Education and constitutional rights: An international comparative study

Sebastian Edwards, Alvaro Garcia Marin

Given the widely recognised importance of institutions to economic development, the question arises of how to promote development through institutional change. This column investigates how constitutional provision of the right to education affects educational attainment. Initial analysis indicates a negative correlation, but this relationship is not robust to controlling for legal origin. Factors such as judicial review likely affect implementation of constitutional provisions.

There is a consensus among development economists that improving the quality of education is an important component of any comprehensive development strategy. What is less clear is how to improve the education quality.

Chile is a good example of a developing nation that is trying to make a qualitative change in its educational system. In 2014 the second administration of President Michelle Bachelet embarked on an ambitious program of educational reform. At the center of this effort is the idea that education is a social right, and that the market should not play a role – as it has until now – in its provision.1 This change in the nature of education is expected to take place through the adoption of a new Constitution that will strengthen social rights.

Constitutions are the most important determinants of political institutions. In their classical study, North and Weingast (1989) argued that the constitutional arrangement adopted by England after the Glorious Revolution allowed successive governments to make a credible commitment not to confiscate property without compensation. Persson and Tabellini (2007) analyzed, both theoretically and empirically, the effects of constitutional political systems on economic policies and economic outcomes.

Institutions and constitutions

In a recent paper we deal with an aspect of the relation between constitutions and economic performance that, to our knowledge, has not been addressed before (Edwards and Garcia Marin 2014). We investigate whether the inclusion of social rights in constitutional texts – what constitutional scholars call ‘positive constitutional rights’ – affects educational outcomes, measured by standardized test performance.

Not every constitution includes ‘social rights’ such as education and health care. Supporters of social constitutional rights argue that when these are enacted in the constitution, the legislatures and the executive are forced to enact laws geared at providing strong and high quality social services, including high quality education (Zackin 2013). Whether this works or not is an empirical question, whose answer is important to many countries currently considering major constitutional reforms.

Constitutional rights and education: Preliminary results

Constitutional scholars distinguish between ‘negative’ and ‘positive’ rights. The former are aimed at protecting individuals from the overreach of the state, and include property rights, the right of contract, and freedom of speech. Positive constitutional rights, in contrast, detail the obligations of the State toward individuals, and include the rights to education, health, and shelter. Their aim is to protect the people from poverty and devastation. Although every constitution (or constitutional arrangement) contains negative rights, not every national constitution enshrines positive rights (Sunstein 2004). France and Germany protect social rights at the constitutional level, while the United States, Australia, and Norway don’t include social rights in their constitutions.

Project Constitute has collected information on constitutions in 192 countries, and distinguishes between three types of constitutional protection to education: the provision of free education, compulsory education, and equal access to higher education. In 2012 the OECD administered its PISA (Program for International Student Assessment) test to thousands of 15 year old students in 65 countries.2 This exam measures skills in math, science and reading through common standardized tests. The sample includes all OECD countries, plus a number of invited nations. There are detailed data on the constitutions of 61 out of the 65 countries that participated in the 2012 PISA test.3

In Figure 1 we present the average scores in the PISA 2012 tests. Panel A is for the science test, Panel B is for math, and Panel C is for reading. Each Panel includes the mean score for the 61 countries in the sample. We also present the scores for four subgroups, corresponding to the number of constitutional provisions on education (scale from zero to three). As may be seen, in all Panels there are strict descending test scores – countries with stronger constitutional provisions have lower scores than nations with weaker (fewer) provisions. These differences in scores are large. Indeed, formal tests confirm that these differences in scores are significant: in each case we reject the null hypothesis of equality for the four subgroups of constitutional protection.

Figure1 PISA 2102 average by number of constitutional provisions and test

Controls and “causality”

Two questions arise from the results in Figure 1:

Could other factors be playing a role in this negative correlation?

How do we know that this isn’t a case of reversed causality, in the sense that countries with poor educational performance are driven to incorporate educational rights to their constitutions?

In Edwards and Garcia Marin (2014) we address these issues by estimating a series of regressions using both ordinary least squares and instrumental variables. In this empirical analysis we follow the traditional literature on school performance and include variables that capture the characteristics of the school system in each country, as well as the characteristics of families. The dependent variable is the logarithm of the score in the PISA tests, and the main regressor of interest is an index that measures the extent of protection of education in the constitution. This index goes from zero to three, and is the simple sum of the number of education-related provisions in each constitution. The following school characteristics were included: pupil-teacher ratio, percentage of schools with libraries (a measure of school infrastructure), percentage of private schools, and ratio of certified teachers; we also included the (log of) country income per capita, as well as its squared term. The following family-related variables were included: percentage of fathers with full time jobs, education level of parents, percentage of children from immigrant families, and the OECD’s Index of Economic, Social, and Cultural Status (ESCS).

