In 2015, parents accused Curro's Roodeplaat school, north of Pretoria, of dividing children into classrooms along racial lines. An investigation by the Gauteng department of education found the accusation to be true, and Curro apologised. Despite this, allegations of segregation and racism have since occurred at other Curro-owned independent schools.
In 2016 in Uganda, the education ministry ordered the closure of more than 60 schools operated by Bridge International Academies, a global chain of low-fee private schools with origins in Kenya. The ministry claims that Bridge failed to comply with curriculum standards, hired unqualified teachers in its schools and provided unsanitary spaces for learning and teaching.
In Oakland, California, 24 public schools located in mostly low-income areas currently face closure as a result of budget cuts, while the number of charter schools (publicly funded independent schools) in those areas continues to grow. In fact, research shows that about $57m (R842m) was diverted to charter schools annually from public schools in the Oakland school district. The district has 44 charter schools and 86 public schools.
These are not isolated examples. The increasing involvement of non-state actors in the ownership and management of schools has brought with it a range of concerns relating to equity, access, quality and equality in education. The Equal Education Law Centre (EELC) sometimes assists clients where private schools prejudice pupils because of the actions of their parents. Private schools do this by, for instance, withholding reports, refusing to provide transfer documents or expelling learners for the non-payment of fees.
Later this year, the Constitutional Court is expected to hand down judgment relating to an appeal in which it had to consider whether it is constitutionally permissible for a private school to terminate the school's contract with the parents without affording the pupils an opportunity to be heard. Equal Education (EE), represented by the EELC, was admitted to the case as a friend of the court. In its submissions, EE highlighted the demographic shift in the local independent school sector, "from being mainly white and serving the rich to being mainly black" with "the majority of schools now serving low- and middle-income learners". EE also noted that the contractual clause on which the school relies is replicated across many independent schools attended by children from marginalised backgrounds, and so has wide-reaching, detrimental consequences.
These cases compel us to look at questions like when and how can private actors legitimately seek to provide basic education and, when they do, what type of state support or regulation should they expect? What limits should be put on private actors' involvement in education so that it does not infringe on the right to education? How should states be held accountable for ensuring these limits are not traversed?
Across jurisdictions, when it comes to the involvement of private actors in education, and the role of states in regulating such involvement, tension and uncertainty reign. The dominant tension exists between state obligations to ensure the protection and provision of public education, and the liberties to establish and choose a private school. Uncertainty lies in the lack of adequate guidance on the limits of private involvement in education and the obligations of states to regulate this. Late last year, the UN Committee on Economic, Social & Cultural Rights adopted its concluding observations on the South African government's initial report to the committee, noting this uncertainty and the lack of guidance on the roles and responsibilities of private actors in education in SA. The committee recommended that SA intensify its efforts to improve the regulatory framework.
What limits should be put on private actors' involvement in education so that it does not infringe on the right to education?
— Daniel Linde and Rubeena Parker
Education role-players and stakeholders are therefore in need of a tool to provide clarity and to navigate this tension. This is certainly the case in the Western Cape, where earlier this year, despite critical concerns previously raised by EE and the EELC, provincial education law was amended to introduce, as new "types" of public schools, "collaboration schools" and "donor-funded public schools".
"Operating partners" in the case of collaboration schools, and donors in the case of donor-funded schools, are afforded significant representation and governance powers in public schools, without adequate mechanisms of accountability and transparency.
The recently published Abidjan Principles, which are guiding principles on the human rights obligations of states to provide public education and to regulate private involvement in education, offer promising guidance to states and other actors when navigating growing privatisation in education, in accordance with human rights obligations and standards.
The principles provide an authoritative record of the applicable international human rights legal framework in a single, easily navigable document. They also offer clear reference points for states working to comply with their obligations to realise the right to education in the context of growing private involvement in education, and for those wanting to hold states accountable for doing so.
The Abidjan Principles are the product of nearly four years of discussions and legal debate. A group of organisations comprising Amnesty International, the EELC, the Global Initiative for Economic, Social & Cultural Rights, the Initiative for Social & Economic Rights and the Right to Education Initiative convened a range of consultations on the challenges which countries face in realising the right to basic education.
The real success of the Abidjan Principles will be measured by the capacity of stakeholders across government, unions and civil society, as well as in the private sector, to embrace the spirit of the principles, laws and obligations captured therein, and to utilise the document as a living tool for advocacy and the realisation of the right to basic education.
• Linde is the former deputy director at the EELC, and Parker is a senior researcher at the centre
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