure of test performance (Australian Council for Educational Research, 2013).

Contemporary rights-based movements and counterpublics

An important strand of Aboriginal and Torres Strait Islander scholarship and activism stands out in its critique of deficit framings of inequality and in the promotion of a rights-based perspective. Although this movement is not new, it has gained prominence at the time of a global groundswell in movements for racial justice, including the Black Lives Matter movement. A number of Indigenous authors argue that the conceptual framework of relative disadvantage mobilised in much research and policy fails to capture the dramatic rupture, alienation and conflict of colonialism. Disadvantage does not speak to practices of oppression, including racism, expropriation and cultural and linguistic genocide (Morgan, 2019). The actions of long-standing Indigenous movements have generated an emerging recognition of collective rights, cultural rights, linguistic rights and land rights, including through the 2007 United Nations Declaration on the Rights of Indigenous Peoples (Anderson & Rhea, 2018).

Advocacy for a rights-based approach has generated curriculum-focussed proposals for valuing Indigenous epistemologies, culture, language and sovereignty (Sarra, 2011; Shay et al., 2021) as well as for enshrining rights in law. Lester-Irabinna Rigney (2016) has argued for the necessity of constitutional recognition and a treaty for Aboriginal education with the motto “if it’s not in the constitution, it’s not in the classroom”. He notes, for example, the lack of legal recognition of Aboriginal languages at any level of government in Australia, compared to New Zealand and South Africa, for example. He also draws attention to the need for consciousness raising amongst wider society for Indigenous rights to become concrete—addressing multiple and shifting publics.

Also calling for a treaty, Moodie (2021) has emphasised a re-imagining of Indigenous education that derives its authority and legitimacy primarily from within Indigenous populations. Moodie calls for genuine Indigenous self-determination in education, warning that this term has often been used as a euphemism for mere consultation. She also makes connections to the UN Declaration of the Rights of Indigenous Peoples, situating her argument in relation to other publics (transnational, here) in relation to whom rights can be articulated.

This position is strongly put forwards by Chelsea Watego (2021), who argues that Indigenous sovereignty does not depend on recognition by colonial institutions or colonists. Laws such as the Racial Discrimination Act may be used strategically, but always in the knowledge that “wins can be readily dismissed by the state as it sees fit” (p. 139). She condemns government policy and practice framed by Indigenous disadvantage as supplanting Indigenous sovereignty “with a grotesque kind of Black body count” (p. 171) that maintains a fiction of colonial benevolence. Watego makes these arguments as a public intellectual and activist who is building the Indigenous counterpublics to which she addresses herself.

This is not to say that Indigenous rights discourse is the only contemporary movement that lays claims to rights and an authorising constituency, nor that Indigenous struggles do not intersect with others, as Watego (2021) shows in relation to gender and class. Debate over LGBTQI + rights to protection from discrimination in education has also recently been debated in Parliament. This debate has also seen appeals to rights to discriminate made on behalf of religious citizens and religious schools, pointing to the capacity for rights discourses to be appropriated for different, and contradictory purposes.

Contemporary Indigenous rights discourse stands out from the discourse that was prominent in the 1970s by provoking a more radical critique of where rights come from in the context of colonial relations (see Table 2, below). The movement of the 1970s identified inequality as a social problem that infringed upon human rights. This framing was constructed through engagement with political demands, emerging counterpublics, and the naming of disadvantaged groups. The now-dominant framing reduces inequality to disadvantage, which is only a problem as far as it is a system-level inefficiency. Solutions are located in school choice and specialisation, personalised learning and efforts to “close the gap”. By contrast, by framing inequality as epistemic and ontological violence that has its source in coloniality, Indigenous scholars, and most prominently Watego, seek to locate rights outside of the existing social relations of the colony, and in Indigenous sovereignty. Therefore, a radical reworking of social relations and accountability is implied by this perspective, which relies neither on the polity of the nation state, nor a pre-existing set of codified universal rights.

Table 2 Framing of problem of uneven educational access and participation
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Conclusion

This paper has argued for the value of defining rights and inequality together, and that these concepts can be drawn together in political and policy practices through a plural notion of publics, along the lines advanced by Nancy Fraser (1990). We illustrated this argument firstly by drawing out some ways in which the 1970 book Rights and Inequality in Australian Education presented a dynamic concept of rights as emergent and responsive to political and social contexts. This publication contributed to an era of progressive, rights-based education reform, led by the work of the Schools Commission.

We then sought to argue that more recent education policy draws apart rights and inequality, reducing the importance of both for school resourcing and curricula. Rights divorced from any meaningful sense of equality, evident in school choice, are a dead-end that disenfranchises and dehumanises those classed as disadvantaged. Notions such as disadvantage are easily co-opted into policies of control and paternalism, as argued by Indigenous scholars. Inequality without rights can be reduced to inefficiency and separated from the humanising and empowering role of education.

Attention to the connections between rights and inequalities can help to foreground the ways in which political demands are constituted through collective action, social movements, and the naming of new publics. Nowhere is this more evident than in arguments by Indigenous scholar-activists for recognition of rights that are embedded in pre-existing sovereignty (Watego, 2021), and which demand legal standing through a treaty and constitutional amendment (Rigney, 2016). The equity agenda of the 1970s was incomplete and does not provide a model for replication, but the processes through which it emerged do offer some historical guidance, just as contemporary Indigenous activism does. It is worth recalling that contributors to Rights and Inequality were sceptical about the extent of the public acceptance of needs-based principles that were to become the centre-piece of government policy within 5 years, pushed along by social and political movements that have vibrant contemporary counterparts.