Religion in schools: Schools submit court documents

30 April 2015  

Abolishing religious practices at schools will create a sterile, unnatural school society where individuals will have to be careful not to act spontaneously when they want to practice their right to freedom of religion within school grounds.

This is the focus of court documents of six schools named in an application in which the Organisasie vir Godsdienste-Onderrig en Demokrasie is asking the Constitutional Court to declare it unconstitutional for certain religious practices to be given preference above others.

“The Organisation’s application is inherently infringing upon several basic human rights as entrenched in the Bill of Rights. Freedom of religion includes the right not to take part in any religious practices but this may not take place at the expense of another’s right to freedom of religion and the right to freedom of expression,” says Mr Paul Colditz, CEO of the Federation of Governing Bodies of South African Schools (FEDSAS). The governing bodies of the six schools are members of FEDSAS, and FEDSAS forms part of these governing bodies’ legal team.

The affidavit encompasses close to 2 000 pages and contains amongst others the findings of a comprehensive study by a psychiatric forensic social worker, Dr Tanya Robinson. “This research was specifically requested because the six schools were convinced that the voice of the children should be heard,” says Colditz. Learners jumped at the opportunity to voice their opinion. Their overwhelming reaction was that of indignation with the Organisation for not making an effort to listen to their viewpoints before lodging an application of this nature.

Learners were traumatised by the implications should the application be successful and religious practices be abolished at schools.

The schools’ defence is multi-layered. The most important defence is that it will not be in the best interests of learners at schools to abolish religious practices, while increased efforts will be made to accommodate learners who do not want to take part in such practices.

“In South Africa the Constitution places certain limitations on the practice of religion at institutions that are financially supported by the State, as is the case with public schools. It may only take place according to rules determined by an applicable authority. In the case of a public school the Schools Act determines this authority to be the governing body. Attendance of religious practices should be free and voluntary and all six schools have measures in place to make attendance of these events voluntary,” says Colditz.

Insights gained from the preparation of the court documents will be used to improve efforts to accommodate minority groups at the schools. “FEDSAS is also in the process of advising its member schools regarding the refinement of existing policy and rules.”

In a country that strives towards unity through diversity fundamental rights should be handled with care. Freedom of religion is also closely interwoven with other fundamental rights, including freedom of speech, freedom of association, equality and the right to basic education. Learners and educators are free to exercise these rights when and where they choose, provided that it does not infringe on the dignity of others, and that it is done in a respectful manner towards those who think or believe differently.

* The complete summary of the six schools’ affidavit follows below.

Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others – summary of main points of dispute for media purposes

The matter between the Organisasie vir Godsdienste-Onderrig en Demokrasie (the “Organisation”) and six public schools (Laerskool Randhart, Laerskool Garsfontein, Laerskool Baanbreker, Hoërskool Linden, Hoërskool Oudtshoorn and Langenhoven Gimnasium) has been taken a step further with the submission of the six schools’ comprehensive affidavit of some 2,000 pages. The Minister of Basic Education has been joined as a party to as a result of the schools’ view that a section of the National Policy on Religion and Education that pertains to religious practices, is unconstitutional and shoud therefor be declared as such.

Under the banner of The Constitution and the National Policy on Religion and Education, the Organisation not only demands an end to religious practices in schools (well-known practices during hall periods, including scripture reading, prayer and devotional singing), but also the restriction of the individual religious beliefs of learners and educators. Not only will this result in a sterile, “neutral” school society, but also a highly unnatural one where individuals will have to be careful not to act spontaneously when they want to practice their right to freedom of religion within school grounds.

 However, the Organisation has practically ignored the Constitutional requirement that the best interests of the child should take precedence where the interests of children are at stake. This application is not about the brick and mortar of schools, but about the flesh and blood and spirit of the children in the schools.

In addition it has long been an accepted principle that all children are entitled to voice their opinion in issues pertaining to their interests, as required by section 12 of the UN’s Declaration of the Rights of the Child and section 10 of the Children’s Act, 2005.

Thus the Organisation did not take into account the best interests of all the learners at the schools and did not touch on this aspect at all in its application. Allegations of transgressions are made against the schools but these are mostly unsubstantiated. There is one single incident of a former learner of a school who voiced her disapproval of religious practices.

The six schools were of the opinion that the voice of the children should be heard. This resulted in the appointment of Dr Tanya Robinson, a psychiatric forensic social worker, to give body to the children’s voices following a comprehensive empirical study. Learners jumped at the opportunity to voice their opinion. Their overwhelming reaction was that of indignation with the Organisation for not making an effort to listen to their viewpoints before lodging an application of this nature.

Learners were traumatised by the prospective implications should the application be successful and religious practices be abolished at schools: religious practices in schools form an important support base for learners and they were dismayed at the potential loss.

The schools’ defence is multi-layered. The most important defence is that it will not be in the best interest of learners at schools to abolish religious practices, while increased efforts will be made to accommodate learners who do not want to take part in such practices.

The fundamental right to freedom of religion is one of the most important pilars of the Bill of Rights. Freedom of religion is also closely interwoven with other fundamental rights, including freedom of speech, freedom of association, equality and the right to basic education.

In a country that strives towards unity in diversity it cannot manifest in any other way. Learners and educators are free to exercise these rights when and where they choose to, provided that it does not infringe on the dignity of others. A number of the actions of individuals at the schools that the Organisation refers to, fits squarely within the framework of The Constitution’s freedom of religion, speech and other related stipulations and is therefore not unconstitutional.

South Africa does not have the same separation between State and Church as found in for example the USA. Where religion is practised at institutions that are financially supported by the State (as is the case with public schools) the Constitution does prescribe certain limitations. It may only take place according to rules determined by the applicable authority. In the case of a public school the Schools Act determines this authority to be the governing body (something the Organisation apparently misread). Attendance of religious practices should be free and voluntary.

All six schools have rules in accordance with The Constitution and the Schools Act and have measures in place to make attendance of these events voluntary. Attendance therefore takes place accordingly. Learners with objections are excused from attending these events. Constitutional requirements are therefore met.

However, no rule is ever perfect, and schools are making use of this opportunity to learn from insights gained and to improve efforts to accommodate minority groups at the schools. FEDSAS is also in the process of advising its member schools regarding the refinement of existing policy and rules.

The schools are disputing the validity of the National Policy on Religion and Education insofar as it tries to regulate extra-curricular activities such as religious practices. The National Education Policy Act in terms of which the policy was formulated does not allow the regulation of religious practices.

The complete set of opposing documents is available at: http://goo.gl/oBwoSt

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(FEDSAS is a voluntary association of school governing bodies of public schools and supports quality education in these schools. More than 1800 public schools are already members of FEDSAS).

Issued by Mr Paul Colditz, CEO: FEDSAS, May 3 2015