ConCourt examines school pregnancy policies

2013-03-05 17:17

The Constitutional Court has been asked to ditch the pregnancy policies of two Free State schools, which allow them to bar pregnant girls from attending school.

The court today heard argument in yet another case in which the tensions between the education department and the governing bodies of public schools played itself out.

The governing bodies of the two schools involved, Welkom High School and Harmony High School, have both adopted policies that allow for the automatic exclusion of pregnant learners from school.

The governing bodies were successful in having the Free State High Court interdict the education department’s head of department (HOD) from interfering with the policies, which was subsequently confirmed by the Supreme Court of Appeal.

This was after the HOD had written to the principals of the two schools asking them to override the policies.

Advocate Johan du Toit, appearing for the two governing bodies, today argued that the forced absence of pregnant girls from school was not a disciplinary measure.

“It is a practical, medical, emotional and psychological measure which also takes into account other learners at the school,” said Du Toit.

But Advocate Matthew Chaskalson, appearing for the Free State department of education, said Du Toit’s argument was “not borne out by the facts”.

Chaskalson quoted the first line of one of the policies, which said that the policy was a result of government urging schools to “take a tough stance” on teenage pregnancy, which he called “punitive language”.

Chaskalson said this was not a case of the state bringing its power to bear against a private individual, but that the HOD had intervened “to protect the minor children’s rights and to ensure that no departmental employees (principles) violate the children’s rights”.

He argued that this was in keeping with the transformative ethos of the Constitution, which was “not a classical liberal Constitution where the state is seen only as the enemy of liberty which must be countered at every turn.”

Rights organisations Equal Education and the Centre for Child Law have meanwhile asked the Constitutional Court to declare the policies unconstitutional entirely.

Advocate Nasreen Rajab-Budlender, appearing for the Centre for Child Law, said their case was “not so much” about who the court decides can make a decision on pregnancy, but rather that the policies themselves were “inflexible, rigid and don’t take into regard the best interests of the child”.

“(The girls), despite being pregnant ... remain children themselves and are entitled to this court’s protection,” she said.

An argument about the constitutional validity of the policies was not raised in the Free State High Court or in the Supreme Court of Appeal, because those cases dealt solely with whether the HOD’s interference in the cases had been lawful.

Rajab-Budlender said that children who left school to give birth, especially those from poor backgrounds, were unlikely to return to school.

She said that both the policies in question “only punish the girl”, adding that the Welkom High School policy places “an onus on the girl to prove that a fellow male learner is the father but it is clear that he certainly wouldn’t be excluded (from attending school)”.

She argued that this discriminated against girls on the grounds of pregnancy, which is expressly prohibited in the equality clause of the Constitution.

Both girls in the present case were allowed to continue with their schooling.

The court reserved judgment in the case for a later date.

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