The Coalition, and its constituent Associations, appreciate the opportunity to make this submission. Our hope is that it will help to promote better education for all.

1. Introduction

The SA Schools Act (84 of 1998) was adopted by the South African Parliament in November 1996 and came into effect the following January. Section 51 of this Act provided for home education in a way that was opposed by the home schooling community at every step of the process. Amendments to the Bill, introduced at the initiative of home schoolers to improve the integrity of the provisions on home education were rejected by the National Assembly.

The resulting home schooling provisions of the Act invest the Head of Department for education in each province with all the power necessary to administer home education in the province.

It became evident, soon after the SA Schools Act came into effect, that the concerns of home schoolers were shared by the officials responsible for implementing the measure - a few provinces took steps to adopt ill considered policies to implement the provisions on home education, but the large majority were at a loss as to what was expected of them. As a result, the provinces turned to the national department of education for guidance:

During this time, the number of bona fide home educators grew and continues to grow by leaps and bounds. It is conservatively estimated that more than six thousand families may now be educating their children at home. Of these, up to 95% chose not to apply for registration of their children for education at home until the responsible Heads of Department could provide them with the policies and procedures that would apply to them. They remain unregistered - not out of lawlessness, but because their governments have remained unwilling or unable to implement the law. Home schoolers continued to live under the same legal uncertainty that obtained before the adoption of the SA Schools Act. They have been forced underground - a situation that is most undesirable in the long term, because children may grow up with a fear of otherwise legitimate authority and a taste for civil disobedience.

According to our information the national Department of Education was requested on 13 June 1997 by HEADCOM, the committee of heads of education, to provide guidelines for the implementation of Sec 51. Since that date, representatives of home educators have regularly requested an opportunity for home schoolers to make inputs to inform the process. The Director-General undertook - in writing - that they would be consulted "at the appropriate time".

Now, on 6th August 1998, the representative organisations of home schoolers were unexpectedly presented with a draft policy document that the Department had taken 14 months to prepare. They were given 48 hours notice to respond.

This is confrontation - not consultation.

Nevertheless, we shall attempt to serve the varied interests of all our members, and provide such input. Our input is strictly qualified by the fact that it is made without the benefit of consultation with those who are the major stakeholders in any resulting policy. It is, furthermore, subject to change after we have consulted wityh our members and legal advisers.

2.    Statement of Appreciation

Our deep disappointment with the treatment meted out to the principle stakeholders in this issue is to some extent relieved by the abundant evidence in the document that some departmental officers have invested much time and energy in stressful schedules to study the pedagogical features of the phenomenon of home education as well as the policy alternatives and have made sincere attempts to provide for the unique nature of home education in the draft policy.

To these officers, our heartfelt gratitude.

We respect their dedication to their task and we share their obvious concern for the best interests of children.

There are many aspects of the document with which we are in partial or full agreement, but we would emphasise the following for special appreciation:

1. Although we are not in full agreement with it, we appreciate the clear definition of home education, which states unequivocally that home education is a legitimate alternative to school education.
2. There is an attempt to define "interest of the child", which has been reported in the press to have required much effort to formulate and which we find helpful. The definition makes it clear that it refers to matters of "educational" interest alone.
3. A clear interpretation is provided of what is meant by "the minimum requirements of the curriculum in public schools". While this interpretation is not free of problems, it marks a major step towards the reduction of legal uncertainty for home educators.

The draft policy fails to provide a clear statement of the standard of education in public schools. No guidance is provided for determining the standard either. The "standard of education in public schools" is one of the three specific criteria that home education must be measured against according to Sec 51 of the SA Schools Act. Both the other two criteria are explicated. This oversight is, therefore, fatal to any attempt at just and transparent administration of home education.

It seems, also, that the Draft does not adequately distinguish between the provisions of Sec 4 of the SA Schools Act and Sec 51 - a distinct example will be demonstrated.

