INTERPRETING, LITIGATING AND
REALISING THE RIGHT TO EDUCATION
IN SOUTH AFRICA: LESSONS FROM
AMERICA
WINNING ESSAY
SOLLY KESSLER MEMORIAL PRIZE
2007
AUTHOR: DORON ISAACS
University of Cape Town
I Introduction
The crisis in education is one of the greatest barriers to achieving a better life for all in
South Africa. It entrenches inequality and impairs the dignity of millions who enter
adult life without the tools needed to fully express themselves or contribute
meaningfully to society. This paper investigates the potential for law to intervene and
act as a lever for change. In the United States, since the epoch-making Brown v
Brown of Education,1 in which the Supreme Court ruled that racial segregation in
schools was unconstitutional, courts have been at the centre of efforts to improve
education. South Africa is yet to witness a mass movement for education reform, and
the Constitutional Court’s log of cases founded squarely on a violation of the right to
education is blank. In anticipation of future events a comparative perspective is
critical.
At its heart this paper is concerned with remedies. Workable remedies are the
difference between a symbolic, aspirational constitution and one that has tangible
meaning for the weakest and worst off. A court can declare the education offered in a
school, province or country to fail the test of constitutionality, but in the face of a
failed system, what will it order in its place? Along with the need for social
mobilisation to move hand in hand with litigation, the central lesson of the United
States experience is the startlingly creative search for effective remedies. The model
of non-court-centric remedies, whereby courts use their power to bring disparate
groups into the implementation process, is proving a resilient democratic experiment
and a profound break from a time when the most sought-after remedies were ones in
which judges arrogated maximum control to themselves.
To begin with, Part II considers the ability of courts to effect social change and the
propriety of doing so. The remedies theme anchors itself in this discourse. Parts III
and IV place this paper in its social reality. They examine the educational crisis in
South Africa and the validity of the comparative perspective. The tortuous road from
Brown to its gradual but ineluctable demise, and the concurrent awakening to the
possibility of state-based litigation, using the education provisions in state
1 Brown v Board of Education of Topeka, 347 U.S. 483 (1954). Repeated reference is made to this case throughout this paper. It is cited as Brown, without a footnote, except where page citation is important.
2
constitutions, is the subject of Part V. The current phase of this process, during which
new movements and remedies emerged, is introduced in Part VI. The harbinger of this
transformation, Rose v Council for Better Education2 in the Kentucky Supreme Court,
how it was fashioned, and its aftermath, is Part VII; a valuable case-study. Part VIII
arrives at the nub the argument, a thorough interrogation of the process-oriented,
participatory remedies that mark this litigation. In Part IX South Africa re-enters the
fray for an assessment of the relevance of interpretative methods, litigation strategies
and remedial efforts adopted by courts and civil society in the United States. The
paper concludes by cautiously arguing that South African lawyers and activists
committed to better schools can reap much from their American counterparts.
II Courts and Social Change
The use of courts to reform the American public school system is paradigmatic; in
that fifty-three year history is visible all the awesome potential of litigation to affect
public life, as well as its impotence to do so. It simultaneously raises two classic
empirical questions: the first concerns the capacity of courts to cause social change
and the second poses the constitutional difficulty about the extent to which courts
ought to attempt such intervention. Most importantly for lawyers committed to
pursuing a democratic politics are strategic lessons of what works and what doesn’t.
‘What works’ is both a question of real impact and of politics in the face of the
traditional concern over ‘counter-majoritarianism’.
This ultimately concerns the relationship between law and politics, overlooked in
positivist scholarship and unnecessarily totalised in so-called legal realism. Law and
politics have a fraught relationship. Far from being agents of change, legal norms,
legal actors and legal institutions can prevent progress and entrench the status quo.3
But law is said to have played a central role in the struggle against Apartheid,4 and ‘to
have been the catalyst for revolutionary change influencing every facet of American
2 Rose v Council for Better Education 790 S.W.2d 186 (Ky. 1989).3 American jurisprudence is replete with examples. In the Civil Rights Cases of 1883, the U.S. Supreme Court held that the Civil Rights Act of 1875, which forbid racial discrimination in public accommodations and transportation, was unconstitutional because such discrimination was private, rather than public, and therefore could not be prevented by Congress.4 See Richard L. Abel Politics by Other Means: Law in the struggle against Apartheid, 1980-1994 (New York: Routledge, Inc., 1995).
3
society’.5 Budlender has called this tendency to both entrench and limit potentially
harmful power as law’s paradox of internal tension.6 This tension places limits on law,
and these limits must be understood if law is to be harnessed progressively. This
means understanding what constraints exist on the law in a given situation, what
factors generally allow for expansive law and what strategies both inside and outside
the courtroom will best navigate the complex of factors and actors.
A deeply pessimistic, even cynical view is expressed by Rosenberg in The Hollow
Hope.7 The book’s argument, using Brown as a key example, is that courts have failed
to effect any material improvement in American society. Indeed it concludes that
‘U.S. Courts can almost never be effective producers of significant social reform’.8 In
the rare cases when it does occur, says Rosenberg, it can be explained by the
existence of a number of external conditions, being: firstly, when other actors, like
the legislature, executive or business offer positive incentives to induce compliance;
secondly, where those same actors penalise non-compliance; thirdly, where market
forces favour a progressive outcome; and lastly, when court decisions provide
political cover for actors crucial to implementation who are willing to act. He notes
three constraints on courts that work against these enabling conditions, being: the
limited nature of rights, the lack of judicial independence and the judiciary’s lack of
powers to implement. He applies the above analysis both to litigants’ ability to get a
positive judgment and to get it effectively implemented. He argues ultimately that
litigation is not a cost-effective strategy, that is generates more public backlash than
positive mobilisation, that court victories are ‘symbolic victories mistaken for
substantive ones’9, and that when courts are seen to be effecting change they are often
ushering in what is palatable to the public or already agreed by the elite sources of
power.
5 Charles J. Russo et al (eds) Equal Educational Opportunities: Brown v Board of Education at 50 and democratic South Africa at 10 (Pretoria: Van Schaik, 2005) at X. 6 Geoff Budlender Foreword in Abel (note 4) at X.7 Gerald N. Rosenberg The Hollow Hope: Can courts bring about social change? (Chicago: The University of Chicago Press, 1993).8 Ibid at 338, emphasis in original.9 Ibid at 340.
4
Scholarship in this area has flourished in the wake of The Hollow Hope, much of it in
rebuttal.10 Certain scholars suggest that change is too complex to be captured in the
crude data on causality between court decisions and changing public attitudes used by
Rosenberg.11 Moreover, many are at pains to situate the Supreme Court within the
political landscape, calling it ‘one voice among many’12 and recognising that it, like
all courts, functions easiest when conditions are favourable.
Our own legal history, both before an after 1994, has much to contribute to this
discussion, and a comparative analysis, particularly with the United States, is not new.
As Abel has noted:
‘The centrality of law in the American labor, civil rights, feminist, welfare
rights, consumer, environmentalist, and gay rights movements can tempt
observers to parochial and ahistorical exaggerations of its capacity to effect
social change. We should not overreact, however, by dismissing law entirely.
Sometimes it is the only meaningful source of influence… South Africa in the
1980s was an ideal setting in which to explore how law could resist and
constrain Apartheid, offering opponents a protected space for their struggle
and unique forms of leverage.’13
Accepting that there is not a trite positive or negative answer to law’s ability to assist
in social struggle, the real questions are returned to: when and how does litigation
become a powerful tool? Two landmark socio-economics rights cases of the South
African Constitutional Court are illuminating in this regard. In Grootboom14 and
Treatment Action Campaign15 the legal reasoning and orders given by the Court were
10 See David A Schultz (ed) Leveraging the Law: Using the Courts to Achieve Social Change (New York: Peter Lang Publishing Inc, 1998); Charles F Sabel & William H Simon ‘Destabilization Rights: How Public Law Litigation Succeeds’ (2004) 117 Harv. L. Rev. 1015.11 David A Schultz & Stephen E Gottlieb ‘Legal Functionalism and Social Change: A Reassessment of Rosenberg’s The Hollow Hope’ in Schultz supra at 181. ‘Brown need not have changed views. It only needed to change the assumption that this was an untouchable injustice and that there was no exit or option instead of loyalty to the segregationist status quo.’12 Roy B. Flemming, John Bohte & B. Dan Wood ‘One Voice Among Many: the Supreme Court’s Influence On Attentiveness to Issues in the United States, 1947-1992’ in Schultz (note 10) at 21.13 Abel (note 4) at 3.14 Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC).15 Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC); 2002 10 BCLR 1033.
