By Adv Nadene Badenhorst, FOR SA Legal Counsel and Daniela Ellerbeck, FOR SA Legal Advisor
What is the place of religion in schools?
This is the question the Court will have to decide in the case of OGOD vs six public schools, in which OGOD (an atheist organisation) is effectively asking the Court to remove Christianity from the 24,000+ public schools in SA. Judgment in this case which was heard in the Johannesburg High Court in May (and in which FOR SA’s Legal Counsel assisted one of the “Friends of the Court”), is currently still pending.
The same question regarding the place of religion in schools, made news headlines in a different context earlier this month. In this case, Northcliff High School (a prominent public school in Johannesburg) came under fire for not allowing Muslim pupils to wear a religious headscarf during Ramadan, without carrying “concession cards” allowing changes to their school uniform. Parents of Muslim pupils were up in arms about this practice and likened the “cards” to the discriminatory dompas black South Africans had to carry during Apartheid. The School initially defended the practice by saying that the “cards” were necessary so as to distinguish between pupils who want to change their uniform for no reason, and those who have genuine reasons. Following intervention by the Gauteng Education MEC however, the School agreed to unconditionally withdraw the “concession cards”. (For more information, see https://mg.co.za/article/2017-06-05-northcliff-high-concession-cards-likened-to-apartheid-dompas).
In another case the very next day, the Western Cape Education Department instructed the school principal of De Grendel School of Skills (a special needs public school in Cape Town) to allow a Muslim pupil to wear a hijab during Ramadan, after the school initially refused this ‘deviation’ from the school uniform – on the basis that the school’s research into the matter, did not reveal any rule or recommendation that proved that wearing a hijab was compulsory during Ramadan; and allowing the pupil to wear it would mean allowing an influx of other religious requests in terms of dress code. (For more information, see http://allafrica.com/stories/201706070158.html).
What does South African law say?
The starting point in this matter, is the South African Constitution and in particular, the Bill of Rights which guarantees certain basic rights to human beings simply because they are human beings. One of these basic human rights, is the right to religious freedom (section 15). This right includes not only the right to hold such internal belief as one chooses, but the right to practice and give outward expression to that belief. (Constitutional Court in S v Lawrence, 1997).
The Constitution also specifically includes, as part and parcel of the human right to religious freedom, the right to religious observances in State-aided institutions (section 15(2)), including public schools. While “religious observances” are not defined by the Constitution, the South African Charter of Religious Rights and Freedoms (“the Religious Charter”), certain policy documents and case law give some guidance as to what may be included in, and is therefore protected by, this right.
According to the Religious Charter, a religious-legal document that expresses what the right to religious freedom means to believers (of different faiths) in South Africa and already endorsed by religious leaders and signatories representing 22 million believers in South Africa:
“Subject to the duty of reasonable accommodation …, every person has the right to the private or public, and individual or joint, observance or exercise of their convictions, which may include but are not limited to reading and discussion of sacred texts, confession, proclamation, worship, prayer witness, arrangements, attire, appearance, diet, customs, rituals and pilgrimages, and the observance of religious and other sacred days of rest, festivals and ceremonies” (s 4).
In terms of the Charter therefore, and subject to the duty of reasonable accommodation (to which I will return in a moment), South Africans have a (basic, human) right to wear religious attire in private or in public (for e.g. in public schools, at the workplace, etc).
The right of pupils to wear religious attire in schools, is also specifically recognised in the National Policy on Religion and Education (issued in terms of the National Education Policy Act, 1996). In terms of the Policy, “religious observance” may “entail other dimensions such as dress, prayer times and diets, which must be respected and accommodated in a manner agreed upon by the school and the relevant faith authorities” (s 58 of the Policy).
A case in point, is that of MEC for Education: Kwazulu-Natal v Pillay, 2007. In this case, the Constitutional Court had to decide whether Durban Girls’ High School was right in refusing a Hindu pupil permission to wear a tiny gold nose stud to school, on the basis that the stud violated the school’s Code of Conduct which prohibited the wearing of all jewellery other than a certain type of earring and a wrist-watch. For the girl, the stud, although not obligatory or a religious rite, was an expression of Hindu culture.
