South Africa's Unintended Experiment in School Choice: How the National Education Policy Act, the South Africa Schools Act and the Employment of Educators Act Create the Enabling Conditions for Quasi-Markets in Schools
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| Title: | South Africa's Unintended Experiment in School Choice: How the National Education Policy Act, the South Africa Schools Act and the Employment of Educators Act Create the Enabling Conditions for Quasi-Markets in Schools |
|---|---|
| Language: | English |
| Authors: | Woolman, Stuart, Fleisch, Brahm |
| Source: | Education and the Law. Mar 2006 18(1):31-75. |
| Availability: | Routledge. Available from: Taylor & Francis, Ltd. 325 Chestnut Street Suite 800, Philadelphia, PA 19106. Tel: 800-354-1420; Fax: 215-625-2940; Web site: http://www.tandf.co.uk/journals |
| Peer Reviewed: | Y |
| Page Count: | 45 |
| Publication Date: | 2006 |
| Document Type: | Journal Articles Reports - Descriptive |
| Education Level: | Elementary Secondary Education |
| Descriptors: | School Choice, Educational Legislation, Educational Policy, Elementary Secondary Education, Public Education, Free Enterprise System, Educational History, Racial Segregation, Foreign Countries |
| Geographic Terms: | South Africa |
| DOI: | 10.1080/09539960600787317 |
| ISSN: | 0953-9964 |
| Abstract: | School choice is often identified with right-leaning, voucher-happy, market-oriented public school systems like those found in the United States. Thus, the proposition that a social democratic state such as South Africa will offer many primary and secondary school learners far greater choice strikes many as counter-intuitive and implausible. The authors demonstrate that the three major pieces of education framework legislation--National Education Policy Act (NEPA), South Africa Schools Act (SASA) and Employment of Educators Act (EEA)--conspire with recent historical events and deep political and constitutional commitments to create South Africa's "unintended" experiment in school choice. The authors emphasize that the legal framework created by legislation and regulation are necessary but not sufficient conditions--they prefer to call them enabling conditions--for the creation of quasi-markets in schools. The generation of quasi-markets in schools depends on several other factors required for all markets. The absence of many of these features in much of South Africa explains why the majority of South African learners do not have access to quasi-markets in schools. The absence of such features is largely a function of apartheid's legacy of deeply entrenched patterns of inequality in primary and secondary schooling. Having demonstrated that historical, political, legal and economic conditions had the unintended consequence of producing school choice--and that school choice was "not" the result of the state's adoption of a conscious and deliberate policy--the authors examine the state's response to this de facto policy. The authors remain agnostic as to the desirability of the de facto policy and conclude with an exploration of some of the primary critiques of choice in South Africa. While they dismiss the "political" critiques as largely facile, the available empirical evidence suggests the limited systemic benefits and the potentially deleterious consequences for the poorest of the poor who reside in areas where quasi-markets exist. The state's current "conscious" attempts to re-engineer a modest mixed model, that emphasizes access to existing quasi-markets--and thus exploits superior existing school stock for the benefit of learners from historically disadvantaged communities--and that shifts public resources to those schools in the greatest need, accords with what little we know about the advantages and disadvantages of choice. (Contains 46 notes.) |
| Abstractor: | As Provided |
| Number of References: | 107 |
| Entry Date: | 2008 |
| Accession Number: | EJ818055 |
| Database: | ERIC |
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| FullText | Links: – Type: pdflink Url: https://content.ebscohost.com/cds/retrieve?content=AQICAHj0k_4E0hTGH8RJwT4gCJyBsGNe_WN95AvKlDbXJGqwxwElO9r5RhnCnzr1eC5tR3vfAAAA4jCB3wYJKoZIhvcNAQcGoIHRMIHOAgEAMIHIBgkqhkiG9w0BBwEwHgYJYIZIAWUDBAEuMBEEDNjXVtA3TbWZSUkLlQIBEICBmihE0bGY4L6PKZd_6yThSNXe-KJcJUK8Gw7VxaKFTIesmnopKmJYEkmbCtNQvBeHoHHaV3MGWFeKDE7EvjvcmL2CgXSxrLebAyYXrkVxqJOkjhPHF9pZjvk2SLhvRukiE-Ws_OAy1xOGViHClODf0GInTgn4CSZHVSna3H0NconxyufI33p3M51To7AIUcLKwqRGLPD7xtp_t_w= Text: Availability: 1 Value: <anid>AN0021967585;54k01mar.06;2019Feb13.17:09;v2.2.500</anid> <title id="AN0021967585-1">South Africa's unintended experiment in school choice: how the National Education Policy Act, the South Africa Schools Act and the Employment of Educators Act create the enabling conditions for quasi-markets in schools. </title> <sbt id="AN0021967585-2">Introduction</sbt> <p>School choice is often identified with right-leaning, voucher-happy, market-oriented public school systems like those found in the United States. Thus, the proposition that a social democratic state such as South Africa will offer many primary and secondary school learners far greater choice strikes many as counter-intuitive and implausible. The authors demonstrate that the three major pieces of education framework legislation—National Education Policy Act (NEPA), South Africa Schools Act (SASA) and Employment of Educators Act (EEA)—conspire with recent historical events and deep political and constitutional commitments to create South Africa's unintended experiment in school choice. The authors emphasize that the legal framework created by legislation and regulation are necessary but not sufficient conditions—they prefer to call them enabling conditions—for the creation of quasi-markets in schools. The generation of quasi-markets in schools depends on several other factors required for all markets. The absence of many of these features in much of South Africa explains why the majority of South African learners do not have access to quasi-markets in schools. The absence of such features is largely a function of apartheid's legacy of deeply entrenched patterns of inequality in primary and secondary schooling. Having demonstrated that historical, political, legal and economic conditions had the unintended consequence of producing school choice—and that school choice was not the result of the state's adoption of a conscious and deliberate policy—the authors examine the state's response to this de facto policy. The authors remain agnostic as to the desirability of the de facto policy and conclude with an exploration of some of the primary critiques of choice in South Africa. While they dismiss the 'political' critiques as largely facile, the available empirical evidence suggests the limited systemic benefits and the potentially deleterious consequences for the poorest of the poor who reside in areas where quasi-markets exist. The state's current 'conscious' attempts to re-engineer a modest mixed model, that emphasizes access to existing quasi-markets—and thus exploits superior existing school stock for the benefit of learners from historically disadvantaged communities—and that shifts public resources to those schools in the greatest need, accords with what little we know about the advantages and disadvantages of choice.