Should Public-Education Omissions be completed by Public-Private-Partnerships? Normative Considerations and Legal Praxis as reflected in the Israeli Case-Study.

• In Event: Poster session I
  In Poster Session: Poster session 1

Proposal

The proposed conceptual study examines power-delegation from governments to Public-Private-Partnerships in public-education. PPPs are often established between governments and the industry, philanthropy and NGOs in order to address public-education key issues as achievement-gap, inequality and environment. Many times, governments are interested in these issues but lack the capacity or the political power to carry them out. Private actors have the passion and means, however not the authority. This globally widespread form of privatization combines mutual private resources’ recruitment for the public benefit, with public authorities’ allotment to private partners. It compels a normative discussion about the democratic nature of PPPs. PPPs might be the opportunity for many marginalized groups and unpopular interests to overcome their disadvantages. Nevertheless, private resources inevitably buy private control and maximize donors’ and investors’ strategic benefits (“green wash”, “warm glow” etc.) instead of empowering targeted audiences or cultivating declared values.
Political and economic consequences of PPPs, intended and unintended, are debated among economists, sociologists and policy researchers (Patrinos, Barrera-Osorio, Guaqueta 2009, Ginzburg 2009, Robertson, Verger 2012, Verger, Bonal ,Zancajo 2016). However, normative and legal aspects of this regime are barely looked-over. The study’s first contribution is the application of normative deliberations from other discussions, as briefly summarized here:
• Can PPPs reconcile liberties of choice and private property with concepts of distributive-justice or sustainability? Economic interests with democratic values? (Sen 1992, Sen 2000, Le-Grand, 2005, Nussbaum 2009).
• Is it appropriate to disperse the states’ accountability to social malformations among private agents, albeit their willingness to take it? (Barry, 2005, Beerbohm, 2016).
• Should private agents, that were not elected, shape public-education’s agenda? (Strike, 2003, Ball, 2007).
• Can they serve as authentic representatives of marginalized groups or carriers of unpopular interests? (Porter & Kramer, 2002, Sandfort, 2008).
Based on these conceptual debates, the study’s second contribution is an analysis of the legal facet of PPPs: how should state-law accommodate these normative considerations, in order to facilitate PPPs’ regime and protect declared values of fairness, equality or sustainability? For that purpose, the study focuses on Israeli law and adjudication.
Four reasons make Israel a demonstrative case-study for this global issue: its public-education is the most polarized among OECD members (PISA, 2015); It is very diverse; One-third of its national expenditure on education is operated by non-profit PPPs; and the PPP sector is heavily regulated by state-law. Thus, the study offers an international education case relevant to the topic.
Israeli law that regulates PPPs draws a messy puzzle. The compulsory tenders for governmental-market entanglements and the freedom of contract principle effectively maximize private investment and influence in public education. Concerns regarding the unintended democratic deficit of PPPs are left to adjudication. Health, social-security and homeland-security case-law consistently questions the almighty economic-utility argumentation of PPPs and doubts their sincerity regarding human dignity and equity. However, since educational case-law is sensitive to the rivalrous nature of Israeli education, it refrains from normative speculations and requires strong evidence to illegality. But PPPs are definitely legal, so Israeli case-law cannot effectively accommodate their democratic hazards.

Authors

• Yael Kafri, Tel Aviv University, Israel

• Israela Elimelech, Tel Aviv University, Israel