|a division of Home School Legal Defense Association||May 1, 1997|
The Struggle for the Freedom to Home School
By Christopher J Klicka, Esq.
There are many Christians in South Africa of every ethnic group who are turning to home school their children because of the massive secularization of their school system by the ruling party, The African National Congress (ANC).
Under the old regime, home schooling was illegal, and, in 1994, we helped secure the release of two imprisoned home school parents by flooding the South African Embassy with letters and aided other home schoolers being investigated.
When the new government, led by Nelson Mandela, took power in January, 1995, there were signs home schooling might be legalized. Our hopes were soon dashed as the Ministry of Education and the subsequent special committee of parliament issued reports recommending home schooling not be allowed except in extreme medical situations. We continued to work over the next two years with the South Africans, helping draft possible legislation and corresponding with key members of parliament, committees, and the National Ministry of Education. We lobbied them extensively to recognize the legitimacy of home schooling.
During that time period,HSLDA circulated Issues Alerts, asking home schoolers to write to the U.S. and Canadian embassies. Christian Liberty Academy sent out one of our alerts in their mailings, many state leaders included it in their newsletters, and many more thousands were distributed at conferences. A noticeable shift in favor of legalizing home schooling came about and soon the Ministry of Education issued a revised report very positive of home schooling.
Finally, in November, 1996, due to the combined efforts of South African home school leaders (Leendert Van Oostrum, Graham Shortridge, and Kate Durham) and HSLDA, the parliament included language recognizing home schooling in its National Schools Act. Essentially, the new law is a national discretionary approval of home schooling similar to Massachusetts home school law. Home schoolers have to seek approval of the provincial head of their education department.
Now South African home schoolers are beginning to grow, and the leaders are planning to establish a home school legal defense fund. They continue to solicit our help regarding legal and political strategy.
As a boost to their growing movement, three of us, if God wills, are planning to visit South Africa this July. We will speak in three cities and attend strategy meetings. We also plan to bring one of the South African leaders to the U.S. for our annual home school leaders convention.
Below are details on the background leading up to this point.
In March of 1995, the South African National Ministry of Educations Draft Education White Paper One was released. This document did not even mention home schooling and pushed for licensure of all teachers and compulsory education of all children.
As a result, South African home school leaders mobilized. The South African government received hundreds of letters from South Africans and regular communication from us concerning the position of the Home School Legal Defense Association. We made clear in all our correspondence that home schooling must be protected in South Africa if that country wanted to be recognized as a free nation. We gave them much information on the legal rights of home schooling parents in the United States and Canada. We worked closely with Kenneth Menshoe of the ACDP, one of the opposition parties in the parliament. As a member of parliament, he organized a committee made up of Graham Shortridge, home school leader and president of Theocentric Education; Martha McComb, member of Peter Hammonds Front Line Fellowship organization in South Africa; and several others to draft sample home school legislation in the form of a white paper. We worked on this draft of the ACDP white paper, and it was submitted to the parliament. A letter I wrote was also distributed to every member of the parliament.
Nevertheless, the special committee assigned to draft a report on education legislation issued a report which severely restricted home schooling. This paper was named the Hunter Report after the chairman of the committee.
Issued in August of 1995, the Hunter Report stated specifically in sec. 3.18,
The Committee considered the case for home schools, and concludes that, in view of the importance of the social dimension of schooling, they be recognized only when a provincial head of department is satisfied that a childs distinctive medical or personal circumstances warrant it, and the home school teacher is professionally competent. However, no subsidy should be paid.
If this were to be adopted, it would make home schooling virtually impossible for anyone to practice. This served as the basis of an education bill passed by the National Parliament, but fortunately it was delayed by constitutional challenges from all six opposition parties in the Constitutional Court and had to be revised.
A Plea for Help
Soon after the introduction of the Hunter Report, a plea went out from home school leaders in South Africa. Graham Shortridge stated,
At the moment, the South African Government is very conscious of American opinion, and this is our greatest hope for home schoolers. Mass action in the form of pressure on the South African Embassy in the United States is probably the only way we will get any cooperation from the Education Department, since they ignore our submissions. We appeal to you to lobby on our behalf with the South African Embassy urgently before our new constitution is completed.
We agreed completely with Graham Shortridge that this was the only option left to prevent the South African Government from outlawing home schooling.
HSLDA Releases Nationwide Alert
As a result, we issued an Issues Alert in August, 1995, calling on home schoolers throughout the United States and Canada to contact their South African Embassy in order to let them know that citizens of the United States and Canada are watching them and are extremely concerned about South Africas direction regarding home schooling as indicated in the Hunter Report.
