The Socioeconomic Right to Education: Accessibility and its Implications for the Validity of Affirmative Action Measures

In 2012, Black, Brown, and Indigenous students made up over 60 percent of students enrolled in primary and secondary education in Brazil; yet, they made up only 40 percent of the student population in higher education. This underrepresentation of minority students indicates that these students face additional barriers, such as the effects of systemic racism, to accessing higher education in Brazil. The human rights framework has sought to address such inequalities in various ways, including by recognizing the right to education in the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Under the ICESCR, state parties are obligated to dismantle structural barriers that hinder full educational participation and establish equitable education policies. As Brazil is a state party to the ICESCR, it is crucial to further investigate persistent barriers to education. This paper will analyze the international community’s construction of the accessibility feature of the right to education. The Brazilian Supreme Federal Court’s ruling in Arguição de Descumprimento de Preceito Fundamental (ADPF) 186 will be analyzed to explore how domestic legal action can affirm or weaken the enforceability and public legitimacy of a human right. The ruling’s successes, critiques, and impact on future litigation involving the right to education will be discussed. This paper will draw on scholarship from human rights activists and legal scholars to examine how ADPF 186 contributed to the implementation of accessible education in Brazil. It will also explore how the presence of rights-affirming norms in domestic contexts (non-discrimination, universality, and interdependence) impacts the efficacy of introducing human rights principles into domestic legislation, arguing that both international and domestic action is necessary for the realization of human rights.