Supreme Court Decides Preschool Children in Unrecognized Bedouin Village Can Study without School Buildings or Transportation

On 26 April 2006, the Supreme Court of Israel dismissed a petition filed by Adalah at the beginning of the current school year, which demanded the provision of transportation for three and four year-old children from the unrecognized Arab Bedouin village of al-Za'arora in the Naqab (Negev) region in southern Israel to preschools in neighboring villages, or the construction of preschools in the village. The Supreme Court ruled that it was unable to decide that the relevant authorities had taken an extremely unreasonable decision, obliging the Court not to interfere in the matter.

The petition was filed by Adalah Attorney Morad el-Sana on 27 October 2005, against the Minister of Education, the Director of the Ministry of Education – Southern District, the District Committee for Planning and Building – Southern District, the Regional Council for Planning and Building and the Israel Lands Administration. The petition was submitted in Adalah's own name and on behalf of 51 children from the village, as well as a number of organizations dealing with educational development among the Arab Bedouin in the Naqab. Adalah asked the Supreme Court hold an urgent hearing on the case, due to the fact that 280 children from al-Za'arora had been spending the day in their homes since the beginning of the current school year rather than attending preschools. The Ministry of Education (MOE) has refused, on one hand, to set up permanent or mobile buildings to serve as preschools for the children due to the unrecognized status of the village they live in, while on the other hand failing to provide transportation for them to preschools located in surrounding villages.

Adalah argued that this failure violates the children's right to education, which cannot be conditioned on the unrecognized status of their village. Adalah further contended that the MOE is not implementing Amendment 16 (1984) to the Compulsory Education Law – 1949. This amendment lowered the age at which education is compulsory from five to three years. Adalah contended that the purpose of the amendment is to provide education for underprivileged groups, in order to narrow the gap between them and the rest of society. Although al-Za'arora and the other unrecognized villages are the most socio-economically depressed and underdeveloped communities in the country, the inhabitants of the village and their children do not enjoy their rights under the Compulsory Education Law in the absence of a preschool in the village and transportation to preschools elsewhere.

In response to the petition, the MOE claimed that there is no legal basis to the petitioners' demand for transportation for children between the ages of three and four years old. The MOE stated that it does not provide or fund transportation for children of this age group from any town or village in Israel, because of concerns for the children's safety during transportation and budgetary shortages.

The MOE added that there is not sufficient reason to make an exception to this rule in the case of an unrecognized village in the Naqab, as buildings in these villages are considered “illegal constructions, and thus the implication of consenting to the petitioners' demand is lending support to illegal construction, which could damage the efforts being exerted to organize Bedouin settlement.”

As Adalah emphasized in the petition, the MOE has broken commitments which it made before the Supreme Court to provide transportation for children from al-Za'arora to preschools in neighboring villages in relation to two petitions previously submitted by Adalah, which constitutes a violation of the children's rights to receive a free education, as guaranteed by law.

Adalah submitted the first petition (H.C. 3757/03) in this regard in April 2003, but withdrew it after the MOE claimed that the implementation of the Compulsory Education Law had been frozen under a new economic plan passed by the Knesset in May 2003, and that it would not establish any new preschools for the time being. The Supreme Court emphasized at that time that if the state implemented the law in other towns or villages, despite the freeze and in a discriminatory manner, Adalah may re-submit the petition for consideration.

The petitioners subsequently established that the MOE had been continuing to build preschools in other locations, in contradiction of its representations before the Court. Adalah then submitted a second petition (H.C. 5108/04), demanding that the MOE establish preschools in the village 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. However, the MOE claimed that it was not possible to construct structures in the village given its absence from the official maps, and that the children would therefore be transported to preschools in other villages to receive an education. The Supreme Court considered this solution reasonable, and, deciding that there was no need to intervene, rejected the petition. The Court also reserved the petitioners' right to approach the Court again in case transportation for the children should not be provided. After finding that the MOE had not arranged for transportation for the children to preschools in neighboring villages, and after the MOE failed to respond to numerous letters sent by the children's parents through Adalah requesting that transport be provided, Adalah submitted the third petition.

The Court ruled in its decision that it is not possible for transportation to be provided for the children, relying on the MOE's contentions that transportation is not provided for children of preschool age anywhere in the country. The Court further ruled that buildings which can be used as kindergartens cannot be constructed in al-Za'arora, because “the issue concerns a group of illegal settlements, and no plan exists to enable construction in these villages.” The Supreme Court's refusal to order the MOE to provide a concrete remedy for the petitioners comes despite its previous acknowledgment, made in the context of Adalah's second petition on this case, that the lack of transportation for the villagers violates the children's right to education, given that permits are not issued for buildings in unrecognized villages. The Court merely requested that the two sides continue to engage in a dialogue in order to create a solution for each child.

H.C. 100030/05, A'aref Ala'moor v. The Ministry of Education (petition dismissed)