Best of 2017: State threatens parents’ rights with radical education bill — Philip Rosenthal

UPDATE 29 November Education bill stirs up a hornet’s nest – govt extends public comment deadline

6 November COMMENT: CAPE TOWN — I may be way off the mark but I can’t help thinking that the alarming amendments to the Nanny State’s Schools Act and Employment of Educators Act, is a classic case of political projection. On the most generous interpretation, it might be aimed at the vice-like hold the teacher unions have in our public schools, given that its stated purpose is to prevent corruption. Yet, corruption is what our government seems best at right now. Heaven knows, public education, like public health, is riven with unholy political alliances between provincial MEC’s and the relevant major unions. I have personal knowledge of hospital management teams compromised by these ugly alliances, come election time. They couldn’t care a fig about service delivery or efficacy, let alone hiring or keeping the best people in the job. I doubt Basic Education is much different. What this analysis does is sound the siren for those most affected by the proposed bill, whose deadline for comment is this Friday. Unless they strenuously object to the bill’s content, frighteningly outlined below, with the caveat that there’s been insufficient consultation, we’re headed for the lowest common denominator becoming the rule. If the government wants to reign in the unions, giving election-time political allies more power is a recipe for disaster. – Chris Bateman

Read: South Africa at a tipping point amid chronic government failures – analyst

By Philip Rosenthal*

Philip Rosenthal, director of ChristianView Network

Parents and teachers have until Friday 10 November 17 to comment on the draft Basic Education Laws Amendment (BELA) Bill which proposes to take away powers from School Governing Bodies (SGBs) and choice from Home Schooling families. It would increase your tax, raise school fees and increase costs and administration home educating. Depending on provincial education policy, weakened financial viability of quality fee-paying public schools may lead to an exodus, retrenchment of teachers and thus loss of quality. Six hundred thousand school staff as well as their spouses & partners would have their privacy invaded by having to disclose their financial and ‘in kind’ interests. The state could over-rule governing bodies language policy, especially threatening the remaining 1 out of 20 single-medium Afrikaans schools. It would be more difficult for schools to rent facilities to churches and independent schools. This and loss of teacher appointment powers to SGBs would indirectly impact religion. Implementation powers are in the hands of provinces, likely making education a key issue in provincial elections and educational refugees moving province. The consultation process seems unequal, with some stakeholders consulted early and the rest have an unreasonable deadline. BELA is the most radical change in education law since the 1996 Schools Act, and would put education back in the control of the state, as it was in the apartheid era. [S# are reference to Sections in the BELA bill ]

Read: This is war! Zuma, Gupta bots target UK enemy #1: Peter Hain, campaigner for SA justice

More tax and fee costs: To implement the Bill, the Department of Education will have to recruit a new army of bureaucrats to review each school’s revised admission policy every three years and review financial statements every quarter (S23) from 24,000 schools plus review 60-100,000 academic assessments of home schooled children annually (S25), currently costing the taxpayer nothing. Schools will no longer be allowed to lease their hall or field without special permission from the Member of Executive Council (S19) – with loss of revenue for schools, inefficient use of resources and loss of benefits to communities, churches and private schools. Likely, the Department of Basic Education (DBE) will not be able to cope with the new administration load as they hardly cope with their existing load. More admin staff would be needed to process detailed financial interest declarations of around a million educators, their spouses and partners (S41). Technologically secure infrastructure and staff a third the capacity of the South African Revenue Service (SARS) personal income tax would be needed to capture all this data and analyse it to achieve its stated purpose of stopping corruption, while avoiding leaks that infringe the Protection of Personal Information (POPI) Act.

If home education is made more difficult, expensive, reduced options and the threat of a 6 year jail sentence (S2) – and the requirement for prior authorisation – many such families may be forced to apply to schools – with taxpayers money wasted building schools for families that don’t want or need them. The bill would create a new class of educational consultants, who would need to be hired to assess the progress of home schooled children (S1,S25), already sacrificing one parents income plus curriculum costs and supplementary tutoring.

Quality public school viability: The financial viability of quality public schools is dependent on them having parents all able to pay fees. BELA would reduce governing body’s powers to review applicants financial ability to pay (S22) in exemption applications and their control of admissions policy (S3,29). Particularly, they will not be allowed to ask for bank statements. If more non-payers are admitted or condoned, fee paying parents would have to pay more to cover those who can’t. While some imagine this will help equality, history has shown if the proportion of non-payers tips beyond a certain fraction, the remaining paying parents have to pay more fee for less quality, and eventually all leave. All public schools would become equally weak. Parents will be less motivated to participate in a powerless SGB. Quality schooling will then concentrate in the private sector for a smaller elite.