In an important judgment, the Court found that it did not matter that the wearing of a nose stud was not an obligatory practice of the Hindu faith – the only question was whether for the particular pupil it was an outward expression of her sincerely held religious or cultural beliefs. In other words, both obligatory and voluntary practices are constitutionally protected. The Court found further that it did not really matter whether the practice stemmed from a religious, as opposed to a cultural, belief. Again, both are protected by the Constitution.
In this case, the Court was satisfied that for the Hindu girl, the nose stud was an outward expression of her sincerely held religious or cultural identity. The only question therefore was whether the school could (and should) have reasonably accommodated her by allowing an exemption from the Code of Conduct?
Reasonable accommodation in this context means that sometimes the community (whether the State, a school or an employer) must take positive measures and possibly even incur additional hardship or expense in order to allow all people to participate and enjoy their constitutional rights equally. Reasonable accommodation is, in a sense, a proportionality exercise that will depend intimately on the facts. In this case, the Court found that allowing the Hindu pupil to wear the stud, would not have imposed an undue burden on the school and that reasonable accommodation would have been achieved had they done so. The effect of the judgment was therefore not to abolish the school’s policy on school uniforms and jewellery, but simply that exemptions should be made.
(The Court did point out that there may be specific schools or practices where there is a real possibility of disruption if an exemption is granted, and also that the position may be different in private schools although unfair discrimination even in those contexts is impermissible. A mere desire to preserve uniformity, absent real evidence that permitting the practice will threaten academic standards of discipline, does not however suffice).
Importantly, the Court found that ”the display of religion and culture in public life is not a parade of horribles, but a pageant of diversity which will enrich our schools and our country”. Neither the Constitution, nor the Equality Act, requires identical treatment (in this instance, of pupils). What is required, is equal concern and respect for all.
It is often stated or assumed that South Africa is a “secular” State. A reading of the Constitution makes it clear, however, that we are not. Unlike the USA who maintains a clear “wall of separation” between State and religion, South Africa has adopted a co-operative model between State and religion which allows for religious observances (including religious attire or dress) in public schools.
In the case of De Grendel above, the problem was that the school did not allow the Muslim pupil to observe her religion by wearing a hijab during Ramadan, at all. This is plainly unconstitutional and unacceptable in our open and democratic society. In the case of Northcliff, the school did allow Muslim pupils to wear religious dress during Ramadan (in other words, did grant an exemption from the school’s uniform policy), but the problem was the way in which they did it and which made Muslim pupils to feel inferior.
While a school may have a legitimate objective in only allowing pupils to deviate from the school uniform policy on good grounds (including their religious or cultural beliefs), it may not do so in a manner that unfairly impacts on them or makes them feel disrespected. Schools have an obligation to put policies in place that not only allow for exemptions (and make clear the process by which one can apply for such exemption, and how the exemption will practically be enforced), but will have an affirming rather than undermining effect on pupils’ dignity. In the case of Northcliff, a better way of distinguishing between pupils who have good grounds for deviation and those who don’t, may have been to make an annotation in each pupil’s file and inform their teacher accordingly. In this way, pupils are not embarrassed and do not feel that they are labelled or ostracised because of their religious beliefs.
Returning then to my initial question regarding the place of religion in our schools, it is clear that far from being excluded from or feared, religion should be respected and protected and religious diversity celebrated and promoted in schools. The more pupils feel free to express their sincere religious (and cultural) beliefs in school, the closer we will come to the society the Constitution envisages – one that “does not tolerate diversity as a necessary evil, but affirms it as one of the primary treasures of our nation” (Pillay case).
Our Constitutional Court has in various instances already pointed to the intimate link between religious freedom and human dignity. As Christians, we understand that each person, whether Christian, Muslim, Hindu or atheist, is made in the image of God and therefore has immense dignity and worth. While we do not necessarily have to (and will not) agree on everything, we have a Biblical responsibility to love all people, and treat them with dignity and respect as Jesus Christ Himself did.
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