Know your rights – CSE, and Religious Observances, in public schools

by Daniela Ellerbeck
29 November 2021

The issue of religious freedom is increasingly moving to the foreground in public schools, with Comprehensive Sexuality Education (CSE), and religious observances, being two of the more recent flashpoints.

In this article, we summarise the current legal position of both CSE and religious observances in public schools. We also highlight how parents can get involved to make sure that their rights, as those primarily responsible for the upbringing and education of their children, remain protected.

Comprehensive Sexuality Education:
CSE has been a “hot topic” for some time. It gained momentum when the Department of Basic Education (DBE) announced that it was preparing Scripted Lesson Plans (SLPs) for roll-out in all public schools. The SLPs, which consist of Educator Guides for teachers and Learner Workbooks for pupils, caused an uproar amongst South African parents because of the highly explicit, and ideological nature, of some of the content. FOR SA summarised the concerns surrounding CSE in this article.

Schools have a say:
In response to a question by ACDP MP Marie Sukers, the Minister responded in writing that the SLPs are not the only source that teachers and/or schools can use to achieve the mandatory minimum outcomes set by CAPS. She further stated that she has no intention of making the SLPs mandatory in schools.

In other words, while sexuality education remains a compulsory component of the Life Orientation and Life Skills subjects in public schools as part of the CAPS curriculum, teachers are not obliged to use the SLPs produced by the Department to teach sexuality education.  Public schools are, therefore, free to choose alternative materials from which to teach sexuality education to achieve the outcomes defined in the CAPS curriculum.  Therefore, parents who wish to be actively involved in this aspect of their child(ren)’s education and the content choice of their school for this topic, can do by becoming involved in the School Governing Body (SGB) and by writing to the School Management Team (SMT) to:

  1. Alert them to the fact that the Minister has made it clear that the SLPs are not mandatory, and that schools and teachers are free to choose the source / material they want to use to teach the Life Orientation and Life Skills subjects;
  2. Formally oppose the use of the SLPs by teachers and the school, due to various concerns arising from it;
  3. Suggesting alternative sources for teachers to use. (For alternative teaching material that meets the CAPS criteria, please contact [email protected]); and
  4. In the event that the school has already chosen to use the Department’s SLP’s to teach CSE, state that you do not want your child/ren to participate in these classes and will make alternative arrangements to have them taught on this topic.

Religious Observances:
In OGOD vs Laerskool Randhart & Others, the High Court confirmed that religious observances (including, for example, prayer, praise and worship, Scripture reading, religious activities, etc) may take place at public schools – subject, however, to the three conditions below.

Condition 1: Such religious observances must happen in terms of rules (i.e. a religious policy) determined by the SGB. Without such rules, the school may be vulnerable to a complaint that learners’ (or teachers’) religious rights are not being respected and protected as they should be and this may even open up the school to legal action. It is thus vitally important to ensure that your school firstly, has a religious policy setting out these rules; secondly, that this policy is in line with the relevant laws; and thirdly, practically caters for your particular school. 

With the end of the school year now fast approaching, it is a good time for schools to give some thought to their policies and procedures and make sure that everything is in place for the new school year, including their religious policy which typically sets out the school’s standpoint and rules regarding religious observances and the practice of religion at school. FOR SA can assist in this regard – for more information, contact us at [email protected]

Condition 2: They must take place on an equitable basis.  This means that a public school must act even-handedly and fairly in relation to learners of different religions (or no religion at all), considering that we live in a diverse society where there should be space for all to practise their religious beliefs (including in public schools). What this will look like may vary from one school to another, and even within one school from time to time – depending, amongst other things, on the learner make-up, needs, etc. of the school. Again, this is something for the SGB to work out on a grassroots level.

Condition 3: Attendance must be free and voluntary. This means that every learner has a choice whether or not to attend a religious observance and should not be made to feel any (direct or indirect) pressure to attend.

What is not allowed?
Since the OGOD case, no public school may promote (externally to the public, or internally in the school) one religion over another, or hold itself out as exclusively or predominantly Christian, Jewish, Muslim, Buddhist, atheist, etc.  This means that any public school that currently has “single faith branding”, should (through its SGB) take steps to revise its branding, thus ensuring compliance with the law. (For more on the implications of the judgment for public schools, see this video.)

CONCLUSION
Parents’ voices in their School Governing Bodies matter! They affect the decisions the school makes – the decisions that impact learners’ religious freedom – in a very real, direct and tangible manner. FOR SA, therefore, encourages all parents to become hands-on and actively engaged with their schools’ SGBs and even to consider running as members in the next SGB elections, set to take place in 2023.

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Daniela Ellerbeck

Daniela Ellerbeck is an attorney of the High Court of South Africa. She serves as FOR SA’s Legal Advisor and Parliamentary Liaison. For her full bio, see https://forsa.org.za/about-us/our-team/

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