5
similar. In both was found a constitutional breach, on the basis of a reasonableness
test, not saved by a limitations analysis, leading to a declarator or specific mandamus
without supervisory jurisdiction being exercised. As Justice Kriegler has poignantly
remarked: ‘Grootboom was terribly important for lawyers, but not for people. Mrs
Grootboom never got a house.’16 In City of Cape Town v Rudolph,17 the Cape High
Court, reflecting back on the failure to implement the Grootboom order, noted that
government had failed ‘to comply with its constitutional obligations’.18
The Treatment Action Campaign case could hardly stand in starker contrast. A far
more capital and labour-intensive order has largely been implemented. There are now
over 1500 sites offering mother-to-child-transmission (MTCT) prevention treatment
as opposed to the 18 research sites proposed by the Department of Health in its court
papers.19 The MTCT roll-out was also catalytic in providing impetus for the wider
roll-out of anti-retroviral treatment. This outcome has been achieved despite the
complexity and scale of the task, and the recalcitrance of the government;20 all factors
absent in Grootboom. Geoff Budlender, instructing attorney on the TAC case, explains
the success, both at the level of the judgment and the implementation, in the following
way:
16 Johann Kriegler interviewed in Zackie Achmat Law and Freedom (Cape Town: Community Health Media Trust, 2004).17 City of Cape Town v Rudolph 2004 (5) SA 39 (C).18 Ibid at 88.19 In TAC (note 15) the Court held para 123: ‘Three of the nice provinces have publicly announced programmes to realise progressively the rights of pregnant women and their newborn babies to have access to Nevirapine treatment. As for the rest, no programme has been disclosed by either the Minister or any of the other six MEC’s… The magnitude of the HIV/AIDS challenge facing the country calls for a concerted, co-ordinated and co-operative national effort [by] government in each of its three spheres…’20 In a television interview given on SABC News on 24 March 2002 the Minister of Health Dr Manto Tshabala-Msimang was asked whether she would be prepared to ‘follow what the court says’, from which flowed the following exchanged:
Minister: ‘My own view is that the judiciary cannot prescribe from the bench – and that we have a regulatory authority in this country that is interacting with the regulatory authority FDA of the USA and I think we must allow them to assist us in reaching conclusions.’Interviewer: ‘Mmm, so you think it’s inappropriate that this is in court, but nevertheless it’s there. Will you stand by whatever the Court decides?’Minister: ‘No, I think the court and the judiciary must also listen to the regulatory authority, both of this country and the regulatory authority of the US.’Interviewer: ‘So you’re saying no?’Minister: ‘I say no. I am saying no.’
Source: ‘More Damage Control after Manto Says No’ The Star (25 March 2002);Two days later the Department of Health issued a media statement clarifying their position: ‘we have no intention of circumventing the courts . . . We stand ready to abide by the final decision of the courts on the execution order’. Ministry of Health ‘Media Statement’ (27 March 2002).
6
‘The litigation was only part of a broader mobilization campaign by the TAC
… Our legal work succeeded I believe because our clients knew a lot about the
use and the limits of law.’21
In civil society also the TAC’s frequent use of the law is seen as distinctive.22 As for
the success of this aspect of its work, the analysis is emphatic: ‘It was hardly
inevitable ... Activism made it so.’23 The study finds that litigation is regarded not
merely as something to be used in tandem with activism, but sometimes as something
that can drive it: ‘Winning victories in the courts is also said to ‘facilitate
empowerment’ of members.’24
Strikingly similar tactics have been developed by communities and social movements
in the United States in driving the recent wave of education litigation.
III The South African Educational Crisis
Nationally, the number of learners enrolled in grade 12 is half that enrolled in grade 1,
meaning that nearly half the children who enrol in school do not arrive in matric. 25
This makes the 66.5% matric pass rate even more problematic. In the Eastern Cape
21 Geoff Budlender ‘Vignette’ Stones of Hope: Second Reading Packet (2006) at 7.22 Steven Friedman and Shauna Mottiar ‘A Moral to the Tale: The Treatment Action Campaign and the Politics of HIV/AIDS’ (Centre for Policy Studies: 2004) at 24. The interviews with AIDS activist bare a strong resemblance to Abel’s analysis of litigation under Apartheid, at 12-13:
‘The environment has changed, creating new opportunities and constraints. But there are strategic continuities: ‘Many of us with activist backgrounds are doing old things in a new environment’ (Interview, Heywood). The constitutional court is seen as a resource: the case in which it ordered the government to supply ARVs to some citizens was a ‘breakthrough’ which ‘forced the government’s hand’ (Interview, Mbali). It will be used if the roll-out does not materialise: ‘the government is afraid of the constitutional court’ (Interview, Geffen).
23 Ibid at 20. Friedman and Mottiar also explain the multi-strategy approach in the following way at 2: ‘The organisation employs a multi-strategy approach to campaigning, and its methods range from civil disobedience and street demonstrations through action in the courts (the AIDS Law project … works closely with TAC) to measured scientific arguments.’24 Ibid (Interview with Mvotho) at 17.25 Department of Education ‘School Realities 2006’ EMIS available athttp://www.education.gov.za/dynamic/dynamic.aspx?pageid=329&catid=10&category=Reports&legtype=null.
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and Limpopo this figure falls to 59% and 56% respectively.26 In 2005, there were 31
schools in the country where not a single student passed matric.27
The following two Cape Town schools illustrate the inequality: Uxolo School (former
DET)28 is a working-class school of almost entirely black African learners. Rhodes
School (former model C) is a middle-class school with a majority white learner
body.29
As
a
percentage of Grade 3 learners at Rhodes School 97,5% achieved the Western Cape
Education Department Grade 3 level in standardised testing. At Uxolo School 0% of
Grade 3 learners achieved this standard.
Work done by the Development Bank of South Africa shows that these shocking
results are the norm. In former DET schools 0.1% of grade 6 learners performed at the
appropriate standard.30
The recent protracted public-sector strike31 involving teachers and the subsequent
violent protests involving over 10,000 high-school learners in Johannesburg32 speak to
the urgency of the situation.
26 Naledi Pandor, MP, Minister of Education ‘Not yet where we want to be: Statement by Naledi Pandor, MP, Minister of Education, on the release of the 2006 senior certificate examination results, Parliament’ (28 Dec 2006) Department of Education available athttp://www.education.gov.za/dynamic/dynamic.aspx?pageid=306&id=2469).27 Department of Education Education Statistics in South Africa at a Glance 2005 (2006) available at http://www.education.gov.za/EMIS/emisweb/05stats/DoE%20Stat%20at%20a%20Glance%202005.pdf (accessed on 2/9/2007) at 25.28 DET – Department of Education and Training - was the agency responsible for black African schools during Apartheid.29 U. Hoadley Social Class, Pedagogy and the Specialisation of Voice in Four South African Primary Schools (2004) PhD Dissertation, University of Cape Town.30 Graeme Bloch ‘Building Education Beyond Crisis: Development Today (2007) Development Bank of Southern Africa (DBSA) at 3 available athttp://www.dbsa.org/Research/Documents/Building%20Education%20Beyond%20Crisis.doc. 31‘School's out as teachers strike’ 30/05/2007 News24 available athttp://www.news24.com/News24/South_Africa/Politics/0,,2-7-12_2121686,00.html.32 Poloko Tau and Sheena Adams ‘Marching pupils cause chaos in Joburg’ STAR 15 August 2007 accessed at http://www.iol.co.za/index.php?set_id=1&click_id=105&art_id=nw20070814194436361C738527.
School No. of learners Staff
Staff : learner ratio
Annual School Fees
Average Class Size
Availability of specialist rooms, e.g. library, labs
Uxolo 1492 46 32:1 R30 44 No Rhodes 550 55 10:1 R7040 28 Yes
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IV The United States as Comparator
The history of the struggle for equitable and adequate education in the United States
was one of the major American dramas of the 20th century. It is also a relevant case
study for South Africans concerned with equal educational opportunities. The history
of de jure segregation in the South under the Jim Crow regime is strikingly similar to
that under Apartheid South Africa.
A current exhibit at the Iziko Slave Lodge makes clear how as in South Africa, many
U.S. cities practiced four-way segregation, with separate schools for each racial
group.
‘In some cities of the American Southwest, there was three or four-way
segregation of white, black, Mexican and Indian children, similar to the
segregation of white, African, coloured and Asian children in South Africa.’33
According to the exhibit, ‘Segregated education [in the U.S.] was designed to confine
black children to a subservient role in society and 2nd-class citizenship’. It states that
‘the similarity between vocational training for African Americans, Asians and
Mexicans and Bantu Education in South Africa is striking’.34
Therefore when U.S. courts began hearing cases on education they were faced by a
legacy resembling the one we now confront in this country. The landmark judgment
in Brown v Board of Education35 was not the start of education litigation but it saw
educational reform develop into a national fault-line and announced more than 50
years of intense legal contestation. America, not unlike South Africa, has been
described as a ‘society with a relatively high level of tolerance for social and
economic inequality’.36 In more recent decades, in the post-Jim Crow era, the U.S.
33 ‘Separate is not Equal: The struggle against segregated schooling in America’ Exhibition at Iziko Slave Lodge, Cape Town, March 2007; The exhibit is part-funded by the U.S. Consulates in Johannesburg and Cape Town.34 Ibid.35 Brown (note 1) supra. That judgment, which became known as Brown I was followed about one year later by Brown v Board of Education, 349 U.S. 294 (1955) which became known as Brown II. Brown I was the declaration of constitutional invalidity and Brown II was the implementation order.36 Mary F. Ehrlander Equal Educational Opportunity: Brown’s Elusive Mandate (New York: LFB Scholarly Publishing LLC, 2002) at 16.