</p> <p></p> <hd id="AN0021967585-3">Precis of the argument</hd> <p>The following proposition may strike many readers as counter-intuitive. The legal regime governing educational opportunities for primary and secondary school learners in South Africa offers far greater choice than one would find most anywhere in the voucher-happy, market-oriented school systems of the United States. Counter-intuitive, but true. Sandown High in Sandton, Gauteng is oversubscribed—a significant number of its learners travel over five kilometres every day from the nearby township of Alexandra. On the other side of town, Orlando High in Soweto is full of empty classrooms. Many of the learners who live in the vicinity attend school elsewhere. Non-education related demographic trends could explain the over- and under-enrolment. They don't. Parents and learners voting with their feet are driving these enrolment patterns. This article explains why the framework legislation for public school education in South Africa unintentionally creates the enabling environment for de facto school choice and explores how policy makers are managing the regulated competition in this unexpected market.</p> <p>Those readers familiar with the highly decentralized system of education in the United States know that, for the most part, learners have little choice with respect to the primary and secondary schools that they attend. Learners in suburbs and cities alike have the school they attend determined by their domicile. Magnet schools that have citywide, but selective, enrolment policies and suburban secondary schools that take in fee-paying students from neighbouring towns are genuine exceptions to the rule.</p> <p>The lines are not so hard and fast in South Africa. Under the National Education Policy Act (NEPA), domicile-determined feeder zones appear to constrain the ability of learners to choose the primary school or the secondary school they attend. But, as we shall see, the regulations issued in terms of NEPA shatter those boundaries and grant children not domiciled within the feeder zone varying degrees of access to all public schools. The NEPA regulations manifest an express intent to 'co-ordinate parental preferences' and anticipate that parents will choose to send their children to schools outside their own geographically determined feeder zone. The South African Schools Act (SASA) generates significant incentives for individual schools to increase their enrolment so as to accommodate such non-domiciliaries. SASA allows the School Governing Body (SGB) of each primary and secondary school to take the most important managerial decisions. It also enables schools to charge fees to cover the costs of education not borne by the state. This power to charge fees creates an incentive to admit as many full fee-paying students as the school can accommodate. The Employment of Educators Act (EEA) and various resolutions produced by the Education Labour Relations Council create additional incentives to put more bums on seats by tying the number of teaching posts and promotion posts granted to the school to the number of learners who attend the school. Under the EEA, the number of students determines the number of teaching posts. The number of teaching posts determines, in turn, the number of available promotion posts. Thus, almost every staff member at a school has a vested interest in increasing learner numbers. Viewed collectively, the provisions of NEPA, SASA and EEA create the conditions for a dynamic, if not efficient, market in schools.</p> <p>The legal framework produces some of the necessary conditions for a market. But these conditions are not sufficient to establish a market. A market possesses four essential features: (<reflink idref="bib1" id="ref1">1</reflink>) multiple producers of goods of variable quality; (<reflink idref="bib2" id="ref2">2</reflink>) sufficient information dissemination about the quality of the products to ensure informed decisions by consumers; (<reflink idref="bib3" id="ref3">3</reflink>) enough product variation and product information to enable consumers to generate ordinally ranked sets of preferences; (<reflink idref="bib4" id="ref4">4</reflink>) price variation responsive to demand. Does the South African system of primary and secondary public school education satisfy these four basic criteria for a market? The answer is 'that depends'. In some urban and peri-urban areas, a sufficiently large number of schools of varying degrees of excellence charging different demand-related amounts in fees exist within sufficient proximity of one another and within sufficient proximity of a large pool of learners to satisfy the four desiderata for a market in schools. However, while the legal framework created by SASA, NEPA and the EEA means that South Africa as a whole could constitute the market for educational goods, the market, in fact, is not that elastic. In most places, the necessary and the sufficient conditions for a market do not obtain. Most parents and most learners cannot exercise choice relative to the products offered in the South African market because the costs associated with entrance into the market are prohibitively high. On the demand side, deeply entrenched features of the South African landscape—poverty, geographic isolation, limited housing stock, high levels of structural unemployment, the cost of travelling the enormous distance between home and school—conspire to lock the majority of South African learners out of the market. On the supply side, other deeply entrenched features—poor school infrastructure, the absence of multiple schools in many locations—effectively means that the product variation necessary for a market to form does not exist.</p> <p>This précis of our article captures the operative conditions for and basic contours of South Africa's market in primary and secondary public school education. The rest of this article offers a more detailed explanation of how we in South Africa came to have both a de facto policy—and a de jure system—of school choice.[<reflink idref="bib1" id="ref5">1</reflink>]</p> <hd id="AN0021967585-4">Structure of the argument</hd> <p>The second part of the article traces the historical, economic and political antecedents that led to this partial and de facto policy of school choice. It begins with the widely accepted—but radically incomplete—account of how the National Party's belated attempts to decentralize control over public school education, and subsequent concerns about Afrikaaner succession, resulted in the current degree of control exercised by SGBs. Or to put it more pointedly, the standard account emphasizes the weakness of a new ANC-led government forced to cede authority over the manner in which schools in privileged communities were permitted to serve their rather narrow sectarian interests.</p> <p>Our historical account, culled from <emph>travaux preparatoires</emph> of the framework legislation (SASA, NEPA and EEA), demonstrates that appeasing the privileged is but a small part of this story. SGB autonomy was driven to a very large extent by the fundamentally democratic—not autocratic—political commitments of the [<reflink idref="bib1" id="ref6">1</reflink>].