Economic, social and cultural (ESC) rights include a number of entitlements, such as the right to work and the enjoyment of just and favourable conditions of work; the right to form and join trade unions; the right to social security; the protection of the family, mothers and children; the right to an adequate standard of living, which includes adequate food, clothing and housing and continuous improvement of living conditions; the right to the highest attainable standard of mental health; the right to education; and the right to participate in cultural life and enjoy the benefits of scientific progress. All these are protected under the International Covenant on Economic, Social and Cultural Rights (ICESCR).

This chapter aims to analyze one aspect of the proportionality test in the case law of the Brazilian Supreme Court: its use as a tool for deciding cases involving socioeconomic rights. If these rights are one of the core elements of a transformative constitution, using the proportionality test to decide these cases raises the question of its transformative potential. We argue that there are several reasons for concluding that proportionality does not play a transformative role in Brazil. Some of these reasons are related to the general debate on the transformative potential of litigation; others are related to how the Brazilian Supreme Court uses the proportionality test, which could be summarized as follows: First, the Court has often used the proportionality test as a rhetorical device only; second, due to peculiarities of the decision-making process of the Court, proportionality has never been employed by the majority of its judges; third, in the realm of socioeconomic rights, the role of proportionality has been frequently undermined by other types of reasoning.

The constitutional entrenchment of economic and social rights often requires courts to intervene directly in the administration of government. Such rights – to access goods, services, and programs such as social security, education, and health care – are now present in more than two-thirds of the world’s constitutions.1 Newer constitutional amendments extend such rights to housing, land, water, and a clean environment, implicating a wide array of government actions or omissions. Moreover, despite the conventional wisdom that such rights should not be enforced by courts, and should be entrenched at most as directive principles or other statements of aspiration, the duties for government that such rights create are increasingly justiciable.2 For better or worse, courts have become central in enforcing both negative and positive duties, in complaints arising from such matters as medical treatment denials, evictions, education outcomes, pollution levels, or food distribution schemes.

The 2019 college admissions bribery scandal revealed uncomfortable truths about elite higher education and its conspicuous consumption. In this chapter, I explore the legal implications of treating higher education as a luxury good reflecting wealth and status. Like luxury goods companies, elite universities are regarded as owners of luxury brands. Just as companies such as Louis Vuitton, Ferrari, and Hermès own brands that enjoy a high level of exclusivity and serve conspicuous consumption, so too do elite universities. In the minds of many, Harvard, Stanford, and Yale are analogous to Louis Vuitton, Ferrari, and Hermès. This “luxurification” of higher education, however, perpetuates class division and violates the right to education.

I have recently retired from the United States Supreme Court. It’s true that as a justice, I had life tenure, but I wanted time to reflect on the cases I had decided during my long career on the bench. And, so I am sorting through old notes, correspondence, drafts, and opinions to make sense of my jurisprudential legacy, such as it is. The process has made me feel a bit like Jorge Luis Borges in “The Other,” when as an old man, he unexpectedly meets a younger version of himself. The elder Borges realizes that the distance between him and his youthful doppelganger is not just chronological but psychological and philosophical – and, more importantly, utterly unbridgeable. Jorge Luis Borges, The Book of Sand 11 (1977). As I sift through my records, I have similar encounters with myself as a fledgling jurist. I was confident then that I had done everything possible to achieve just results in every case. Now, I look back and realize that I made some irretrievable mistakes, though all in good faith. They are oversights that I am able to appreciate only in hindsight, though that does not mean I feel any less regret.

Complaints procedures offer a unique opportunity for individuals and groups to have claims of human rights violations considered and their rights vindicated in a judicial or quasi-judicial procedure. For non-governmental organisations (NGOs) and human rights lawyers, complaints procedures are an important avenue to pursue strategic objectives, in addition to supporting victims in individual cases. States, on the other hand, may find themselves having to defend allegations of specific or systemic violations. Ideally, complaints procedures act as a mirror that provides an opportunity for states to bring their practices into conformity with the respective treaty. In practice, however, states often view unfavourable decisions as unwarranted criticism, which may create difficulties at the implementation stage. The treaty bodies themselves are in theory neutral arbiters that apply the treaty provisions and rules of procedures. However, inevitably, their position as bodies created by states, and relying on states’ cooperation on the one hand and seeking the effective protection of human rights on the other, raises a host of challenges in actual practice.

Chapter 9 addresses selected substantive CRPD rights together, namely, the right to education, the right to access culture and the right to participate in political and public life. In the first instance, the chapter contains an overview of the development of the right to inclusive education and the meaning of the concept. It then outlines the goals of inclusive education and the measures to be adopted by States Parties under Article 24 CRPD. It addresses the key challenges encountered in the implementation of Article 24 CRPD as well as best practices in the field. In the second instance, the chapter turns to an examination of the right to access culture and the obligations stemming from that right. In analysing the scope and content of Article 30 CRPD, the chapter also addresses the protection and promotion of sign languages and Deaf culture. Finally, the chapter sets out the right to political participation, which is an essential component in achieving active citizenship, and it examines the normative content of Article 29 CRPD.

Chapter 9 addresses selected substantive CRPD rights together, namely, the right to education, the right to access culture and the right to participate in political and public life. In the first instance, the chapter contains an overview of the development of the right to inclusive education and the meaning of the concept. It then outlines the goals of inclusive education and the measures to be adopted by States Parties under Article 24 CRPD. It addresses the key challenges encountered in the implementation of Article 24 CRPD as well as best practices in the field. In the second instance, the chapter turns to an examination of the right to access culture and the obligations stemming from that right. In analysing the scope and content of Article 30 CRPD, the chapter also addresses the protection and promotion of sign languages and Deaf culture. Finally, the chapter sets out the right to political participation, which is an essential component in achieving active citizenship, and it examines the normative content of Article 29 CRPD.

The increasing salience of Hindu nationalism and the emergence of the Bharatiya Janata Party (BJP) as a serious competitor in Indian politics during the 1990s forced Congress into a difficult position. Congress increasingly defended Other Backward Classes reservations to retain its appeal across India's "Hindi Belt," even hoping to ensure that members of the lower castes gained access to educational opportunities. But, by exercising increased authority over private school enrollment, Congress's policies potentially jeopardized the independent character of private minority schools that educated Christian and Muslim students, opening the door for further government control if the BJP won elections. Congress officials worked with aligned justices to develop a constitutional framework that protected education reservations while preserving the independent character of minority schools. Unlike the other examples in this book, however, these deliberations repeatedly produced inadequate results. Finally, Congress amended the Constitution and the Supreme Court willingly capitulated in a subsequent basic structure challenge, which is consistent with the deliberative partnership thesis.