In a previous article in this series, the development of in loco parentis was discussed: the principle that primary responsibility for a child’s education rests with the parents, and that other educators act in a derivative capacity. Relatively recently, however, the modern state has increasingly asserted an independent educational authority of its own, one that is not derived from parents.
The growth of state schools and compulsory school attendance
From the nineteenth century onwards, the modern state became increasingly involved in education. Industrialisation, urbanisation and the rise of the modern nation state created a growing need for a literate and educated population. At the same time, education became important in shaping citizens and national identity, and in developing the state’s administrative and, in some countries, military capacity. Whereas education had previously been organised largely by parents, churches, communities and private teachers, nation states increasingly began to establish and fund schools and, eventually, to make school attendance compulsory.
In this process, the meaning of in loco parentis gradually began to change. Teachers no longer acted solely on behalf of parents, but also as professionals within a state-controlled education system. This development can be described as a movement towards in loco civitatis. The state therefore increasingly asserted an educational responsibility of its own that was not derived from parents.
Extreme forms of this state-centred approach became visible in the totalitarian states of the twentieth century. The Soviet Union regarded education as an instrument through which the state should mould the next generation according to communist principles. Where parental values conflicted with these principles, the ideological objectives of the state took precedence. Lenin expressed it as follows in a speech in 1920: “The whole purpose of training, educating and teaching the youth of today should be to imbue them with communist ethics.”
Home education was also prohibited in Nazi Germany, and the school system was used to cultivate loyalty to the Nazi movement and its ideology.
In this regard, Hitler said in a speech in 1933:
“Your child already belongs to us. What are you now? You will pass away, but your children are already part of the new community. Within a short time they will know nothing other than this new community.”
These totalitarian extremes formed part of the broader development of state education under other systems of government. State schools and compulsory school attendance also expanded in democratic and other states during the nineteenth and twentieth centuries. South Africa formed part of this development.
Compulsory school attendance was introduced gradually and unevenly in South Africa and, for much of the twentieth century, differed according to race and the various education systems. As the availability of sufficient public schools increasingly made universal compulsory school attendance feasible, legislation gradually phased out home education. In 1993, Andre and Bokkie Meintjies were sentenced to imprisonment after educating their children at home. The South African Schools Act of 1996 introduced a uniform system of compulsory school attendance for all children. The BELA Act of 2024 extended compulsory school attendance further to include Grade R.
The expansion of state education also created a large professional education sector. In countries such as South Africa and the United States, teachers’ unions became important role-players in public education. These organisations are not themselves part of the state, but exercise organised influence within the state-funded education system. This created an additional centre of power that does not derive its authority directly from parents or communities and that sometimes comes into conflict with the state, communities or parents over education policy.
The result is that the modern education system is no longer simply a relationship between parents and teachers. It consists of several centres of power — education departments, trade unions, schools, communities and parents — each claiming a role in the education of the child.
Reactions to state control of education
The expansion of state authority over education also provoked reactions against it. The experience of the twentieth century demonstrated that, when the state acquires dominant control over education, totalitarian states can use it to promote loyalty to the state and its ideology. Some states used the education system to mobilise citizens for war and political purposes and to legitimise the persecution of particular groups.
Such experiences contributed to a growing recognition that state authority over education should be limited and that parents and families should retain a sphere of educational freedom of their own. In a sense, this represented a renewed appreciation of the primacy of parents on which the traditional concept of in loco parentis rests. Against this broader historical background, the international human rights system after the Second World War gave greater recognition to individual, family and parental freedoms. Article 26(3) of the 1948 Universal Declaration of Human Rights states that “parents have a prior right to choose the kind of education that shall be given to their children”. This provision bears a strong resemblance to the Roman Catholic view that parents are the primary educators of their children.
In South Africa too, the exercise of state authority over education led to conflict and resistance. The enforcement of Afrikaans as one of the languages of instruction in black schools, despite strong opposition from communities, was an important catalyst for the Soweto uprising of 1976. Under the democratic dispensation, the South African Schools Act of 1996 subsequently assigned a significant role to local school communities through elected school governing bodies.
Home education also formed part of this renegotiation of educational authority. Although the Meintjies parents were released under the general amnesty in 1994, the new Constitution did not recognise home education or an explicit right to education outside educational institutions. This uncertainty prompted home educators in South Africa to mobilise. In collaboration with home educators in the United States, a campaign was conducted to secure legal recognition for home education. Section 51 of the South African Schools Act of 1996 eventually made limited provision for home education.
These developments did not, however, bring the state’s role in education to an end. Rather, they sought to create a new balance in which the state continued to play an important role, while parents, families and local communities once again acquired a degree of recognised educational authority and choice.
The current situation
The current South African legal framework reflects elements of different, and sometimes conflicting, views about who should bear responsibility and authority for education. The Constitution and the South African Schools Act can therefore be understood as a compromise between three broad models:
State: Under this approach, the state bears the primary responsibility for ensuring that every child has access to basic education and an equal opportunity for development. Education provided by other role-players nevertheless remains subject to state regulation and minimum standards. This model is expressed, among other places, in the Abidjan Principles. South African legal academics played a significant role in developing these principles. It can be described as the in loco civitatis model, since teachers act to a considerable extent in the place of the state.
Community: Under this approach, communities bear primary responsibility for education. In practice, this finds expression in public schools with strong and functional school governing bodies, as well as in some independent schools that have developed from particular religious, cultural or local communities. Jaco Deacon of FEDSAS describes this approach as follows:
“One of the greatest strengths of the South African Schools Act is a constitutional partnership between communities, the state and public schools. The government has a constitutional duty to provide basic education, principals provide professional leadership, and school governing bodies provide democratic governance and management.”
This model is used by some religious and cultural communities to promote their identity and continuity through education and can be described as the collective in loco parentis model.
Parents: The model according to which parents bear the primary responsibility and authority for the education of their children is particularly prominent today within the home education movement. Where parents cannot or do not wish to provide every aspect of their children’s education themselves, they can voluntarily delegate particular functions to tutors, teachers or other educators. In such a relationship, the educator acts in loco parentis, because his or her authority is derived from the parent. This can be described as the parent-centred in loco parentis model. The focus is on the optimal development of the individual child and on the authority of parents to determine how that development can best be promoted. This model is expressed, among other places, in the Rio Principles, to which several South African leaders in the home education movement are signatories.
In Conclusion
Learners attending public schools that are members of FEDSAS are estimated to represent approximately 8% of all learners in South Africa. Learners in independent schools account for approximately 5.4%. If the number of home-educated learners is estimated at approximately 300,000, they represent around 2.2% of the total learner population. These figures do not directly measure support for the three philosophical models. They do, however, provide some indication of the relative size of sectors in which community-centred and parent-centred approaches often find stronger expression.
The South African educational landscape is overwhelmingly dominated by the public school system, while community-centred and parent-centred alternatives form much smaller sectors. These power relationships are not necessarily permanent, however. A weakening of state capacity and growing problems within the public education system may once again alter the relationship between the state, communities and parents. The next article examines the trends currently influencing this balance of power.
