The right to basic education : a comparative study of the United States, India and Brazil

Abstract

The developing South African jurisprudence on the right to basic education suggests that the courts have adopted a substantive approach to interpreting the right. The Supreme Court of Appeal in its judgment in the case of Minister of Basic Education v Basic Education for All held that every learner is entitled to a textbook in every subject at the commencement of the academic year. The judgment further explicitly noted that the corollary to this entitlement is the duty of the state to provide these textbooks to each and every learner. The lower courts have similarly identified other entitlements that make up the content of the right to basic education. However, while the courts appear to be firmly veering in the direction of a substantive approach to interpreting the right to basic education, no discernable test for determining the content of the right is apparent from the jurisprudence. Furthermore, many of the education provisioning cases have necessitated repeated visits to court and increasingly creative, even coercive remedies to ensure compliance with court orders. This article will, therefore, undertake a comparative study of the United States, India and Brazil. It will examine the approach of the courts in each of these jurisdictions to interpreting the right. It will examine the efficacy of some of the remedies adopted by the courts in each of these jurisdictions to realise the right, whilst simultaneously mediating the institutional concerns in respect of the doctrine of the separation of powers. It will further examine the role of civil society in education litigation in each of these jurisdictions. The aim of the article is to draw on the lessons provided by each of these comparative jurisdictions so as to strengthen public interest litigation in respect of the right to basic education in South Africa.