The Right to Education in South Africa

I had the privilege of being able to travel to South Africa this summer to present a paper at a conference examining education under the South African Constitution, a constitution less than 20 years old at the moment.  To illustrate the "youth" of the constitution: while there, I had the opportunity to meet and dialogue with one of the "Framers," Justice Albie Sachs.  It was surreal to be able to do so after studying American constitutional law for a number of years. 

I will discuss a few features of the South African Constitution's approach to education in some upcoming posts, but I thought I would begin with the most basic difference between education as a constitutional matter in South Africa and education as a constitutional matter in the United States: education in South Africa is an explicit, individual constitutional right.  Section 29 of the South African Constitution's Bill of Rights declares that "Everyone has the right--to a basic education, including adult basic education; and to further education, which the state, through reasonable measures, must make progressively available and accessible."  The United States Constitution contains no language even hinting at such a right, and the American state constitutions--from which the voluminous case law on school finance and ostensible "education rights" emanates--are also devoid of such language (with the notable exception of the North Carolina Consitution). 

Yet, there are growing calls for the South African Constitutional Court to look to American school finance litigation in interpreting the education rights found in that country's constitution. My most recent article argues that the approach should be more nuanced, recognizing that (1) American school finance cases have never really enforced anything like an individual right to education, despite a good deal of rhetoric to the contrary; (2) the South African Constiution's "basic" education right is clearly an immediate, individual entitlement, and should be enforced as such, even through individually tailored remedies; and (3) the South African Constitution's "further" education right is much more legislative duty than individual right, and it therefore can be enforced similarly to the education clauses in American state constitutions. 

That said, my view is that American state supreme courts have been going about enforcing their own education clauses in precisely the wrong way, ignoring the fiduciary nature of the legislature's duty to provide for education.  Thus, I urge that the courts in both countries step back from their rights-based rhetoric and consider what it means to enforce a duty that does not correlate to the personal claim-right of any individual.  Check it out here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2142221 .

Back in Black (and Orange)

I have been off the blogging field for several months now while traveling to South Africa, and then working as a visiting professor at Mercer University School of Law (school colors: orange and black).  I am happy to be back now, particularly at this exciting time for the blog in light of our new partnership with ELA.  In the coming weeks, I have many thoughts to share comparing the legal frameworks under which academic employees and students do their work in different countries, and in different sorts of institutions within this country. 

To start, I want to engage a premise that I heard repeated more than a few times at the recent ELA annual conference.  The premise is that the United States "needs" for-profit higher educational institutions in order to fulfill the policy goals we have adopted as a nation.  These policy goals vary depending on who states the foregoing premise, but they seem to boil down most often to getting as many people through college and out the other side as possible, and presumably doing so for as little money as possible.

My question is, am I accurately stating the premise that I heard stated at ELA?  I have to confess that this premise seems to me to be implausible on its face, given the well-recognized tendency of for-profit higher educational institutions to provide less service (measured in terms of completion rates, employment outcomes, and student loan default rates) for greater cost than public and non-profit private institutions.  Am I missing something?  Should we be enabling this sector of the higher education world? If so, why? 

Announcing Our New Partnership with the Education Law Association

I am very pleased to announce that beginning on January 1 of next year, the Edjurist is going to be a formal partner of the Education Law Association. We at the Edjurist are going to use this as an opportunity to relaunch our blogging efforts, so look for several changes to the platform in the next month or two. 

As part of the relaunch, we will be looking to add some new voices to the blog. If you are interested in being an active contributor to this space, please let me know. 

Let me just take this opportunity to say that this partnership is the culmination more than a year's worth of discussion about online, open access efforts at ELA. This blog will be one of the primary outlets for that type of information. I am very pleased to see ELA moving in this direction. 

But, also, this partnership is the culmination of nearly a decades worth of blogging. I started blogging when in law school, around 2004, I was told of blogs and immediately looked to subscribe to the education law blog. There was no education law blog. So, I started one. Since then, I have kept this effort going just as a side project. Through the years, several other education law blogs developed, which I was happy to see. However, I always thought a partnership between the Edjurist and ELA was a great opportunity to benefit both organizations, both in bringing ELA into the digital age, but also in making this little side project started nearly a decade ago into a formal partner of the premier education law organization in the world. So, I cannot say how proud I am to finally see my little project reach this point and to work together with ELA and its members to continue bringing great education law information to educators throughout the world.