Don’t rely on courts: fix the policy
Date Released: Fri, 16 August 2013 15:30 +0200
Schools are using the ambiguity of current directives to cast out their pregnant pupils.
The Constitutional Court recently delivered judgment in a case that has implications for both school governance and pupil pregnancy. This judgment is promising in some respects, but limiting in others.
The case addressed the legality of an instruction to two Free State school principals from the head of the province’s education department to ignore the pregnancy policies developed by their respective school governing bodies. In terms of these policies, both principals had prohibited two pupils from returning to school in the year they had given birth. The head of department in both cases instructed the principals to readmit the pupils immediately.
The judgment is instructive in providing the most succinct and detailed exposition so far of the “sensitive scheme of powers” of school governance, as set out in the South African Schools Act. As such, it provides further insight into the court’s approach to interpreting the balance of power in the “tripartite arrangement” of school governance.
Another positive development is the order requiring the two schools implicated to review their respective pregnancy policies, which the court deemed to be constitutionally questionable.
But the procedural rather than substantive stance adopted in the court’s majority judgment provides limited potential for a systemic solution to the exclusion of pregnant pupils from school.
According to data extrapolated by the department of basic education from the General Household Survey in 2011, 51 306 pupils in South Africa gave birth that year. Research cites pregnancy as one of the primary reasons for pupils dropping out of school.
Yet there have been no previous opportunities for a court pronouncement on the exclusion of pregnant pupils from school. Education rights advocates had therefore hoped for a more vociferous approach to the protection of pregnant pupils.
But this was perhaps overly ambitious in the context of this particular case, in that it was too narrowly focused on the legality of the head of department’s instruction.
The stories of three girls from my own schooling days highlight the necessity for effective protection for pregnant pupils.
As early in my schooling as standard four (grade six), two girls in my class became pregnant. One girl was a few years older than the rest of us in our grade and struggled academically. The other was a year older and did well at school. They both came from poor backgrounds.
They both left school after falling pregnant. Neither of them made it to high school and I never saw them again.
When I was in standard nine (grade 11), one of the school’s top pupils in standard 10 (grade 12) became pregnant before her matric exams. Her teachers were very disappointed because expectations for her were high. Yet she, too, had no option but to leave school to start a family.
I have often wondered about the struggles and lost opportunities of these particular pupils.
In the Free State pregnancy case, the Constitutional Court held that school governing bodies do have the power to develop pregnancy policies at their schools. This power is derived from section 8 of the Schools Act, which requires that school governing bodies develop codes of conduct.
The court held that section 8 is “sufficiently broad” to mean that the codes address not just matters of ill-discipline, but also encompass other issues affecting pupils, such as pregnancy.
The court also made a point of emphasising that “pregnancy should not be construed as a species of misconduct and, accordingly, may not be treated as an instance of ill-discipline or as meriting punishment”.
The majority judgment went on to say that, when governing bodies adopt and enforce policies which undermine the rights of pregnant pupils, a provincial head of department could not override these policies. Such conduct is “unlawful”, and constitutes a usurpation of the functions of the school governing body.
Instead, according to the judgment, the provincial head’s recourse is to intervene in terms of section 22 of the Schools Act or, alternatively, the head can approach a court for “appropriate relief”.
In terms of section 22, a departmental head can only exercise the power to revoke a school governing body function when:
• There are “reasonable grounds” for withdrawing the function;
• The provincial head observes the rules of “procedural fairness”; and
• The matter is urgent.
In this case, however, the Constitutional Court found that the head could not rely on section 22 because he had neither invoked this section nor had he observed the consultation requirements necessitated by this section.
More broadly, the recourse recommended by the court is unlikely to provide the necessary protection to all pregnant pupils facing the possibility of exclusion.
Many schools across the country do not have explicit pregnancy policies that can be challenged. Pregnant pupils are simply pushed out of school in subtle and not-so-subtle ways. Where schools do have pregnancy policies, much will depend on an assertive parent approaching a provincial department — as in the Free State cases — to request that the department intervene to protect the pupil. In most instances this does not happen.
It is not a certainty that a head of department in a particular province will respond appropriately, if at all, and pursues the course of action suggested by the court.
A systemic solution will require policy reform. In 2007, the national education department developed guidelines called “Measures for the Prevention and Management of Learner Pregnancy”. This document affirms the principle that pregnant pupils cannot be expelled for pregnancy, but its actual content does not reflect a rights-based approach to pupil pregnancy.
For example, it sets out a mechanism for the reporting of pregnancy to the school — a mechanism that includes an obligation on a third party to report a pupil’s pregnancy. This is intrusive and a violation of the pupil’s right to privacy.
The 2007 policy then discourages the pupil from continuing her education during her pregnancy. It also states that a pupil should not return to school in the year that she gives birth.
This prevents a pupil from attending school for a significant period of time, irrespective of her particular circumstances.
In the Free State case, the two school governing bodies said that they relied on this 2007 policy in formulating their own policies. The effect of this reliance was not sufficiently explored in the Constitutional Court judgment.
Similarly, while judgment in the Free State case was still pending, the Equal Education Law Centre intervened in another pupil pregnancy case. The pregnancy policy of a school in Lenasia directed two pregnant girls to leave school at the end of their fifth month of pregnancy.
These girls were not allowed to return for at least three months after giving birth. They also had to pay a R200 deposit for costs that may be incurred by the school “in case of emergency”. The school claimed that this policy was developed in accordance with the 2007 policy.
The 2007 policy should therefore be revised to reflect an unambiguous commitment to the rights of pregnant pupils.
This will provide a firm basis against which to judge the conduct of schools towards pregnant pupils and it will also provide a rights-based framework that will offer appropriate guidance for the pregnancy policies of individual schools.
By: FARANAAZ VERIAVA
Faranaaz Veriava is a human rights lawyer. She writes a monthly column in the Mail & Guardian on the right to basic education.
Article Source: Mail & Guardian