[<reflink idref="bib2" id="ref7">2</reflink>]</p> <p>The third part returns us to the legal framework that makes choice possible. It probes the open spaces in the law that have produced open spaces in the classroom. It interrogates, in greater detail, the specific, consciously developed policies behind the provisions in NEPA, SASA and EEA that have led to South Africa's unintended quasi-market in schools. We also look, briefly, at the concurrent competency for education exercised by national and provincial government and show how this diffusion of power functions as an additional enabling condition for market formation.</p> <p>The fourth part attempts to test our initial hypotheses about the necessary and sufficient conditions for market formation in public schools. We assess the available data on how schools and parents respond to the open spaces created by the law and suggest why markets are established in some South African communities and not in others.[<reflink idref="bib3" id="ref8">3</reflink>] While statistics demonstrate that the vast majority of learners do not exercise choice, a statistically significant number do. It is the impact of the de facto policy of choice on this meaningful minority to which we attend.[<reflink idref="bib4" id="ref9">4</reflink>]</p> <p>The fifth part engages the primary criticisms of de facto school choice in South Africa with a view towards putting our current policy on a more solid footing. We suggest how school choice can be managed in a manner that exploits its benefits for the majority of learners—or, at the very least, diminishes its deleterious effects on any meaningful cohort of learners.</p> <hd id="AN0021967585-5">Three working assumptions</hd> <p>The specific theses, developed in the second, third, fourth and fifth parts of this article, are premised on three general assumptions. First, the legal space we describe is a variable space. That space expands and contracts as a result of the political exigencies of a given historical moment. Second, the legal history of education in South Africa follows a discernable narrative arc. Since 1994, the South African system of public education—and the government's control over that system—has moved from a parlous, fragile state to a state of moderate success. This narrative arc correlates with the state's attempt—with varying degrees of success—to use the variable space of the law to effect changes in education policy that more closely approximate the ANC's political agenda. Third, that complex political agenda embraces deontological, utilitarian and communitarian commitments. The ANC as a governing party in the twenty-first century, and no longer a liberation movement in the twentieth century, pursues: (a) an egalitarian agenda that aims to provide a formally equal start for all its citizens; (b) a utilitarian agenda designed to create the greatest good for the greatest number of its denizens; and (c) a communitarian agenda that privileges, in some respects, the face-to-face relationships found in kin, clan and commune over the more abstract relationships that bind us as citizens.</p> <p>Why characterize South African education law as a variable space? Every legal regime is a variable space in which general legal norms—the axes—interact with a range of variables—political exigencies and economic conditions—to generate a range of possible outcomes. The universe of South African education law that came into being in 1994 was determined by an unusual concatenation of reconciliation politics and liberation politics. The ANC's liberation movement turned government possessed an ideological commitment to and a well-founded faith in the power of the people to effect real change. As a result, the ANC crafted a legal regime for education that sought to tap the transformative potential of local communities and was designed to rebuild a decimated school system from the ground up.[<reflink idref="bib5" id="ref10">5</reflink>] At the same time, the fragility of the new South African state in the early 1990s forced the ANC government to cede authority over the manner and the extent to which privileged communities could govern individual public schools so as to advance their rather narrow sectarian interests. In addition, the new state, though highly centralized in terms of actual political power and policy determination, relies heavily on provincial government for the execution of its directives. By choice, and by necessity, the South African government created a legal regime for education that permitted a broad array of disparate groups to determine outcomes and that produced results that few in government could have contemplated and even fewer would have desired.</p> <p>This last observation introduces the second assumption. The politics of education in South Africa, circa 1994, is the politics of a fragile state. The ANC government in 1994 inherited a system of education that ill-served the needs of the vast majority of South Africans. The dimensions of this fragility are well-documented: a lack of managerial legitimacy; inequitable funding; poor physical plants; inadequate teacher training; insufficient provision of and access to necessary social services in the related domains of housing, health care, nutrition, and transportation. Our secondary interest, in this article, is to document the manner in which the state has attempted to use the law to move education from this parlous state to one that effectively delivers equal access to an adequate education for all learners. We trace the arc of this story—of how a fragile state becomes an ever-strengthening state—through ten years' worth of legal evidence—statutes, regulations, circulars, white papers, and court cases.[<reflink idref="bib6" id="ref11">6</reflink>]</p> <hd id="AN0021967585-6">The history and the politics of choice</hd> <p></p> <hd id="AN0021967585-7">Citizens and consumers</hd> <p>The thesis that public schools constitute the crucible within which citizens are forged dominates twentieth-century theories of pedagogy in the West. Public school education and civic responsibility became so inextricably intertwined that the US Supreme Court, in [<reflink idref="bib9" id="ref12">9</reflink>], wrote:</p> <p>The role and the purpose of the ... public school system were well described by two historians, who stated: 'Public education must prepare pupils for citizenship in the Republic. ... It must inculcate the habits and manners of civility as values in themselves conducive to happiness, and as indispensable to the practice of self-government in the community and the nation. ... The process of educating our youth for citizenship in public schools is not confined to books, the curriculum and the civics classes; schools must teach by example the shared values of a civilized social order.'