The regression results indicate that once controls are added to the analysis there is no significant relation between the strength of constitutional protection and PISA scores (the estimated coefficient is very small and not significantly different from zero). Test scores, however, are correlated with the traditional variables – countries with better school infrastructure, more proficient teachers, smaller classes, and higher income per capita perform better. Also, stronger family backgrounds – for example, more educated parents – are positively related to test scores.

In order to deal with possible reverse causality we instrumented the ‘constitutional rights index’ with the La Porta et al (1998) legal origin variable, the year of independence, and the region of the world where each country is located. The results suggest that countries with stronger constitutional protection don’t have better educational systems; once again the estimated coefficient of the constitutional rights index is very small and not significantly different from zero. The traditional variables related to the characteristics of the school system and families continue to be significant and important.

We performed a number of robustness tests, and considered a series of extensions. We used an alternative index of constitutional protection, checked for nonlinearities and interactions among variables, and analyzed the determinants of test scores dispersion. The basic results were robust and held well, in the sense that enshrining educational rights in the constitution doesn’t seem to be related with better educational systems.

Enforcement

The most plausible explanation for these cross country results presented above – and discussed in detail in Edwards and Garcia Marin (2014) – is related to the difficulty in enforcing constitutional provisions on social rights. Indeed, it is possible that educational outcomes depend on the degree of constitutional protection and on the institutional and practical mechanisms available to enforce these rights. Enforceability of social rights has recently been discussed by a number of legal scholars. For example, Zackin (2013, p. 92) states that “constitutional provisions must be judicially enforceable in order to be considered rights at all.” And, referring to educational rights in U.S. states’ constitutions she asks: “Can we really call these constitutional educational provisions rights even though most were not written with the idea that citizens could enforce their individual claims through court?”4

Of course, this point does not apply exclusively to the United States. In fact, citizens’ ability to enforce constitutional provisions – and, in particular, provisions on social rights – are very difficult in poorer and middle income countries, where there is no tradition of judicial review, constitutional tribunals are slow and rigid, and courts are not truly independent.5

References

Brinks, D M and V Gauri (Eds.) (2010), Courting social justice: judicial enforcement of social and economic rights in the developing world, Cambridge University Press.

Edwards, S (2010), Left Behind: Latin America and the False Promise of Populism, Chicago: University of Chicago Press

Edwards, S and A García-Marin (2014), “Constitutional rights and education: An international comparative study”, National Bureau of Economic Research, Working Paper, 20475.

Ginsburg, T (2014), " ¿Fruto de la parra envenenada? Algunas observaciones comparadas sobre la Constitución chilena", Estudios Públicos 133, 1-36.

La Porta, R, F López de Silanes, and A Shleifer (2008), “The economic consequences of legal origin”, Journal of Economic Literature, 46, 285-316

North, D and B Weingast (1989), “Constitutions and commitment: the evolution of institutions governing public choice in seventeenth-century England”, Journal of Economic History.

Persson, T and G Tabellini (2005), The economic effects of constitutions, The MIT Press

Sunstein, C R (2004), The Second Bill of Rights, New York, Basic Books

Sunstein, C R (2006), “Why does the American Constitution lack Social and Economic Guarantees”, Syracuse Law Review, 56,1:2-27

Zackin, E (2013), Looking for Rights in All the Wrong Places, Princeton: Princeton University Press

Endnotes

[1] Since 1980 Chile has had a voucher system that allows families to use public monies to send their children to (some) private schools that charge a relatively low tuition. See Ginsburg (2014) for a discussion on the Chilean constitutional debate from a comparative perspective.

[2] The PISA test is administered periodically. Before 2012, it was given in 2009.

[3] Project Constitute has no data on constitutional rights for New Zealand, the Slovak Republic, Tunisia, the United Kingdom, and Vietnam.

[4] See also Sunstein (2004, 2006) and the literature cited there.

[5] See, for example, Brinks and Gauri (2010), Landau (2012), and Wiles (2006).