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Watershed judgment clarifies limits of religion in South Africa’s public schools

School children wave a South African flag after visiting the Nelson Mandela house museum in Soweto. Reuters/Henry Romero

A High Court in South Africa recently handed down a landmark ruling with far-reaching implications for religion in the country’s public schools. The court decided that a school may not promote a single religion, or brand itself as such. This means that a school cannot, for example, call itself a Christian school.

The case was brought by an education lobby group – the Organisasie vir Godsdienste-onderrig en Demokrasie OGOD – which challenged the fact that six public schools had identified themselves as Christian.

According to the country’s constitution, religious observances can take place at state institutions - including public schools - provided it’s done equitably and that attendance is voluntary.

The court acknowledged this, ruling that religious observances, including praying, are distinct from the religious ethos of a school and are, therefore, to be allowed at public schools subject to the requirements of the Constitution.

The confirmation of the constitutional right to religious observances in public schools is a celebration of South Africa’s unique relationship between religion and state. The court’s judgment recognises that religion plays a large role in South African society. As such, the right to follow a religion is embedded both in the country’s Constitution as well as in practice. This means that South Africa isn’t a secular state. As the judge pointed out: it wasn’t the courts responsibility to pick sides between those who are religious and those who are not.

According to the country’s policy on religion and education a secular state adopts a position of impartiality towards religion and other worldviews. It also represents an attempt to “completely divorce the religious and secular spheres of a society, such as in France or the United States”. This is not the case in South Africa.

The court also upheld the right of school governing bodies to draft the religious policies for their schools in line with the Schools Act and the Constitution.

This is a watershed ruling in South Africa. The judgment has provided South African courts with the unique opportunity to interpret religious freedom in the public school system beyond just religious observances.

And although the case only involved six public schools with a Christian ethos, it will affect all 24,000 public schools in the country. All public schools will have to review their policies on religion to be in line with the decision. Public schools, whether branding itself as religious or not, will have to scrutinise how it deals with religious diversity.

In general, the case offered wins and losses for both sides. Although school governing bodies maintain their institutional authority to draft religious policies, the ruling means that they will now be under greater scrutiny. On the other hand, the organisation that brought the case got the legal backing it needed to require public schools to stay away from a single faith ethos.

Lost opportunity

The court affirmed the idea of celebrating diversity in South Africa and that public schools with a single faith ethos can hamper this. It balanced the right not to be excluded with the constitutional value of diversity. Hence its concern with public schools maintaining a single faith ethos.

But the case was rather disappointing in its superficial to zero analysis of human dignity, equality, religious freedom and diversity – all enshrined in the country’s constitution. The court only gave a short analysis of diversity, dedicating most of its decision to technical matters.

For example, having declared that South Africa was not a secular state, the court failed to analyse and discuss what religious diversity should look like in a “non-secular” state specifically. No deeper analysis was done about the meaning of diversity in the South African context. It was merely reiterated that, as declared in past court decisions and the Constitution, South Africa should celebrate diversity.

The nature of the right to religious freedom and the notion of “equity” received limited attention. The court therefore missed a wonderful opportunity to provide a critical analysis of the importance of religious diversity and religious freedom in the country.

For a case that is to directly affect more than 24,000 public schools and hundreds of thousands of pupils and teachers, one would have expected a more careful analysis. A critical discussion on the meaning of diversity when it comes to religion would have been useful and timely.

In some sense, the broader South African society lost. A critical analysis of the constitutional issues like diversity would have given the court’s final decision due weight and made it more credible.

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