Language choice: Most parents want English medium. Currently, those wanting Afrikaans single-medium have a choice of only 1 out of 20 schools. Currently SGB’s influence language by setting language policy (S3), admissions choice, catchment area (S3) and teacher choice (S10). If BELA is passed, the government can over-rule the majority language choice and also stop the governing bodies giving preference to Afrikaans children in admissions or via their catchment area and force schools to appoint teachers of a different language. Afrikaans universities have been forced first to dual-medium, then to English only, with pressure from students who say they can’t understand it. With this law Afrikaans could be phased out in public schools, meaning Afrikaans parents wishing to preserve their language would have to pay for private educational options. It is ironic that the 1976 riots were against an attempt to force Afrikaans language on Soweto schools and a legacy of Afrikaner nationalism was provoked by the British trying to force English onto Afrikaans schools after the Boer War. Now it is happening again. If this was unfair after the Boer War and unfair in 1976, is this not also unfair now? If the principle of parental choice is respected and the government stays out of language policy, all this pain could have been avoided. The Gaelic language has just about vanished from Scotland, Wales and Ireland and the same could happen to Afrikaans if the government is allowed to decide language policy. Afrikaans is not my language choice, but we must defend others parental rights.

Religious freedom: The bill would further erode governing body powers to determine religious ethos and policy of a school, by allowing the government to choose teachers (S10) who may not be willing to uphold it. The June 2017 ruling of the South Gauteng High Court unjustly attempted to restrict the powers of the six schools on religious policy.  It was not appealed, but is likely to be challenged by other schools in future on grounds I explain in the following article: The bill makes it more difficult to hire teachers happy to implement the religious policy of the school.  

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

Many churches currently rent school buildings on Sundays, an arrangement that brings in school funds and helps the community. With BELA, special permission will be needed from the Member of Executive Council (MEC)(S19), making this more difficult. With much existing correspondence going unanswered, permission may not be granted due to lack of capacity.

Many home school for religious reasons and thus religious freedom is affected by making this more difficult.

Less School Governing Body powers: With BELA, school governing body powers can be easily over-ridden by the state for example on teacher appointments (S10), language policy (S4) admissions policy (S3), procurement (S11) and indirectly other things. The Minister is empowered to issue more regulations on a range of issues including admissions, without the check and balance of parliament, by which she may further strip governing body powers (S29). If this happens, parents will be less motivated to participate. The DOE claims they can save money by socialist centralised procurement as opposed to private enterprise competition and choice. SGB’s will be allowed a say only on senior teacher appointments (post level 1), with the rest being appointed by DBE without consultation (S10). While the government memorandum motivates BELA law on the basis of fighting corruption, in fact the best defence against this is active parent participation. Problems come in schools when parents are passive. School governing bodies also function as a grassroots training ground for democracy. BELA will undermine this towards an authoritarian state. All school codes must include an exemption provision (S6). Governing bodies argue this should be restricted to medical, cultural and religious grounds to avoid undermining the rules.

Teachers: If an SGB does not have a say in a teachers appointment, the teacher may suffer unpopularity. Better for everyone if the SGB chooses the teacher they want. Tens of thousands of teachers are paid by governing bodies using parents fees. If SGB’s lose control of admissions (S3,29) and weaken financial verification (S22), forcing them to admit parents who can’t pay fees, then they may have to retrench these additional teachers, thus losing quality and resulting in parents who can pay leaving, resulting in more retrenchments on a slippery slope.   

As a measure against corruption, BELA expects all educators, their spouses and partners living as if married to declare all their financial interests, gifts, property, benefits in kind, shares to the HOD (S41). With six hundred thousand staff at schools, that could affect a million people. Failure for example to declare any gift is misconduct, and could result in disciplinary action. It is also unclear how long an unmarried partner must live with a teacher before they are required to declare financial interests. ‘Benefits in kind’ are defined in a very broad manner (S1(a)).  This is an unprecedented invasion of privacy and administrative burden. It is ironic that BELA restricts governing bodies rights to verify finances of parents, while demanding intrusive information about teachers. Unless the DBE was to put in place data security comparable to SARS, this data would be a valuable target for hackers to sell on the dark web. The DBE could then be sued for an incalculable figure in a class action by Trade Unions in terms of the POPI Act. It would surely be more reasonable to only expect people doing business with the education department to declare if they are related to teachers and if so, their financial interests.

Home education: Under apartheid, home education was banned and those who defied that criminally prosecuted. Pioneers Andre and Bokkie Meintjes were put in separate jails and their children in an orphanage in another province. With the new Constitution, they were released and home education grew exponentially. The 2012 census recorded 57,000 children being home-schooled, but only a tiny fraction registered with the education department.  

