housing, but it does not matter whether some households can afford far more luxurious housing than others ; in contrast, even if a pupil receives the minimum quality education that satisfies certain basic requirements, her situation is significantly less favorable if, in the same society, her peers have access to much better quality education thanks to their more affluent background, because the existence of such a gap shall reduce the value of the kind of education she received.87 Human rights law pays particular attention to the situation of the worse off in society, but it also ought to pay attention to the gaps between the worse off and the better off, even in situations where all individuals have attained a certain level of enjoyment of the right concerned: the balance between the two preoccupations shall depend on the nature of the right considered. Though the vocabulary of positional goods is not invoked as such, this idea explains the concerns raised by the growing trend towards the privatization of education, which, as noted by the Special Rapporteur on the right to education, may be in the process of supplanting public education rather than complementing it.88 The diversion of public funds to support private schools at the expense of the public education sector may in particular lead to higher levels of socio-economic segregation in education, or to the emergence of low-cost, poor-quality private schools, as a substitute for adequate investment in the public educational system: the Committee of the Rights of the Child for instance has urged Brazil to "phase-out the transfer of public funds to the private education sector and review its policies with regard to fiscal and tax incentives for enrolment in private education institutions in order to ensure access to free quality education at all levels, in particular nurseries and pre-schools, for all children by strictly prioritizing the public education sector in the distribution of public funds".89 Similarly, when it examined the vouchers system introduced in Chile to support children from lowincome familities to have access to private schools, the Committee on Economic, Social and Cultural Rights expressed its concern "that the lack of resources and, occasionally, the poor quality of public education continues to result in high levels of segregation and discrimination along socioeconomic lines, which has the effect of limiting social mobility in the State party", and it urged Chile to "take the necessary measures to eliminate the sharp disparities in quality of education that currently exist between private, subsidized and public schools and to ensure that all schools have adequate infrastructure and suitably trained teaching staff".90 Such statements cannot be fully understood unless we see that the value of education to the worse-off pupils depends not only on them having access to an educational system complying with certain basic quality standards, but also on them being able to compete, in future life, with others, in conditions of relative equality. It is generally thought, in the utilitarian framework, that although it may be rational to have a preference for equality, it is irrational to prefer an equal distribution of a certain good to an unequal distribution in which the smallest portion received is still larger than the portion that would be received by each in an equal distribution system. But positional goods are specific precisely insofar as the value of the good to the individual depends on others not having significantly more of the good : my master's degree is of much lesser value to me if I am in a society in which the vast majority have doctorates, and not just master's degrees.91 The role of the State with respect to the allocation of such goods may be not just to ensure to each the enjoyment of minimum levels of satisfaction, but to ensure a certain equality of distribution across all members of society. To the extent that privatization (or the coexistence of a public system with a private system, as is often the case in the education sector) 87 See M. Hollis, “Education as a Positional Good”, Journal of Philosophy of Education, vol. 16 (1984): 235–44. The notion of "positional good" was introduced by Fred Hirsch in his critique of traditional understandings of growth : F. Hirsch, Social Limits to Growth (Cambridge, MA: Harvard University Press, 1976), 175, and 245-250. 88 Report of the Special Rapporteur on the right to education to the 69th session of the General Assembly (A/69/402) (24 September 2014). At its 32nd session (13 June-1 July 2016), the Human Rights Council adopted a resolution urging all States to “address any negative impacts of the commercialization of education”: see above, note 85. 89 Committee on the Rights of the Child, Concluding Observations: Brazil (CRC/C/OPAC/BRA/CO/1), paras. 75-76 (28 October 2015). 90 Committee on Economic, Social and Cultural Rights, Concluding Observations: Chile (E/C.12/CHL/CO/4), para. 30 (19 June 2015). Similar concerns were expressed a few months later by the Committee on the Rights of the Child: Concluding Observations: Chile (CRC/C/CHL/CO/4-5), paras. 67-70. 91 See Harry Brighouse and Adam Swift, "Equality, Priority and Positional Goods", Ethics, vol. 116 (2006), 471-497, at 4745. 19