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Court case on National Curriculum - possible consequences - by Leendert van Oostrum

Having attended the court case on the enforceability of the curriculum, I was struck again by the injustice of citizens being forced to expend such vast amounts of money, time and energy simply to be allowed their explicitly stated constitutional rights and freedoms.

Having thought about the arguments presented to the court over two days, I also considered the possible consequences for homeschoolers.
It seems to me that there are likely outcomes, determined by the different positions of the three types of education involved – state schools, private schools and home education.

Where private schools are concerned, I think the court will have difficulty NOT granting the prayer that the national curriculum is unenforceable on private schools.

Where state schools are concerned, the court might find that the curriculum is, likewise, not enforceable, and is therefore not enforceable on home learners either. However, I think the court is more likely to avoid making any conclusions on whether the curriculum is enforceable on them or not – it was not explicitly asked to make a decision on this.

Where home education is concerned: If the court decides that the curriculum is not enforceable on public schools, it might also conclude that it is not enforceable hom home education either.

I suspect, however, that the court may well conclude that the minimum requirements of the curriculum in public schools ARE enforceable on home education, irrespective of whether it is enforceable on public schools or not. Such a conclusion can rely on Sec 51(2)(b)(i) of the South African Schools Act which requires that it be “likely” that the home learner will receive an education that “...will meet the minimum requirements of the curriculum at public schools...”. This provision of the Act probably makes it unnecessary that the curriculum be promulgated by means of regulations as required by Sec 61 of the SA Schools Act – the aspect on which the entire court case hinges.

This is how most people have understood the situation from the beginning. Such a decision by the court will, therefore, simply confirm what has always been understood by most. Until now, this has not been rigidly enforced on home education, but the indications are that the honeymoon might end somewhere in the foreseeable future.

Homeschoolers must, therefore, consider the consequences of this court case, in the context of the fact that the national policy on home education is being redrafted and in the light of other developments.

One option open to homeschoolers is to comply with the provisions of the homeschooling clause in the SA Schools Act. That requires that homeschoolers KNOW and UNDERSTAND exactly what that means.
The minister states in the curriculum itself that the entire curriculum (as well as the national policy on religion and education) comprise “the minimum requirements of the curriculum”. All education officials accept this position. Most curriculum suppliers also adopt this attitude and consequently, many homeschooling families.

THIS IS AN ERROR.

Back in 1998 when the first version of the curriculum was promulgated, this was no issue – it was extremely vague and, in fact, left almost every decision to the teacher. It did not matter, then, whether one considered the entire curriculum to be binding or not.

Asmal went some way towards tightening the prescriptive aspect of the curriculum. However, there remained wide discretion.

With the new CAPS, the matter becomes quite different – CAPS is highly prescriptive because it is meant not to benefit children but to control recalcitrant unionized teachers. It is, in fact, developing in the direction where even the allowed text books will be prescribed (and publisched by some decision maker’s sister or nephew!)

This means that this provision (complying with the “minimum requirements of the curriculum in public schools”) has become much more intrusive with every passing year. It has become necessary, therefore, that both homeschooling families and curriculum providers look much more seriously at exactly what the law demands of them:

A “requirement” is a “necessity”, “prerequisite”, and so on. In other words, it is obligatory. It is NOT optional. This has certain implications:

a) Any aspect of the curriculum that is not met by ALL children in ALL public schools cannot be an enforceable “requirement”.

b) A “requirement” that infringes unreasonably or unjustifiably the other fundamental rights of the children or their parents cannot be a “requirement” either. This is particularly important in the case of the policy on religion and education.

c) A “requirement” must be stated as a requirement. It cannot be stated as an option, a wish, or a desired outcome. Certainly, it should be written in the imperative (Afr: bevelsform). Anyone who has read the curriculum knows that very little of the curriculum is, in fact, written in the imperative.

d) A “requirement” must be unambiguous. If it is ambiguous, it is “vague and embarrassing” and cannot be binding. Again, anyone who knows the curriculum will know how ambiguous almost all of it is.

Consequently, the “requirements” of the curriculum do NOT include the entire curriculum. The ONLY include those aspects of the curriculum that are met by all children in all public schools, that do not unreasonably or unjustifiably infringe the undamental rights of the children or other affected parties, that are clearly stated as imparatives and not as options of disctretionary elements and that are clear and unambiguous.

That leaves cuts down substantially on what comprises the curriculum.
In addition, the law not only specifies that home education must meet the “requirements” of the curriculum. It specifies that they only need to meet the MINIMUM requirements. What are those? We do not really know, but what we do know is that he “minimum” must be less than “all” of the requirements.

When considering what the “minimum” might be, one aspect that comes to mind is the matter of the required pass mark. If the pas mark is, for example, 30%, that means that the learner only has to be able to demonstrate thirty percent of the required outcomes. This leaves ample scope for cutting out objectionable or unsatisfactory outcomes. And that means that 70% can be replaced by other outcomes more to the taste of the home educator.

And so on.

What the arguments above demonstrate is that the “curriculum in public schools” is NOT what the law requires of home education. It requires much less than what the minister and her officials pretend to require.

The problem is that, when the authorities start enforcing their ideas of what the law requires (and they are preparing to do so), it will take a resies of (expensive) court cases for homeschoolers to enforce their rights and freedoms.

Another option open to homeschoolers, is the so-called “satellite school” model. If the national curriculum is not enforceable on private schools, homeschooling families can establish a “satellite” campus of a registered private schools in their homes. This is a model used extensively in the USA in the early days. Christian Liberty Academy in Chicago had, at one time, 54 000 learners in their “satellite schools”. One the secular side, there is Clonlara School. Over the years, these institutions have become less popular, but they still serve a very large number of home learners.
Also in South Africa, there are already three private schools that offer this option.

This could, therefore be an option for those who do not wish to teach their children according tot the national curriculum. Even “unschoolers” could in principle use this option if they link up with (or establish their own) Summerhill type school(s).

In this way, when God closes doors, He seems to open others.

What IS important, is that homeschoolers will need to pay more attention to the matter of exercising their rights and freedoms responsibly, defending them resolutely, and building them out when opportunity arises.

Kind regards, Leendert

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Sunday, 25 September 2022

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