9
case law is dominated by efforts to address de facto segregation and rank inequality in
the relatively liberal North and West. Like is partly true in South Africa today ‘the
cause of segregated schools in the North and West lay in ethnically separate housing
patterns, rather than in statute’.37
Schools in the United States are funded through a system of local property taxes. This
means that where property values are higher schools receive more funding. South
African schools on the other hand are funded through the national treasury whose
major revenue is income tax. The funds are allocated to provincial departments of
education, which make further allocations to schools.38
In line with funding, governance of American schools is ardently local, with school
districts responsible for management of staff, facilities and aspects of curriculum and
having powers of taxation and expropriation. A school district will include numerous
schools. School district elections are often fiercely contested. Any resident of a school
district can stand or vote in elections.39 In terms of The South African Schools Act,40
school governing bodies are given powers to regulate schools, similar but less
extensive than a school district in the United States.41 Only parents and the school
principal are eligible for election, whilst others can be co-opted. At present a fair
number of school governing bodies in poorer communities are dysfunctional sources
of localized power politics and resource control.42
Whatever the differences between education systems in the two countries, the utility
of a comparative study is not dependent on a close similarity. The value in the U.S.
example resides not in the educational policies adopted but in the strategies developed
37 Ibid. at 20.38 Funds are divided amongst provinces in terms of the Financial and Fiscal Commission’s formula that weighs various factors including population and poverty. Only higher education is funded directly by the national Department of Education.39 Kramer v. Union School District 395 U.S. 621 (1969) was a U.S. Supreme Court decision in which a childless bachelor living with his parents in the Union School District challenged Section 2012 of the New York Education Law which stated that voters for school district elections must own or lease taxable realty property in the district or be parents or custodians of one or more children enrolled in a public school local to the district. The Supreme Court found these to be unreasonable restrictions on the right to vote.40 The South African Schools Act 84 of 1996.41 For example, section 58 of the South African Schools Act gives expropriation powers to the MEC rather than the School Governing Body.42 Bloch (note 30) at 10.
10
at community level, and the ways these were related to by the judicial branch of
government; experiences with fairly universal relevance.
V The Courts and Schools in America: A Brief History
During the last half century, educational reformers in the United States have used the
courts and the law to pursue racial justice and better schools. In Brown the Supreme
Court unanimously ruled that de jure segregation in southern schools was
unconstitutional. Since then litigation has pursued the twin tracks of desegregation
and equitable funding. 43
A. Desegregation
The effort to promote desegregation birthed by Brown faltered as the Supreme Court
confronted the de facto segregation in the liberal North and West. Three distinct
rulings were the undoing of Brown. First was the 1973 holding in the Denver case that
de facto segregation was not itself unconstitutional unless proved to have been
‘invidiously’ intended.44 Then in the 1974 Detroit case the Court ruled that even if
state officials had deliberately segregated schools these officials had no responsibility
to desegregate because the tradition of ‘local control’ prevented their (further)
interference in school districts.45 Thirdly, in a lengthy series of cases beginning in
Pasadena in 1976, the Supreme Court ruled that segregation was not unconstitutional
unless it was proven to have been ‘caused’ by specific state decisions. In the two
decades since no court has even attempted the multivariate analysis sufficient for this
demonstration.
Now finally, desgregation is truly history. In Parents Involved in Community Schools
v Seattle,46 a 5-4 decision handed down in June 2007 the Supreme Court effectively 43 See Michael Heise ‘State Constitutions, School Finance Litigation, and the “Third Wave”: From Equity to Adequacy’ (1995) 68 Temp. L. Rev. 1151.44 Keyes v School District No. 1, 413 U.S. 189, 208 (1973); See also Columbus Board of Education v Penick, 443 U.S. 449, 464 (1979).45 Milliken v Bradley, 418 U.S. 717 & n.14, 733, 741-48, 753 (1974) – This case essentially held that desegregation on an inter-district basis was unconstitutional, meaning that it could only occur intra-district, even if this meant that there would never be integration between districts. See also Missouri v Jenkins, 515 U.S. 70, 87, 91-98 (1995).46 Parents Involved in Community Schools, Petitioner v. Seattle School District No. 1, et al.; Meredith v. Jefferson County Board of Education 551 U.S. ___; 127 S. Ct. 2738; 75 U.S.L.W. 4577; 20 Fla. L.
11
overturned Brown. Chief Justice Roberts, writing the opinion of the court, said the law
prohibited using race as the selection criterion when integrating public schools and
declined to recognise racial balancing as a compelling state interest.47
In his dissent Justice John Paul Stevens noted the profound shift in Supreme Court
jurisprudence. In the past, he said, the Court was ‘more faithful to Brown and more
respectful of our precedent than it is today’. He finished emphatically: ‘It is my firm
conviction that no Member of the Court that I joined in 1975 would have agreed with
today's decision’.48
Justice Stephen G. Breyer, in an emotional twenty minute speech from the bench,
denounced the majority opinion. In the Justice's 77-page written opinion, the principal
dissent, he called the ruling a ‘radical’ step away from established law that would take
from communities a critical tool used for many years in the prevention of
resegregation.49
In concurrence with the majority opinion Justice Clarence Thomas wrote, ‘[I]f our
history has taught us anything, it has taught us to beware of elites bearing racial
theories…’50 In the footnote to that dictum the Justice added a personal mention of his
colleague: ‘Justice Breyer’s good intentions, which I do not doubt, have the shelf life
of Justice Breyer’s tenure.’51
The traditional analyses, bifurcated on partisan lines, are, from the left, that the Court
lost its nerve,52 and from the right, that the Court retreated correctly behind the
dignified boundary of the separation of powers.53 Both evaluations are partially
correct but fundamentally flawed. The turnabout is partly attributable to a decisive
reactionary shift,54 but it was also the fruit of a complex and inarticulate decision by
Weekly Fed. S 490, available at http://www.supremecourtus.gov/opinions/06pdf/05-908.pdf.47 Ibid, pg 22 of the Court’s opinion.48 Ibid, pg 6 of Stevens dissent.49 Ibid, pg 30 of Breyer dissent.50 Ibid, pg 35 of Thomas concurring opinion.51 Ibid, pg 35, fn 30 of Thomas concurring opinion.52 See Jennifer L Hochschild The New American Dilemma: Liberal Democracy and School Desegregation (Yale Fastback: 1984).53 See David Kirp Just Schools: The Idea of Racial Equality in American Education (University of California Press: 1982).54 See Ronald Dworkin ‘The Supreme Court Phalanx’ (2007) New York Review of Books V 54, Num 14.
12
the Court about its own capacity to define and solve problems.55 When, as in respect
of the de jure southern segregation, judges could plausibly think that ending a wrong
was itself a sufficient remedy for a grave social injustice, they were assiduous in their
willingness to stop the wrong. But when it became apparent that forbidding a wrong,
far from immediately correcting a harm, instead required choices among complex and
competing ideas of the right, federal judges withdrew from the struggle as earnestly as
they had initiated it. In short, the court has suffered as much from a want of effective
remedies as from a lack of sound principles. Casting the issue as one of boldness or
timidity of the courts thus misses the mark.
In analysing the Parents Involved in Community Schools decision, former Executive
Director of the NAACP, Derrick Bell, argued that while the outcome is painful for
many, it is time to acknowledge that racial integration as the primary vehicle for
providing effective schooling for black and Latino children has run its course. He
believes that where it is working, or has a real chance to work, it should continue, but
for the millions of black and Latino children living in areas that are as racially isolated
in fact as they once were by law, it is time to look elsewhere.56
Another weakness in the Brown system, which allowed it to be undermined, was the
sociological foundation of the decision. Not prepared to declare desegregation bad
and unconstitutional in principle, the Supreme Court under Chief Justice Earl Warren
relied on voluminous sociological evidence which demonstrated the pernicious effects
of segregation. It was partly this initial reliance on sociological evidence as the basis
for the decision in Brown that lead to its subsequent retreat. Famously, in footnote 11,
the Court cited various sociological studies as a form of proof that segregation did not
work; that separate was inherently unequal. Thus when desegregation was shown, in
some later sociological studies, to have unimpressive, or at best indeterminate,
outcomes, meaning that black students weren’t faring better, it was very difficult for
the court to sustain the decision.
55 James S Liebman & Charles F Sabel ‘A Public Laboratory Dewey Barely Imagined: The Emerging Model of School Governance and Legal Reform’ (2003) 28 N.Y.U. Rev. L & Soc. Change 183 at 200.56 Derrick Bell ‘Desegregation’s Demise’ Chronicle of Higher Education (Jul 2007) vol 53 issue 45 pB11; NAACP stands for National Association for the Advancement of Coloured People, the organisation that coordinated Brown v Board of Education and much subsequent litigation.
13
The extent to which desegregation cases, even when successful in the courtroom, can
claim some measure of success in the classroom, is a matter of debate. In 1955 in
what was called Brown 2,57 the Supreme Court gave the order to implement
desegregation ‘with all deliberate speed’. Not until the late 1960s when the Court
finally became convinced that its deference to the self-reforming capacities of civil
society were misplaced, did it, with the help of the Department of Health, Education
and Welfare, order integration ‘forthwith’, the result being the almost instantaneous
integration of schools attended by millions of children.58 As a result SAT scores rose
amongst black children who entered newly desegregated schools.59 In finance equity
cases too, success was noted in a reduction of per-pupil inequality across districts and
an increase in total funding in some poor districts.60 However in many cases
substantial court ordered redistribution of funds reduced overall state spending on
schools: a case of equalising down,61 and even in poor districts where successful
litigation increased per pupil spending, no or disappointingly little educational
improvement occurred.62 There is as much if not more, and better, sociological
evidence indicating that black students benefited significantly, and in large numbers,
from integrated schooling and that white students increasingly embraced
desegregation.63 The crux however, is that judges are experts in sifting good legal
principle from bad, not in identifying reliable sociology.