Once before in desperation, we turned to the grassroots home schoolers to help South Africa. On December 14, 1993, Andre and Bokkie Mientjies were sent to prison for home schooling their children under the old government in South Africa. Mrs. Mientjies received a two-year prison sentence; Mr. Mientjies one year. Their children, who refused to attend the government schools, were put in a childrens home by the child welfare department. In early 1994, after we distributed our alert throughout the country, U.S. home schoolers bombarded the South African Embassy in Washington, D.C., with protests contributing to the early release of both Andre and Bokkie Mientjies. Their children were returned to them soon thereafter. I received a letter from the South African home school leaders stating, The help of the American people who contacted the South African Embassy for the Mientjies release was probably the most significant step in the achievement of this objective. Andre Mientjies wrote to me as well stating,
Please be ensured of our profound gratitude for all the support we received during our struggle with the South African authorities concerning the home schooling (upbringing) of our children. The external pressures exerted on the Government contributed very much to our early release from prison, as well as the subsequent court order reversing the removal and forced state re-indoctrination of our children.
The orchestrated efforts of involved officialdom to destroy our family life by means of the divide and rule principle thereby endeavoring to set an example to the rest of the country iro the possible consequences of similar such actions has backfired on them . . . Much has been achieved in South Africa regarding the legalizing of home schooling as a direct result.
We knew that calls to the South African Embassy could make a difference. So regarding the harmful Hunter Report, we sent out an alert to U.S. and Canadian home schoolers, asking them to contact the South African Embassy. Many state home school leaders in turn reprinted our alert in their newsletters and distributed them throughout their states. Many of our attorneys and I were able to attend over a dozen of the large home school conferences in various states over the next four months. Everywhere we distributed the alerts to contact the South Africa Embassy. South African ambassador Franklin Sonn received many letters from home schoolers. The letters had an impact.
Our campaign contributed to a major shift in policy. On November 24, 1995, the Draft Education White Paper Two was issued by the South African National Ministry of Education in Pretoria in response to Hunters Report of the Committee to review the Organization, Governance and Funding of Schools of August 31, 1995.
The Draft Policy White Paper Two contained the first official sign in recent history that the government intended to recognize home schooling. It made a complete about-face on the issue of home schooling from Draft Policy White Paper One, issued back in March. It also indicated a major shift from the Hunter Report of August, 1995. The new White Paper Two stated specifically,
Home schools are evidently a specific case of independent schools. While the Hunter Reports regard for the social dimension of schooling is well founded, it perhaps gave insufficient attention unto the variety of circumstances in which home schooling might be a reasonable option for a child or a family, and for the rights of parents in certain circumstances to prefer home schooling, supplemented by distance education technology, for instance. The Ministry is aware of many international precedents for the recognition of home schooling and considers that the relevant laws of other countries be examined to determine the most suitable framework for the recognition of home schooling in this country.1
This was an extremely significant development for South African home schoolers. A glimmer of hope was beginning to shine. Leendert van Oostrum, home school leader in South Africa and professor at Pretoria University, wrote a letter to me,
We praise the Lord! The latest draft white paper on education was published by the National Ministry for Education on Friday, 24th of November. It contains the first official indication in the history of South Africa that the government may provide for home schooling as a normal educational option. It does more than that. It states that the government is investigating legislation in other countries to find a model that is suitable for South African circumstances. This is indeed a historic breakthrough. Not that we should be deceived, it is evident that the intention is to restrain home schooling as much as they can get away with.
This is because [the government is] not making these concessions of [its] own volition. Ive studied the document very carefully and asked questions on a radio program the day the white paper was released. The only reason I can find for the change of tune is the international pressure that has been brought to bear on them on the initiative of HSLDA. None of the considerations have changed since their previous position was announced [in March]. The white paper admits, in so many words, that the comparative juris prudence, reflected in recognition of home schooling in other countries, is their main consideration for adopting a broader view on the matter. It is therefore to HSLDA and other groups and individuals, mainly in the U.S. but also in other countries, that we owe this breakthrough.
Please accept our profound gratitude.
However, Professor Oostrum realized the war was not yet won and the pressure must continue on the South African Embassy if home schooling was to be protected:
The magnitude of this event must not be underestimated. Home schooling is the only aspect in which the government has made any concessions in the latest white paper. In all other respects, it has chosen those options which give it more control. We therefore accept that the battle is not won. The tide is turning, but it is very far from going out yet. It is evident that the government has conceded this ground very grudgingly, and will do its best to implement the most restrictive model they can find . . . it would therefore seem that our field of battle will remain in the constitutional court on one hand [where the opposition parties are challenging the education bill] and in international support for our struggle on the other hand [which would be the letters from the United States].We can make a difference and affect policy in South Africa.
