The Protection of Public Schools with a Religious Ethos in South Africa against the Background of Zylberberg v Sudbury Board of Education

• Jurisdiction: South Africa
• Author: S A de Freitas
• Date: 27 May 2019
• Published date: 27 May 2019
• Pages: 424-443
• Citation: (2017) 28 Stell LR 424

THE PROTECTION OF PUBLIC SCHOOLS

WITH A RELIGIOUS ETHOS IN SOUTH

AFRICA AGAINST THE BACKGROUND OF

ZYLBERBERG V SUDBURY BOARD OF

EDUCATION

SA de Freitas

BProc LLB LLM LLD (UFS)

Associate Professor, Department of Public Law, University of the Free State

1 Introduction

A pro-atheist group1 submitte d an application t o the High C ourt of South

Africa i n 2014, seeking a declaration of u nconstitutionality, directed at

some prim ary and seconda ry public schools that promote adherence to only

one (or predominantly one) religion. The said Court delivered judgme nt i n

June 2017 which, in the main, op poses a public school’s promotion of only

one (or pr edominantly only one) religion to the exclusion of other s.2 In th is

regard, the South African judiciar y was confronted with arguably one of the

most substant ial challenges to date regarding the position to be taken on the

relationship between religion and the public sphere. T his gains in importance

when reminded of the South Af rican Constit utional Cour t’s emphasis that

it does not follow the r igid separ ation of church and state as exemplied

in American ju risprudence.3 W hat arises as a popu lar and inuent ial

comprehension in case s of this sort, is that a public school that has a specic

* The author also serves as an Adjunct Profe ssor at the School of L aw, University of Not re Dame Austr alia

(Fremantle ca mpus – Sydney).

1 Going by the a cronym of OG OD that tr anslated int o English, s tands for t he “Organi sation for Relig ion

Education and D emocracy”.

2 Organisasie vir Gods dienste-Onderrig e n Demokrasie v Laërsk ool Randhart GPJHC 27-06 -2017 case

no 29847/2014. At the t ime thi s article was a ccepted for publicatio n, judgme nt by the said Court was

still pending. I rrespective, the sa id approach taken by the H igh Cour t has b olstered t he relevance and

urgency of thi s article rega rding an arg ument for the inclusion of religion in t he sense of a religious

ethos (and not only r eligious obser vances) in the public d omain, more specifical ly pertai ning to p ublic

schools. A lthough t he said j udgment al lows for rel igious obser vances ( based on free an d voluntar y as

well as equitable measure s), fact r emains that acco rding to the findings of the Court, a public school

may not promote (interna lly or external ly) one religion ove r another or come fort h as exclusively (or

predomina ntly) a school wi th a specif ic religious e thos. This also introdu ces implicatio ns related to the

inclusion of “speci fic religious cont ent” within the various d isciplines taug ht at school.

3 See S v Lawrence, S v Negal, S v Solber g 1997 10 BCLR 1348 (CC) par a 118 where O’ Regan J com ments

that, “[i]t is clea r from … particu larly ss 14 (2) and (3) [of the South African I nterim Const itution (which

is simil ar to s 15 of the fi nal South A frican Co nstitution)], that the stri ct approach of the Unite d States

Supreme Court to th e provision s of the Fir st Amend ment of the Constitution of t he Unite d States of

America in rela tion to the separatio n between state and relig ious bodies has been avoide d …”. Of interest

is that s 3 of Sout h Africa’s National Polic y on Religious Educa tion in Schools GN 1307 in GG 25459 of

12-09-2003 also r eflects the sa me understand ing.

424

(2017) 28 Stell LR 424

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religious et hos4 and which excludes (exempts) learners who do not subscribe

to such a relig ious ethos, is said to v iolate cer tain rights of tho se learners who

do not subscribe to such an ethos. C oupled with this is the underst anding

that the public sphere ought to be viewed as non-partisan t o any selected or

prioritised form of religious expr ession (and therefore “neutral”), and where

government should not be seen as positively and explicitly further ing any

specic religion. Consequently, the view is taken that religion should in many

instances be relegated to the private sphere. This for ms part of a liberalism

tha t is supp orti ve of a rigi d separ ation bet ween re ligion and the pu blic sp here.5

Although the said judgment does not support an absolute relegation of religion

to the private sphere, fact remai ns that it supports the exclusion of an ethos in

a public school that is connected to a s pecic religion, which in tu rn implies

limitations placed on religion in the public sphere that consequently counters

a deeper sense and applicat ion of true diversity.

Bearing t he above in mind, th is article argues i n support of the prote ction

of a public school’s religious ethos in t he context of the attai nment of a higher

level of diversity in a democratic society such as South Africa. In fur therance

of th is argument, underpinning views in support of a substantive i nclusion

of religion i n public schools are presented, followed by a critical look at the

approach taken by the Canadian Superior Cour t of Ontario judgment of

Zylberberg v Sudbur y Board of Education (“Zylberberg”)6. Emanating from

this ar e additional insights to be taken cognisance of in support of the ever-

challenging endeavour toward s higher levels of freedom of d iversity for the

South African context (and other demo cratic and plural societies).7

2 The furtherance of diversi ty in the protection of a public

school’s religious ethos

Any public school that ad heres to a specied religious ethos in a liberal

and democratic society has the potential of being challenged by those learners

(and their parents) who do not subscribe to such an ethos. The approach taken

by a number of de mocratic states that p ride themselves on democracy and

4 Religious “ethos” in this reg ard refer s to a school where b oth religi ous obser vances a nd confes sional

religious e ducation regard ing a speci fic religion are included against the background of a public scho ol

that i s allowed to promo te a specific religion a nd hold itself out to be a sch ool that is con nected t o a

specific religion or a school that is predominantly connected to a specific religion. This also implies the

inclusion of religious spec ific knowledge in the variou s disciplines taught at school. Bea ring this in mind,

it would be difficult to thin k otherwise regarding the meanin g that should be ascrib ed to the ethos of a

school as it pert ains to that whic h comprises the ess ence and the chara cter thereof.

5 Michael Sandel refers to a “minima list liberalism” whic h expressly views the governme nt as having to be

neutral in its governanc e over the communit y. These minimalist liberal s “insist that we set moral/religious

obligations aside when we enter the pu blic domai n” MJ Sandel Democracy’s Discon tent. Ameri ca in

Search of a Publi c Philosophy (1996) 18-19. Not su rprisingly, the fi rst case in the US Supre me Court

expressing the importance of n eutrality concerned a d ispute rel ated to religious rights and f reedoms,

MJ Sandel “ Religious Liberty – Free dom of Conscience or Freedom of Choice?” (1989) Utah L Re v

597 599. Ever since, ma ny constit utional socie ties followed in the wake of t his approa ch. Sandel aptly

adds that, “In liberal political thought, religion offers the paradigmatic case for bracketi ng controversial

conceptions of t he good” Sandel (1989) Utah L Rev 599.

6 1988 CanLII 189 (ON CA).

7 This is of added relevance to the South Af rican context as the South African j udiciary gene rally has a n

affinit y to Canadian ju risprudenc e regarding such con stitutional mat ters.

PUBLIC SCHOOLS WITH A RELIGIOUS ETHOS 425

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