Drastic changes to the Western Cape provincial education law currently being considered in public hearings held by the provincial legislature, are receiving alarmingly little public and media attention.
Last year, when the Western Cape education department first published the draft amendment Bill for comments, the provision allowing for alcohol sales on school premises rightly caused public outcry. As concerning as this provision is, it is not the only one that warrants careful scrutiny.
The amendments proposed by MEC Debbie Schäfer also include the introduction of collaboration and donor-funded schools, at which donors and private entities are afforded a significant stake in public schools in a manner that undermines the principles of democratic governance and accountability, and intervention facilities for pupils found guilty of serious misconduct (a form of educational halfway house).
In its submission on the Bill, Equal Education argues that many of the proposed amendments are variously unlawful, redundant, contrary to the spirit of democracy and redress in education, unlikely to improve educational outcomes and potentially directly harmful.
Crafted as new “types” of public schools, the Western Cape education department is hoping to entrench in law the concept of “collaboration schools” and “donor-funded public schools”.
If the proposal succeeds then private entities that contribute funds or property to a public school — donors — will in effect be in a position to “buy” representation and decision-making power on school governing bodies.
Although the draft legislation is incredibly vague, it appears that collaboration schools involve a relationship between donors, “operating partners”, the provincial education department and schools.
“Operating partners” are nonprofit organisations that are authorised to assist in developing capacity at the school. This is not objectionable in itself. Indeed, building capacity at public schools is sorely needed.
But the proposed model has significant gaps and flaws. The relationship between the various stakeholders remains amorphous, the manner in which “partners” are selected and introduced into public schools is arguably undemocratic, guiding criteria and systems of support, monitoring and accountability accompanying the involvement of external partners are vague and little is said about the flow of funds.
These are not trivial risks. Representatives of the operating partner are entitled to at least half the voting seats on a school governing body. In a typical school governing body, this would be more than the parent, teacher and pupil components respectively. This affords them significant sway and is a fundamental departure from the tenets of democratic school governance.
Equally, if not more perplexing and concerning are the provisions about “donor-funded schools”. These are essentially schools at which representatives of a donor, merely by virtue of their funding contribution, may be entitled to half or even the majority of the voting seats on a school governing body.
Almost no information on donor-funded schools is publicly available even though such a model already exists in the Western Cape. Equal Education has had to submit information requests to the Western Cape education department in an effort to obtain some clarity but these have yielded only limited and partial results.
Equal Education has consistently pointed out the dangers in principle and in practice about the introduction of these models. Significantly, research on similar school models in other parts of the world, most notably academies in Britain, charter schools in the United States and Swedish friskolor shows that the evidence on the effect of such models is, at best, mixed.
There are no publicly available results of the Western Cape education department’s current pilot project but at least two schools participating in the pilot have experienced significant problems and at least three entities have withdrawn from their operating partner roles.
There are legitimate and important debates to be had about the type of interventions that will strengthen the public education system and further the best interests of children.
Our point is not that we should remain stuck in existing systems without any room for imagination. No. But changes, especially in law, should be introduced thoughtfully, with sufficient evidence and without undermining core constitutional principles. The proposed legislation falls short on all these points.
Another concerning aspect of the Bill is the proposed establishment of “intervention facilities” for pupils who are found guilty of serious misconduct. It is envisaged that these facilities will provide “therapeutic programmes” and “intervention strategies”, in addition to curriculum delivery, for a period of up to 12 months. Thereafter, pupils must be readmitted to the same public school they attended prior to referral.
There is certainly a need to ensure adequate support for pupils who experience disciplinary issues at schools, as well as their teachers. This is undoubtedly challenging, particularly in resource-constrained environments.
We have sympathy then for attempts at striking a balance between the interests of individual pupils with behavioural or disciplinary difficulties, their classmates and their teachers. But the suggested amendments and introduction of “intervention facilities” fail to strike the balance.
As currently formulated, the proposed amendment is unclear about whether the primary purpose of the intervention facilities will be to offer therapeutic programmes for children with behavioural difficulties, or whether the primary purpose will be education and training.
This is significant because the proposed provisions are very broad: a pupil may be referred for any range of “serious misconduct”.
There is established research cautioning against punitive and exclusionary disciplinary measures. Interventions that segregate pupils with poor disciplinary histories have been linked to worse behavioural outcomes.
Although the proposed amendments require that pupils be re-admitted to their original public school, the effect of being removed and treated as an outcast will potentially result in ostracisation.
This reality was recently acknowledged by the Constitutional Court in a case between the Federation of Governing Bodies for South African Schools and Gauteng education MEC Panyaza Lesufi. As the court noted: “Schools that are told in advance of admission that a learner has learning or remedial difficulties, or is troublesome, tend to refuse that learner’s admission.”
Although innovative solutions are needed, we should be sure that these are not vague and open-ended, but are rather clear in scope and purpose. Most importantly, they must uphold the best interests of children and avoid the potential of compounding exclusion and marginalisation.
The draft legislation is making its way through the provincial legislative process. Public hearings are scheduled to take place until August 21 throughout the Western Cape. It is crucial to have robust engagement on the proposed laws, which will have a profound effect on the lives and futures of our children and our public education system.
Nurina Ally is the director of the Equal Education Law Centre and Roné McFarlane is co-head of research at Equal Education