Demanding Preschool Education for 300 Arab Bedouin Children in the Unrecognized Villages in the Naqab.

Petition filed to Supreme Court in 4/03 on behalf of 43 children from two unrecognized Arab Bedouin villages in the Naqab, the Regional Council for the Unrecognized Villages in the Naqab, and several parents associations and educational organizations, against the Minister of Education and others. The petitioners demanded that the state provide free preschool education for 300 children in the two unrecognized villages, in accordance with Amendment 16 (1984) to the Compulsory Education Law – 1949 and the principle of equality. No preschool or any other educational framework exists in either village for the children of this age group. Adalah argued that by not providing preschools, the state is violating the children’s right to education, and that neither budget constraints nor the failure of the Ministry of Interior (MOI) to issue permits for the construction of schools can be used as justifications for the state’s failure to implement the law. At a hearing in 9/03, the state informed the Court that: (1) Amendment 16 to the Compulsory Education Law had once again been amended, extending the deadline for implementation from 2001 to 2008; and (2) that the law’s implementing regulations, which authorize the Minister of Education to designate the opening of new classrooms, were frozen under the new economic plan passed by the Knesset in 5/03. As for the equality argument, the Court emphasized that if the state implements the law in other towns or villages, despite the freeze and in a discriminatory manner, Adalah may re-submit the petition for consideration. The Court concurred with the petitioners that the two unrecognized villages should receive priority status when the law is re-implemented. Based on the Court’s recommendation, Adalah withdrew the petition, but continued to follow the matter, subsequently learning that the Ministry of Education (MOE) had built six preschools in towns other than the two villages.

In 6/04, Adalah submitted a second petition on the issue, demanding that preschools be established in the two villages, and arguing that the aforementioned law entitles the children of the villages to the right to the same educational opportunities and resources as other children in the country, a right which is being infringed by the situation in the villages. Adalah contended that the purpose of the Amendment 16 is to provide education for underprivileged groups, in order to narrow the gap between them and the rest of society. Adalah further argued that the MOE's claim of insufficient funding cannot supersede the children's right to education and equality with other children in the country. In reply, the MOE claimed that, since the law is applied partially throughout the country, it is not discriminating against Arab Bedouin children, adding that it has established 40 new preschools for Arab Bedouin children in the Naqab, who are exempt from paying tuition fees, unlike elsewhere in Israel. The MOE also stated that the existing preschools in neighboring villages are sufficient for the children’s needs. The MOE stressed that the two unrecognized villages are absent from the structural map, and therefore that preschools cannot be set up there. The MOE claimed that the children’s families broke the law by building houses in the villages, and cannot demand services from the state wherever they built their homes.

In 9/04, the Court rejected the petition, stating that it raised two main issues: (i) whether or not the Court needs to intervene in the MOE’s decision not to open preschools in the villages without outline plans enabling their construction; and (ii) whether or not the MOE is meeting, in practice, its obligation to care for the educational needs of the children in the two villages. On the first issue, the Court ruled that the petitioners did not meet the burden of proof necessary to warrant the Court’s intervention in the MOE’s decision, advising the petitioners to direct their arguments to the planning authorities. On the second matter, the Court decided that the MOE is not disregarding the children’s educational needs, finding the petitioners' charge of discrimination unfounded. However, the Court stressed the MOE's claim that the children have access to preschools in neighboring villages is insufficient, and that children's right to education can sometimes necessitate funding to access to schools located far from their homes. The Court added that the Arab Bedouin have special needs, as 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 the villages extremely difficult, rejecting the MOE’s position that it is fulfilling its duty to the children. Despite this finding, the Court also held that providing transportation for children from the unrecognized villages could thwart the state’s interest in increasing the number of unrecognized villages falling within the central government's planning laws.

H.C. 3757/03, Ismael Mohammad Abu Guda, et al. v. Minister of Education, et al. (petition withdrawn).

H.C. 5108/04, Ismael Mohammad Abu Guda, et al. v. Minister of Education, et al (petition pending).

For a legal critique of the Supreme Court's judgment in this case, see "Case Review: Unrecognized Education System" by Dori Spivak, Deputy Director of Clinical Programs, The Buchmann Faculty of Law, Tel Aviv University

 Petition in Hebrew