Motion (H)On 9 September 2004, the Supreme Court of Israel delivered a judgment rejecting a petition submitted by Adalah in June 2004, which demanded that the Ministry of Education (MOE) establish preschools for approximately 300 three- and four-year-old Arab Bedouin children in their villages to ensure their right to free education, in accordance with the Compulsory Education Law (Amendment 16) – 1984. The children involved are from the two unrecognized villages of Zaa'rura (population 2,756) and Bir al-Mashash (population 882) in the Naqab (Negev). There is currently no preschool or any other educational framework in either village for the children of this age group.
The petition was filed by Adalah Attorney Morad El-Sana on behalf of the Regional Council for the Unrecognized Villages in the Naqab, the Union of Students’ Affairs in the Naqab, the Follow-up Committee for Arab Education, the Cultural Society of the Naqab, the Regional Union of Arab Affairs in Israel and 43 children from the two unrecognized villages, against the Minister of Education and the Director of the Southern District of the MOE. Supreme Court Chief Justice Aharon Barak and Justices E. Levy and Salim Jubran presided over the case and concurred in the judgment. Writing for the Court, Chief Justice Barak stated that the petition raised two main issues: (1) whether or not a need exists for the Court to intervene in the MOE’s decision not to open preschools in the two unrecognized villages without outline plans of the villages to enable their construction; and (2) whether or not the MOE is meeting, in practice, its obligation to care for the educational needs of the Arab Bedouin children in the two villages.
Regarding the first issue, Justice Barak ruled that it would be improper for the Court to interfere with the MOE's decision, and that the petitioners’ arguments must be directed to the planning authorities and not to education officials. As for the second matter, Justice Barak decided that the information provided by the MOE to the Court proves that it is not disregarding the children’s educational needs, and that the petitioners' charge of discrimination against the Arab children is unfounded.
Notwithstanding these rulings, however, the Court’s decision stressed the MOE's claim that the children have access to preschools in neighboring villages is insufficient. Justice Barak stated that the MOE presented the Court with contradictory statements as to whether it is bearing the children’s transportation costs to the preschools, adding that children's right to education can sometimes necessitate funding access to schools located far from their homes. Justice Barak further pronounced that the Arab Bedouin have special needs, since there are no educational services near their homes, and because the living conditions in these villages, including the lack of paved roads, can make traveling to schools outside of the villages extremely difficult. Given these facts, Justice Barak stated that it is likely these young children will be unable to reach the preschools designated for them outside of their villages, finding the MOE’s position that it is fulfilling its duty to the children not to be borne out.
At the same time, and despite this finding, the Court also held that providing transportation services for children from the unrecognized villages is liable to thwart the state’s interest in increasing the number of unrecognized villages incorporated into the central government's framework of planning laws. Nonetheless, Justice Barak added that the petitioners did not elaborate on their arguments regarding accessibility to existing educational facilities, and failed to provide facts on the effect of the lack of funding of transportation on accessibility of the children to the preschools.
In conclusion, the Court held that the petitioners did not meet the burden of proof necessary to warrant the Court’s intervention in the MOE’s decision, or to establish the claim that the MOE was not fulfilling its duty to provide educational services to the children.
Adalah submitted a petition on the same subject in April 2003. However, in May 2003, the Knesset decided to freeze the implementation of MOE directives, which specify towns and villages in which preschools are to be established, thereby precluding the establishment of preschools in Zaa'rura and Bir al-Mashash. During a Supreme Court hearing on that petition held in September 2003, the Attorney General informed the Court that a decision had been made to extend the period of Amendment 16's gradual implementation until 2008. The Supreme Court indicated that, despite the Knesset's decision, the principle of equality nonetheless obligates the MOE to set up preschools in the two villages in the event that preschools are established in other areas. The Supreme Court also agreed that the two villages should be prioritized. Thus, if it subsequently became apparent that the MOE was continuing to establish preschools, despite the freezing order, a further petition could be submitted.
Adalah continued to monitor this issue, and later learned that the MOE had established six preschools in other towns. In its response to motions filed by Adalah, the MOE defended its failure to set up preschools in the two unrecognized villages by claiming that the Interior Ministry had refused to issue building permits. In January 2004, however, the Regional Council for Building and Planning issued permits for the construction of mobile buildings in 16 schools in unrecognized villages, which Adalah argued in the June 2004 petition "invalidates the MOE's excuse for not opening kindergartens in Zaa'rura and Bir al-Mashash."
Adalah contended in the petition that the purpose of the Compulsory Education Law (Amendment 16) – 1984 is to provide education for underprivileged groups, in order to narrow the gap between them and the rest of society, and to assist those unable to send their children to private preschools. Adalah further argued that the current situation in the two unrecognized villages infringes the children’s right to equal educational opportunities, and to the same educational resources as other children in the country. Moreover, the MOE's claim of insufficient funding does not take precedence over the rights of the children to education, and equality with other children in the country.
In its reply to the petition, the MOE claimed that it does not discriminate against Arab Bedouin children, since the application of the law is limited in scope throughout the country. The MOE added that it has established 40 new preschools for Arab Bedouin children in the Naqab, who are exempt from paying tuition fees, contrary to the practice elsewhere in Israel.
The MOE also stated that it anticipated the establishment of 15 additional preschools during the coming year, and that the existing preschools in neighboring villages are sufficient to meet the children’s needs. The MOE stressed that the two unrecognized villages are absent from the structural map, and therefore that it is not possible to set up preschools in there. The MOE also claimed that the children’s families broke the law when they built houses in the villages, and accordingly cannot demand services from the state in whatever place they built their homes.
H.C. 5108/04, Ismail Mohammed Abu-Guda, et. al. v. Limor Livnat, Minister of Education, et. al.
* See Adalah’s Newsletter, Volume 5 – September 2004 for two articles, written by Dori Spivak, Faculty of Law, Tel Aviv University and Adalah Attorney Gadeer Nicola critiquing the Supreme Court’s judgment in this case.