Challenge to elite South African schools that segregate by language

Courts will decide whether Fochville High can offer instruction only in Afrikaans, which blacks mostly do not speak.

A majority-white South African public school has drawn accusations of trying to segregate itself from the black population through its language policy, touching off a court battle that could eventually impact the racial makeup of some of the country's best public schools.

Fochville High School, about 50 miles from Johannesburg, is a former "Model C" school – a whites-only institution under apartheid that has since opened its doors to black students.

The former Model C’s are in high demand as they offer a quality education and low class sizes. Because they are mostly state-funded, they offer this quality education to South Africans of all races who cannot afford private schools for their children.

The former Model C’s are also very attractive because of their results. According to the national department of basic education, in 2009 they had a high school graduation rate of 93.7 percent, across all races. Formerly black African-only schools had a pass rate of just 52.9 percent.

However, some former Model C’s in South Africa have drawn criticism that while they now have black students, they have also implemented policies that favor access for whites.

According to 2009 data from the national department of education, some 49 percent of students at former Model C's were white, 30 percent were black African, 15 percent were mix-raced and 3.5 percent were Indian.

In the case of Fochville High, the barrier for many blacks is the school's policy of teaching classes and conducting its administration exclusively in Afrikaans, primarily the language of Afrikaners, a white ethnic group.

The provincial department of education is now suing Fochville High to compel it to teach courses not just in Afrikaans but also English, a more common second language spoken by black students in the area.

Fochville is one of two major court cases in South Africa related to admissions policy.

Late this spring the nation's Constitutional Court, somewhat equivalent to the US Supreme Court, heard arguments related to Rivonia Primary School. That case stems from a dispute between the school and the provincial department of education.

The government has argued that Rivonia is under-enrolled, while thousands of children in its district are without places.

The school has countered that the law gives it the right to set its own admissions policy and small class sizes are necessary to maintain the quality of education offered.

The philosophical question of who has final control over schools and school admissions makes this an important case says Pierre de Vos, a professor of constitutional law at the University of Cape Town.

"There’s a tension between them because on the one hand, everybody has a right to education,” said de Vos. “On the other hand, the governing body wants to feel they have some say in the matter. It’s difficult to balance these two fundamentals.”

This is not the first time an Afrikaans-medium former Model C has found itself in court over its admissions policy. In 2009, the Constitutional Court ruled for Ermelo High School against the provincial government who had ordered them to offer classes in English.

The court's finding for Ermelo was on a procedural matter, however, that did not reach the substance of equal access. However, Deputy Chief Justice Dikgang Moseneke, writing for a unanimous court, asked that Ermelo revise its language policy voluntarily due to the lack of space and resources in formerly black schools in the area.

"It is so that white public schools were hugely better resourced than black schools. They were lavishly treated by the apartheid government. It is also true that they served and were shored up by relatively affluent white communities. On the other hand, formerly black public schools have been and by and large remain scantily resourced,” Moseneke wrote.

“That is why perhaps the most abiding and debilitating legacy of our past is an unequal distribution of skills and competencies acquired through education."

Fochville’s language policy extends beyond the classroom to administration, meaning that the non-Afrikaans speaking parents of its students cannot be fully active in their children’s education.

“The staff at the school refused to speak to them in English and they can’t participate in the meetings because they don’t understand the language,” says Nikki Stein, an attorney from civil rights group Section 27. The group is representing these parents in the pending court case as well as the parents of children who were denied enrollment to Fochville High School.

The Fochville area has two other schools the students could go to but these are already considered to be over-burdened, with student to teacher ratio of about 45 to one. Fochville High School, according to Ms. Stein, has a student-teacher ratio of about two-thirds of that, 29.8 to one.

The students who cannot find places in Fochville or the over-flowing township schools must take a bus 15 miles away to the next town, Carletonville.

“Many of the learners are walking past the Fochville school to get to the bus to take them to Carletonville,” Stein says.

The end result of Fochville’s language policy is that only 89 of its 841 students are black, about 10 percent. The figure is almost an inversion of the municipal area where 86.5 percent of the population is black and only 11.8 percent is white.

“We’ve challenged the language policy as it discriminates on the grounds of race,” Stein says.

Of those 89 black students, about half are being taught in Afrikaans, in line with the school’s language policy.

The rest are part of an English-medium class that began in 2012 following an order from the provincial department of education. However, after the Supreme Court of Appeal ruled against the department in the Rivonia Primary case, Fochville decided that it could also refuse to change its admissions policy.

Fochville High and its opponents are now awaiting the outcome of the Constitutional Court judgment on Rivonia Primary before going forward.