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受教育权是我国宪法规定的公民享有的基本权利之一,其应平等地为每个公民所享有;《义务教育法》规定了流动人口子女平等受教育的保障条款;现实中随迁子女的受教育权受到迁入地政府的多方面限制,迁入地政府对随迁子女的受教育权进行限制时自由裁量权过大,其具体的限制措施在很大程度上突破了比例原则;受教育权的社会权属性要求国家履行积极的给付义务,现实中这种给付义务有着很大程度的缺失。基本权利语境下的受教育权平等保护需要限制地方政府的自由裁量权,其具体措施应兼顾比例原则;需要国家的物质给付义务充分履行。
The right to education is one of the basic rights enjoyed by citizens as stipulated in the Constitution of our country and should be enjoyed equally by every citizen. The Compulsory Education Law stipulates the guarantee provisions for equal education of migrant children. In reality, The right to receive education is subject to many restrictions on the part of the government moving in. When the government moves to the local government to exercise restrictions on the right to education of accompanying children, the discretionary power is too great. The specific restrictions have largely broken the principle of proportionality. The right to social power of education requires that the state fulfill its obligation of active payment. In reality, such obligation of payment has a great extent of lack of it. The equal protection of the right to education in the context of the basic rights needs to limit the discretion of the local government. The specific measures should take into account the principle of proportionality; and the state should be given full fulfillment of its material obligation to pay.