B. Equitable Funding
As the federal courts retreated reformers turned to state courts to pursue equalisation
of per-pupil funding across school districts within states. The cases are traditionally
57 Brown v Board of Education of Topeka, 349 U.S. 294 (1955).58 Alexander v Holmes County Board of Education, 396 U.S. 19, 20 (1969).59 James S Liebman ‘Desegregating Politics: “All-Out” School Desegregation Explained’ (1990) 90 Columbia Law Review 1463.60 William N Evans, Sheila E Murray & Robert M Schwab ‘The Impact of Court-Mandated Finance Reform in Equity and Adequacy’ in Helen F Ladd et al (eds) Education Finance: Issues and Perspectives (1999) 72 at 74-75.61 William H Clune ‘New Answers to Hard Questions Posed by Rodriguez: Ending the Separation of School Finance and Educational Policy by Bridging the Gap Between Wrong and Remedy’ (1992) 24 Connecticut Law Review 721 at 722-23.62 James S Liebman ‘Implementing Brown in the Nineties: Political Reorganization, Liberal Recollections, and Litigatively Enforced Legislative Reform’ (1990) 76 Virginia Law Revue 349 at 392-93.63 See U.S. National Center for Education Statistics The Condition of Education (Washington D.C.: GPO, 1993); Christine H. Rossell and Willis D. Hawley The Consequences of Desegregation (Philadelphia: Temple University Press, 1983).
14
analysed as falling into three ‘waves’. The effort to promote finance equity under the
Equal Protection Clause of the Fourteenth Amendment, beginning in 1971 with
Serrano v Priest64 and ending disastrously in the Rodriguez decision, was the first
wave.65 In the view of Liebman and Sabel, developments in the state funding equity
cases paralleled those in the federal desegregation cases; judges in many jurisdictions
‘advanced confidently’ as long as there appeared to be a ‘straightforward remedy’ for
any offensive disparity in the deployment of public resources. They ‘broke stride’,
however, once further analysis revealed ‘unexpected complexities’ in goals and
remedies.66
The second wave, which concentrated on equal protection and education clauses
found in state constitutions, began in 1973 with Robinson v Cahill67 and ended in
1989.68 It was characterised by a commitment to equity and focussed on reducing per
pupil spending disparities. The third continued efforts in the state courts but shifted
the normative focus from “equity” to “adequacy”, looking to the explicit textual
language of education provisions in state constitutions.69 A concomitant evolution
from top-down rule-based remedies to decentralised, standards-based intervention has
been an important accompanying development.70
VI Critical Focus: The ‘Third Wave’ of School Finance Cases
Two processes of reform began to emerge from the state-based work of progressive
institutional actors and the activism of communities respectively. The trends are at
64 Serrano v Priest 487 P.2d 1241 (Cal. 1971), cert denied, 432 U.S. 907 (1977).65 In San Antonio Indep. School Dist v Rodriguez, 411 U.S. 1 (1973) the Supreme Court declined to intervene in regard to funding inequity. Demoting public education to nonfundamental status it declined to exercise ‘strict scrutiny’ on the basis that wealth discrimination, absent a fundamental interest, was not unconstitutional. Central to the Court’s explanation for doing so was its professed lack of competence in identifying the educational resources that might be deemed fundamental or the proper fiscal measures for making sure that those resources were evenly distributed.66 Liebman & Sabel (note 55) at 202.67 Robinson v Cahill 303 A.2d 273 (N.J.), cert denied, 414 U.S. 976 (1973).68 William E Thro ‘Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model’ 35 B.C.L. Rev. 597 at 601.69 The path-finding cases were Helena Elmentary School District No 1 v State 769 P.2d 684 (Mont. 1989) and Rose (Ky. 1989) (note 2).70 Sabel & Simon (note 10) at 1022.
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first glance contradictory, with roots in both the Supreme Court’s stridency and its
equivocation. The first was a centralising tendency to set minimum standards for
school and student performance. The second came in the form of a new localism,
aiming to devolve authority for classroom instruction away from state administrations
and towards districts, principals and teachers. As the minimum standards regime was
infused with the new localism it evolved away from evaluating schools through
punitive threshold tests towards diagnostic standards aimed at orienting pedagogic
attention to individual students and communities.71
As educational reformers embraced the notion of a community-oriented approach that
nevertheless demanded acceptable common standards, their approach in the courts
moved away from one of simple finance-equity to adequacy of educational standards
and sufficiency of funds.72 Crucially, adequacy is broader than mere adequacy of
funds and speaks to an adequacy based in outcomes and contemporary society. Local
grassroots action groups emerged to set standards, overcome practical problems and
ensure political and judicial accountability. What emerged in response to the
recidivism of the Supreme Court demonstrates the ‘possibilities for innovative public
action that arise when the parties exhaust familiar programmatic solutions and yet still
face urgent requirements for action’.73
The state courts found it easier to rule on the basis of education clauses than the
equity doctrine of equal protection clauses. Still the judicial revolution went further
than a refined legal approach, finding footholds in the reality of judicial politics; as
Liebman and Sabel suggest:
‘The courts seem to have stumbled upon a way to realize their virtues as
disentrenching institutions, exposing encrusted inequalities through public and
constitutional scrutiny, without, however, directly administering the positive
reforms that they have proved unable to command successfully. The latter
developments suggest the possibility of a non-court-centric form of judicial
review that preserves the capacity for constitutional deliberation as a form of
71 Liebman & Sabel (note 55) at 190 and 192 argue that the federal No Child Left Behind Act 2001 (Public Law 107-110) is a useful legislative exemplar of this model. 72 Heise (note 43) at 1162.73 Liebman & Sabel (note 55) at 191.
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reflection on the deepest norms of the political community, while substantially
lessening the intrusiveness of the judiciary and so tempering the counter-
majoritarian dilemma.’74
Naturally ‘adequacy’ belies a scientific definition. In some cases the courts extract,
from expert accounts of well-functioning schools, standards specifying very general
goals for the states’ schools. It may then fall to the legislature to translate these goals
into a workable plan for educational reform. The 1990 Kentucky case, in which the
Kentucky Supreme Court, using standards devised and campaigned for by a state-
wide movement for educational reform, illustrates this.75 In a second group of cases,
courts select one or more detailed models of successfully reformed schools. School
districts found to be violating their constitutional obligations are then required to
choose a model or an unlisted alternative that delivers superior results. New Jersey
exemplifies this; in 1998 after years of failed finance-equalisation efforts, the New
Jersey Supreme Court gave the state three years to implement “whole school” reform
programs (or alternatives of the districts’ own choosing) based on bottom-up needs
assessments.76 Part of this program involved delegating resource-allocation decisions
to the school level, thereby increasing schools’ effectiveness and productivity by
bringing the perspectives of parents and school personnel into the decision-making
process. In a third category the court issues a sibylline rejection of solutions that do
not meet its adequacy standard, while remaining silent as to the particulars of the
standard or how to observe it. Texas typified this third category, its high court thrice
ordering a new coordination for school funding without specifying how.77 It
culminated in the revision of the entire Texas Education Code with very positive
outcomes.78
A very significant new development was extra-legal participation by education rights
groups and social movements. The groups were at times invited by the courts to
participate in the remedial phase, both as implementers and assessors. This “dialogic”
74 Liebman & Sabel (note 55) at 192.75 Rose (Ky, 1989) (note 2); discussed in detail below.76 Abbott v. Burke, 153 N.J. 480, 710 A.2d 450 (1998). Ed. Law Rep. 258.77 Edgewood Indep. Sch. Dist. v Kirby, 777 S.W.2d 391 (Tex 1989) (“Edgewood I”); Edgewood Indep. Sch. Dist. v Kirby, 804, S.W.2d 491 (“Edgewood II”); Carollton-Farmers Branch Indep. Sch. Dist v Edgewood Indep Sch. Dist., 826 S.W.2d 489 (Tex 1992) (“Edgewood III”); Edgewood Indep. Sch. Dist v Meno, 917 S.W.2d 717 (Tex 1995) (“Edgewood IV”).78 Liebman & Sabel (note 55) at 239-250.
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model of reform, in which the executive, the judiciary and various aspects of civil
society participate, in which remedies are constantly refined through deliberation
among the broadest range of stakeholders, is seen as the most positive development in
U.S. education litigation in decades. The literature on this innovation in school
governance calls it “The New Accountability”.79 School reform litigation has thus
come to engage a much broader range of actors and to spawn an array of institutions
that, until they developed, would have been impossible for the courts or the legal
system to imagine, much less to embody in a court order or legal rule.
Liebman and Sabel explain it thus:
‘The New Accountability shifts emphasis from regulatory compliance to
contextualized judgments about the capacity of school systems to produce ever
better educational outcomes.’80
Such qualitative, context specific assessment acknowledges the need for wide
participation. The legislatures set frameworks rather than precise ends. These are
transformed by school communities into particular goals. Using the local and supra-
local standards generated by the process the courts’ role is to periodically determine
whether particular schools, districts, government departments and legislatures are
providing constitutionally adequate levels of education. Kentucky is an important
example, not least because the Kentucky Supreme Court’s ruling in Rose v Council
for Better Education81 was the inaugural moment for ‘third wave’ litigation across the
country.
