A constitutional right to free education?

Alex Salmond, Scotland’s First Minister, has called for a constitutional guarantee of ‘free education’. Speaking to the BBC, he described a written constitution as integral to a ‘modern democracy’, which would enshrine a number of civic rights. So far as education is concerned, he stated that:

Scotland pioneered free education hundreds of years ago. We have a policy that has restored free education, but it should be a constitutional protection.

Before anyone accuses me of extreme gullibility, let me make it clear that I am award that Salmond is a politician, and his main priority at present is building support ahead of the 2014 referendum. No one has ever accused him of spending too much time contemplating the finer points of democratic legitimacy, and I am not about to start. But he clearly thinks that the idea of ‘free education’ is an appealing one, and it is therefore worth exploring it a little further.

The first thing to note is that a number of opposition politicians in Scotland have recently called for a new debate over tuition fees in higher education. For example, Labour’s Scottish leader Johann Lamont last year claimed that the current arrangement, whereby Scottish undergraduates are funded by the state, was financially unsustainable and likely to erode ‘excellence’. She also claimed that it was unfair, as university graduates not only get ‘higher lifetime returns’, but a ‘disproportionate number’ are from more privileged backgrounds, making the current system ‘essentially regressive’. So this is a hot political topic, and the parties – Lamont as much as Salmond – are looking for political returns.

The second thing that I’d say is that if a constitution enshrines a right to free education, then the law courts will need to test what is included and what is not.  Even in Scotland’s universities, most postgraduate students expect to pay a fee, and at the top end many companies pay premium fees for executive education programmes. Local councils in Scotland charge adults for community courses. In Stirling, for example, a typical class – beginners’ IT or creating writing – costs £71.40. And then there is a vast mass of commercially provided education, from teach-yourself materials through to study tours.

Third, and somewhat pedantically, Mr Salmond has rewritten the past. For most of their history, Scottish universities charged students to matriculate (or enrol), then they paid a fee to the professor for each course that they studied, and again to sit the exams and graduate. When Adam Smith won a scholarship to Balliol College, he complained that his Oxford professors were uninterested in teaching, because they were paid from endowments and not by their students. (The serious-minded Presbyterian and Unionist Smith also detested the political and religious sympathies of Balliol, where many staff were inclined towards Jacobitism and Catholicism).

Fourth, public funding involves trade-offs. In the case of Scotland, the government has decided to use public funding to support the universities, and to reduce dramatically its support for colleges. It has required the funding council to concentrate its cuts on part-time study, so that participation by adult learners – particularly women – has fallen dramatically. It is simply not the case that ‘free education’ has no implications – we have learned in Scotland this year that ‘free education’ for university undergraduates means ‘no education’ for many others.

So basically, I’m suggesting that it is unrealistic to expect that all education can be free. A constitutional right to free education will need to be highly qualified, and will be subjected to legal challenges. And I confidently expect it to be rewritten every time there is a change of government. Little wonder that other ‘modern democracies’ like Germany do not enshrine this right in their constitution. I admire the intention, but it’s unworkable.

Then there’s the specific question of higher education. Do we really believe that a mass higher education system can be funded today on the same basis as a much smaller system that used to cater for a tiny elite in the past? Whether fees should be charged is essentially a question of morality. Those who believe it morally right for the state to fund the system through taxation should be willing to argue openly for higher taxation, or for lower quality. Those who believe state-funded higher education is socially regressive, and produces stronger private returns than public goods, will presumably argue for fees much more explicitly and openly than Johann Lamont has done so far.

And do I expect our leading politicians to take these morally justifiable but politically unpopular positions any time soon? Let the clichés roll, from melting rocks to flying pigs.


1 thought on “A constitutional right to free education?

  1. Thanx for puting this issue in a much wider perspective than normal. I would also ask whether ‘free’ is the only fundamental value one might consider enshrining in a constitution. Australian colonies’ education Acts from the last quarter of the 19th century specified that school education was to be free, compulsory and secular (from age about 6 to about 15). While Australian secondary education is arguably no longer either free nor secular (Meadmore, 2001), these principles still seem important to me.

    Meadmore, Peter (2001) ‘Free, compulsory and secular’? The re-invention of Australian public education, Journal of Education Policy, volume 16, issue 2, pages 113-125.

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