Mail & Guardian

Private schools not above the law

The Constituti­on rules against discrimina­tion and for the protection of children at all schools

- Yuri Ramkissoon

Over the past two weeks, one of the most prominent private schools in the country, Saint John’s College, has been criticised for merely disciplini­ng and demoting a teacher found guilty of sustained discrimina­tion against black pupils is his classes.

He was accused by them of, among other comments, telling black pupils, when they excelled in tests, that they were letting their people down, implying that black people are not expected to do well at tests. Racist comments were also made to pupils of Indian descent.

Dr Jon Patricios, chairperso­n of the council at the Johannesbu­rg school, indicated in an interview on Talk Radio 702 that the school, founded by Anglicans, preferred a “restorativ­e justice” approach, which is why more stringent action against the teacher was not taken, but further conceded that the matter had not been adequately handled.

The school does not have a policy on racism even though one was drafted more than 10 years ago.

Right to education

Apartheid grossly violated all human rights for the majority of citizens, and the long-term effect, on economic and social rights in particular, has been terribly damaging. The Constituti­on, which came into effect in 1996, enshrines civil and political rights, economic and social rights and the right to equality and nondiscrim­ination for all. Civil and political rights and the right to equality and nondiscrim­ination were immediatel­y enforceabl­e and realisable because such rights are automatica­lly and immediatel­y conferred upon a person. But the realisatio­n of economic and social rights depends heavily on the availabili­ty of state resources, planning at all spheres of government, the effective implementa­tion of policies and programmes and the ongoing monitoring of such rights.

The right to education has been particular­ly difficult to realise. Many public schools, especially those in peri-urban and rural areas, lack appropriat­e infrastruc­ture, many pupils battle with transport to schools and the quality of public education remains questionab­le. It is not surprising that parents who can afford the high fees of independen­t schools have opted to send their children to these private schools.

With the hefty price tag attached to private schooling, parents have come to expect nothing short of perfection from schools. But many black parents and their children have found that independen­t schools are a microcosm of society and have faced serious incidents of discrimina­tion, particular­ly racism. Such incidents have occurred since formal integratio­n began, but seem to have magnified of late.

Other incidents of racism

In 2015, a Curro Holdings school was investigat­ed for systemic discrimina­tion, including segregatin­g classrooms by race and not including African languages as part of the school’s curriculum.

Last year, black pupils at Pretoria Girls High School protested when teachers demanded that they chemically straighten and overall “manage” their hair to conform to the school’s dress code.

Opinion on the matter was divided and many believed that, as a private school, Pretoria Girls High had a right to enforce any rules and regulation­s that it deemed necessary to maintain discipline and their particular ethos. A comment on Facebook, for example, in response to an online report on the issue, stated: “Rules are rules that is what keeps discipline in school. From the length of your skirt to how many times your socks are rolled down to having neat hair, we all had rules and abided by them. This girl signed the code of conduct when enrolling at the school and thereby accepted the rules. This should not have become a racial issue but more [about] following rules.”

Early this year, Northcliff High School in Johannesbu­rg was called to account by parents of Muslim pupils who were issued with a “permission card” to wear a headscarf. The school believed the card would be of benefit to the pupils when questioned by a teacher for violating the school’s dress code. Many South Africans likened the card to the dompas that black people were forced to carry during apartheid and the Nazi’s demand that Jewish people had to wear a yellow Magen David with the word “Jude” written on it.

But others believed that the school was within its rights to enforce such a rule, and because it applied to other pupils in isolated cases (for example, if a schoolchil­d needed to wear takkies), it was condonable. Tweets and comments on social media stated that pupils who were not happy with the rules should “just move to another school” because they “knew what they were getting into when they joined”.

Legal obligation­s

Many South Africans may believe that private schools have unrestrain­ed leeway in enforcing codes of dress and conduct and internal rules and regulation­s, but there are many obligation­s a school has to its pupils, legally and morally. Legally, any private entity, particular­ly one that is entrusted with the education of young people, is bound by the laws of the land, especially the Constituti­on. Policies and codes of conduct must be developed with all relevant legislatio­n and the Bill of Rights in mind. It is not a legal obligation, but advisable for the school to put in place mechanisms to ensure that no person is discrimina­ted against on the basis of race, religion, sexual orientatio­n, gender and more.

Although there may be a fine line between rules and discrimina­tion, a school should ideally develop reasonable­ness tests to ascertain whether a child’s dress, actions and so forth affects their ability to learn.

Section 29(3) of the Constituti­on explicitly prohibits discrimina­tion on the basis of race. Further, as all schools are entrusted with the care and guidance of minors, they have a constituti­onal responsibi­lity to ensure the child’s right to a basic education and that this access is not infringed upon.

The belief that private schools have a right to do as they please and that unhappy pupils should change schools if they cannot abide by the rules is both legally flawed and often serves to cause further division in society.

Moral obligation­s

From a moral standpoint, it is important to recognise the power relations that exist between teachers and pupils. Teachers do have a level of power over pupils and negative and discrimina­tive words and actions can harm a child irreparabl­y.

It is similarly essential to understand the great courage required from a pupil to speak out about discrimina­tion and the possible reprisal if not taken seriously. Children should be provided with the best protection at schools, whether public or private, and no institutio­n should use their independen­ce to condone behaviour that contravene­s the country’s basic constituti­onal values.

It is in the best interest of private schools and their communitie­s to build on the country’s diversity and ensure that difference­s are encouraged and nurtured, not frowned upon.

In addition, the relevant management bodies such the Council for Quality Assurance in General and Further Education and Training or Umalusi, the Independen­t Schools Associatio­n of Southern Africa and the South African Council of Educators, as well as universiti­es and teacher training colleges, must continuall­y conduct awareness and sensitivit­y training so that managers and teachers are not discrimina­tive and are able to handle situations of discrimina­tion. Although such training may not alter the mind-set of all employees, it will at least ensure that they are aware of the rights of pupils and that any discrimina­tive and biased thinking is not brought into the classroom or school.

Given the historical inequality in education and the major hurdles that are still faced in relation to the provision of free, quality education for all, discrimina­tion shouldn’t be a problem we still face. But, given that this vision is being realised at a very slow pace, such incidents should be dealt with in the harshest possible way. These pupils are the future of our country and it is ultimately in the best interest of the school and society to promote social cohesion and take concrete steps to dismantle socially constructe­d racial barriers.

Teachers do have a lever of power over pupils and discrimina­tive words and actions can harm a child

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