[<reflink idref="bib7" id="ref13">7</reflink>]</p> <p>On the other hand, the centrality of education for social advancement—married to the well-articulated needs of business for an appropriately trained workforce—meant that economic arguments regarding the purpose and structure of public schools have long competed on an equal footing with arguments from citizenship. The view of public school education as a 'good' to be profitably exploited by its users made the various constituencies with a stake in education outputs susceptible to the language of the marketplace. Nowhere was this shift in emphasis more apparent than in the increasing promotion throughout the 1970s and 1980s of school choice as 'the answer' to the problems of public school education. Drawing on the plausible, if not entirely persuasive, argument that private schools flourished because they were compelled to compete for a limited supply of consumers, governments proposed various strategies to create quasi-markets or competition within the public school system and between the public school and private school sector. (Lauder &amp; Wylie, [<reflink idref="bib57" id="ref14">57</reflink>]; Bash &amp; Coulby, [<reflink idref="bib4" id="ref15">4</reflink>]; Gordon, [<reflink idref="bib48" id="ref16">48</reflink>]: 187; Santos !81!Filhos, [<reflink idref="bib81" id="ref17">81</reflink>]: 391; Sleegers &amp; Wesseling, [<reflink idref="bib87" id="ref18">87</reflink>]; England's and Wales' Education Reform Act [<reflink idref="bib26" id="ref19">26</reflink>]. See, generally, Plank &amp; Sykes, [<reflink idref="bib71" id="ref20">71</reflink>].)</p> <p>But for a society in transition being run by a party more inclined towards a top-to-bottom social democratic reconstruction of state institutions, the metaphor of the market had little or no rhetorical force. As one of the authors has written elsewhere:</p> <p>Despite the international prevalence of this market-oriented approach, it made little in-roads in the South African education discourse. Few policy analysts advocated competition as the high road to the transformation of education. (Fleisch, [<reflink idref="bib30" id="ref21">30</reflink>], p. 87)</p> <p>Indeed, many analysts and policy-makers concluded that the quasi-privatization of the school system would only re-inscribe the radically inegalitarian patterns of apartheid-era education (Roithmayr, [<reflink idref="bib79" id="ref22">79</reflink>]). Why then does the framework legislation passed in the first few years of our new democracy contain features consonant with a commitment to school choice: open enrolment, parent preference, per capita spending, devolved budgets, and compulsory school fees?</p> <p>For starters, open enrolment policies reflect the new constitution's prohibition against unfair discrimination[<reflink idref="bib8" id="ref23">8</reflink>] and its commitment to freedom of movement and residence.[<reflink idref="bib9" id="ref24">9</reflink>] We can only assume that the architects of the new school system—in reliance on a burgeoning body of Constitutional Court equality decisions—came to the conclusion that compulsory zoning (hard district) regulations would prevent learners from predominantly African, Indian and Coloured communities from securing access to the better resourced schools in predominantly white and privileged communities,[<reflink idref="bib10" id="ref25">10</reflink>] and constitute a form of unfair discrimination.[<reflink idref="bib11" id="ref26">11</reflink>] The National Education Policy Act (NEPA) regulations couched this 'bounded' policy of open enrolment in the following terms: 'a learner who lives outside the feeder zone is not precluded from seeking admission at whichever school he or she chooses'. Although learners from other zones were not guaranteed access, their parents understood that doors heretofore closed to their children were now inching open. Money remained a hurdle: in the form of transportation, uniforms, books and fees. But many poor and working-class parents understood the meaning of this historical moment. And they continue to demonstrate this understanding by paying for the privilege of securing entrance to better schools.</p> <hd id="AN0021967585-8">Redress and efficiency</hd> <p>The commitment to devolved school budgets and per capita learner spending emerged from two separate quarters. First, the state viewed per capita non-personnel funding as the most efficient means of redirecting state resources towards the most disadvantaged learners. Second, the privileged communities that housed the former Model C schools viewed redress in per capita learner spending on non-personnel items by the state and devolved school budgets (determined by autonomous SGBs) as a formula that would allow them simultaneously to accede to the demands of a new legal order committed to equality and to secure a first-rate education for their children.[<reflink idref="bib12" id="ref27">12</reflink>]</p> <p>Non-personnel per capita spending had an unanticipated knock-on effect with respect to the formation and the control of individual school budgets. If the state was to use new school funding norms that weighted spending in favour of the most disadvantaged learners, it needed the management at individual schools to create budgets that reflected the numbers and the needs of their learners. Policy makers assumed, correctly, that greater control over school finances would result in substantial efficiency gains. As one of the authors has written elsewhere, school officials who had never seen 'electricity and water accounts ... became far more vigilant about conservation' and monitored billing more closely (Fleisch, [<reflink idref="bib30" id="ref28">30</reflink>], p. 87). School officials who had never had to worry about the bottom line soon recognized that more learners meant more fees and more state support. Per capita spending and the devolution of school budgets created a class of managers—principals and school governing bodies—that now had the opportunity to reap profit—professional and pecuniary—from their tacit knowledge of their environment.</p> <hd id="AN0021967585-9">Drafting history of education legislation</hd> <p>The de facto policy of school choice that currently obtains is not an intentional consequence of state policy. It is, as we have seen, a function of a series of related and intentional state acts that have the unintended consequence that we have identified.</p> <p>But this characterization of the historical record is too Manichean. The record suggests that the state was well aware of the unintended consequences that attach to variable legal spaces. The state also appeared to put on notice those parties who might conclude that the political vicissitudes experienced by the state in such variable space lay beyond the government's control. In the Department of Education's (DoE) second white paper, then Minister of Education Bengu wrote:</p> <p>Policies are stated in general terms and cannot provide for all situations. Our legacy of injustice and mistrust continuously throws up problems which need the wisdom of Solomon to settle. In this protracted transitional period, in which new policies for a democratic society are being developed and implemented, the chances are that we shall collectively make many mistakes, either in conception or execution. They must be recognised and corrected. The possibility of damage will be reduced if new policies are based on knowledge of our charter of fundamental rights and on sufficient consultation with those who are affected by them, if conflicts are negotiated, and if principled compromises are sought. (DoE, [<reflink idref="bib19" id="ref29">19</reflink>], p. 9)</p> <p>The preceding paragraph suggests that the new government's understanding was not limited to the proposition that its imperatives pulled in numerous directions and that no amount of analysis could anticipate the manner in which a complex set of policy initiatives would interact with a dynamic social environment. Minister Bengu seems to being saying that the state understood that it would have an opportunity to revisit these experiments in education at some later date and to revise them as circumstances required.