[lg policy] Race and Language: ConCourt misses chance to guide transformation of the education system

Harold Schiffman haroldfs at gmail.com
Wed Aug 15 11:02:33 EDT 2018

 Race and Language: ConCourt misses chance to guide transformation of the
education system

By Nurina Ally and Samantha Brener• 14 August 2018

Protesters hold placards and shout slogans during a protest at the
Hoerskool Overvaal school against the Afrikaans language government school
to allow English language learners, Johannesburg, South Africa, 25 January
9 Reactions

In dismissing the provincial education department’s appeal in the Overvaal
case at the end of July, the Constitutional Court has failed to seize an
opportunity to clarify how inequality in public education might be

In January 2018 Höerskool Overvaal, an Afrikaans-medium school in Gauteng,
was at the centre of a heated admissions battle highlighting ongoing race
and language cleavages in the education system.

Tensions emerged after officials from the Gauteng Department of Education
instructed the school to open its doors to 55 English-speaking learners. Of
the over 600 learners at Höerskool Overvaal, 95% are white. Despite the
changing demographics of the surrounding community, the school fails to
reflect this transformation.

The school governing body resisted. A legal fight ensued with a High Court
judgment in favour of the school. The provincial department appealed the
decision directly to the Constitutional Court. On 25 July, the court
surprisingly refused to even entertain the issue. It found, without
granting leave for a hearing, that the department’s case bore no prospects
of success.

The summary dismissal of the matter by the highest court is unfortunate.
Höerskool Overvaal is not an isolated case. In a 2016 High Court case, the
Federation of Governing Bodies for South African Schools (FEDSAS) presented
statistics showing that over 70% of learners at a sample of its Gauteng
member schools (the majority being Afrikaans-medium) were white.

In those same papers, it was undisputed that a number of Afrikaans
single-medium schools in the province have employed their language policies
as the basis for barring black learners in applicable feeder-zones from
applying to the school. FEDSAS recognised that “there are apparently
instances where schools have used their language policies as a mechanism
for screening applications in a manner that suggests that the screening
occurs with racist intent”.

There is clearly still much guidance to be provided to schools, provincial
officials and indeed lower courts on how best to approach issues impacting
on transformation of the public education system.

In its urgent court application, the school argued that it was full – it
should not be forced to take the English-speaking learners when there were
English-medium schools in the area with capacity. The High Court agreed.
The school and the High Court maintained that a sprinkling of black
Afrikaans-speaking learners demonstrates sufficient commitment to
transformation. Referring to the Afrikaans white community at the school as
an “embattled minority”, the High Court judgment appeared to lend credence
to the current demographics of the school. Moreover, the high court granted
judgment in favour of the school without hearing directly from the 55
learners whose admission was the subject of debate, which is an important
principle that the provincial department sought to have clarified on

The approach of the school governing body of Höerskool Overvaal as well as
the High Court judgment does not reflect adequate consideration of the need
for redress in the education system.

Prevailing racial disparities in public education cannot be left
unchallenged. The Constitution demands radical transformation. As the
Constitutional Court has, under the pen of former Deputy Chief Justice
Dikgang Moseneke, held: “In an unconcealed design, the Constitution
ardently demands that this social unevenness be addressed by a radical
transformation of society as a whole and of public education in particular.”

There are powerful mechanisms in legislation that enable the national and
provincial departments of education to deal with issues of uneven learner
enrolment at a systemic level – including powers to determine when a school
has reached capacity. These powers exist precisely so that the
transformation and redress requirements of the Constitution can be met.
Unfortunately, time and again, the courts have had to remind officials of
the importance of due process, meaningful engagement and the need to follow
legislative prescripts.

Yet whilst provincial departments have been admonished for their hasty and
sometimes roughshod approach to admissions decisions, the Constitutional
Court has previously not shied away from ensuring that the imperative of
transformation is not left in doubt.

In *H*ö*erskool Ermelo*,1
an Afrikaans-medium school refused to admit English-speaking black learners
from nearby townships despite the school having excess capacity. The
provincial department then attempted to revoke the power of the school
governing body to set language policy. The Constitutional Court found that
the provincial department’s revocation of the language policy unacceptable
for procedural reasons. But it also ordered Höerskool Ermelo to review its
language policy to ensure its alignment with the Constitution, and reminded
it that no form of racial discrimination may be practised in implementing a
language policy. It held: *“(*The power to determine language policy) must
be understood within the broader constitutional scheme … taking into
consideration what is fair, practicable and *enhances historical redress*.”
(Our emphasis.)

In the case of *Rivonia Primary School*,2
the provincial education department overturned a decision that the school
was full to capacity, and physically placed a learner at the school. The
Constitutional Court affirmed that the provincial department is entitled to
require admission of a learner beyond the capacity set out in a school’s
admission policy, whilst emphasising the importance of due process,
co-operation and meaningful engagement in the best interests of learners.
It found that “(b)oth provincial government and individual schools have to
grapple with systemic capacity problems and their impact on education. At
school level, parents and governing bodies have an immediate interest in
the quality of children’s education…. However, the needs and interests of
all other learners cannot be ignored”.

It is implicit in both of these judgments that provincial departments have
a duty to ensure that the needs of all schools and learners in an area are
considered when decisions regarding admissions are made. It is also clear
that the court requires schools and provincial departments to properly
cooperate and engage in the interests of learners. However, despite this
existing case law, situations like that which arose at Höerskool Overvaal
this year demonstrate that more detailed guidance is needed.

The papers in the Overvaal case reveal high levels of tension. They show
factual disputes related to the capacities of surrounding schools, protests
regarding admissions during years prior to the case, as well as
demonstrations, counter-demonstrations and racially-polarised
confrontations subsequent to the High Court judgment.

A judgment of the Constitutional Court could have clarified the role of
principles such as equity and redress in admissions decisions, particularly
where enforcement of language policies impede transformation. The
Constitutional Court also missed an opportunity to expand on how the
meaningful engagement and prioritisation of the best interests of the
learners involved should be practically implemented.

The Constitutional Court justices should not be reluctant to hear future
cases involving provincial departments and school governing bodies
contesting each other’s terrain. It is the very recurrence of these cases
which shows that jurisprudence on issues such as meaningful engagement, the
interplay between language and admissions policies, and the importance of
redress and equity in the public education system can and should be
refined. *DM*

*Nurina Ally is Executive Director at Equal Education Law Centre and
Samantha Brener an attorney at SECTION27*


 Harold F. Schiffman

Professor Emeritus of
 Dravidian Linguistics and Culture
Dept. of South Asia Studies
University of Pennsylvania
Philadelphia, PA 19104-6305

Phone:  (215) 898-7475
Fax:  (215) 573-2138

Email:  haroldfs at gmail.com

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