My analysis above would suggest that sustained pressure from members from HSLDA and other persons in the U.S. and elsewhere is of crucial importance. It would also seem that direct response from abroad on the matter of socialization, as raised in the White Paper Two of November 24, may be very effective to dislodge the government from its new trench. The Lord has granted us a victory in this battle. Most of all, we need the prayers of Christians that we may be able to sustain our efforts for the remainder of the war.
Another Nationwide Alert
We responded once again to the request of the South Africans and another updated Issues Alert on South Africa was launched. Hundreds of letters hit the embassy.
In addition to the Alert, we prepared about 25 letters and packets for every member of the Education Committee in Parliament explaining the benefits of home schooling and urging the passage of a good law.
The South African home school leaders hand-delivered the packets to all members of the committee and testified at a hearing. The result was amazing. Every member of Parliament who was a member of an opposition party including F.W. DeKlerk (the former president), supported our language. However, the ANC, the majority party, blocked it.
National Schools Act of 1996
Nonetheless, by Gods grace, in November, 1996, the South African Parliament enacted the National Schools Act, which includes formal recognition of home schooling. Although the law is an approval law, it is a good start. The law reads:
Registration of a learner for education at home. 51. (1) A parent may apply to the Head of Department [in the province] for the registration of a learner to receive education at the learners home. (2) The Head of Department must register a learner as contemplated in subsection (1) if he or she is satisfied that (a) the registration is in the best interest of the learner; (b) the education likely to be received by the learner at home (i) will meet the minimum requirements of the curriculum in public schools (ii) will be of a standard not inferior to the standard of education provided at public schools; and (c) the parent will comply with any other reasonable conditions set by the Head of Department.
Now that the national recognition of home schooling has been achieved, the battle shifts to the provinces. Home schoolers need to persuade each provincial ministry of education to adopt regulations which will maximize the freedoms of home schoolers and reduce the arbitrary discretion of public school officials.
Regulations drafted to reflect the following would provide maximum freedom:
The home school parent must file an annual notice of intent to home school which shall include an assurance that reading, writing, math, science, and history will be taught. The family must administer standardized testing to their children beginning in the 3rd grade and every other year thereafter. Testing records shall be retained by the parent for three years.
Possible Constitutional Defenses of the Right to Home School
In December 1996, the Constitution of the Republic of South Africa was enacted making it the supreme law of the Republic.
Chapter 2 of the Constitution is the Bill of Rights. In chapter 2, Sec. 15 (1) Everyone has the right to freedom of conscience, religion, thought, belief, and opinion. In Chapter 2, Sec. 16 (1) Everyone has the right to freedom of expression which includes . . . freedom to receive or impart information or ideas.
The right to freedom of religion could possibly be used by home schoolers to defend their rights by demonstrating that they are required by God to teach their own children. The right to impart information to their children through home schooling also could be raised.
Education is discussed in Chapter 2, Sec. 29 (3):
Everyone has the right to establish and maintain, at their own expense, independent educational institutions that (a) do not discriminate on the basis of race; (b) are registered with the state; and (c) maintain standards that are not inferior to standards at comparable public educational institutions.
Under this provision, home schoolers could conceivably establish independent educational institutions that meet the three conditions: no race discrimination, register with the state, and have a comparable curriculum not inferior to public schools.
There are two optional ways to home school under the legal covering of independent educational institutions.
First, a group of home schoolers could elect a school board and then choose one parent to be the administrator of the school. The person would implement certain accountability standards and keep academic and attendance records. The home schooled children would enroll in this school but actually be taught at separate campus sites which would be located in their individual homes. The teachers would, of course, be the parents. Only the school would have to register with the state.
This independent educational institution could charge a small fee for administrative costs. The school could adopt a policy to interview all new home school parents and review their curriculum to make certain it is not inferior to the public school standards. Organized field trips, special group classes, testing services, and record keeping could be offered.
The second option uses existing private schools. If home schoolers did not want to form their own schools, they could use existing private schools which could act as an umbrella covering for them. Home schools would act as campuses of their parent school. The parents would be the teachers and their children would be the only students. Many of the same accountability standards could be used as described under the first option.
Establishing private schools comprised of home schoolers or covering home schoolers as described above are popular legal alternatives practiced throughout the United States. They have withstood many legal challenges and are commonly practiced in 18 states. Graduates of these programs are faring well in both higher education and the workforce.
A number of additional sections in Chapter 2 of the Constitution of South Africa could be used to support these types of independent educational institutions for home schoolers.
In Sec. 39 (1), when interpreting the Bill of Rights, a court may consider foreign law. The case precedent and statutes in the United States which uphold home schools as private schools could be used to help direct South African Courts.
Furthermore, in Sec. 39 (2) courts must promote the spirit, purpose, and object of the Bill of Rights when interpreting legislation. The spirit and object of the Bill of Rights in this area is declared in Section 29, Everyone has a right to a basic education. A basic education clearly would be achieved by home school independent educational institutions.
