More transparent guidance will mean less conflict centred on the governance of public schools
A vibrant jurisprudence is evolving in the Constitutional Court that will provide more clarity on the delineation of functions and the balance of power in what our courts have referred to as the “tripartite arrangement” of governance of public schools.
School governance disputes are at the epicentre of the education litigation that has occurred this year. Currently there are two judgments pending in the Constitutional Court.
The first is the Free State pregnancy case. The key issue to be determined in this case is whether the head of the province’s department of education had the power to override the pregnancy policies developed by the governing bodies at two schools that prevented pregnant pupils from attending school for specified periods.
The second is the Rivonia Primary School case, which raised the question of whether the Gauteng education department had the power to override the governing body’s admission policy — specifically, its capacity to determine whether the school was full — and thereby to direct the school to admit a pupil.
A significant innovation of the post-apartheid legal framework for education was the creation of governing bodies at individual public schools comprising parents, pupils and teachers. This was premised on a commitment to a more participatory democracy in which parents and pupils have a greater stake in education matters.
The South African Schools Act gives governing bodies powers to facilitate the day-to-day functioning of schools and to raise funds to supplement state funding. These are often used for upgrading school facilities or the employment of additional teachers. Governing bodies also have powers that include developing policy on codes of conduct for pupils, school admission and the language of instruction.
At the heart of the disputes on school governance is the extent to which provincial governments may interfere with this policy-making function and require that schools deviate from their adopted policies. These disputes have arisen becauseof the seemingly competing interests at stake.
At the level of individual schools, the more benign of such interests is the fear of declining school quality because of higher pupil-teacher ratios. More sinister are policy choices grounded in prejudices, such as that pregnant pupils set a bad example for the school, or the desire to maintain racial exclusivity.
Indeed, the first wave of post-1994 education litigation was between government and governing bodies in instances where the latter sought to exploit their powers to maintain language and cultural exclusivity (Afrikaans only) and, through this, racial exclusivity.
For provincial governments, there is the constitutional and legislative imperative to ensure that all pupils have access to a basic education. The Schools Act requires that provincial ministers ensure that every pupil who lives in the province can attend school. Where this capacity does not exist, these ministers must take steps to remedy this.
This is an ongoing challenge because parents naturally seek improved educational opportunities for their children in a context where historically disadvantaged schools are under-resourced and overcrowded. In a province such as Gauteng there is the additional factor of having to accommodate pupils migrating from other provinces.
So, the conundrum to be solved by the Constitutional Court is to interpret the duties, powers and functions of each tier of school governance as laid out in the legislative scheme.
The foundation for interpreting this legislative scheme was laid in the 2009 case of Head of Department: Mpumulanga Department of Education and Another vs Hoërskool Ermelo. This case dealt with the head of department’s power to override the school’s language policy and thereby change the school from an Afrikaans single-medium to a dual-medium school.
The court directed that the school, which was operating under capacity, review its language policy to accommodate English-speaking pupils who could not be accommodated elsewhere because other schools in the area were already full.
In this case, the court outlined each of the tiers of schools governance: “An overarching design of the [Schools] Act is that public schools are run by three crucial partners. The national government is represented by the minister for education whose primary role is to set uniform norms and standards for public schools.
“The provincial government acts through the [provincial minister] for education who bears the obligation to establish and provide public schools and, together with the head of the provincial department of education, exercises executive control over public schools through principals.
Parents of the pupils and members of the community in which the school is located are represented in the school governing body, which exercises defined autonomy over some of the domestic affairs of the school.”
The court acknowledged that although policy formulation, such as the determination of language policy, is a power that in the first instance must be exercised by an governing body, this power is not “absolute” and must not be exercised unreasonably or at odds with the right to basic education guarantee.
It therefore accepted the principle that the head of department did have the power to withdraw a function of the governing body provided that it is done on “reasonable grounds and in order to pursue a legitimate purpose”.
It also noted that while governing bodies must promote the “best interests” of the school and its pupils, they ultimately manage a public resource and must therefore also consider the broader community interests.
Building on this jurisprudence, the public interest organisations Equal Education and the Centre for Child Law, appearing as friends of the court in the Rivonia case, argued that an “appropriate balance” must be struck between giving governing bodies the unqualified power to make policy that could undermine broader systemic concerns, and allowing provincial governments the unfettered discretion to override governing body policies.
They argued that this balance could be achieved by allowing provincial governments to override governing body policy decisions subject to certain “constraints”. These include a reliance on the governing body policy as a starting point and only deviating from it where there is “good cause” to do this.
Factors that would be relevant for showing good cause in the Rivonia case would include the capacity constraints at other schools in the area and the fact that placement for only one pupil was sought. In the pregnancy case, good cause would be the fact that excluding a pupil from school on the grounds of pregnancy violates the constitutional prohibition against discrimination on the grounds of gender and pregnancy. Finally, where deviations occur, this must be in a manner that is “lawful, reasonable and procedurally fair”.
Judgments in the two cases will provide insights into the balance of power between governing bodies and the provincial education authorities. But the role of national government must not be overlooked.
If the minister of basic education were to promulgate effective norms and standards for school infrastructure that facilitated the establishment of sufficient well-resourced schools to accommodate all pupils, this would lessen the demand on these schools.
All parties in the Rivonia case noted with regret the failure of national government to promulgate norms and standards that would determine the capacity of a school and so establish parameters for governing body capacity determinations.
Also, the ambiguous pregnancy guidelines developed by national government have proven ineffective in prohibiting the exclusion of pregnant pupils from schools.
Clear leadership at the national level is ultimately the best safeguard for ensuring governing body polices are constitutionally compliant and that the broader systemic concerns are addressed.
Graphic: JOHN McCANN Judgment of Solomon: TIEPOLO
By Faranaaz Veriava
Faranaaz Veriava is a human rights lawyer. She writes a monthly column in these pages on the right to basic education
Source: Mail & Guardian