Another problem arises through the present situation that educators registered with the South African Council for Educators (SACE) are not bound by their own ethical code when dealing with home learners. (The SACE definition of "learner" excludes all learners educated by persons not registered with SACE). Since, presumably, educators rendering education management services in education departments are appointed by virtue of their status as professional educators, it is clearly unethical to submit the affairs of learners to their judgement if that judgement is not subject to the discipline of their own profession.

This may disqualify all education officials from performing their duties in terms of these draft guidelines.
 

• 5. Specific problems and possible recommendations

1. Par1 Definition. This definition goes beyond the requirements of Sec 51 of the SA Schools act, by requiring that the education at home be provided by "a parent or legal guardian. The term "a programme of education" that is "provided to" a child also fails to recognise the autonomy of the child and suggests a passive lack of participation by the child in determining the programme of education.

• i)The first sentence of the paragraph requires that parents prove that the content of Par 3.(1)(a) are present in the learner's education. However, if the requirements of Par (3)(1)(b) have been met, it necessarily follows that the programme (or meta-programme) will be appropriate to the age and ability of the learner and that the learner will be able to phase into the mainstream of education at any stage. What remains, is that the environment must be conducive to learning. The requirement that the HOD judge the "proof" that parents provide in this respect is so problematic (see Note 1) as to seriously endanger the family's constitutional right to administrative justice.
 
• ii)The remaining sentences of this paragraph refer to conditions where home education may become necessary - in the sense that school attendance is impossible, or that it unreasonably limits fundamental rights of the child other than the right to education. These are conditions where a child may have to remain at home, even if the minimum requirements of the curriculum in public schools cannot be met, or if the education provided is inferior to that provided in public schools. Clearly, these situations must be administered in terms of Sec 4 of the SA Schools Act. We submit that Sec 51 is not the appropriate provision.

In this draft policy, the construction placed on the language of Sec 51 of the SA Schools Act realises the fears that home educators voiced when the Act was in the committee stage in the National Assembly in 1996. Although Ms Naledi Pandor of the ruling party admitted that the Act is founded on ignorance of the phenomenon of home education, our objections to the language were overruled.

We feared that the language might be interpreted in a manner that contravenes the Constitution and this draft policy does just that.

The draft interprets Sec 51 as if it creates a legal assumption that prospective or practising home educators are guilty of infringing on their children's right to education unless they prove otherwise. In consequence, it places a burden of proof on parents to show that the education they provide satisfies the child's right to education.

The assumption is a legal fiction that corresponds to no observed reality. Researchers, administrators, judges, and legislators in numerous jurisdictions have testified to the opposite. Universities with superior international reputations vie with each other for the graduates of home education. And yet it is reported that "unregistered" home learners perform no differently from "registered" ones, and that "underground" home learners may even outperform "legal" ones.

Numerous countries in Africa, the East, Europe, and the Americas have never found it necessary to adopt this assumption into their law. Countries and provinces in Scandinavia, United Kingdom, Ireland, and Canada have operated universal compulsory education systems (that have always and still do provide for home education) successfully for a century or more without adopting this assumption. In the United States, where this assumption was once a common part of state law, it has been almost completely eradicated in the past two decades through judicial or legislative action.

The assumption that parents will neglect the education of their children if not forced by law is most effectively rebutted by the fact that almost all children in South Africa who had reasonable access to schools were attending school before universal compulsory school attendance was introduced.

In terms of the draft policy the assumption of parental negligence (or worse) is reinforced (when parents fail to apply for the prescribed registration) by the sanction of criminalising home educating parents, and by viciously labelling and stigmatising the home educated children as "truants". (This term is properly applied to tens of thousands of children who are registered to attend schools but fail to persist in their education. It has, therefore, also been applied to the phenomenon of "in-school truants". When applied to children who are actively pursuing an education, irrespective of where that may be found, the term constitutes nothing less than officially sanctioned libel and an insult to the innocent.)

