Week 1 - Lesson 3 - The Right to Basic Education (1).pptx

Education Law & Policy The Right to Access Basic Education WEEK 1: LESSON 3 Section 29(1)(a) of the Constitution  Section 29(1)(a) of the Constitution says:  “Everyone has the right – (a) to a basic education, including adult basic education”  “Everyone” - wide applicatio...

Education Law & Policy The Right to Access Basic Education WEEK 1: LESSON 3 Section 29(1)(a) of the Constitution  Section 29(1)(a) of the Constitution says:  “Everyone has the right – (a) to a basic education, including adult basic education”  “Everyone” - wide application Important Characteristics of section 29(1)(a) Immediately realisable versus “progressive realisation within available resources”  Differs from section 29(1)(b) and other socio-economic rights enshrined in the Constitution  Section 29(1)(b) - “Everyone has the right to further education, which the state through reasonable measures, must make progressively available and accessible”  Constitution does not define the term “basic education”. But it must have a certain content and be of a certain quality?  The 4 A Approach  Tomasveksi has created a 4-A approach identifying important features of a basic education – useful benchmark to measure governments performance  Availability  Accessibility  Acceptability  Adaptability  Availability  This refers to the availability of a functioning education facilities and education programmes. These must be available in sufficient quantity  Basic, safe, Infrastructure - desks and chairs, classrooms, sanitation, running water, electricity  Textbooks for students to use  Sufficient qualified Teachers who can deliver  Accessibility  Is education available to everyone - “educational institutions have to be accessible to everyone, without discrimination within the jurisdiction of the state party”  equally accessible/non-discrimination - pregnant learners, undocumented learners such as refugees, racial discrimination, learners with disabilities, language barriers?  economic accessibility - if parents cannot afford school fees?  physically accessibility - walking long distances to school?  Acceptability  Whether or not curricula and teaching methods are of a good quality? Speaks to the form and substance of education. Can a school meet basic learning needs. Can learners be taught literacy, and numeracy?  Is it relevant?  non-discriminatory?  culturally appropriate?  Adaptability  The flexibility of an education system to adapt/ evolve with the needs of society, to respond to learners changing needs, especially vulnerable learners? Can teaching and learning be adapted to specific contexts?  Learners with barriers to learning (Inclusive education)  Learners and educators living with HIV/AIDS  Including ICT/ workplace skills/ focus schools  Reduces inequality “ What does the right to basic education mean now? ” Some challenges learners are still facing today in the delivery of basic education The meaning of the right to a basic education – the courts Important cases illustrating the value of litigation: (See Prof Skelton paper (2013))  2010 - Centre for Child Law v Government of the Eastern Cape Province, Eastern Cape High Court, Bisho, case no 504/10  (mud schools case – memorandum of agreements)  2011 - EE’s case requesting Norms and Standards for School Infrastructure Victory with the publication of the Regulations Relating to Minimum Norms and Standards for School Infrastructure - what makes a school a school Regs relating to minimum norms and standards for school infrastructure  Classrooms – minimum space Gr 1-12 Learner = 1m2  Class size – maximum 40 learners  Electricity – some form of power supply  Water – sufficient water at all times for drinking and personal hygiene  Sanitation – sufficient number of sanitation facilities (pit and bucket not allowed)  Libraries – all schools must have a library or media centre  Labs – all schools that offer science must have labs  Sports facilities – not guaranteed  Electrical connectivity – some form  Perimeter security Meaning of the right to a basic education - the courts  2011 - Limpopo Textbooks case  Court found - textbooks are an essential component of quality learning and teaching and a failure to provide these is a violation of the right to basic education  Court: declaratory order, textbooks and a catch-up plan  2012 - Failure to appoint Teachers in the Eastern Cape (LRC case)  Court – DBE is obliged to declare post establishment for both teaching and non-teaching staff in public schools and fill the posts. DBE should have budgeted for this- court gave detailed order.  Court cases giving content  2012 – Desks and chairs in the Eastern Cape (access to basic furniture was required to receive a basic education)  2014 - Basic Education for All v Minister of Education (2014) (textbooks)  School nutrition case  The NSNP was suspended during the 12-week school closure - two weeks of which were school holidays.  “Third, the judgment affirms that school nutrition is a component of the right to basic education and provides a “supplementary” purpose in the provision of basic education that being to enhance the learning capacity of children whilst at school. The court based this finding on the DBE’s own policies, practices and statements, and on international law.”  Through these cases, the courts have shown how, for example, sanitation, buildings, water, textbooks, school furniture form part of the right to a basic education Basic education extends to Grade 12  Moko case – Constitutional court held that “school education culminating in the ‘nationally recognised qualification’ of the National Senior Certificate is basic education under section 29(1)(a). This includes Grade 12 and the matric examinations.” This is an important recognition from our highest court that the state’s obligation to provide everyone in South Africa with a basic education extends to the end of matric. The Meaning of the Right to Basic Education – the courts  But going to court is just one tool that helps define the meaning of the right to a basic education, and has its own challenges  Examples of challenges: expensive, severe delays in obtaining a court date, procedural delays, Government settles before going to court, implementation must be monitored.  Law makers and policy makers also play an NB! role in expanding this meaning with laws and policies Section 29(2) The right to receive education in the official language(s) of choice  Section 29(2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that language is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single-medium institutions, taking into account –  (a) equity  (b) practicability; and  (c) the need to redress the results of past racially discriminatory laws and practices. Right to learn in one’s language of choice  Origins lie in political compromise.  Section 29(2) privileges Choice, not home language (this is significant because Apartheid compelled everyone to learn in their mother tongue)  Protects the right to receive education in an official language of one’s choice (conducive to learning+ linguistic diversity)  Section 6(1) of the Constitution lists the 11 official languages: Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa, and isiZulu  There is no unqualified right to mother-tongue/ language of choice education in state schools and It doesn’t confer upon schools the right to maintain single-medium education institutions – this requires considerations of practicality and reasonableness. Right to learn in a language of choice  The right can only be claimed where instruction in an official language of choice is reasonably practicable. (context sensitive decision) What is reasonable?  Depends on the circumstances of each case;  Availability of and accessibility of school,  Enrolment levels  Medium of instruction adopted by an SGB  Language choices learners and parents make  Curriculum options How does the state ensure this right?  The State must also consider all reasonable educational alternatives, including single medium schools  Single medium schools are one way of giving effect to the right, but there is a criteria that must guide the choice of mechanism  When choosing an option, (e.g.. Single/parallel/ dual medium of instruction) the state must consider what is  EQUITABLE,  PRACTICABILITY and  WHAT REMEDIES THE RESULTS OF PAST RACIAL DISCRIMINATRY LAWS AND PRACTICES. Case law These cases illustrate how SGB’s use their powers to determine exclusionary language policies  Matukane – SGB tried to exclude black learners  Middelburg case  Mikro case  Ermelo Case  Court has held that where these powers (SGB powers) are exercised unreasonably, and not in the best interests of the community, the PED is required to intervene.  Ermelo case  HOD (Mpumalanga), a public high school (Hoerskool Ermelo), and its SGB  School’s language and admission policies - Afrikaans is the only medium of instruction - number of Afrikaans learners were declining, and their was a request from local community to change the language policy to parallel English-Afrikaans policy.  School refused to cannot accommodate a parallel stream of English learners. Restricted access of black learners to high quality education and well resourced school  When school refused to change, the HOD revoked the SGBs powers to determine the language policy, and appointed an interim committee instead - to allow an English medium class to be accommodated. School and SGB challenged this.  Ermelo case  Court held that the HOD did have the authority to withdraw the SGBs power to determine a language policy  The state has the obligation to ensure that every learner has a place in a school and the reasonable opportunity to learn in the official language of one’s choice.  If the SGB had unlimited powers - it could potentially use the language policy to discriminate against learners and limit access to basic education  Section 29(2) cannot be used to perpetuate exclusive education institutions under the guise of language rights.  Section 29(3) and (4)  Right to establish Independent schools  The State may subsidise independent schools - not a guaranteed right Thank you