BELA defines ‘home education’ narrowly to only those who comply with a detailed set of requirements for registration (S1(e)). It increases the penalty of non-compliance to 6 years in jail and an unlimited fine (S2).  The Provincial Head of Department (HOD) must decide whether the parent should be allowed to home school and cannot start till he gives permission. The parent must pay a qualified consultant approved by the HOD to annually assess the progress of the child and submit a report to the HOD. The HOD may attach further conditions and may cancel the registration at any time. BELA assumes and by inference compels home educators to follow the public school curriculum and grade system and write the National Senior Certificate (NSC) final exam – using a private service provider at their own expense. This would prejudice those who follow a variety of other curriculums, educational methods and final exams (for example British or American exams as do many private schools). Assessment regulations have made it difficult and expensive to do get an NSC via distance education. The Bill provides that the Minister may make further regulations (S25), meaning she may add more financial costs, restrictions and administrative burden – which is exactly why most don’t register. If the government doesn’t fix these provisions, they are likely to fail constitutional legal challenge. A parent has both the right and personal knowledge to decide what is in the best interest of their child and not the HOD.  

Cottage schools: Paralleling the growth of home education, thousands of families are sending their children to ‘cottage schools’, mainly operating from private homes. They operate similarly to home schooling except it is not parents teaching their own children. For example, a home school parent may take on a few other children at a fee. Parents club together to hire a tutor to teach their children one or more subjects. A church may sponsor a tutor to teach in a place where there is no school. These fulfil a real need and are helping to solve education crises from squatter camps to leafy suburbs. Governing bodies of industrial scale schools are under stress as it becomes harder to get consensus between parents. They are a cost effective alternative for special needs children, which the state schools struggle to cater for. Cottage schools remain however a grey area in the law and BELA makes no provision for them.

While home and cottage education are a minority at present, if School Governing Bodies are stripped of their powers, quality degenerates and parents religious and language preferences are not accommodated, these are the next viable option for many families.

Independent schools: Many small independent schools lease facilities from public schools, for example swimming pools and sports fields. This would now need approval from the MEC for each individual lease (S19). It may be slow and difficult to get permission due to MEC administrative load, and for short notice impossible. The MEC may attach conditions to subsidies (S24). Financial management conditions may be reasonable, but with broad wording this could be abused to undermine ‘independence’.

Alcohol: BELA bans any alcohol at schools (S7). Some governing bodies complain this will impede fundraising functions and renting venues. Nevertheless, in poor communities there are problems of drunkenness at school and benefits of this rule outweigh the inconvenience.

Technical flaws: Apart from the practical implications above, BELA has various technical legal flaws of inconsistencies with other legislation and the Constitution. Ironically these flaws will help victims defeat it in court. Nevertheless, affected parties need to belong to an organisation such as a Trade Union, School Governing Body association or legal insurance with resources to defend them.

Basic Education Minister Angie Motshekga

Motivation: The DBE claims BELA will bring education law into line with certain court judgments. Nevertheless, governing bodies argue it impacts far beyond that required by these judgments. DBE says poorer and especially rural governing bodies are non-functional, but the effect of BELA would be to weaken good schools rather than strengthen weak ones. DBE has not responded to the offer of strong SGB’s to help build capacity in schools with weak SGBs. DBE already has powers to appoint people directly to run non-functional SGBs, but now wants to take powers from healthy ones. While the Education Minister admits the situation in many schools is a ‘national catastrophe’, they are trying to fix the ones that are not broken and threaten to break them too. DBE hopes centralising power will reduce corruption and inefficiency, but it weakens parents powers who are the best defence against this. The six year jail sentence is motivated to stop school political disruptions, but the wording puts home educating parents at risk.

Provincial differences: The implementation of BELA will be mostly up to the Provincial Education Department and MEC. They will likely have different approaches to language, admissions, home schooling, and teacher appointments. This could result in those with strong preferences moving province, and political party policies becoming a swing issue influencing the provincial vote. Currently Gauteng Provincial Education is most interfering in schools. The Western Cape Provincial Constitution promotes education in the system of the parents choice.  

Consultation and time frames: The draft Bill is dated 2015 and it seems that stakeholder consultation since then has been somewhat ad-hoc, with different groups getting different information at different times. All this makes the process open to the challenge of unjust administrative action, in that non-privileged parties have only 30 days to comment on the BELA Bill – and this in the middle of exam time. Anyone which has only just heard about this, should submit what they can by the 10th November with a preface that they submit under protest and need more time to make supplementary submissions. Even if the Education Department doesn’t condone these, submissions can be sent and considered again when it reaches Parliament in 2018.  

The covering letter from the Education Department requesting comment says they are looking to ‘fine tune’ the bill. In my view, the bill needs overhaul rather than ‘fine tuning’.

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