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University of the Western Cape University of the Western Cape EXCLUSION BY DESIGN: A CONSTITUTIONAL ANALYSIS OF ADMISSION POLICIES AND PRACTICES IN SELECTED CAPE TOWN SCHOOLS BERNITA ISAACS (Student number: 8531486) A thesis in fulfilment of the requirements for the degree of Magister Educationis (M.Ed.) Department of Educational Studies University of the Western Cape Supervisors: Dr. Neetha Ravjee and Dr. Chesné Albertus 2019 http://etd.uwc.ac.za/ KEYWORDS Access to Education Inclusive Education Exclusionary Policies Exclusionary Practices Education Equality Ability Testing Social Difference Education Rights Critical Education Theory State obligation i http://etd.uwc.ac.za/ ABSTRACT School admission policies are powerful tools that can sometimes contain provisions that are in conflict with the Constitution of the Republic of South Africa and other legislation and policies which regulate education in South Africa. Provisions relating to fees, documents required for admission and specific admission practices may have the effect of excluding certain learners from admission to schools. Such practices include charging application fees, charging registration fees, administering admission tests and demanding only specific documents for proof of address. On the face of it, these practices may seem unproblematic, but in effect, they exclude certain learners. This may be contrary to South African Law. Section 36 of the Constitution allows for the limitation of rights. Differentiation or discrimination may be permissible; however, it is unfair discrimination that is prohibited. Consequently the constitutionality of these policies and practices investigated are measured against the protection afforded by the Constitution. This study identifies some of these exclusionary provisions and practices at schools and proposes possible ways to eradicate and combat them. Because the exclusion of learners, whether through school admission policies or practices, may unjustifiably encroach upon the rights of such learners, this is an investigation into a legal issue and a legal theoretical lens must, therefore, be used to address this phenomenon. This qualitative study thus determines whether or not, and if so, how school admissions policies function to exclude learners from schools. The research is based on the comparative analysis of various public documents including the Constitution; legislation; judicial decisions; awards of cases of the Education Labour Relations Council (ELRC) and policies of the Western Cape Education Department school admission policies and practices from five high schools and five primary schools in the Western Cape were sampled and analysed. The focus of the research is public schools in the Western Cape Province including specialised schools referred to as focus schools. ii http://etd.uwc.ac.za/ ACKNOWLEDGEMENTS This thesis is dedicated to my father and late mother. I would like to acknowledge and extend my heartfelt gratitude to those who have made the completion of this thesis possible. Thank you to my husband, David, for your love, patience and continuous support. Thank you to my children, Meagan and Jason, for making my task easier. Thank you to my brother, George van der Berg, for all your technological assistance at the most awkward times. Also thanks to my two supervisors, Dr. N. Ravjee (Faculty of Education) and Dr. C. Albertus (Faculty of Law) for your encouragement, suggestions and valuable experience. iii http://etd.uwc.ac.za/ DECLARATION I declare that Exclusion by design: A constitutional analysis of admission policies and practices in selected Cape Town schools is my own work. It has not been submitted before for any degree or examination in any university. All the sources I have used or quoted have been acknowledged and indicated as complete references. Bernita Isaacs Date: August 2019 Signed: ……………………… iv http://etd.uwc.ac.za/ GLOSSARY OF TERMS BOR Bill of Rights CAPS Curriculum and Assessment Policy Statements CEM Department of Education Ministers CEMIS Central Education Management Information System CRC Convention on the Rights of the Child ECD Early Childhood Development ELRC Education Labour Relations Council FET Further Education and Training GRADE-R Grade Reception MEO Multiple Examination Opportunity PEPUDA The Promotion of Equality and Prevention of Unfair Discrimination Act SASA South African School Act 84 of 1996 SGB School Governing Body WCED Western Cape Education Department ps MEO Gg v v http://etd.uwc.ac.za/ LIST OF TABLES Page Table 1 National table of targets for the school allocation……………………... 30 Table 2 Conflicting provisions found in admission policies and admission practices 74 Table 3 List of social and economic rights and civil political rights………. 79 vi http://etd.uwc.ac.za/ TABLE OF CONTENTS KEYWORDS ..................................................................................................................................... i ABSTRACT ...................................................................................................................................... ii ACKNOWLEDGEMENTS ............................................................................................................. iii DECLARATION ............................................................................................................................. iv GLOSSARY OF TERMS ................................................................................................................. v LIST OF TABLES ........................................................................................................................... vi CHAPTER 11 INTRODUCTION AND OVERVIEW OF THE STUDY ON ACCESS TO SCHOOLS IN THE WESTERN CAPE1 1.1 INTRODUCTION .................................................................................................................. 1 1.2 BACKGROUND AND RATIONALE ................................................................................... 2 1.3 PROBLEM STATEMENT ..................................................................................................... 9 1.4 METHODOLOGY ............................................................................................................... 10 1.4.1 Research Design............................................................................................................. 10 1.4.2 Data Collection .............................................................................................................. 10 1.4.3 Data Analysis ................................................................................................................. 11 1.4.4 Research Ethics .............................................................................................................. 11 1.5 LIMITATIONS OF STUDY ................................................................................................ 11 1.6 OUTLINE OF STUDY ......................................................................................................... 12 CHAPTER 2 ACCESS TO SCHOOLS: THE LEGAL AND SOCIAL LANDSCAPE 2.1 INTRODUCTION ................................................................................................................ 13 2.2 INCLUSIVE EDUCATION ................................................................................................. 14 vii http://etd.uwc.ac.za/ 2.2.1 Inclusivity attempts by enforcing legislation ................................................................. 17 2.2.2 Separate schools for learners with barriers .................................................................... 20 2.3 EXCLUSION OF LEARNERS ............................................................................................ 22 2.3.1 Testing of learners as an admission criterion in focus schools and non-focus schools . 23 2.3.2 Subject choices at focus schools and non-focus schools .............................................. 26 2.3.3 Focus schools infringing on other learner‘s right to basic education ............................ 27 2.4 POST-1994, MORAL-LEGAL DILEMMA ........................................................................ 29 2.4.1 Funding for schools........................................................................................................ 29 2.4.2 Establishment of Focus schools ..................................................................................... 32 2.4.3 School admission and authority ..................................................................................... 33 CHAPTER 3 EXCLUSIONARY SCHOOL PRACTICES AND POLICIES THROUGH A LEGAL LENS: THE METHODOLOGY 3.1 DATA COLLECTION ......................................................................................................... 38 3.1.1 Legislation...................................................................................................................... 38 3.1.2 Case law ......................................................................................................................... 39 3.1.3 Policies of Western Cape Education Department (W.C.E.D) ....................................... 39 3.1.4 Education Labour Relations Council cases (ELRC) ...................................................... 40 3.1.5 School Admission Policies and application forms......................................................... 41 3.2 DATA ANALYSIS ............................................................................................................... 41 3.3 RESEARCH ETHICS ..........................................................................................................
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