VII A Case Study: Kentucky
In 1988 Kentucky’s education system was in dire straights. The state ranked last in
the country in adult literacy. For every ten children that began school in Kentucky,
only five would finish high school and only one would attain a college degree. The
79 Liebman & Sabel (note 55) at 229.80 Liebman & Sabel (note 55) at 229-230.81 Rose (Ky. 1989) (note 2).
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state ranked 48th in per-pupil spending, 41st in pupil-teacher ratio, and 38th in
average teacher salary.82
The large reforms that have taken place in Kentucky subvert deep-seated assumptions
about the difficulties in fundamental social innovation. For many, scepticism about
the possibility of reform is rooted in convictions about the difficulties of collective
action. For some, including reform-minded lawyers, the legal system itself might be
an obstacle. Kentucky shows how, when the political context is present in legal
strategy and court decision-making, the legal system can be an Archimedean point
from which to usher ‘improbable, even impossible, outcomes’83 in social change.
Reform began in a ‘statewide citizens committee’,84 which initiated and supported
educational activist groups in Kentucky’s cities, towns and school districts. The
reform movement, known as the “Prichard Committee”, began in 1983 when a
governmentally appointed committee realised that its extensive work would have no
impact in the politically deadlocked state, and reconstituted itself as an organ of civil
society. Its membership drawn from outside the education profession evolved to
include a carefully crafted mixture of concerned citizens ranging from parents to
business leaders and former governors. By 1988, educational insiders, including
teachers, had rallied to the new movement. By the end of the decade the Prichard
Committee and the localised “Prichard Committees” supported a legal challenge to
the state’s school system.
In Rose v Council for Better Education85 the Kentucky Supreme Court declared the
state’s entire school system unconstitutional. The case turned on adequacy arguments
that relied on the Kentucky Constitution’s education clause which requires an
‘efficient system of common schools throughout the State’.86 The Court held that the
legislature ‘shall provide funding which is sufficient to provide each child in
82 Prichard Committee for Academic Excellence Gaining Ground: Hard Work and High Expectations for Kentucky Schools (Author: Lexington, 1999); see also Blake Haselton & Michael Davis ‘Resources Do Produce Results’ (2004) Foresight, Vol. 11, No. 1 accessed athttp://www.kltprc.net/foresight/Chpt_76.htm. 83 Liebman & Sabel (note 55) at 232.84 Liebman & Sabel (note 55) at 250.85 Rose (Ky. 1989) (note 2).86 Ky. Const. Section 183.
19
Kentucky an adequate education’.87 According to the decision, a constitutional system
of education must have as its goal to provide each child with at least the following
seven capacities: (i) sufficient oral and written communication skills to enable
students to function in a complex and rapidly changing civilisation; (ii) sufficient
knowledge of economic, social, and political systems to enable the student to make
informed choices; (iii) sufficient understanding of governmental processes to
understand the issues affecting 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 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 favourably with their counterparts in surrounding
states, in academics or in the job market.88
Governor Wilkinson held a press conference to pledge that he would comply with the
order and within 11 months the Kentucky legislature followed the court’s lead by
enacting ‘the most comprehensive reform of education in the nation’.89 It emphasised
local initiative and statewide accountability.90 The Act reiterated the standards-based
approach of broad educational goals adopted by the Court, vastly increased the
education budget, created a system for equalising school funding among districts, and
outlined local assessment and state-based accountability processes.91 By choosing a
system of school-based management by which the various stakeholders could reshape
schools to meet legislated goals, the Act reinforced the alliance between the business
community, forward-thinking politicians and educational outsiders, and tied this
alliance to parents, teachers and administrators. The state’s educational agency was
redesigned into a competent service provider rather than a rule-maker.
87 Rose (Ky. 1989) (note 2) at 213.88 Rose (Ky. 1989) (note 2) at 197, 212.89 Liebman & Sabel (note 55) at 256.90 Kentucky Education Reform Act, ch 476, 1990 Ky. Acts 1208 (codified as amended at Ky. Rev. Stat. Ann. Sections 156-163).91 Other reforms included early childhood and special needs programs and a new system for credentialising teachers to certify that they meet their responsibilities.
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The Prichard Committee’s work in policy-making and activism had set the course for
the restructuring of Kentucky’s schools. By the time of the court case a statewide
consensus existed on the desirability of wholesale reform.92 Moreover, ‘the fusion of
equity and adequacy arguments via accountability that had … marked the work of the
Prichard Committee from the beginning put a decisive stamp on the court’s decision
in Rose’.93
Key to the Prichard Committee’s work was the dissemination of data that equipped
ordinary people to debate in their communities and engage with school boards.94 In
1985 it published a seminal 150-page report which concluded with 82 specific
recommendations that formed the basis for activist and legal work in areas including
educational goals, school governance and assessment, finance and the teaching
profession. It recognised and embraced the two paradoxical forces of localism and
centralism, calling for the ‘active and informed engagement of local people with local
schools’ because only ‘a concerned and involved community can have good schools’,
but also recognised the state’s ‘clear responsibility to protect the public, to ensure
quality and to initiate reforms which cannot, or will not, be completed at a local
level’.95 It attempted to synthesise these forces:
‘State policies must help local taxpayers, parents, and students make sound
judgments about their schools; must encourage local interest in good schools;
and must give local school leadership the flexibility to seek state-defined goals
through creative and innovative means.’96
Making the new legislation real and meaningful for Kentucky schools, as envisioned
in the court order and the preceding activism, has been difficult and incomplete. The
breakdown appears to have occurred precisely at the point where a centralised
government department must empower localised and diversified community-based
92 Jonathan Shafter & Alexander Greenawalt Education Reform in Kentucky (April 13, 2000) (unpublished manuscript, on file with the NYU Review of Law and Social Change) at 9 cited in Liebman & Sabel (note 55) at 256 fn 324.93 Liebman & Sabel (note 55) at 256.94 Molly A Hunter ‘All Eyes Forward: Public Engagement and Educational Reform in Kentucky’ (1999) 28 Journal of Law & Education 485 at 494.95 Prichard Committee for Academic Excellence The Path to a Larger Life: Creating Kentucky’s Educational Future (2d ed. 1990) at 42-43.96 Ibid.
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implementation. The organised parts of civil society, by their very assertiveness,
toughened no doubt by their lingering mistrust of public bureaucracies, retarded the
transformation of existing governmental bodies. This applied particularly to the
Kentucky Department of Education which needed to be remade into an effective
infrastructure for local school initiatives and for periodic revision of the framework
standards for the education system as a whole.97 The unorganised remainder,
particularly parents who were now given voting rights for the election of management
councils, were slow to participate, with voter-turnout at 4% in 1992, rising to 22% in
1993.98 The Prichard Committee was forthright in its assessment: ‘[T]oo many school
councils have not recognized their independence…’99 A major study 10 years after the
new legislation showed firstly that progress was made in attaining finance-equity in
Kentucky school districts, but that student achievement gaps increased from 1995 to
2000 between formerly poorly-resourced and formerly well-resourced school
districts.100 Its authors suggested that many districts failed to use the resources at their
command equally well.101
The Kentucky Department of Education, for its part, intensified its oversight,
periodically changing the framework of the state’s education system in ways that
impeded mutually supporting reforms by actors outside the government. Instead of
coordinating evaluations of school performances to help districts and schools improve
their standing, much departmental energy has been invested in compiling manuals and
flip-charts telling the various actors how to comply with their new responsibilities; a
service it has carried out in a manner suggestive of a ‘reversion to older authoritarian
rulemaking’.102 Another disquieting trend has been away from diagnostic standards-
97Liebman & Sabel (note 55) at 257.98 Jane L. David ‘School-Based Decision Making: Kentucky’s Test of Decentralization’ 76 Phi Delta Kappan 706-12.99 Prichard Committee Gaining Ground (note 82) at 9, cited in Liebman & Sabel (note 55) at 259.100 This is on the state mandated assessment of student performance, the Commonwealth Achievement Testing System (“CATS”) which replaced the Kentucky Instructional Results Information System (“KIRIS”). CATS uses much narrower measures of student performance. 101 Blake W Haselton & John L Keedy The Kentucky Education Reform Act: A Comparison of Equity & Adequacy Outcomes in Kentucky between Plaintiff & Non-Plaintiff School Districts (2002) Paper presented at the Annual Meeting of the American Educational Research Association (New Orleans, LA, April 1-5, 2002) accessed athttp://www.eric.ed.gov/ERICWebPortal/contentdelivery/servlet/ERICServlet?accno=ED469299 - This study compared the equity and adequacy outcomes for plaintiff and nonplaintiff school districts as they relate to the Kentucky Education Reform Act (KERA) of 1990.102 Liebman & Sabel (note 55) at 261; See also Margaret E Goertz ‘Comprehensive School Reform and School-Based Budgeting in New Jersey’ (2001) Paper presented at the Annual Meeting of the American Education Finance Association (26th, Cincinnati, OH) available at
22
based evaluation of learner and school progress to an individualised simplistic test-
score measurement with punitive rather than remedial consequences.103
Nonetheless there are encouraging signs that the Kentucky system does afford
opportunities to correct existing blockages. The legislative changes disaggregated
regional education budgets to the district and school level and made decision-making
dramatically more transparent; this has seen some local management councils find
innovative means of influence. In some districts a profusion of new community
initiatives used both the new institutional structures and the information on school
performance that they compiled to challenge bureaucratic decisions that would have
been unimpeachable under the old regime. There have been results too. From 1992 to
2002, Kentucky’s improvement in 4th grade reading standards was the sixth best in the
country.104 By 2006 Kentucky was above the national average in reading, language
and mathematics.105 By 2005 the state’s national rankings for per pupil spending,
pupil-teacher ratios and average teacher salary had improved to 30 th, 16th and 34th
respectively.106 And importantly, differentials in performance between black and
white students in Kentucky is amongst the two or three lowest in the country.107 If
these successes are shared and built upon it might be possible to conclude that the
Rose decision, and the legislation it effectively ordered, ‘has struck the right balance
between local initiative, facilitative administrative coordination and political
oversight’.108
http://www.eric.ed.gov/ERICDocs/data/ericdocs2sql/content_storage_01/0000019b/80/19/32/00.pdf - this paper shows how ‘insufficient information and training from the state, and micromanagement by the state’ thwarted similar reform efforts in that state.103 Diane Massel et al. ‘Persistence and Change: Standards-Based System Reform in Nine States’ (1997) Consortium for Policy Research in Education Policy Briefs RB-21 at 30-31.104 National Assessment of Educational Progress (NAEP) State Profile of Kentucky (2005) available at http://nces.ed.gov/nationsreportcard/states/profile.asp. The NAEP testing is ‘criterion-based’, meaning it assesses children in each state against educational criteria set at a federal level. NAEP testing is done in grades 4, 8 and 12.105 Kentucky Department of Education ‘Comprehensive Test of Basic Skills’ (2006) CTBS Survey Edition accessed athttp://www.education.ky.gov/KDE/Administrative+Resources/Testing+and+Reporting+/Reports/CTBS+5+Reports/2006+CTBS5+Reports.htm; CTBS testing is ‘norms-based’ meaning it does not use criteria, but measures a state’s students against the national mean. CTBS testing is done in grades 3,6 and 9.106 National Education Association ‘Education Statistics: Rankings & Estimates 2006’ available at http://www.nea.org/edstats/RankFull06b.htm. 107 National Assessment of Educational Progress (NAEP) State Comparisons (2005) available at http://nces.ed.gov/nationsreportcard/nde/statecomp/. 108 Liebman & Sabel (note 55) at 262.
