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Language and culture restrictions in K-12
non-public schools in the United States:
Exploring the reach of federal non-
discrimination law and implications for
South Africa
Ralph D Mawdsley
JD PhD
Professor of Law and Roslyn Z Wolf Endowed Chair in Urban Educational
Leadership, Cleveland State University
Johan Beckmann
BA BEd MEd DEd THED
Professor of Education Management and Policy Studies, University of Pretoria
OPSOMMING
Taal- en Kultuurbeperkings in K-12 Nie-openbare Skole in die Verenigde
State: ’n Verkenning van die Reikwydte van Federale Nie-diskriminasie
Wetgewing en Implikasies vir Suid-Afrika
In hierdie artikel ondersoek en vergelyk ons aspekte van die beperking sowel
as die beskerming van taal- en kultuurregte in skoolverband (onafhanklike
skole in die Verenigde State en openbare skole in Suid-Afrika). Ons doen dit
deur grondwetlike en ander bepalings te bespreek en geselekteerde
regspraak in die twee lande onder die vergrootglas te plaas. Ons ondersoek
ook die samehang of gebrek aan samehang tussen die konsepte taal en
kultuur in wetgewing en in regspraak. Ten slotte dui ons enkele
besluitnemings- en bestuursimplikasies vir rolspelers in die onderwys aan en
oorweeg ons ook die rol wat wetgewing en regspraak sou kon speel in die
voortbestaan of ondergang van minderheidstale en -kulture.
1Introduction
The purpose of this article is to examine two recent private school cases
in the United States (US) addressing language and culture issues in
schools and reflect on their application to similar issues in South African
public and independent (private) schools. In the two US cases, Silva v St
Anne Catholic School1 (Silva) involving a private school’s creation of an
English-only policy and Doe v Kamehameha Schools2 (Kamehameha)
involving a private school’s admission policy limiting admission only to
those students who are related by blood as Native Hawaiians, two federal
courts examined the legality of the policies in light of federal statutory
and constitutional law. In South Africa, the Constitutional Court, in Head
of Department, Mpumalanga Department of Education v Hoërskool Ermelo3
(Ermelo), addressed the extent to which, under the Constitution of the
Republic of South Africa, 1996 (the SA Constitution), a public school was
1Silva v St Anne Catholic School 595 F Supp 2d 1171.
2Doe v Kamehameha Schools 596 F3d 1036.
Exploring the reach of federal non-discrimination law and implications for SA 311
entitled to continue operating as a single medium Afrikaans school where
its space was underutilised and nearby English speaking students were
attending severely overcrowded schools. The common factor in Silva,
Kamehameha, and Ermelo is the extent to which school governing bodies
(South Africa) or school boards (US) should be able to select and promote
a particular language and/or culture.
This article is divided into five parts: (1) presenting brief discussions of
selected South African cases; (2) presenting the facts and court opinion
for Silva; (2) presenting the facts and court opinions for Kamehameha;
(3) analysing the US cases and their implications for schools under the
following headings: culture and school policies in Silva and Doe; Runyon
v McCrary and § 1981; the reception of federal aid and Title VI; equal
protection and burden shifting standards; free expression issues and
culture, and, judicial deference to school decisions; and (4) discussing
what implications the US cases might have for Ermelo-type decisions in
South Africa.
2South African Cases
The cases of Matukane,4 Gauteng School Education Bill,5 Laerskool
Middelburg,6 Mikro,7 Seodin8 and Ermelo9 can all be said to deal strictly
with legal issues regarding language in schools, such as who may make
the language policy of a public school, what are the powers of school
governing bodies (SGBs) in this regard and what are the powers of a
provincial education department vis-à-vis those of an SGB.10 On the
other hand they also deal implicitly and sometimes explicitly with
matters of a socio-economic nature namely what does a child’s right to a
basic education as captured in section 29 of the SA Constitution entail
and what are the responsibilities and powers of the state to ensure access
3Head of Department, Mpumalanga Department of Education v Hoërskool
Ermelo 2010 2 SA 415 (CC). It is the most recent in a sextet of cases dealing
with the issue of language in schools.
4Matukane v Laerskool Potgietersrus 1996 3 SA 223 (T)
5Gauteng Provincial Legislature In re: Gauteng School Education Bill of 1995
1996 3 SA 165 (CC)
6Die Laerskool Middelburg v Die Departementshoof: Mpumalanga se
Departement van Onderwys 2002 JOL 10351 (T).
7Governing Body of Mikro Primary School v Western Cape Minister of Education
2005 3 SA 504 (C).
8Seodin Primary School v MEC of Education Northern Cape (2) 2006 4 BCLR
542 (NC).
9Head of Department, Mpumalanga Department of Education v Hoërskool
Ermelo 2010 2 SA 415 (CC).
10 All of these cases should be read in light of two provisions of the
Constitution of the Republic of South Africa, 1996 (SA Constitution) namely
s 29(2) in terms of which everyone has the right to receive education in the
official language or languages of their choice in public educational
institutions where that education is reasonably practicable and s 30 in terms
of which everyone has the right to use the language and to participate in the
cultural life of their choice.
312 2013 De Jure
to this right while complying with all other relevant provisions of the SA
Constitution. In a sense the Ermelo case takes the issues to a logical and
inevitable conclusion enjoining the Department of Education of
Mpumalanga (representing the state) and the SGB of Hoërskool Ermelo to
reconsider the language policy of the school in light of the issues of socio-
economic justice which co-influenced the court’s decision.
2 1
Matukane
Matukane was the first education case which captured national and
international attention after the changeover to democracy in 1994. At the
beginning of 1996 three black parents charged a dual medium primary
school (with largely Afrikaans-speaking students but with some English-
speaking ones), Potgietersrus Laerskool, with discrimination on the basis
of race, ethnic or social origin, culture or language. The school argued
that the school had an exclusively Christian Afrikaans culture and ethos
which the school was entitled to protect “by refusing to admit pupils from
a different or foreign language”.11 In granting the parents an order for
admission to the school, Justice Spoelstra rejected the school’s claim that
a culture should be allowed to have its own schools where children can
be educated in the mother-tongue according to their own religion and
culture.
2 2
Gauteng School Education Bill
This case was heard under the interim Constitution of the Republi c of
South Africa, 1993.12 In this judgment in the Constitutional Court
Mahomed DP pointed out that the Speaker of the Gauteng Provincial
Legislature had been petitioned by members of the Legislature to request
the Constitutional Court to settle a dispute that had arisen regarding the
constitutionality of certain provisions of the Gauteng School Education
Bill (the Bill).
Among the disputed provisions was section 19(1) of the Bill which
provided that language competence testing shall not be used as an
admission requirement to a public school. The petitioners as well as the
South African Foundation for Education and Training (SAFET) (which had
been admitted to the proceedings as an amicus curiae) disputed section
19(1) arguing that it invaded the right of persons to attend schools where
language competence testing is permitted as an admission requirement.
They further argued that in terms of section 32(c) of the interim
Constitution every person could demand from the state the right to have
established [public]13 schools based on a common culture, language or
religion provided that there shall be no discrimination on the ground of
race. Mahomed DP found that Section 32(c) of the interim Constitution
did not confer on the state an obligation to establish such [public]
11 Matukane 231.
12 We believe that, if the case were heard under the 1996 Constitution, the
outcome would probably have been the same.
13 Our insertion.
