Cultivating a Common Bond: The Right to Adequate Education in South Africa and the United States
As the newest wave of education adequacy litigation crashes upon the shores of South Africa, courts there face the enormous task of breathing life into a socio-economic right that is at once amorphous and rapidly evolving. But South African courts are not alone. In the United States, several state high courts recognize the right to an adequate education under their respective state constitutions. US decisions wrestling with the right to an adequate education offer a wealth of knowledge that can be cultivated by South African courts as they refine the nature of a basic education under the South African Constitution.
South African courts are already on their way. In Governing Body of the Juma Musjid Primary School & Others v. Essay N.O. & Others, the Constitutional Court of South Africa observed the right to an adequate education is aimed at “promoting and developing a child’s personality, talents, and mental and physical abilities to his or her fullest potential. Basic education also provides a foundation for a child’s lifetime learning and work opportunities.” This is a good start and is not altogether different from the approaches taken in Arkansas, South Carolina, and West Virginia.
One approach receiving support in the United States is that of the Kentucky Supreme Court [Rose v. Council for Better Education, 790 S.W.2d 186 (Ky. 1989)]. The Kentucky high court reckons that an adequate education is an education that aims to develop seven capabilities, namely:
(i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization;
(ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices;
(iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation;
(iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness;
(v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage;
(vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and
(vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.
Courts in New York, Alabama, Massachusetts, and North Carolina, among others, agree.
To be sure, South African courts have a duty to independently interpret the South African Constitution to reflect its unique text and tradition. Yet comparative inquiry is not new. In Governing Body of the Juma Musjid Primary School & Others, for example, the Constitutional Court relied on international perspectives, including the Universal Declaration of Human Rights and the United Nations Convention on the Rights of the Child, in easing the burden on litigants asserting the right to a basic education. The words of a celebrated American jurist, Justice Benjamin Cardozo, no doubt transcend geographic boundaries: “We are free only if we know, and so in proportion to our knowledge. […] Implicit, therefore, in the very notion of liberty is the liberty of the mind to absorb and beget.”
And as South African courts continue to draw upon the collective experience of humanity in the education context, they may find a common bond with their American counterparts.
Scott Wadding is an attorney practicing constitutional law in Cedar Rapids, Iowa.