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Certainly though the euphoric post-Rose moment has receded. Might it be that the
Kentucky reformers, lead by the highly inventive Prichard Committee, suffered the
same anesthetising high that duped Thurgood Marshall and large section of the United
States into believing that change would simply follow the victory in Brown? This
would be an unsettling conclusion, because the remedy in Rose, being the bellwether
for the third-wave process-oriented multi-party approach, was premised precisely on
the learning that the law is not a cure, but a diagnosis that can set a corrective course
of action. It is however clear that brave court decisions and sweeping legislative
reform reconfigure the landscape in profound ways requiring a fundamental rethink,
by all parties, of the roles and strategies they should adopt. In this respect it may be
that both civil society and the branches of government were slow to adapt.
VIII Politics and Adjudication in the Age of Non-Court-Centric Remedies
Once a court, U.S. or South African, finds an educational inadequacy amounting to a
constitutional violation, it must still fashion a remedy that will contribute to and shape
actual change. Activists and lawyers crafting draft orders in heads of argument, and
judicial officers handing down judgments, are confronted with a critical issue: how to
recast court orders and the job of the judiciary more generally so as to capture the
advantages of courts as a disentrenching institutions without enmeshing them in the
day-to-day reorganisation of complex bodies that has frequently overtaxed their own
capacities.
Traditionally courts face a problematic choice. They can defer to the toleration of
existing inadequacies by the executive branch or they can make a declaration of
constitutional invalidity and take control themselves of the troubled institution
through a curative order or some form of supervisory jurisdiction. Fortunately there is
a third alternative. This amounts to requiring the parties to mend the defect in
accordance with constitutional principles set down by the court. Using the information
that adequacy-based standards provide the courts can create sound expectations of
compliance, and distinguish between good faith and bad faith efforts.
Identifying this new-accountability approach as “non-court-centric judicial review”
Liebman and Sabel explain as follows:
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‘[We] call this new form of judicial review “non-court-centric judicial
review,” because it allows the court to participate in a process of building a
constitutional order, rather than imposing one or abandoning its obligations to
do so.’109
The remedy is non-court-centric because it does not require the court as the central
actor in the implementation phase.
An analysis of remedies familiar in South African jurisprudence will help in fleshing
out this vague-seeming notion. Section 38 of the South African Constitution which
permits a court to fashion ‘appropriate relief’ and Section 172(1)(b) which allows
‘any order that is just and equitable’ are the basis for the various forms of relief seen
in South Africa. When a right is infringed the most basic form of relief is a declarator
whereby the court will state the breach and assume that the offending party, in most
cases the government, will remedy it. An injunction or simple mandamus on the other
hand is an order for specific action. The practical and legal difference between a
declarator and an injunction is that an injunction affords only ‘one more chance’, as
contempt proceedings can flow from a failure to comply, whereas a declarator affords
‘two more chances’, because the stage of injunction must be passed before proceeding
to a contempt application.110 Supervisory jurisdiction, as it is usually understood,
involves a court requiring government to report back to it in regard to remedying a
constitutional breach. Such supervisory jurisdiction may in certain cases be in regard
to a detailed mandatory order called a structural interdict, which, owing to their
directive nature, can be followed by contempt proceedings.
Relying on the typology sketched above, Budlender and Roach have described the
remedies election as between ‘declaratory or one-shot remedies’ on the one hand and
‘wide powers’ to issue ‘complex and mandatory relief and to retain supervisory
jurisdiction’ on the other.111 This sees the problem of remedies as a linear choice
between options of increasing severity.
109 Liebman & Sabel (note 55) at 281.110 Owen Fiss ‘Dombroski’ (1977) 86 Yale LJ 1103 at 1122-24.111 Geoff Budlender & Kent Roach ‘Mandatory relief and supervisory jurisdiction: When is it appropriate, just and equitable?’ (2005) 122 2 SALJ 325 at 325.
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They separate out three bases of rights violations originating in different species of
governmental failure: inattentiveness, incompetence and intransigence. In their view
‘when one is thinking about what remedy is appropriate, it may be helpful to explore
the underlying reasons why governments have failed to respect constitutional
rights’.112
Their argument boils down to the proposition that the less forgivable the breach is the
more ones moves along the inattentiveness-incompetence-intransigence axis, thereby
justifying a more stringent remedy:
‘We suggest that, while declarations and requirements that governments
report to the public will often be sufficient in those cases in which
governments are merely inattentive to rights, stronger remedies involving
mandatory relief and requirement of governmental reporting to the courts may
be necessary … particularly where governments are incompetent or
intransigent with respect to fundamental rights....
Directing governments to report to the public is a softer remedy than court
orders requiring that government report back to the court and that the court
approve the government’s plan.’113
The reason for violation is relevant, however the weakness in this analysis is that it
ignores complexities of political power, particularly the fact that it often exists outside
of the three branches of government. The public, or a public, may develop political
power through a civil-society campaign; in such a case compelling government to
account meaningfully to that sector and the public at large could be a powerfully
coercive remedy.
It is true that ‘those who are most in need often do not have ‘powerful political
constituencies’’,114 however sometimes they do. In South Africa newly-born babies
112 Ibid at 351, emphasis added.113 Ibid at 327 and 348, emphasis added.114 Chris Hansen ‘Inattentive, intransigent and incompetent’ in S R Humm (ed) Child, Parent and State (1994) at 232 cited in Budlender & Roach (note 111) at 346.
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with poor HIV-positive mothers had the Treatment Action Campaign. Thus
Budlender and Roach cannot avoid contradiction, suggesting firstly that the lack of a
structural interdict in TAC had ‘fatal consequences’ for ‘a significant number of
babies’,115 but later arguing that ‘the result of an order for public reporting would have
been earlier and more effective monitoring, which in turn would have enabled much
earlier steps to ensure compliance in Mpumalanga, with a likely saving of lives’.116
It is interesting to note that Liebman and Sabel describe the swift translation of the
Rose decision into comprehensive legislation as a ‘foregone conclusion’, even ‘anti-
climactic’. They say this because ‘public opinion was broadly sympathetic’ and the
Prichard Committee had lobbied the legislature for years.117
A true non-court-centric remedy in the spirit of dialogic process and the “new
accountability” would go further than to require mere public reporting. Rather the
court, having outlined the breach and described the elements of a constitutionally
acceptable standard, would order a participatory process, whereby civil society and
those for whom the order is actually made are empowered to engage in the remedial
process. This not only creates the possibility for close scrutiny and heightened
accountability, but also, potentially, for greater energy and capacity to be directed
towards the problem.
The Kentucky case study is an example of how such remedies work, and from it
generalised possibilities emerge. Rather than decreeing that schools should have two
laboratories and three tennis courts each, a court can order the creation of a local
council, to be participated in by all stakeholders, the mandate of which will include
the effective utilisation of a facilities budget according to constitutionally determined
standards. Instead of trying to redesign a teacher-training school, the court can declare
certain standards unconstitutional and create a mechanism within which the teaching 115 Budlender & Roach (note 111) at 334.116 Budlender & Roach (note 111) at 347, emphasis added. The meaning of ‘structural interdict’ could be broadened to include regular reporting to the public, however as it is traditionally understood, and as I take the authors to have used it, the phrase implies reporting to a court rather than the public. In TAC (note 15) at para 129 the Constitutional Court issued an injuction, refusing to follow the structural interdict of the High Court on the basis that ‘the government has always respected and executed orders of this Court. There is no reason to believe that it will not do so in this case’. However the Court did say that ‘a mandamus or supervisory jurisduction’ may be necessary to ensure an effective remedy for a breach of any constitutional right, including a socio-economic right.117 Liebman & Sabel (note 55) at 256-257.