</p> <p>The rest of <emph>White Paper II</emph> explains why the state was obliged to take such a provisional stance. The government recognizes that the 'new' dispensation under the Interim Constitution (IC) was not a blank slate. IC s 247 demanded that the state negotiate with the existing school governing bodies before making any changes that might alter their rights, powers and functions.[<reflink idref="bib13" id="ref30">13</reflink>] School governing bodies were not the only major stakeholders that had to be consulted. Many changes in the national framework legislation for school organization, governance and funding necessarily affected the interests of public school teachers. These changes would significantly alter their conditions of employment. As a result, the Education Labour Relations Council—and its collective bargaining process—shaped a significant amount of macro-educational policy. Behind both the school governing bodies and the teachers lay another critical constituency—the Afrikaans-speaking community. No other ethnic constituency's interests were addressed as directly; no other community was mollified in quite the same way. <emph>White Paper II</emph> addresses complex issues of language, culture, equitable funding of education, racial admissions criteria and redress measures through the prism of Afrikaaner anxiety. Bengu refers explicitly to the numerous delegations that have expressed the concern that 'a campaign is being waged to eliminate schools which teach only through the medium of the Afrikaans language' (DoE, [<reflink idref="bib19" id="ref31">19</reflink>], p. 5). To these delegations, Bengu writes:</p> <p>It is because of our nation's bitter experience of political oppression and cultural domination by successive minority regimes, that this government is committed to creating sufficient legal, political, linguistic and cultural space for all our varied peoples to live in peace together. Non-racialism, democracy, the protection of fundamental rights, and redress, do not mean that the idea of cultural identity is denied, or that all cultural distinctiveness is to be obliterated, or that the cultural and linguistic heritage of any of our communities can be disparaged. Our Constitution forbids cultural exploitation and provides for the protection and advancement of all our cultures, and the development of all our languages. ... We will not promote, under any circumstances, the use of only one of the official languages as the language of learning (medium of instruction) in all public schools. Language policy in education cannot thrive in an atmosphere of coercion. <emph>No language community should have reason to fear that the education system will be used to suppress its mother tongue</emph>. (DoE, [<reflink idref="bib19" id="ref32">19</reflink>], p. 6; HEDCOM, [<reflink idref="bib52" id="ref33">52</reflink>])</p> <p> <emph>White Paper II</emph> then pauses—briefly—to rehearse quickly the Department's basic commitment to addressing 'the legacies of underdevelopment and inequitable development'. It then proceeds to acknowledge the various parties to whom it must give the rest of the farm. With provincial legislatures, it shares legislative competence. To provincial executives, the national government must hand over administrative responsibility. (The Minister notes the lack of unanimity among national and provincial ministers, and only grudgingly concedes that their advice 'is based on intimate grassroots knowledge of schools in their provinces and the views of their constituents'.)</p> <p>The most intriguing concessions, however, are those made to the parents of learners. It may go without saying that '[p]arents ... have the primary responsibility for the education of their children'. But does it follow that they have the 'inalienable right to choose the form of education which is best for their children'? Many states share this authority with parents; many would deny that parents have a right to choose the linguistic, religious or cultural basis for their child's education.[<reflink idref="bib14" id="ref34">14</reflink>] Of greater import for our analysis of choice is the ministry's conclusion that since '[p]arents have most at stake in the education of their children, ... this should be reflected in the composition of the governing body' (DoE, [<reflink idref="bib18" id="ref35">18</reflink>], p. 70; 1996, p. 44). The representatives of politically unaccountable parents—most likely parents themselves—are given a majority of the voting seats on the SGB. Any departure from that pattern of representation must be approved by the provincial government. More extraordinary still is the justification for this grant of authority of the governance of the school:</p> <p>Because of the legal and financial decisions for which governing bodies would be responsible, elected representatives of parents and guardians should be in the majority on public school governing bodies. (DoE, [<reflink idref="bib19" id="ref36">19</reflink>], p. 13)</p> <p>Who takes the major legal and financial decisions? Not the provincial department of education. Not the school administrators. Not the teachers. Not those individuals who possess both the training and the expertise to render such decisions. Parents take these decisions. Why would the national government vest such authority in this particular stakeholder? The benign view is that the state believed that parents, by acting in the best interests of their child, will act in the best interest of the school. That attribution of motive is intuitively plausible. But it does not quite explain the reach of parental power. The explanation for this power grant lies in the amount of authority the state had been forced to cede to teachers, provincial governments and vocal minorities.</p> <p>Just as the national government failed to anticipate that middle-class parents would demonstrate sufficient commitment to meet the statutory voting requirements for approval of fees, the national government believed that the parents would constitute the least dangerous interest group with which the state would have to contend. We can, at this juncture, only surmise that the national government believed that parents would confront practically insurmountable problems of collective action: that is, parents would not be willing to commit significant time to school governance and would not be able to spend sufficient time to organize in opposition to the state's agenda. At a minimum, by placing power in the hands of a fairly atomized group, the national government ensured that neither apartheid-era bureaucracrats nor new provincial governments nor principals and teachers and their unions would be able to consolidate their power and dominate the new education system.[<reflink idref="bib15" id="ref37">15</reflink>]</p> <p>Interest group dynamics around governance provides only part of the historical explanation for choice. The other primary policy driver was funding.