—Serkan Yolcu, Visiting Scholar, Boston College Law School
On July 13, 2015 the Turkish Constitutional Court annulled — on a 12 to 5 vote — some provisions of a law amending the “Law on Private Teaching Institutions.” The law would have excluded “private tutoring centers” from the scope of “private teaching institutions” and thus closed these centers down. The Court declared that the legislation closing the private tutoring centers, known as dershanes, was unconstitutional because it was a disproportionate limitation on the right to education. The case was examined by the Court with regard to Article 42 (right and duty of education and learning) and Article 13 (restriction of fundamental rights and freedoms) of the Constitution. Here I argue that the result of the case is likely correct, but that the Court missed a major opportunity to deepen engagement with social rights in Turkey because it failed to interpret the substance of the right to education vis-à-vis comparative constitutional law and international human rights law.
Briefly stated, dershanes are private courses that provide additional education to high school students to prepare for the university entrance exam, which is a central and national test that every student applying to Turkish universities must take. In this context, it has been argued that “since getting high scores in this test is the key to enter good universities, … prep schools emerged as a market mechanism to offer a supply to this demand.” The controversy over these courses, though, had begun in the fall of 2013, when the government suddenly made a commitment to shut down them all.
The Court held that a democratic society requires an order in which the individual can live and make decisions freely, and the duty incumbent upon the state is to enable the individual to have the opportunity to make choices in a pluralist environment (para. 41). In this regard, taking education away from private services falls within the scope of the right to education protected by Article 42 of the Constitution (para. 43). Pursuant to Article 42 the state has the duty to ensure that everyone benefits from the right to education (para. 44). The state has to avoid making arrangements leading to the abolition of education services provided by private enterprise, unless there is a necessity to do so. In other words, the state cannot make arrangements that might disproportionally restrict the individual’s right to education (para. 45). The closing of private tutoring centers eliminates the ability of individuals to receive educational support from out-of-school private institutions to prepare for exams and thus was held to be a disproportionate restriction on the right to education and learning (para. 48).
The result of the Court’s decision seems both correct and important. However, the Court’s reasoning seems misguided when defining the substance of the right to education for two reasons. On the one hand, the Court largely ignored the theory of social rights developed in comparative constitutional law. The right to education is protected in more than 140 constitutions around the world and it is generally accepted that this right has two different dimensions: the right to receive education and the right to choose an education. The right to choose an education encompasses the “parental right to send their children to private schools and to establish new private schools.” Furthermore, the need “to protect children from state arbitrariness” is what lies at the heart of this parental right to choose. Moreover, there is almost a consensus in international human rights law that education must be “available to everyone, accessible to all, acceptable for pupils and parents and adaptable to needs of learners” within the paradigm of the famous “four A” scheme. It has been asserted that the availability of education “means that private bodies and persons have the freedom to establish and run private educational institutions.” The Court did not mention a single word developing these comparative arguments, despite their importance to the subject matter of the decision.
The Court also ignored the international law to which Turkey is a party and which is binding in the domestic legal system. Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) regulates the right to education, forbids the state from infringing upon the freedom of parents to choose their child’s school, and forbids the state monopoly of educational services. Sections 3 of article 13 states that “[t]he States Parties … undertake to have respect for the liberty of parents … to choose for their children schools, other than those established by the public authorities….” Section 4 stipulates that “[n]o part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions.” It has been clearly emphasized by the Committee on Economic, Social and Cultural Rights (CESCR) that “a State must respect the availability of education by not closing private schools” and that it must “ensure free choice of education without interference from the State or third parties” with regard to specific legal obligations of the State. Moreover, the Committee also declared that “the prohibition of private educational institutions” is a violation of Article 13. Furthermore, according to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, adopted in 1997 to provide guidance to legal practitioners in the litigation of social rights, “adoption of legislation which are manifestly incompatible with pre-existing legal obligations relating to these rights” is a violation of social rights “unless it is done with the purpose and effect of increasing equality and improving the realization of economic, social and cultural rights for the most vulnerable groups.” In this context, it would be a violation of the Covenant “if a state party to the ICESCR adopts a law that bans all secondary schools.”
