**2. A constitutional proposal**

For a year a Constitutional Convention worked in Chile, proposing a text of a new constitution submitted to popular consultation on September 4, 2011, and rejected by 63% of the electorate, in an election with the highest citizen participation in the history of the country.

The constitutional process has undoubtedly been epic in every sense, not only as it originated from a massive protest, the largest in the history of the country, in the election of the conventions, in its debates, in the obstacles and traps that tried to place the supporters of the constitutional status quo, who in a hypocritical manner presented themselves to draft a new constitution when in reality they only aspired to the failure of the Convention and finally for the intense work done in pandemic conditions, a meritorious work that deserves recognition [23].

The whole system of domination, including the traditional political parties in a transversal way tried to put sticks in the way, but in the end the center-left political parties were alienated with the new project, leaving only the right and the extreme right in the defense of Pinochet's Constitution.

Modern constitutions originated after violent struggles in which the dominated defeated the dominators. This was the case of the United States of America and then France, whose constitutions have been models for the rest of the world, then Mexico and the Soviet Union. These constitutions, like those that followed in Latin America and other parts of the world, were not perfect because they only declared rights, but did not guarantee them, and even workers were not recognized as equal subjects of rights, discrimination based on race was allowed and women's rights were denied, except in the case of the Soviet Union, which emphasized labor rights more than political rights. Finally, with the creation of the United Nations, a substantial change began that gradually expanded the recognition of rights for all. It was not until the end of the twentieth century that economic, social and cultural rights acquired the same status as civil and political rights, in an ongoing universal development [24].

The Chilean constitutional proposal constituted a substantial change in constitutionalism, and its merits are manifold. Both in its origin and in its content. We know that perfection does not exist and that everything can be improved, however, there is no other constitutional proposal in the world as advanced and broad as this one, nor that reflects reality as this one did. Of course, as it originates, without civil war, then it is parity, it recognizes the native peoples, it declares without extenuations the guardianship of the State over human rights and guarantees them, it grants protection to all living beings, it incorporates the protection of the environment as the essence of the State, it establishes democratic participation in all political, cultural, social and economic activities, it clearly declares that the State of Chile will maintain relations with other States and with international organizations based on the respect of the law and international conventions. It has enshrined essential rights such as health, education, recognition of domestic and care work, the right to housing, adequate food, the human right to water and sanitation, and the right to live in safe and free of violence environments.

The Chilean constitutional proposal constituted a substantial change in constitutionalism, its merits are multiple. Both in its origin and in its content. We know that perfection does not exist and that everything can be improved, however, there is no other constitutional proposal in the world as advanced and broad as this one, nor that reflects reality as this one did. Of course, as it originates, without civil war, then it is parity, it recognizes the native peoples, it declares without extenuations the guardianship of the State over human rights and guarantees them, it grants protection to all living beings, it incorporates the protection of the environment as the essence of the State, it establishes democratic participation in all political, cultural, social and economic activities, it clearly declares that the State of Chile will maintain relations with other States and with international organizations based on the respect of the law and international conventions. It has enshrined essential rights such as health, education, recognition of domestic and care work, the right to housing, adequate food, the human right to water and sanitation, and the right to live in safe and violence-free environments, the right to property, the right to be informed, the right to political, democratic and economic participation, among others [25].

In education, the proposed convention established a series of principles inspired by existing instruments of international law, such as the following:

#### **2.1 Education system**

Article 36 of the proposed new Constitution, in its chapter on Fundamental Rights, enshrines 8 paragraphs on the structure and functioning of the education system. The norm begins by alluding to its definition: "The National Education System is made up of the establishments and institutions of kindergarten, basic, secondary and higher education, created or recognized by the State. It is articulated under the principle of collaboration and has as its center the learning experience of the students".

Along with this, several principles are also detailed, which must be present within this system, strengthening elements such as the National System of diversity of artistic, ecological and cultural knowledge, as well as the autonomy of indigenous peoples and nations to develop their own establishments, within the framework of the law that regulates the system. It also states that establishments may not discriminate in their access, prohibiting, in addition, and as is the case today, all forms of profit. It also states that "The State shall provide additional opportunities and support for people with disabilities and those at risk of exclusion".

#### **2.2 Public education**

Within the same article 36, in its last paragraph, the role of public and state education is directly alluded to, through elements that define a more active State and articulator of a public education system. "The State shall articulate, manage and finance a Public Education System, of a secular and free nature, composed of state establishments and institutions of all educational levels and modalities. Public education constitutes the strategic axis of the National Education System; its expansion and strengthening is a primary duty of the State", states the norm. To this is added the role of the State in financing this system: "The State shall finance this system permanently, directly, pertinently and sufficiently, through basal contributions, in order to fully and equitably comply with the purposes and principles of education", it states.

Jesús Redondo, an academic at the Faculty of Social Sciences of the University of Chile and an expert in educational issues, explains that this article generates an epistemic change in education. "There are many changes regarding education. It ceases to be a mere privatized public service and becomes an authentic social right. The State assumes its obligations to the right to education".

#### **2.3 Freedom of education**

Article 41, meanwhile, refers exclusively to freedom of education, a right enshrined in most of the world's constitutions, including the one that currently governs the country. The norm is divided into three subsections that define this freedom as a fundamental right. "The Constitution guarantees freedom of education and it is the duty of the State to respect it. This includes the freedom of fathers, mothers, parents and guardians to choose the type of education of their children, respecting the best interests and progressive autonomy of children and adolescents".

Together with this, the same article establishes the right of teachers to teach: "Teachers and educators are entitled to academic freedom in the exercise of their functions, within the framework of the purposes and principles of education", the article states.

The novelty of this norm is that this freedom must respect the interest of the students, a principle that was not enshrined in the current constitutional text.

#### **2.4 Higher education**

Article 37 expressly refers to the functioning and development of higher education, starting with a new element: the constitutional consecration of the principle of free education for students of state universities and those private universities determined by law. "The admission, permanence and promotion of those who study in higher education shall be governed by the principles of equity and inclusion, with special attention to historically excluded groups, excluding any type of arbitrary discrimination. Higher education studies, leading to degrees and initial academic degrees, will be free of charge in public institutions and in those private institutions determined by law", states the norm.

Along with this, it also defines what is understood by the higher education system and who comprises it: "The Higher Education System will be made up of Universities, Professional Institutes, Technical Training Centers, training schools of the Armed and Security Forces, in addition to the Academies created or recognized by the State. These institutions shall be governed by the principles of education and shall consider local, regional and national needs. All forms of profit shall be prohibited" [26].

Finally, another clause reinforces the concept of state public education: "State institutions of higher education are part of the Public Education System and their financing shall be subject to the provisions of this Constitution, and shall guarantee full compliance with their functions of teaching, research and collaboration with society".

#### **2.5 Ecological education with a gender perspective**

The environment and the gender perspective are two elements that cross transversally the different chapters of the proposed new Constitution. And, in this line, they are not absent in the norms on education. Thus, Article 39 establishes its ecological function: "The State guarantees environmental education that strengthens the preservation, conservation and care required with respect to the environment and nature, and that allows the formation of ecological awareness", states the norm.

Article 40 establishes a gender focus: "Every person has the right to receive comprehensive sexual education that promotes the full and free enjoyment of sexuality; sexual and affective responsibility; autonomy, self-care and consent; recognition of the diverse identities and expressions of gender and sexuality; eradicates gender stereotypes, and prevents gender and sexual violence", states the norm.

This proposal was rejected in bloc by the citizens last September 4.