</p> <p>The new school funding model had to effect five objectives: (<reflink idref="bib1" id="ref38">1</reflink>) equity and redress; (<reflink idref="bib2" id="ref39">2</reflink>) reduction in unit costs; (<reflink idref="bib3" id="ref40">3</reflink>) increase productivity levels; (<reflink idref="bib4" id="ref41">4</reflink>) eliminate unsystematic pattern of user charges while meeting the commitment to free and compulsory education; and (<reflink idref="bib5" id="ref42">5</reflink>) create new funding partnerships for educational development. A difficult draw in the best of circumstances made exponentially more complicated by apartheid's legacy, inequitable distribution of and unequal access to education facilities, radically unequal per capita spending, skewed teachers deployment, salary imbalances, unconscionable learner:teacher ratios. Some of the disparities created by the former dispensation—especially around the 4:3:2:1 per capita spend—required immediate redress. (DoE, [<reflink idref="bib20" id="ref43">20</reflink>], pp. 63–64).</p> <p>The question, of course, was how to source the money. The new government recognized early on that inequality in capital markets made the likelihood of securing the funds for the massive recurrent expenditure required to right the ship would be difficult, if not impossible. The state's commitment to attracting foreign direct investment meant budgets geared more towards fiscal austerity than social development. Thus, despite the fact that South Africa's budgetary allocation for education was relatively high by international standards, and even assuming that optimal savings from efficiencies were realized, it could not expect to receive the 5% per annum education budget increase necessary to meet 'requirements of restructuring, qualitative improvement, reducing construction backlogs, enrolling out-of-school learners, and absorbing net growth in the school-age population' (DoE, [<reflink idref="bib20" id="ref44">20</reflink>], pp. 66–67).</p> <p>Given that education's slice of the public fiscal pie was unlikely to increase substantially, the state had to decide how to re-divide the existing pie to meets its various imperatives. On one shoal lay the Scylla of minimalist-gradualist redistribution; on the other, the Charybdis of immediate redistribution to effect a substantively equal outcome. The state charted a middle course, and decided to leverage private monies from parents of the well-off to supplement public monies. That meant allowing parents and school governing bodies to 'decide on targets for raising revenue, to finance expenditure beyond what would be afforded from the provincial education department's allocation' (DoE, [<reflink idref="bib19" id="ref45">19</reflink>], pp. 12–13). By permitting middle-class parents and SGBs to determine how much they wished to spend and what quality of education they wished to procure, the state could concentrate its time, effort and resources on (a) rationalizing the administration of public schools; (b) ensuring equal access to all schools (and especially middle class schools through fee exemptions); and (c) allocating progressively existing funds to the schools in the greatest need of redress.[<reflink idref="bib16" id="ref46">16</reflink>]</p> <hd id="AN0021967585-10">The laws of choice: NEPA, SASA, EEA, concurrent competence</hd> <p>History tells us how we got here. The law tells us where we are. In this section, we address the phenomenon that lies at the heart of this article: how a concatenation of legislation and regulation establishes the enabling conditions for a quasi-market in schools. We describe in detail how each of the three major pieces of national legislation that govern primary and secondary school education—the National Education Policy Act (NEPA), the South African Schools Act (SASA) and the Employment of Educators Act (EEA)—contribute to this dynamic.</p> <hd id="AN0021967585-11">National Education Policy Act (NEPA)</hd> <p>The National Education Policy Act grants provincial ministers the authority to determine policy with regard to the size and the shape of feeder zones that ostensibly constrain the ability of learners to choose the primary or the secondary school they attend.[<reflink idref="bib17" id="ref47">17</reflink>] The regulations issued in terms of NEPA state that the children of parents who live within the feeder zone or children of parents who live at their employer's domicile within the feeder zone have the right to attend a school within that zone. Notice the first quiet exception to the domicile rule: domestic worker employment.[<reflink idref="bib18" id="ref48">18</reflink>] Children of parents who work and live within the zone—by dint of being the offspring of domestic workers—have rights equal to those of other children of parents who live within the zone. The second exception to the domicile rule is for the children of parents whose work address falls within the feeder zone. These children do not, however, have the same rights of access to the school as those children of parents who live within the feeder zone. The final exception to the domicile rule is not so subtle. Once all the children of parents who live or work within the zone have been accommodated, any other child—irrespective of parental domicile or employment—may apply for admission to the school. The language of the regulation is instructive: 'a learner who lives outside the feeder zone is not precluded from seeking admission at whichever school he or she chooses' (NEPA Admissions Regulation (1998) Section (S) 34(b)). If the school is not operating at capacity and thus has space for these outsiders, then applicants <emph>should</emph> be admitted on a first come, first serve basis. In sum, while the NEPA regulations on feeder zones look like a standard mechanism to control learner numbers, the NEPA regulations simultaneously manifest an express intent to 'co-ordinate parental preferences' and anticipate that parents will choose to send their children to schools outside their own geographically determined feeder zone.</p> <p>NEPA and the Regulations on Admission Policy for Ordinary Public Schools are silent, however, on the extent to which the admissions requirements for non-domicile applicants is obligatory. Regulation 34 notes that learners who live outside the feeder zones do not possess guaranteed access to a chosen school. But what are the limits, the true limits, on access? At a minimum, it must mean that if the schools in a given zone are filled to capacity, then non-domicile students have absolutely no meaningful claim to access. However, the language of the regulation could be read to give the schools themselves the ability to turn away non-domicile applicants whether or not the school has the capacity to enrol them. The regulation states that 'a learner is not precluded from seeking admission at whatever school he or she chooses'. She has no right to go to the school of her choice.[<reflink idref="bib19" id="ref49">19</reflink>]</p> <p>NEPA is also silent with respect to the party who possesses the ultimate power to determine the extent to which an admissions policy must take the interests of non-domicile learners seriously. The Head of Department has the responsibility for creating zones and finding alternative schools for domicile-based learners in zones in which schools are oversubscribed. Power over individual school admissions policies vests within the School Governing Body (SGB) of the individual school.