This reasoning alone enables us to claim that banning all private tutoring centers would be a fortiori a violation of the Covenant. However, the Court ignored the Maastricht Guidelines, perhaps because of lack of awareness. More paradoxically, although Turkey has been a party to the Covenant since 2003, the Court referred neither to the Covenant nor to the Committee in its 66-page decision. Article 90 of the Turkish Constitution, as amended in 2004, stipulates that “[i]nternational agreements duly put into effect have the force of law” and that “[i]n the case of a conflict between international agreements, … concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.” Under this provision, the Court could have easily decided that the legislation closing the private tutoring centers is explicitly contrary to ICESCR section 13 and thus invalid without considering any further debate. Unfortunately the Court preferred to stay silent with regard to Article 90, thus ignoring its own constitutional obligations to place the ICESCR over domestic law.
Most of the case law concerning the right to education in comparative practice relates to the state’s positive duty to provide free and compulsory education or its components. It is rare to observe a claim arguing that the state violates this right by banning private educational institutions. The Court’s decision is thus an interesting one on an important issue. However, by ignoring comparative experience, the international law of socioeconomic rights, and constitutional provisions requiring the incorporation of these provisions, the Court may have jeopardized future enforcement of social rights in Turkey. The Court’s reasoning unfortunately exemplifies the Turkish judiciary’s ongoing reluctance to enforce social rights in conformity with international standards. Although Turkey has a broad social rights catalogue in the constitution, in general, judges have not paid as much attention to these rights as they should within the “social state” defined by the constitution. In this regard, the decision is a missed opportunity for the Court to engage with social rights in a broader perspective. The more the Court engages with social rights, the more awareness of the importance of these rights would be raised. Ignoring international and comparative law and confining rights adjudication to the test of proportionality might have delayed this awareness.
Suggested citation: Serkan Yolcu, The Misguided Judicialization of the Right to Education in Turkey, Int’l J. Const. L. Blog, Oct. 21, 2015, at: http://www.iconnectblog.com/2015/10/the-misguided-judicialization-of-the-right-to-education-in-turkey/
 Anayasa Mahkemesi, E. 2014/88, K. 2015/68. The decision is not available in English except for a press release available at http://anayasa.gov.tr/en/inlinepages/press/PressReleases/detail/10.html. The reasoned judgment was published on July 24, 2015 in the Resmi Gazete (Official Gazette).
 Dershanes are private education institutions that operate under Law No. 5580 on Private Education Institutions, which entered into force on 14 February 2007. These institutions carry out their activities under the supervision and inspection of the Ministry of National Education.
 The Court reviewed the disputed legislation in terms of the right to education for those who receive education (students willing to attend dershane) and the freedom of private enterprise for those who own and operate dershane. For present purposes, the considerations regarding the freedom of private enterprise will not be discussed.
Mustafa Akyol, “Behind the war over prep schools”, Hurriyet Daily News, Nov. 16, 2013, at http://www.hurriyetdailynews.com/behind-the-war-over-prep-schools.aspx?pageID=449&nID=57991&NewsCatID=411.
 Yoram Rabin, “The Many Faces of the Right to Education” in Exploring Social Rights: Between Theory and Practice, ed. Daphne Barak-Erez & Aeyal Gross (Oxford: Hart Publishing, 2008) p. 266.
 Rabin, p. 273.
 Rabin, p. 276.
 Fons Coomans, “Justiciability of the Right to Education”, Erasmus Law Review 2, No. 4 (2009), p. 427.
 Coomans, p. 430.
 CESCR, General Comment N° 13, The right to education (Twenty-first session, 1999), para. 50 & 57.
 General Comment N° 13, para. 59.
 The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997), §14(d).
 Sital Kalantry, Jocelyn E. Getgen & Steven Arrigg Koh, “Enhancing Enforcement of Economic, Social, and Cultural Rights Using Indicators: A Focus on the Right to Education in the ICESCR”, Human Rights Quarterly 32, No 2 (2010), p. 296.