27
profession, its unions, government, civil society and schools can devise and choose
from various options for professional development.
It is of course common that, despite a constitutional failure, an issue may not garner
significant public support, in which case a non-court-centric remedy is less attractive.
There are at least two reasons why this could arise. It may be that the issue itself lacks
public traction, or that despite an issue being of wide general interest civil society has
not coalesced to bring political organisation to public sentiment. These are not
mutually exclusive; indeed the nature of the issue may contribute to its lack of
political bite. In a case where the issue does not lend itself to public interest a court
would justifiably be more inclined to exercise its own authority in a structured
supervisory manner. However in a case of wide-spread engaged citizenship where
activism may even be responsible for bringing the case, a non-court-centric remedy
would harness the court’s authority to formalise the reasonable goals that civil society
may already have set and the participatory role it may be attempting to play, making
the democratic polity, rather than the court, the first-line enforcer of the judgment.
The fact that civil society may be weak or disparate is not in itself reason for the court
to abandon this approach. The adjudication should consider the issue itself and ask to
what extent the issue has the potential to mobilise activism. In a field like education,
an area of huge public expenditure, involving millions of people, a court could use its
order to create a platform on which civil society can stand and begin to act. In Texas a
series of well-crafted court orders preceded, presaged and propelled a massive public
groundswell, in contradistinction to the series of events in Kentucky.118 It is therefore
not only the political actors and their strengths that the court should consider, but also
the issue itself.
Michelman has raised the concern that indeterminacy will doom an adequacy
jurisprudence because no minimum standard is articulated and thus none
enforceable.119 However, standards, whether legislated or created by the public and
118 Edgewood I – IV (note 77); See also Liebman & Sabel (note 55) 232 – 250.119 Frank I Michelman ‘Foreword: On Protecting the Poor Through the Fourteenth Amendment’ (1969) 83 Harvard Law Review 7; See also David Bilchitz Poverty and Fundamental Rights (Oxford University Press, 2007).
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recognised by the judiciary as in Kentucky, can be seen to provide a judicially
enforceable minimum.120
In framing its remedy the court does not make a simple binary choice between a
court-centric or non-court-centric approach. In a case relating to education for
example, the level of specificity in the order, the extent to which the court or civil-
society formation predominate in participating in the implementation phase, and the
stringency with which the judgment is given are all a matter of degree. ‘If the
framework is too intrusive, it suffocates local innovation. If it is merely indicative,
local action is uncoordinated, and parents, teachers and students are left guessing
about what they need to do to please the authorities.’121
It is essential that non-court-centric remedies are communicated effectively to the
public. The Indian Supreme Court has included such provisions in its judgments,
ordering summaries of its orders to be broadcast on TV, in newspapers and through
public notices.122 In TAC the Constitutional Court stated as a principle that effective
communication is essential, but ultimately relied on the media and governmental
goodwill. The Court held as follows:
‘This can be achieved only if there is proper communication, especially by
government. In order for it to be implemented optimally, a public health
programme must be made known effectively to all concerned, down to the
district nurse and patients. Indeed, for a public health programme to meet
the constitutional requirement of reasonableness, its contents must be
made known appropriately…’123
A source of scepticism about the robustness of the new American remedial
jurisprudence can be traced to concerns about the transgression of boundaries that
frame the basic units of American democracy. In the Madisonian tradition the
120 See pg 21 supra; see fn 136 infra.121 Liebman & Sabel (note 55) 231 fn 214.122 See People’s Union for Civil Liberties vs. Union of India & Ors. (2004; 12 SCC 108),Writ Petition (Civil) No. 196 of 2001; Kapila Hingorani vs. State of Bihar (2003; 6 SCC 1).123 TAC (note 15) at 123; See also para 133: ‘It is necessary that the government programme, as supplemented to comply with the requirements of the judgment, be communicated to health caregivers in all public facilities and to the beneficiaries of the programme.’
29
separation of powers protects the people from the government and the government
from the demos. However, judicial review, not part of this original conception, has
come to be regarded as essential to a democratic system. Still though, in the
jurisprudential orthodoxy administrative experts are called on to settle ambiguities in
the regulation of private dealings, legislators are required to reconcile political
disputes and judges are asked to decide which disagreements are technical, which are
political, and which they themselves can determine by adjudicating on the contractual
or property entitlements of individuals.
Where possible though courts can use non-court-centric remedies to encourage
democratic participation. Ordering participatory processes stimulates grass-roots
democracy and the possibility of local tailoring of constitutional standards to
community-specific conditions and needs. They may also discourage, in a healthy
way, the use of courts as a first-instance site of struggle, sending a signal to reformers
that they may be rewarded with a greater remedial role if they build their knowledge,
capacity and political strength first. Typical concerns about courts acting in an anti-
democratic counter-majoritarian fashion might also be assuaged by the use of non-
court-centric remedies.
As Budlender and Roach convincly argue:
‘A court that requires an elected government to communicate with its citizens
about important matters of governance and steps taken to comply with
constitutional rights cannot reasonably be criticized for being undemocratic or
infringing the separation of powers.’124
This is not to suggest that conventional structural interdicts and supervisory
jurisdiction are anti-democratic or in breach of the separation of powers; these are
justified when they are the only means of remedying a constitutional wrong. Clearly
there remain instances where courts will need to intervene in a strict, heavy-handed,
directive manner. At any rate the primary basis for a non-court-centric approach is a
realist reckoning about institutional capacity and what works. The realpolitik
conclusion of Budlender and Roach is unarguable: ‘In the final analysis, the test is 124 Budlender & Roach (note 111) at 348.
30
one of effectiveness. Court orders that are not effective undermine respect for the
courts, for the rule of law, and for the constitution itself.’125
What the recent decades in the American education reform movement show is that
when policies patently fail the public, the consequent crisis opens the way to a new
logic of cooperative action, through which diffuse coalitions can demand significant
resources for reform projects in the name of the public good. Such coalitions partner
disaffected insiders from the old system whose professionalism is deeply affronted by
the deterioration, with political campaigners whose larger agendas are validated by
the collapse of the old system and the prospect of renewing it. Once this coalition
acquires an identity, however fragile, its very existence becomes a lightning rod for
latent discontent. What the Kentucky case study shows is that courts often play a
crucial role in the channelling of these new forms of collective action. Importantly,
social reform plaintiffs have prevailed in eighteen of twenty-eight of the relevant
decisions in the highest state courts since 1989.126
No assessment is attempted of the long-term sustainability or success of the new
reform movement in American education, and its creative use of the courts, nor
whether it amounts presently to a transformative democratic gain. But as a form of
democratic experimentalism where activism is based on principle but responds
energetically to changing economic, social and political conditions, it is an exciting
and relevant story. South African society has already shown itself to be receptive to
issue-based participatory activism, and coupled with a receptive constitutional system,
there is a promising possibility that profitable lessons can be drawn from the U.S.
experience.
IX Analysis: Back to South Africa
The United States Constitution is, despite the 13th, 14th and 15th amendments,
thoroughly vertical, imposes no affirmative obligations on the federal government and
says nothing about education. The decision in Brown therefore famously relied on the
125 Budlender & Roach (note 111) at 351.126 See Michael A Rebell ‘Education Adequacy Litigation and the Quest for Equal Educational Opportunity’ in Timothy Ready et al (eds) Achieving High Educational Standards for All: Conference Summary (2002) at 228 n54.
31
equal protection clause in the Fourteenth Amendment. The South African
Constitution on the other hand is a fully horizontal instrument, which imposes
affirmative obligations, including in regard to socio-economic rights.127 However,
most state constitutions in the United States have education provisions comparable to
our own Section 29.128 For example the State of Georgia’s Constitution requires ‘an
adequate public education’,129 Maryland’s provides for ‘a thorough and efficient
system of Free Public Schools’ and ‘the extension of a judicious system of general
education’.130 All state constitutions require the establishment and maintenance of
public schools. Seventeen states have constitutional language explicitly requiring
public schools be “free”. Twenty state constitutions express the value of public
education by recognising the importance of a “general diffusion of knowledge” or
calling education a “fundamental goal”. Twelve states have constitutional provisions
requiring an “efficient” educational system and sixteen states require a “thorough” or
“uniform” educational system.131
The right to education in the South African Bill of Rights speaks only of a ‘basic
education’ and to ‘further education, which the state, through reasonable measures,
must make progressively available and accessible’. There is none of the more
exacting or demanding language found in state constitutions across the Atlantic,
although the preamble to the Schools Act speaks of school system that will ‘provide
an education of progressively high quality’.132 Nevertheless, it is possible that ‘basic
education’ could be used effectively, because a basic education must, at minimum, be
to a standard that children will learn to read, write and count. The 0,1% Western Cape
compliance at a grade 3 level cannot amount to ‘basic education’.133 Furthermore,
what ‘reasonable measures’ means for the purposes of interpreting section 29(1)(b)
must be interpreted in light of the Constitution’s overall transformative agenda as
127 The Constitutional Court has to this point adopted a reasonableness standard that has been criticized for undermining the rights created by the Constitution; see for example Bilchitz (note 83).128 Section 29(1) Everyone has the right-
(a) to a basic education, including adult basic education; and(b) to further education, which the state, through reasonable measures, must make progressively
available and accessible.… 129 Ga. Const. Article XIII Section I.130 Md. Const. Article XIII Section I.131 U.S. State Constitutions and Web Sites available at http://www.constitution.org/cons/usstcons.htm. 132 Schools Act (note 40) Preamble.133 See Part III supra.
