Two centres of power unhealthy for education system
The Times Editorial: In a case that highlights increasing tensions between schools and the state, the Constitutional Court was yesterday asked to decide whether the Free State education department head was correct to override two school governing bodies that had excluded pregnant pupils from school.
If the provincial department head had not intervened in 2010, the two girls would have had to repeat a year of schooling in line with policies set by the governing bodies.
Arguing for the department, Matthew Chaskalson, SC, said his client had to protect the pupils' fundamental rights and ensure that its employees did not take part in a violation of human rights by upholding unlawful school governing body policies.
Acting for the school governing bodies, advocate Jan du Toit said the matter was not about whether the pregnancy policies were constitutional or not but about the rule of the law.
In May, the Constitutional Court will hear argument on who should have the final say on declaring a school full. Rivonia Primary School in Johannesburg took the Gauteng education department to court after the school was forced to accept a pupil when the governing body had declared it was full.
In another case, currently before the Johannesburg High Court, Fochville High School is challenging the same department's decision to force it to accept English pupils when its governing body had drawn up policies making it an Afrikaans medium school.
At the heart of these tensions are two fundamental questions.
First, it has to be established where the power to govern and set policies lies. Does the school have the final say or the state?
Second, if a school draws up policies in conflict with the constitution, should the state not have a right to intervene?
These issues will finally be settled by the Constitutional Court and the tensions between the two centres of power will be eased.