Do private schools operate below the regulatory radar of laws that enforce the principles of nondiscrimination and desegregation applicable to public schools? And, if so, should government tighten its control of private schooling to enforce these principles?
In the recent Curro school saga, 30 parents with children at the Curro Foundation School in Roodeplaat, Gauteng, signed a petition in which they charged the school with racially segregating pupils into different classrooms, holding meetings for white and black parents separately, employing an all-white teaching staff and not teaching indigenous African languages.
The school’s management attempted to justify the segregation of pupils, arguing that this facilitated friendships because pupils “make friends with children of their own culture”. Another justification later emerged: the same managers reportedly claimed they were forced to adopt segregation to prevent a “white flight” from the school in the face of increasing black African pupil enrolments.
When a public outcry ensued, Gauteng education MEC Panyaza Lesufi entered the fray. He visited the school and, according to media reports that quoted him, suggested measures the Curro Foundation School should adopt.
These included teaching African languages, appointing black teachers and making plans to integrate pupils. He also announced his intention to tighten the regulation of Gauteng’s private schools and develop a transformation charter to which the private schooling sector would be bound, as media reports quoted him.
Lesufi’s broader provincial plans have elicited a mixed reaction from the diverse private education sector. Although a few in the sector have told media they would welcome such reforms, others have expressed extreme resistance.
These dissidents have argued that section 29 of the Constitution guarantees their right to establish private schools; and, accordingly, that regulation would unjustly limit both the autonomy of private schools and parents’ rights of choice in their children’s education.
Internationally and in South Africa, private schooling – and especially its for-profit subsector – is expanding rapidly. Curro Holdings itself is an example of this. Education researcher Nic Spaull, lecturer in Stellenbosch University’s economics department, recently noted that Curro Holdings would invest R1.5-billion to increase its current 43 schools to 80 by 2020.
The private schooling sector strongly favours deregulation and actively lobbies for it. Responding to the global trend of rapidly expanding private schooling, particularly the for-profit subsector, Kishore Singh, the United Nations special rapporteur on the right to education, released a report in September last year that examined a state’s responsibility “in the face of the proliferation of private providers of education”.
The report addressed private education very widely, and what is relevant to the Curro school saga is its acknowledgment of education’s importance as a public good. States must strengthen “human rights mechanisms in order to effectively address and sanction violations of the right to education by private providers”, the report said.
It is incorrect to suggest that South African private schools have unqualified autonomy.
This is completely contrary to the country’s constitutional and legislative framework. Section 29(3) of the Constitution does provide that anyone can “establish and maintain [private schools] at their own expense”, but this right is subject to clear qualifications.
Private schools must:
• Not discriminate on the basis of race;
• Be registered with the state; and
• Maintain standards that are not inferior to those at comparable public education institutions.
Chapter five of the South African Schools Act further governs the state’s regulation of private schooling. Particularly relevant are the sections that provide for the registration of private schools – as well as the withdrawal of their registrations. These sections also provide for granting and withdrawing subsidies to private schools.
Legislation also empowers education MECs to determine the conditions for the registration or the withdrawal of registration, and the granting or the withdrawal of subsidies to private schools.
There is a wide scope for tightening chapter five’s provisions for stricter sanctions when private schools abuse pupils’ rights. The section of the Schools Act that outlines the registration of private schools requires, at the very least, that their admission policies be nondiscriminatory.
The Curro Foundation School in Roodeplaat appears to have found a legal loophole in these provisions: although it admits black African pupils, it then racially separates them from other pupils.
Such covert segregation is not unique to this school. A substantial portion of post-apartheid jurisprudence on education in public schools addresses attempts by white-dominant parent bodies in public schools to exclude black pupils by asserting the right to an “Afrikaans ethos” or the right to Afrikaans single-medium education.
Fortunately, our courts have been alive to these covert attempts at exclusion and ruled against them, because they in effect perpetuate systemic racial discrimination.
The landmark United States case of Brown vs Board of Education in 1954 found that “separate but equal” was still discrimination: “To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to be undone,” the judgment read.
Separating pupils into different classes along race lines is racial discrimination. Nondiscrimination and nonracialism underlie our Constitution’s principles.
The right of pupils not to be discriminated against is also inherent to their enjoyment of their right to a basic education. And, as noted above, nondiscrimination is an unequivocal proviso for those who wish to establish private schools.
Not only is Lesufi’s response to the Curro saga correct, it is also constitutionally obligatory.
That is, to the extent that our laws do not in effect address racial discrimination in its different guises, government is constitutionally obliged to strengthen these laws.
A good starting point would be to revisit the conditions for granting and withdrawing the registration of private schools and, to the extent that this is applicable, to reconsider the conditions for the granting of subsidies as well.
The Curro saga and, more recently, the sad, horrific and allegedly racially motivated rape of a young boy by six white pupils at an agricultural school in the Northern Cape highlight the ongoing necessity to address racism in schools in its many manifestations.
If the private schooling sector is committed to nondiscrimination, then it ought to embrace and participate in the formation of a transformation charter rather than be so defensive.
Such a charter should extend well beyond admission policies or increased enrolments of black pupils. It should include meaningful integration and a diversity of values and cultures, as well as ensure that any private school’s teaching staff, including its most senior levels and the parent and pupil communities, reflects South Africa’s demographics.
Faranaaz Veriava is a human rights lawyer, based part time at public interest organisation Section27. She writes in her personal capacity