32
exemplified in the Preamble, the values enshrined in section 1 and the rights to
equality and human dignity.
The demise of desegregation and first and second-wave finance-equity litigation in
the United States, because of a reliance on the Equal Protection clauses at the federal
and state levels, suggests that education rather than equality should be the founding
right for bringing cases in South Africa. But this misses the distinction between the
U.S. and South African constitutional structures, the latter with horizontal application,
affirmative obligations and with equality enjoying pride of place as the first right in
the Bill of Rights.
As Kriegler J expressed it in a dictum in Hugo:
The South African Constitution is primarily and emphatically an egalitarian
constitution… in the light of our particular history, and our vision for the
future, a constitution was written with equality at its centre. Equality is our
Constitution’s focus and its organising principle.134
Furthermore in terms of Section 34(1) of the South African Schools Act, ‘the State
must fund public schools from public revenue on an equitable basis in order to ensure
the proper exercise of the rights of learners to education and the redress of past
inequalities in education provision’. This suggest that what is required is not equal
funding by the state to all schools, but substantively equal funding of schools,
meaning that the government should consider existing levels of funding to schools
when making its allocations.
Nevertheless, the real lesson from the American experience is that adequacy is
sometimes easier to monitor and implement than equity, and in certain circumstances
is easier to sell politically. Equality should thus play a strong secondary and
supporting role to a standards-based approach pursued through the right to education
in section 29.
134 The Republic of South Africa v Hugo 1997 (4) SA 1 (CC); (6) BCLR 708 (CC) at para 74.
33
Section 35 of the Schools Act requires the Minister ‘subject to the Constitution’ to
determine ‘norms and minimum standards for the funding of public schools’.135 In
addition a proposed amendment to the Schools Act will provide for the Minister to
create regulations laying out standards for school facilities.136 Lacking in these
regulations are standards in regard to the quality of education and educational
outcomes of the sort identify by the Kentucky Supreme Court in Rose. Nevertheless
this amendment would be a positive development and to some extent reflects the
standards regime in the No Child Left Behind Act.137 These and other standards could
provide a cogent rallying point around with community-based movements can
coalesce, and upon which they can mount formidable legal challenges.
The South African constitutional system is less constrained by notions of each sphere
of government resolutely defending its neighbourhood. Cooperative governance
eschews this. Moreover, as important as the separation of powers, are democratic
accountability and constitutionalism, broadly conceived. Thus arguments against
courts infringing on an executive or legislative responsibility will have less traction.
Beginning with the defence of the justiciability of socio-economic rights in the
135 In terms of the section this must be done after consultation with the Council of Education Ministers, the Financial and Fiscal Commission and the Minister of Finance.136 See the Education Laws Amendment Bill 2007, published in Government Gazette Number 29868, Notice Number 553, point 4, which proposes adding section 5A to the Act, entitled ‘Norms and Standards for basic infrastructure and capacity in public schools’:
‘(1) The Minister must prescribe by regulation determine minimum national norms and standards for –
(a) school infrastructure;(b) capacity regarding the number of learners a school can admit; and(c) provision of learning a teacher support material.
(2) The norms and standards contemplated in subsection (1) must provide for, but not be limited to, the following:
(a) (i) the availability of classrooms;(ii) sanitation(iii) electricity(iv) water(v) library and laboratory; and(vi) electronic connectivity at a school; and
(b) (i) stationery and supplies(ii) learning support material, school furniture and equipment;(iii) teaching support material and equipment; and(iv) digital support to a school.
(3) The minimum and maximum capacity of a school must relate to –(a) teacher provisioning and class size;(b) quality of performance at school; and(c) curriculum and extracurricular choices.
(4) A governing body must comply with the norms and standards contemplated is subsection (1) when it declares policy in terms of subsections 5(5) and 6(2).’
137 Supra (note 71).
34
Certification Judgment,138 the Constitutional Court has been careful to ensure its
legitimacy in that area. Moreover, the ideals of public participation as articulated in
the Doctors for Life case,139 are the basis upon which a jurisprudence of non-court-
centric remedies, in which constitutional standards are set and all actors are called
upon to realise them, can take root.
South African courts and civil society have not yet fully attempted the new non-court-
centric approach to remedies. However there have been hints in that direction and
quite explicit interest shown by the Constitutional Court. In Fose v Minister of Safety
and Security the Court held as follows:
‘Appropriate relief will in essence be relief that is required to protect and
enforce the Constitution. Depending on the circumstances of each particular
case the relief may be a declaration of rights, an interdict, a mandamus or such
other relief as may be required to ensure that the rights enshrined in the
Constitution are protected and enforced. If it is necessary to do so, the courts
may even have to fashion new remedies to secure the protection and
enforcement of these all-important rights….
The courts … are obliged to ‘forge new tools’ and shape innovative remedies,
if needs be, to achieve this goal’140
In August v Electoral Commission141, a case that saw prisoners accorded voting rights
in national elections, the Court recognised a constitutional violation, declined to give
‘specific direction’ and called on the Electoral Commission ‘to indicate how it will
comply with the order’.142 The Commission had to produce an affidavit, to be lodged
with the court, which would be open to the public. This outcome positioned the court
as overseer-in-chief. It also did not quite meet the communications standards 138 In re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC); 1996 BCLR 10 (CC).139 Doctors for Life International v Speaker of the National Assembly & Others 2006 (6) SA 416 (CC); 2006(12) BCLR 1399 (CC).140 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) paras 19 and 69. As explained in Budlender & Roach (note 111) fn 14 the reference to the obligation to ‘forge new tools’ is derived from the judgment of the Supreme Court of India in Nilabato Behera v State of Orissa [1993] AIR 1960 (SC) para 19 at 1969.141 August v Electoral Commission 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC).142 Ibid at para 39.
35
contemplated in TAC.143 It might be called ironic that in a judgment asserting the
democratic rights of prisoners the court did not consider their participation in the
remedial phase, but the reality is that this case had a clear and singular solution that
needed to be implemented in a top-down manner.
In the High Court judgment in the Grootboom case, the court made an order declaring
the government’s obligation, ordering it to report to court within three months, but
giving no directive instructions.144 Such a judgment resembles the new accountability
approach in its open-ended nature but lacks the dialogic approach of involving other
parties, and places the court in the position of being the first-line evaluator of
compliance.
These judgments tilt in the direction of a more creative remedial toolkit, but stop
short, pinned down by a judicial self-conception that sees its work as finding a
solution, through a process of legal reasoning, to a defect occurring at a specific point
in time. The judgments of the third-wave of education litigation, and the non-court-
centric, new-accountability ethic, are about courts firstly reconceiving themselves as
participants in a dynamic, ongoing, dialogic process, and secondly fashioning their
orders to facilitate the most effective, appropriate and democratic contribution from
each of the participants in this process, whether executive, legislative, judicial, civil
society, or broader public. What is equally essential is that civil society heeds the
TAC’s example and undertakes a thorough reckoning with the Constitution and its
potential as a catalyst in their struggles when used strategically in the courts.145
X Conclusion
The work of communities, activists and lawyers in the United States is instructive in a
number of ways. Firstly it reveals the potential for broad public unity across class and
ideological lines for better schools. In that society this has been particularly durable
when racial integration, a moral imperative, but sometimes a poisoned tactical chalice,
143 TAC (note 15); see pg 30 supra.144 Grootboom v Oostenberg Municipality 2000 (3) BCLR 277 (C).145 See Mark Heywood ‘Current Developments: Preventing Mother-to-Child HIV Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action Campaign Case Against the Minister of Health’ (2003) 19 SAJHR 278.
36
has been a by-product of change. Secondly it demonstrates that public mobilisation is
not an alternative to legal action but essential to framing the legal issues, winning an
effective remedy and implementing it over a sustained period. Finally it reveals that
an educational structure, a profoundly polycentric system, is difficult for a judge to
redesign, both practically and politically. When a social movement exists that is
committed to fundamental reform, a court can use their experience in framing a
constitutionally sound set of standards and a multi-party process in which each of the
court, government and civil society makes the most productive use of its skills.
In April 2007 Deputy Chief Justice Moseneke gave a wide-ranging interview, in
which he made the following candid remarks:
I’m surprised that we haven’t had one case on right of access to education in
this court in 13 years. If one were to come before this court I am sure the court
would apply its mind and come up with a judgment that is consistent with the
Constitution…
[N]obody has come to me and said, ‘My son is studying under a tree, there’s
no chalk, there’s no blackboard, the teachers don’t come to school every day.’
Nobody’s come here to say that.146
The profundity of these words lies in their bewilderment and their banality. They state
the obvious and yet they speak presciently to an urgent issue. What this paper has
tried to show however is that coming before the court and presenting the problem is
not good enough. Unless a court sees its way to a remedy, the declaratory relief it
offers will be cold comfort to South Africa’s learners. And unless a court is willing
and able to itself manage an educational overhaul, a remedy without organised
citizens to champion it will founder as soon as the ink is dry.
146 Chris Barron ‘From courtroom to campus, this is a man in his element’ (1 April 2007) Sunday Times accessed at http://www.thetimes.co.za/article.aspx?id=426611.
37
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Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC)
Grootboom v Oostenberg Municipality 2000 (3) BCLR 277 (C)
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Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC); 2002 10 BCLR 1033 (CC)
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