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Religion in public schools judgment is ‘flawed’ – Philip Rosenthal

JOHANNESBURG — Religious freedom is one of the cornerstones of South Africa’s Constitutional democracy. The state is secular and people have the right to choose their beliefs. But in a multi-faceted society as complex as South Africa, huge differences in opinion are set to emerge. Subsequently, a landmark judgment delivered this week regarding religion in public schools is already causing heated debate. The South Gauteng High Court ruled this week that public schools should not favour any one religion over others. The landmark ruling came about amid the Organisation for Religious Education and Democracy having brought the case against six schools with a Christian ethos. News organisation Enca reported that “the organisation argued that the schools’ decision to stop the scientific teaching of the theory of evolution is an abuse of pupils’ rights”. The organisation reportedly further “opposed the teaching of creationism and what it described as coercing pupils to follow Christianity and hymn singing”. Of course, creationism should not get in the way of scientific teaching, especially in a South Africa that sorely needs a skilled populace. But some experts are arguing that schools should at least still have the right to choose their religious ethos. In this article, Philip Rosenthal puts once such viewpoint forward. – Gareth van Zyl

By Philip Rosenthal*

Why Judge VD Linde was wrong on religion in schools judgment

The judgment of Wednesday 28 June 2017, given by Willem van der Linde in the South Gauteng High Court that school governing bodies may not promote themselves as having a particular single faith religious ethos is flawed for multiple reasons and hopefully will be overturned on appeal.  

Philip Rosenthal

The judge was however correct firstly in dismissing the detailed list of 71 demands of the atheistic lobby group O.G.O.D. based on the principle of subsidiarity, where the challenge must first appeal to the lowest level of law in its hierarchy (i.e. first School Governing Body (SGB) policy, second provincial legislation, third national legislation and lastly the constitution).   

Secondly he was correct in dismissing challenge based on the National Religion Policy, which is not enforceable the by the court.  The judge made the wrong assumptions that public schools are ‘organs of state’, rather than a parent-teacher-state partnership; confused the constitutional affirmation of ‘unity in diversity’ with a requirement of ‘celebrating diversity’.  

He wrongly assumed that the SGB rules must accommodate both past and possible future demographics and accommodate any possible religion equally in direct contradiction to the interpretation of the same clause by the Constitutional Court in 1996.  

Despite having found the applicant’s case procedurally flawed, the court invoked an overly broad and not adequately substantiated interpretation of their discretionary powers to issue an order in their favour, that would, if accepted, leave every person on every right vulnerable to judicial activist social engineering policy making.

The matter will be appealed to the Supreme Court of Appeal and then to the Constitutional Court and thus School governing bodies will not be legally bound by this decision until such time as such appeals are concluded. In the interim, they will be able to continue as before.

Why the decision had the wrong reasoning

The judge gave the following key reasons. We explain why each is flawed:

The judge stated his assumptions before his reasons:

  • Judges assumption #1: “Public schools are organs of state”  We argue that public schools should not be viewed as “organs of state”, but rather as independent institutions which are extensions of the family where teachers operate ‘in loco parentis’, under the authority of parents represented by the School Governing Body (SGB) in partnership with the state. The state takes parents tax money and redistributes it to public schools and regulates certain issues such as educational standards. Public schools should thus be viewed as ‘state-aided institutions’ rather than ‘state institutions’. The implications of this assumption influences whether the centre of authority should be parents or the state.
  • Judges assumption #2: The judge quoted the preamble of the Constitution as ‘united in our diversity‘, but then interpreted from this ‘the need to celebrate our diversity’. Nevertheless, there is a big difference in the context of sharply differing views between ‘united’ and ‘celebration’ in the context of religion and belief.  ‘United’ means that we tolerate, accommodate and respect differences and find ways to work together. It does not mean that we must ‘celebrate’ another’s religion or belief. For example, a Christian may respect a Muslim’s right to “celebrate” Eid, but does not wish to “celebrate” the festival by participating. Likewise a Muslim may respect a Christian’s right to celebrate Easter but not wish to participate. “Celebration” is part of religious observance. “Unity” and “equity” requires “reasonable accommodation”, but not joint “celebration”. ‘Tolerance’ and ‘respect’ are passive, while ‘celebration’ is active. The judge did not see this subtle but key logical difference.

Based on these assumptions, the judges gave the following reasons:

1) Communities evolve, were influenced by past racial demographic policies and must be encouraged to evolve. Answer: As a community changes, they have the opportunity to change the School Governing Body policies on religion and this is happening all the time. Often different schools in the same area adopt different policies, or a particular school may stream religious observances. Minorities have the opportunity to opt-out, to stream parallel observances for their religion or choose the school in the area with the most favourable policy to them. The ruling prohibiting single faith ethos is not needed to facilitate such flexible change and it is not the responsibility of the court to force a mixed uniform religious policy.

