Abstract

BECKMANN, Johan. The educational cultural diversity imperative of the Constitutional Court: Attractive destination on the other side of an uncharted minefield. Tydskr. geesteswet. [online]. 2017, vol.57, n.4, pp.897-923. ISSN 2224-7912.  http://dx.doi.org/10.17159/2224-7912/2017/v57n4a3.

Culture and education are inextricably linked and education is one of the spheres in which an individual person or a collective may practise their closely-related rights to culture and freedom of expression. Different role players in education all have cultural rights and culture can have a beneficial or negative effect on the functioning of an educational institution and, consequently, on the realisation of cultural and educational rights. Because culture is an emotional issue linked to a person's concept of self-worth and may be misused to discriminate against people, members of a school community could easily feel that their cultural rights are threatened and culture-based conflict often ensues. A culturally homogeneous country is not as prone to endemic cultural conflict as a culturally deeply diverse country like South Africa. In South Africa, cultural rights and the expression and practice thereof are regulated by constitutional and other laws designed to ensure harmony in this regard. Nevertheless, cultural conflict often arises in South African schools and is sometimes even escalated to the courts. The functioning of schools is sometimes disrupted by culture-based conflict, of which the recent protests about the regulation of girls' hairstyles in some schools is an apt example. The well-known Pillay case ensued from disciplinary measures a well-known girls' school took against a girl who wore a nose stud contrary to the school's dress code to demonstrate her solidarity with her cultural heritage. In this Constitutional Court case the school's action was set aside. In the judgment, Chief Justice Pius Langa said that the exercise of religion and culture in schools was something to be celebrated and not feared. He said that the more learners feel free to express their religions and cultures in school, the closer we come to the society envisaged in the Constitution. To his mind the display of religion and culture in public was not a "parade of horribles" but a pageant of diversity which will enrich our schools and also our country. The celebration of diversity in all schools sounds like an attractive proposition but it is most likely not as easy to achieve as the Chief Justice might have hoped. I will discuss the problems associated with the achievement of the Chief Justice's idea by firstly discussing some of the dimensions of the elusive concept culture, using legal and other perspectives. I refer to the National Policy on the South African Standard for the Principalship (2016) of the Department of Basic Education which declares that all good South African school principals embrace and practice the principles of ubuntu in their management and leadership practices. This preference could marginalise all other cultures in the leadership and management cultures of South African schools. I surveyed the literature and came to the conclusion that, regarding cultural diversity, one may distinguish a Western and an African culture (in the form of ubuntu) in South African society without discriminating unfairly or encouraging conflict. I discuss the implications of the assumption that one may distinguish two broad cultures in South Africa despite the fact that there are countless variations of each and that one probably needs to speak of forms of ubuntu instead of referring to this notion in the singular. In particular, educational leaders are sometimes confronted by a choice between obeying the norms of a culture or legal principles when they have to handle conflict emanating from culture. Naturally, this causes tension and one can understand why some managers sometimes choose cultural principles over legal ones, especially in light of the fact that there do not seem to be many legal consequences for doing so. In conclusion, I discuss a case study from the literature. The case deals with the sexual abuse of girls by educators and asks why parents and educators remain silent about this phenomenon even though they know it is an infringement of several rights of the girls in question. The case is also an illustration of the fact that the rights of vulnerable minority groups (in this case, school girls in a rural setting) can be violated because people make decisions informed by cultural norms and not by the law. Such decisions inevitably impinge on the girls' rights to education and to have their best interests guide decision making in education and they also indicate that people may sometimes offer or use culture as a defence against allegations of wrongful deeds. From the case study, it is clear that educators and parents sometimes deliberately choose to obey cultural and not legal norms even though their decisions will undoubtedly have deleterious effects on the girls' futures. I hope to discuss more instances of the problematic conundrum of culture, the law and the educational interests of children in a follow-up article. I believe, that much needs to be done before Chief Justice Langa's ideal can be attained. Many people will have to be empowered in many ways before justice can be done to the expression of cultural rights in education. It is clear to me that we will have to traverse a proverbial minefield without a roadmap to reach the ideal.

Keywords : Culture; diversity; ubuntu; cultural norms; cultural imperative; traditional African culture; Western-positivist culture; tension between the law and culture; vulnerable groups; cultural pressure on decisions.

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