Power Dynamics in South African Education: Debates and Future Possibilities

RELIGION IN SOUTH AFRICAN EDUCATION: WHERE DOES THE POWER LIE? CURRENT DEBATES AND FUTURE POSSIBILITIES Faculty of Education Prof. Johan Beckmann, Department of Education Management and Policy Studies, Faculty of Education, University of Pretoria (South Africa)

1 POLICY 2 THE CONSTITUTION 3 LEGISLATION AND AMENDMENT BILLS 4 CASES 1 A Parents or guardians have the primary re-sponsibility for the education of their child-ren Parents have an inalienable right to choose the form of education which is best for their children The parents' right to choose includes choice of the language, cultural or religious basis of the child's education POLICY White Paper on Education and Training of 1995

Governance (a)The term "governing body" should be used as the general term to describe school governance structures in all categories of schools. (c) School governing bodies should be representative of the main stakeholders in the school. Parents have the most at stake in the education of their children, and this should be reflected in the composition of governing bodies (g) State involvement in school governance should be at the minimum required for legal accountability, and should in any case be based on participative management.

B White Paper 2 on the Organisation, Governance and Funding of schools ( Review Paper ) November 1995 a major role for parents in school governance, to be exercised in the spirit of a partnership between the provincial education department and a local community. Par 2.10.

A list of "decisions" or functions for which a typical governing body would be responsible. For convenience, these are re-arranged in categories as follows: Broad policy (1) the school's mission, goals and objectives (2) development, implementation and review of governing body policies (3) promoting the best interests of the school community Par 4.21.

C The National Policy on Religion and Education (September 2003) Four possible models for structuring the relationship between religion and the state: theocratic, regressionist, separationist and co-operative (par 3) In a co-operative model, both the principle of legal separation and the possibility of creative interaction are affirmed. Separate spheres for religion and the state are established by the Constitution, but there is scope for interaction between the two. While ensuring the protection of citizens from religious discrimination or coercion, this model encourages an ongoing dialogue between religious groups and the state in areas of common interest and concern (par 3).

we propose that the cooperative model which combines constitutional separation and mutual recognition, provides a framework that is best for religion and best for education in a democratic South Africa. (Par. 4) Under the constitutional guarantee of freedom of religion, the state, neither advancing nor inhibiting religion, must assume a position of fairness, informed by a parity of esteem for all religions, and worldviews. This positive impartiality carries a profound appreciation of spirituality and religion in its many manifestations, as reflected by the deference to God in the preamble to our Constitution, but does not impose these. (Par. 5) In public schools religion education is prescribed and religious education is proscribed. (Par. 8)

2 CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA Freedom of religion, belief and opinion (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion. (2) Religious observances may be conducted at state or state-aided institutions, provided that- (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary (s 15) Limitation of rights The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, (S 36 (1)

3 The South African Schools Act, 84 of 1996 LEGISLATION AND AMENDMENT BILLS .. this country requires a new national system for schools which will redress past injustices in educational provision, , uphold the rights of all learners, parents and educators, and promote their acceptance of responsibility for the organisation, governance and funding of schools in partnership with the State Preamble.

Admission policy Subject to this Act and any applicable provincial law, the admission policy of a public school is determined by the governing body of such school. Section 5 (5) Language policy The governing body of a public school may determine the language policy of the school subject to the Constitution, this Act and any applicable provincial law. Section 6(2).

Freedom of conscience and religion at public schools Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary. Section 7.

Code of conduct for learners (1) Subject to any applicable provincial law, a governing body of a public school must adopt a code of conduct for the learners after consultation with the learners, parents and educators of the school. [] Including dress codes which may be religion related (2) A code of conduct referred to in subsection (1) must be aimed at establishing a disciplined and purposeful school environment, dedicated to the improvement and maintenance of the quality of the learning process. Section 8 (1-2)

Prohibition of corporal punishment (1) No person may administer corporal punishment at a school to a learner. (CESA) Section 10 Prohibition of initiation practices (1) A person may not conduct or participate in any initiation practices against a learner at a school or in a hostel accommodating learners of a school. Section 10A

Status of public schools Every public school is a juristic person, with legal capacity to perform its functions in terms of this Act. Section 15 Governance and professional management of public schools (1) Subject to this Act, the governance of every public school is vested in its governing body and it may perform only such functions and obligations and exercise only such rights as prescribed by the Act. (2) A governing body stands in a position of trust towards the school. Section 16 (1-2)

(3) Subject to this Act and any applicable provincial law, the professional management of a public school must be undertaken by the principal under the authority of the Head of Department. Section 16 (3)

Functions of all governing bodies (1) Subject to this Act, the governing body of a public school must- (a) promote the best interests of the school and strive to ensure its development through the provision of quality education for all learners at the school; (b) adopt a constitution; (c) develop the mission statement of the school; (i) recommend to the Head of Department the appointment of educators at the school, subject to the Employment of Educators Act, 1998 (Act 76 of 1998), and the Labour Relations Act, 1995 (Act 66 of 1995) Section 20 (1) (a-c, i)

Draft Education Laws Amendment Bill of 30/10/2015 of the SA Schools Act is hereby amended- (a) by the substitution for subsection (5) of the following subsection: (5) Subject to this Act and any applicable provincial law, the admission policy of a public school is determined by the governing body of such school: Provided that (a) the Head of Department has the final authority, subject to subsection (9), to admit a learner to a public school ;

(b) the governing body must submit the admission policy of a public school and any amendment thereof to the Head of Department for approval; (c) the Head of Department may approve the admission policy of a public school or any amendment thereof or he or she may return it to the governing body with such recommendations as may be necessary in the circumstances; (d) the Head of Department, when considering the admission policy or any amendment thereof for approval, must be satisfied that the policy or the amendment takes into account the needs of the broader community in which the public school is located d

4 A Education (CCT13/98) [1998] ZACC 16; 1999 (2) SA 83; 1998 (12) BCLR 1449 (14 October 1998). Prohibition corporal punishment, Christian parents wish to authorise teachers B Thornton and Others v Accelerated Christian Education South Africa and Another (9038/11) [2012] ZAKZDHC 59 (2 October 2012). Ownership of independent school with a religious educational curriculum based on Christian principles . CASES Christian Education South Africa v Minister of d

CASE LAW C MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007) Nose stud case; close relationship culture and religion; celebrating diversity; provision for exemptions from dress code in school rules D A v Governing Body the Settlers High School and Others (3791/00) [2002] ZAWCHC 4 (8 February 2002) Girl converted to Rastafarianism, suspension, dress code and code of conduct, SGB berated for following CoC d

CASE LAW E Randhart & Others Case No 29847:2014 Applicant (Organisation for Religions Education and Democracy) (OGOD)) launched this application in September 2014. The relief sought: 1. Declaration of certain conduct and religious observances allegedly present at 6 Respondent schools as being contrary to the Constitution and the National Religion [in Education] Policy. 2. Such a relief against all other public schools in the country. 3. Interdictory relief claimed against the respondent schools. d

CONCLUSION A great deal of freedom of religion in general and also in state or state-aided institutions including public schools. Much of the decision-making power on practice and policy is in the hands of the governing bodies at school level working with provincial authorities. The freedom is not unlimited and may be under attack, as manifested by an intention to truncate the policy- making powers of governing bodies in the Draft Education Laws Amendment Bill of 30 October 2015 and the relief sought in the Randhart case. Dialogue ongoing. The picture might look very different fairly soon and the decision-making power may be located elsewhere. d