2) (a). A member of a minority religion may due to economic circumstance have no choice of alternatives. Answer: There are non-public school alternatives of home schooling, private schooling and the rising trend of the growth of ‘cottage schools’ i.e. very small private schools held in a home or community building, often making use of distance education resources – which are affordable and also occur in economically disadvantaged areas. Minorities do have the right to “reasonable accommodation” implied by the “equitable” in Section 15(2)(b) of the Constitution, which would allow them to opt-out or have their own streamed observances within a public school if they wish.

2) (b). Being in a religious minority in a school of a particular faith, may inculcate a sense of ‘inferior differentness’. Answer:  Firstly, the school has a responsibility to encourage a culture of tolerance of individuals who are different for various reasons, not only religious. Secondly, every individual is likely during their school career to feel ‘different’ for reasons that may or may not relate to religion. Even within the majority religion, there will be subdivisions of belief or practice which are ‘different’. Thirdly, forcing multi-faith observances onto a school can then may those of the majority faith who wish to opt-out of such observances also feel ‘inferior differentness’. The problem is not entirely avoidable as a possibility under any system except ‘homeschooling’ and is not solved by the proposed ruling against particular ethos.

3) Judge vd Linde comes to his conclusion” “accepting as one must, that the SGB rules must provide equitably for all faiths (given present and evolving future demographics), would the adoption of a single faith brand that excludes others not misrepresent the legally required position? That learners of all faiths are (should be) welcome? We think it would.”

Answer: Judge van der Linde builds on the flawed assumption that the SGB rules must accommodate evolving demographics already answered. Nevertheless, at this critical point of conclusion he paraphrases the Constitution incorrectly and misinterprets it, contradicting a previous ruling of the higher Constitutional Court.  Clause 15(2) of the Constitution says “Religious observances may be conducted at state or state-aided institutions, provided that a. those observances follow rules made by the appropriate public authorities; b. they are conducted on an equitable basis…”

In the judgment, S v Lawrence , S v Negal ; S v Solberg,1996, a case that took place during the interim constitution and in the year the final constitution became law, then Chief justice Chaskalson interpreted the same clause “It is in this context that it requires the regulation of school prayers to be carried out on an equitable basis. I doubt whether this means that a school must make provision for prayers for as many denominations as there may be within the pupil body; rather it seems to me to require education authorities to allow schools to offer the prayers that may be most appropriate for a particular school, to have that decision taken in an equitable manner applicable to all schools, and to oblige them to do so in a way which does not give rise to indirect coercion of the “non-believers”.

In other words, Chief Justice Chaskalson differed from Judge vd Linde’s interpretation of this clause in that  ‘equitable’ does not mean that every individual school governing bodies religion policy rules must equally accommodate every religion equally, but that the national framework of laws regulating school religion must allow the different policies of each SGB to be made on an ‘equitable basis’.  In other words the national system must allow one school to decide to have a Christian ethos and another to have a Muslim ethos or another to have a Secular or New Age (multi-faith) ethos.

For all the above reasons, Van der Linde’s ruling was wrong and hopefully will be overturned on appeal.

Did the court really have the power to issue this order?

Extraordinarily, the Gauteng High Court did not declare any legislation or rule of the School Governing bodies invalid or issue any of the 71 requested interdicts against any specific party in the dispute.  They explained they could not do so because of the procedurally misdirected way in which the case had been framed by the atheistic lobby group O.G.O.D with respect to subsidiarity (explained earlier).  The vague application could be compared with aiming a sawn off shotgun in the general direction of the education system and hoping that somehow, something will hit some target.  Normally, when the applicant’s case is procedurally flawed, it is simply dismissed – and they must try again following correct procedure and doing their legal homework properly.  

But in this case, the Court came to the rescue of the applicant’s procedurally disqualified case and invoked what it claimed were general discretionary powers of the Court that it found in Section 172(1)(b) of the Constitution and Section 21(1)(c) of the Superior Courts Act.  Now there are several problems with invoking these extraordinary discretionary powers in this case.  The power granted in terms of section 172(1)(b) says ‘When deciding a constitutional matter within its power, a court may make any order that is just and equitable, including i. an order limiting the retrospective effect of the declaration of invalidity and ii. an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect. “  But in this case, firstly the declaration of made by the Gauteng High Court was on inconsistency with section 7 of the Schools Act – not the Constitution.  And the possible alleged infringement which they claim to find was in terms of Gauteng Provincial legislation, not the Constitution or the Schools Act.  So their declaration is already acting outside the scope of this authority and unlinked to their logical reasoning.  Further, since only four of the six schools were in Gauteng, even if accepted, such reasoning would then not apply to the two schools in the Western Cape or the tens of thousands of schools elsewhere.

