07. Section Four: Building Human Rights Structures: The Role of an Ombudsperson for the Right to Education

“_Ombudsmen could translate the current emphasis on accountability in education into practice.”_
Katarina Tomasevski, UN Special Rapporteur on the Right to Education

Current structures in the New York City education system that exist to address parent and community concerns are inadequate. For example, when parents and community-based organizations are unable to resolve an issue at the school level, they have no effective procedures to seek remedies51 or gain access to the necessary officials or offices. Most often they employ informal means –letter writing, requests for meetings, or even organized protests –to seek a solution. While these informal efforts sometimes prod the system to respond to specific complaints, they rarely, if ever, succeed in transforming the poor quality or insular nature of schools in poor communities. Parents face a consistent lack of responsiveness from too many administrators and a persistent failure to grant low-income parents a real voice in the system that educates their children.

Structures based on human rights standards should be created outside the New York City government chain of command to independently support parent and community participation and increase government accountability. An ombudsperson is one classic example of a human rights structure⁵² that can facilitate and support effective participation in education governance and create greater transparency of and access to information.

An ombudsperson is an institution created for the people to protect them from the acts, omissions and violations of rights by the government.⁵³ An ombudsperson must be independent and impartial, as well as universally accessible, and empowered to make and publicize recommendations. The office helps to balance power between government institutions and individuals, and to create official reinforcement and support for the efforts of advocacy communities and aggrieved individuals. The office can be created through federal, local, or municipal law, and can be appointed or elected.

For such an office to successfully serve as an independent resource for civil society, it should meet the following basic criteria:

• Independence of the institution. The ombudsperson must not be part of any authority within the state or city, nor be subordinated to the state or city. Authorities must be legally obligated to assist the ombudsperson in his/her investigation; provide him/her with all required information; and provide proper financial and personnel resources for the office to carry out its functions.
• Confidentiality. The ombudsperson must be free from the obligation of providing state or city agencies with any information received during a complaint or investigation, and must maintain confidentiality in all the cases brought before the office.
• Access guaranteed to everyone. Because an ombudsperson works for all the people, there must be assurances that access of the people is not deterred by bureaucracy and territorial or communication issues or by internal policies of the institution.
• Assurance against reprisal. There must be assurances that those seeking assistance from the ombudsperson will not suffer reprisals from the government.
• Publicity of the body. The existence and functions of the office should be widely publicized.
• Impartiality and integrity. The impartiality and integrity of the office must be guaranteed to ensure just and objective determinations, and legitimacy before the public.

Many countries have created ombudspersons to protect and promote fundamental rights. These ombudspersons either address a wide range of civil, political, economic, and social rights, or deal with a particular right, such as education, or subset of the population, such as children.⁵⁴ Ombudspersons can have national, regional or local jurisdiction.

In Spain, for example, the city of Madrid has established an Ombudsman for Children who oversees a wide range of children’s rights issues, including the right to education. The Ombudsman is elected by members of the Madrid Assembly, is impartial and independent of the government, and has a staff of 18 people, including legal advisors, sociologists, psychologists, and counselors.⁵⁵ The Ombudsman’s office focuses on the education needs of marginalized children and the integration of children with special needs. It has issued reports and recommendations leading to positive changes in the administration of Madrid’s school system.⁵⁶

Duties of the Madrid Ombudsman include monitoring the impact of laws and policies on children by receiving and investigating complaints from children and parents, and collecting data on schools and other services affecting children. The Ombudsman formulates warnings, recommendations and suggestions for government, and influences policy development at local/community and regional levels. The Ombudsman also seeks to raise public awareness of human rights, provides information and counseling to children and parents, visits local schools, and trains professionals and other groups on children’s rights.

Many ombudspersons focus on educating parents and children about their rights. For example, the Ombudsperson for Children in Macedonia has developed a guide on children’s rights guaranteed in the Convention on the Rights of the Child, the Constitution of the Republic of Macedonia and the existing legislation and administrative regulations. The guide is disseminated in all primary and secondary schools, sometimes accompanied by training from the Ombudsperson’s office, “in order to familiarize children with their rights,...[and] to acquaint teachers and other educational workers with the rights of the children.”⁵⁷

Although there has never been an ombudsperson to support parent and community participation and increase government accountability for improving poorly performing schools in New York City, ombudsperson functions have been played by various governmental offices. The Office of Special Investigations of the Department of Education has, historically, investigated cases of fiscal and other corruption. The Office of the Public Advocate has also played a monitoring role, releasing occasional reports on school facilities conditions, class size and other critical schooling issues. Limited resources and authority, however, have prevented either office from addressing the pervasive lack of school responsiveness and the poor quality of education in districts serving low-income neighborhoods and communities of color. Recently, a wide-ranging group of parents, advocates and community organizations called for the creation, by state law, of a “fully funded and independent office of public education advocate to support parents and students and their organizations, and serve as a monitor and legal advocate for them.”⁵⁸

International examples help clarify the role that a human rights ombudsperson in the New York City school system might usefully play. At minimum, such an office should:

• Monitor and investigate violations of the right to education by gathering information from stakeholders and officials, receiving and investigating complaints from parents and other civil society actors, and analyzing data;
• Issue public findings and recommendations documenting violations and failures of government accountability, and suggest corrective measures based on internationally recognized human rights standards;
• Serve as an advocate for civil society with government offices and school officials, in particular for instances of widespread or systemic violations; and
• Facilitate access to existing remedies for victims of violations and/or file complaints in courts to protect the right to education.

To amplify the voice of civil society and ensure input from a broad array of communities,59 the office should also work closely with parents and community organizations to organize dialogues about schooling effectiveness and bring undetected violations to light, and to facilitate the exchange of information among groups or institutions undertaking their own monitoring of the right to education. It could also gather input from civil society, for example, by creating an advisory board that represents a wide range of stakeholders, and evaluates the performance of the ombudsperson.

Lastly, the office of a human rights ombudsperson can serve as an important resource for information about human rights standards and government obligations, providing trainings to parents and community organizations, as well as to teachers, principals, parent coordinators, community engagement staff, and district and city officials.