When limiting any of the Bill of Rights, the existence of a less restrictive means to achieve the purpose needs to be taken in to account [Chap. 2, Sec. 36 (1)]. If Provinces try to unreasonably restrict independent educational institutions, such laws could be challenged as not the least restrictive means. These provisions also could help protect the South African home school parents right of freedom of religion to choose this educational option.
One final section no doubt will be a factor for either good or ill. In Chapter 2, Sec. 28, the rights of children under 18" are recognized. It declares a childs best interests are of paramount importance in every matter. If South African studies on home schooling are conducted, the success of home schooling will clearly demonstrate the best interest of the child is being met. Since the Constitution is newly acted, there is much opportunity to use it to protect parental rights to choose home schooling independently or as part of an independent educational institution.
A Short History of South Africa
It is interesting to note that South Africa as a nation began very close to the same period of time as our pilgrim forefathers came over from Europe to the shores of the United States. Similarly, European pilgrims migrated to South Africa for many of the same reasons. On April 6th, 1652, Jan van Riebeeck, a Dutchman, arrived on South African soil. Along with his 90 men, he attempted to tame the wilderness in Table Valley, build a fort and hospital, and provide meat and fresh vegetables for passing ships. He became successful only after his employer, the Dutch East India Company, lifted its heavy restrictions on the group, allowing a system of free burghers to develop. These burghers were encouraged to settle at the Cape and were permitted to own land and freely farm it.
As the years went by, processes of expansion into the interior by the settlers gradually evolved. In 1688, 150 French Huguenots, fleeing France because of religious persecution, arrived and strengthened the ranks of the free farmers. It was not long before the farmers experienced chronic overproduction of wheat and wine, which continued through the entire 18th century.
A local patriotism soon developed among the settlers and the term Boer (Farmer) was elevated to a badge of honor. Boer was synonymous with Afrikaaner, and it denoted a people reared on South African soil and instilled with a patriotism centered in the new homeland into which they were carrying the cultural values of Western Europe. After a few years, these Afrikaaners even formed their own unique language, completing their new identity.
It is interesting to note that the Dutch were not invaders to the cape who forcibly removed the settlements of the blacks and replaced them with their own. On the contrary, there were no settlements of blacks in that region. The European settlers did not meet a black man for the first 120 years!
As the white farmers migrated into the interior, the blacks in the north simultaneously migrated southward. This resulted in several clashes between the black tribes and the Afrikaaners. In addition, British imperialism was beginning to grow, and by 1811 the Cape went to Great Britain by formal cession. Thousands of British immigrated to South Africa and brought with them British rule. As a result, the Great Trek of 1835-37 by Boer farmers marked an intentional move by thousands of men and women, who left their homes at great personal sacrifice in order to put as much distance as possible between themselves and the British government at the Cape. After a few clashes with the Zulu tribe which they met during their trek, the Afrikaaners quickly learned to coexist with the Zulu.
This break away from English domination was accelerated and consolidated by two wars of independence (the Boer Wars) waged against the British Empire. Few people realize that these two wars were the first major struggles in Africa for emancipation from colonial rule. In fact, Afrikaaner nationalism was the first coherent nationalist movement of the continent of Africa. Unfortunately, the Boers were defeated, losing 6,000 men in action and an additional 26,000 Boer women and children who died in British concentration camps. The horrible conditions in the concentration camps causing the death of the 26,000 innocents remains a dark time in British history. The price the Afrikaaners paid in their attempt to gain freedom was certainly costly. It was not until 1961 that a totally independent republic was realized with the establishment of the Republic of South Africa.
There is no doubt that, despite their diverse European origins, these settlers evolved a nationhood and distinctive identity of their own, much like our own forefathers did North America. Today approximately 21 million people with diverse origins and languages live side by side in relative peace. These people comprise five million whites, two million coloreds, 800,000 Asians, five million Zulu, two million Xhosa, three million North and South Sotho, two million Tswana, and two and a half million representing smaller nationalities.
The religious dimension of the pilgrims and settlers of South Africa is extremely important. Many of them were fleeing religious persecution from other countries and founded their nation on many Christian principles. Those same Christian principles are also being eroded in the present government as a secular education system is being imposed through public education. Ninety-eight percent of the children in South Africa will soon be under the system.
1 Also in the draft policy White Paper Two, the South African Minister of Education indicated that all state-aided schools, including church schools, will be combined with public schools. There will remain in South Africa only two categories of schools instead of the dozen or so categories at the present time. Those two categories will be the public schools and the independent schools. Independent schools will be those schools which do not receive state monies. The remaining schools will be completely controlled as public schools. This is yet another warning to home schoolers in the U.S. who support the various school choice proposals (vouchers, charter schools, etc.)