On the constitutionality of single-medium public schools

Abstract

The Constitution of the Republic of South Africa, 1996 allows the creation of independent educational institutions and permits such institutions to enforce admissions policies that discriminate between learners who wish to participate in the affairs of a given linguistic and cultural community and those who do not wish to participate in or advance that community's vision of the good life. When it comes to public schools, however, the state's tolerance for discriminatory language policies of any kind is extremely limited and rightly inclines in favour of the language preferences of learners from historically disadvantaged communities. A proper reading of s 29(2) of the Constitution supports the following propositions. First, all learners have the right - where practicable - to receive an education in their preferred language of instruction. Second, where a sizeable cohort of learners does not have ready access to a public school that offers them adequate instruction in their preferred medium of instruction, neither the School Governing Body nor the principal of a single-medium school can exclude such a cohort of learners by means of an admissions policy that seeks to privilege a particular language. Third, although s 29(2) recognises that single-medium schools are an acceptable form of public school, the Constitution's commitment to equity and historical redress means that the right of all learners to a basic education in their preferred language of instruction at public schools will generally trump any individual school's pre-existing preference for linguistic homogeneity. Only where sufficient resources exist to ensure that the cohort of South African learners in question will receive an adequate, and for all intents equal, education in their preferred language of instruction at another public school will the state be obliged to accommodate a single-medium school's desire to remain linguistically homogeneous.