Secondly, the context of this exceptional discretionary power of the court is in context in the two examples that follow is meant to allow the court to mitigate or narrow the effect of their order to limit social disruption – not to expand their powers to declare anything they wish.  So, for example, if they declare a law invalid, it allows them to give time to the government to put alternative legislation in place.  If this clause is interpreted broadly to allow the court to issue any declaration they wish at their sole discretion, without the need to justify it, then they have created a loophole in the constitution, and now incrementally stretching that loophole, which means we are no longer living in a limited Constitutional democracy, but that activist judges are our new kings.  

Thirdly, any discretionary power exercised by anyone must be very carefully justified in that instance to avoid it being abused and causing social harm.  For example, in an emergency a traffic officer can close a road, but he cannot abuse such emergency power to close any road he wishes if there is an alternative less harmful remedy available. In this instance, the court has issued an unusually thin 35 page judgment, with hardly any motivation for why this extraordinary discretionary power is invoked except that certain other courts have invoked it before. The merit of these other cases is debatable, but, in these precedent cases cited, very detailed motivation was given which this court did not.  

To put the matter in context, the precedent cases cited, had judgements double to four times the length over issues of comparatively trivial social impact. Of this 35 page judgment, about half of it is verbatim quotation from other cases or laws, leaving only about 17 pages of original reasoning, most of this explaining why they were not granting the 71 interdicts demanded by the atheist lobby group. Only two paragraphs refer to why this extraordinary discretionary power is invoked and the reasons in that are not much more than that it has been done before.    

The reasoning for the substantive declaration is limited to a few paragraphs. They do not even refer to or weigh up the thousands of pages of expert witness and legal research placed before the court, by nine respondents and five friends of the court much of which would contradict their findings. One has to question whether in the space of only six weeks to issue this decision (which surprised all parties), they actually applied their minds to all this evidence – and that itself may be grounds to overturn it.  

Further, they did not find any evidence of harm from the practice of single faith ethos, but only that “…but we think it could” make others ‘feel inferior’. But just about anything ‘could’ happen. How would you like a court to rule against you, without finding you had done anything wrong, but only that you ‘could’ potentially harm someone’s feelings?  

And even if such harm was proved, the court is required in terms of the limitations clause 36(1)(e) in the Constitution to consider alternative “less restrictive means to achieve the purpose.”, which they did not. For example, a school promoting tolerance and reasonable accommodation of minorities, as most do. So without any finding of evidence of actual harm or infringement of rights, and without considering less restrictive means, the judges decide to abuse their powers, and engage in an act of social engineering – and such judicial abuse of power threatens everyone’s rights. The case becomes then not just about school religion, but about whether the courts have discretionary social engineering policy powers?  

Unresolved interpretation and future disputes

Even if Van der Linde’s ruling was upheld by the higher courts, it would leave open major unresolved questions on the interpretation of what it’s limitation on ‘single faith’ religious ethos and observances are – opening the door for many more legal disputes that schools do not want. In its current wording the declaration only limits the school from branding or marketing itself as a particular faith ethos. The court did not rule on what a school could actually do internally in practice. This leaves schools vulnerable to endless litigation and legal intimidation from such lobby groups.

For example, South African schools have historically accommodated religious differences via ‘streaming’, rather than ‘multi-faith religious observances’ to which many people of faith have a strong religious conscientious objection. ‘Streaming’ allows a significant group from a minority religious group to hold alternative religious education or observances at the same time as the majority are having theirs. If this matter is not clarified, it will inevitably result in another court case. Reasonable accommodation via streaming is a much more acceptable alternative than requiring public schools to secularise or have ‘multi-faith’ religious observances.

Nevertheless, streaming is only practical for ‘observances’ and ‘religious education’ and does not resolve the full spectrum of educational ethos which implicitly affects every subject and activity in education. Here neutrality is impossible and thus the South Gauteng High Court ruling tends to favour secularisation and multi-faith ethos, and discriminate against single-faith ethos.

The current legal framework is working well, with no need to change it.

What should schools do?

The ruling will firstly almost certainly be appealed and until that is exhausted (which may take another year or two), it is not legally binding.  Secondly, even if upheld its wording limits only promotion of a school as single faith ethos and not its internal practice.  Schools should not thus make hasty changes in response to this decision.  The ruling does however need to be challenged, both for the sake of governing body rights and to restrict judicial abuse of power in general.

  • Philip Rosenthal is the director of the public advocacy group, ChristianView Network.
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