Sec 3 of the SA Schools Act introduces the opposite assumption - that the education of children in schools is not neglected, and their fundamental rights are not infringed. If a learner's rights, including the right to education, are infringed by attendance at a school, the Act places the burden to prove that this is the case on the learner's parent even if the infringement makes school attendance impossible.

Yet the assumption of the diligence of schools is demolished almost daily in the media, and regularly by departmental and government officials. The neglect of education in schools has been termed "an issue of national concern" (Sunday Times 30/3/97 and many other publications). It is not necessary in this audience to expand on the level of public concern over the extent to which the school system fails the learners compelled to enter it. It is clear, however, that the link between school attendance and education is so tenuous that it cannot be that basis for a rigidly enforced legal fiction.

What is necessary is to emphasise the absurdity of the paradox created by the legal fiction that school are good for children's education and that families are bad to them. The fiction is so manifestly false that it constitutes yet another instance in which the public education system fails children.

A further consideration that is often overlooked, is this: Compulsory attendance by a child for 30 to 40 hours per week at a place designated by the state to perform work under the direction of another person clearly constitutes a gross limitation of numerous rights of the child, including personal freedom, privacy, dignity, and freedom of thought. It seems clear, therefore, that any proven benefits of school attendance must surpass those of home education by a very wide margin if enforced school attendance is to be justifiable.

Finally, we know of no statute in any other country placing a similar burden on applicants for home education.

Recommendation: It may be true that the language of Sec 51 of the SA Schools Act is not amenable to an interpretation that avoids the assumption of parental negligence and school diligence. If so, the language is clearly unreasonable in every sense of the word, and therefore does not unjustified the serious limitations of a child's fundamental rights that enforced school attendance necessarily. Furthermore, as shown in Note 1, the requirement that parents show proof that home education is in the interest of the child may be impossible to achieve, since no criteria have been found by which such proof can be judged. In that case, the requirement is evidently no more than a dead letter, and we recommend that the Director-General and the Minister be advised to employ their prerogative to initiate legislative action to rectify the language of the Act.

7. Conclusion

Home educators in South Africa have been waiting to see if the language of the SA Schools Act will be construed to carry the oppressive meaning they feared.

In the past two days, almost all those home educators who saw the present draft policy have reacted with anger, fear, or dismay.

We would be shirking our civic duty if we refrained from informing you that entire structures of the organised home schooling community are preparing to dismantle the organs established to negotiate with authorities. They are ready to disappear underground to protect their rights by secrecy if good governance is not to be had. They already fear that both the legislative and the executive branches of government has failed them, and they are now establishing the resource base in funds and expertise to defend their rights in court. This is a process that has been overwhelmingly effective in other open democratic countries where research has concluded that home educators have won much more often than they lost when they claimed their fundamental rights from the courts in situations comparable to the one here at issue.

If, on the other hand, the problems relating to the assumption of parental negligence as opposed to the assumption of school diligence can be solved, the present draft policy holds the promise that its implementation may promote good relations between home educators and education authorities. We confidently expect that such a situation will release hitherto unsuspected and massive resources to the benefit of improved education for all children

LJ van Oostrum

(President)

NOTE 1:

1. Most home educating families believe (with good reason) that no school environment is conducive to learning.
2. It can, furthermore, be objectively shown (by the outcomes achieved by learners in such schools) that the environment in a great many schools in this country (as well as others such as the USA and UK) is not conducive to learning.
3. It can be shown (by the outcomes achieved by learners in such schools) that the environment in almost any school is in some respects, or at times, or for some learners, not conducive to learning.
4. It has been conclusively shown that the conception of an environment "conducive to learning" has been and is subject to fashion, personal choice of the educator, and the preferences and learning styles of the learner.
5. The evidence is that an infinite diversity of environments are conducive to learning. This, indeed, is the fundamental rationale underlying the concept of "outcomes based education" - that the "conduciveness" of the environment to learning cannot be judged except by the outcomes achieved by the learners in that environment.
6. No school is required to show that its environment is conducive to the learning of every single learner in that school, yet the Draft requires this for home education.