[<reflink idref="bib20" id="ref50">20</reflink>]</p> <p>The Final Constitution, SASA, the Promotion of Equality and Unfair Discrimination Act and a raft of provincial legislation and regulation constrain the kinds of admissions policies that public schools may adopt.[<reflink idref="bib21" id="ref51">21</reflink>] As one might expect, most of these constitutional, statutory and regulatory provisions speak to issues of discrimination. In so far as the school admissions policy adopted by the SGB complies with these various equity considerations, the SGB retains a significant degree of latitude with respect to admissions and enrolment. Indeed, the degree of authority that SGBs possess in terms of the framework legislation—and regulations issued in terms thereof—has been the subject of recent litigation[<reflink idref="bib22" id="ref52">22</reflink>] and is currently the object of government efforts at reform (Education Laws Amendment Bill [<reflink idref="bib24" id="ref53">24</reflink>]).</p> <hd id="AN0021967585-12">South African Schools Act (SASA)</hd> <p></p> <hd id="AN0021967585-13">Fees and choice</hd> <p>One might expect that SGB power over admissions and enrolment would diminish the admissions prospects of non-domicile learners. However, the South African Schools Act (SASA) does not only allow the SGB of each primary and secondary school to take most important managerial decisions (SASA 1996 S16). SASA also enables schools to charge fees to cover costs of education—particularly additional disbursements to teachers, improvements to the physical plant and extramural activities—not borne by the state (SASA 1996 Sections (SS) 36, 39–41). Indeed, it goes so far as to require them to do so. This power to charge fees creates an incentive to admit as many full fee-paying students as the school can accommodate. And where non-domicile students seek admittance and can boost the school's numbers, most SGBs are happy to open their doors to fee-paying learners who feed the bottom line.</p> <p>The admission of non-domicile learners and the need to raise fees to support the school are imperatives not always easily reconciled. In a perfect world, the SGB would take all fee-paying students up to and through capacity. But not all learners can afford the fees that feed the bottom line. SASA recognizes that a right to admission without a concomitant right to fee abatement is no right at all. SASA and the regulations issued in terms of the Act make provision for means-based fee exceptions.</p> <p>The inevitable conflict between open enrolment, school fees and fee exemption generates the somewhat perverse, but expected, consequence that parents of children entitled to full or partial exemption from fee payment because their family meets the statutory test for relief are often coerced into paying fees. Whether a school is rich or poor, fees feed the bottom line and produce competition among schools to attract more, if not better, learners. As a result, SGBs have a vested interest in intimidating parents into paying fees beyond their means and in dissuading parents who cannot pay those fees from seeking admittance for their children. What is remarkable about this dynamic is that many parents who know full well that they are entitled to exemptions still choose to send their children to schools outside their domicile where admittance is contingent—in practice, but not law—on the ability to pay fees. The ability of parents to choose a better education for their children often overcomes their own short-term pecuniary interests and the more malignant motives of some SGBs.</p> <p> <emph>SGBs, compensatory legitimation and choice.</emph> The extent to which SGBs will be able to continue to contribute to a culture of choice depends, in large part, on their ability to exercise the power to charge fees and to control admissions. Some commentators suggest that SGBs do not, in terms of SASA, have meaningful autonomy and real authority.</p> <p>Beckmann, Potgeier and Visser all argue that SASA merely allocates functions and grants discretion to SGBs to carry out their responsibilities (Beckmann et al., [<reflink idref="bib8" id="ref54">8</reflink>]; Potgieter, [<reflink idref="bib73" id="ref55">73</reflink>], p. 108; Visser, [<reflink idref="bib95" id="ref56">95</reflink>], p. 133; Beckmann, [<reflink idref="bib7" id="ref57">7</reflink>], p. 159). They suggest, without saying so directly, that this allocation of functions and granting of discretion was merely a form of what Hans Weiler has called 'compensatory legitimation'. That is, the state in crisis cedes authority to those who might otherwise contest its authority in order to consolidate power and to secure legitimacy.[<reflink idref="bib23" id="ref58">23</reflink>]</p> <p>Whatever the rationale for ceding authority was—and we suggest that it had as much to do with genuine commitments to participatory democracy as to fear of Afrikaaner successionist sentiment—the power SGBs exercise is quite real. SGBs have, in fact, been successful in the vast majority of disputes litigated against the state. An institution that possesses only illusory powers does not win cases in court. Of course, the state can curb the powers of the SGBs—to determine fee and admissions policies—by rewriting the law. But until it does so, the state must contend with a powerful creature of statute that it brought to life.</p> <hd id="AN0021967585-14">Employment of Educators Act (EEA)</hd> <p>The aforementioned provisions of NEPA, SASA and the regulations issued in terms of these Acts alone would be enough to produce a dynamic, if not efficient, market in schools. The Employment of Educators Act generates additional incentives to put more bums on seats by tying the number of promotion posts granted to the school to the number of learners who attend the school.</p> <p>Under the EEA, and the regulations and the resolutions of the Education Labour Relations Council in terms thereof, the number of learners largely determines (within budget constraints) the number of teaching posts (EEA Educator Post Regulations 2002). The number of teaching posts determines, in turn, the number of available promotion posts (Annexure 1, EEA Educator Post Regulations 2002). Of course, it is not title that matters with respect to these promotions. It is the money. Almost every staff member has a vested interest in bringing more children in, because every staff member will then possess a better chance to go up the food chain.</p> <p>Given that the school principal often serves both a role in governance and a role in management, she has a set of interests in coordinating school admissions policies that do not align themselves with those of any of the previous constituencies that we have mentioned.[<reflink idref="bib24" id="ref59">24</reflink>] The principal's interest in choice flows, in part, from her need to keep the school financially viable.[<reflink idref="bib25" id="ref60">25</reflink>] Fees enable her to do so. Fees also enable the principal to provide upward salary supplementation for the staff. The principal's interest in keeping her staff happy also means that she will want to see as many learners as possible fill the school—whether they pay fees or not. Of course, the SGB, made up predominantly of parents, may not have the exact same interest in operating at capacity. Parents may well wish to pay more in fees for smaller classes.</p> <p>That said, principals are educators. Their commitment to the next generation means that pecuniary and class interests aside, a principal will also have an interest in ensuring that learners, regardless of fee-paying capacity, have an opportunity to succeed. The commitment of public school educators to the production of the next generation of citizens in a democratic South Africa makes fees of instrumental—not intrinsic—importance. To the extent that fees actually impair the education of means-disadvantaged students, the principal has a legal responsibility and vocational interest in limiting their pernicious effects. A principal who takes exemptions seriously—and presses that view upon the SGB—may serve an important role in enhancing choice.</p> <p>Principals are professionals. As a professional, a principal will want her school to succeed. Success is measured in a variety of ways. One measure is the outcome-based: how well are her students doing? Fees, promotion posts, additional SGB staff, well-motivated staff, and engaged and parents all play a part in creating the conditions for such success. The formula employed by the principal to realize an optimal educational environment will vary from institution to institution. But as we noted above, the variation in formula and the need to keep different constituencies happy will mean that a principal will have incentives to maximize choice in a manner that will not be identical to SGBs, staff, learners, parents or provincial heads of departments.</p> <hd id="AN0021967585-15">Concurrent national legislative and provincial legislative competences</hd> <p>Final Constitution s 44(<reflink idref="bib1" id="ref61">1</reflink>)(a)(ii) and Final Constitution s 104 (<reflink idref="bib1" id="ref62">1</reflink>)(b)(i) confer upon Parliament and provincial legislatures, respectively, concurrent legislative powers over matters contained in FC Schedule 4.[<reflink idref="bib26" id="ref63">26</reflink>] As a result, Parliament and the various provincial legislatures both possess the power to promulgate legislation and subordinate legislation with respect to primary and secondary public school education (Bronstein, [<reflink idref="bib11" id="ref64">11</reflink>]). Both possess the power to control and to execute policy.[<reflink idref="bib27" id="ref65">27</reflink>]</p> <p>The result of such shared competence is greater fluidity and less control in policy construction and execution than most state actors would like.[<reflink idref="bib28" id="ref66">28</reflink>] In large part the diminished control flows from tension between financial control and service delivery. National government controls the purse. Provincial governments control the schools.</p> <p>The bifurcation of responsibility often means that when novel problems present themselves—say an unanticipated budget crisis—government experiences a coordination problem that slows its response. With respect to school choice, we want to suggest that the bifurcation of responsibility allows local constituencies to outflank the state. So, for example, large fluctuations in student numbers in a given district place an enormous strain on provincial governments and schools. The dual constitutional commitments to freedom of movement and residence and equal access to educational resources place limits on what the state can do to limit such fluctuations. Our history, and the law to which that history has given birth, limit the ability of the state to prevent parents and learners from voting with their feet.</p> <p>While the link between concurrent legislative competence and the enabling conditions for a market in schools may not be as clear as it is with respect to various provisions in, and regulations issued in terms of, NEPA, SASA and EEA, we believe that the additional layer of political actors—or perhaps the conflicting imperatives of national government and provincial government officials—leads to greater attenuation of political power over individual schools. The break that the Final Constitution places on the centralizing tendencies of the state allows individual actors to exploit the other enabling conditions that give rise to the market in schools. These breaks on state power—and the concomitant space left for market forces—take a number of different forms: (a) principles of cooperative government;[<reflink idref="bib29" id="ref67">29</reflink>] (b) the absence of effective policy coordination mechanisms;[<reflink idref="bib30" id="ref68">30</reflink>] (c) unfunded mandates;[<reflink idref="bib31" id="ref69">31</reflink>] (d) instances of provincial overspend.[<reflink idref="bib32" id="ref70">32</reflink>]</p> <hd id="AN0021967585-16">Evidence of market formation in primary and secondary public schools</hd> <p></p> <hd id="AN0021967585-17">Markets in schools</hd> <p>So far we have described how the legal framework establishes some of the necessary conditions for a market. But these conditions are insufficient to get a market off the ground.</p> <p>As we noted at the outset, an efficient market generally possesses four central features (Gintis, [<reflink idref="bib47" id="ref71">47</reflink>]). It must have many producers that supply an array of goods of variable quality. Buyers must be able to assess the quality of the products available: the nature of the information they require in order to make informed decisions will vary from market to market. Often the price alone will have sufficient density to allow meaningful preferences to form. This last observation anticipates the third feature of the market: the available information must enable buyers to generate ordinal sets of preferences. Product variety, information symmetries and ranked consumer preferences establish the grounds for a market's defining feature: price variation. Multiple products, adequate information dissemination and rational consumer preferences enable the participants to set the price for a good. In an efficient market, consumer demand chases supply, driving up the price; higher prices attract more producers, generating greater supply and lowering the unit cost.</p> <p>Does the South African system of primary and secondary school education satisfy these four basic criteria? The answer is: that depends.</p> <p>While apartheid's legacy is complex, the brute fact that we have relatively entrenched patterns of inequality in primary and secondary schooling is not. Some public schools have cutting edge computer labs and manicured cricket pitches. Other schools offer classes under trees. Most schools occupy a place on the continuum somewhere in between Pretoria Boys and a tree school. In urban and peri-urban areas, a sufficiently large number of schools of varying degrees of excellence exist within sufficient proximity of one another to satisfy the first desideratum of a market: product variation.</p> <p>Almost every parent knows this variation exists. Many also know that the law ensures that a certain degree of equal access obtains with respect to the admission of any learner to any given school. Such knowledge meets the second condition for market formation: information dissemination.</p> <p>Many parents act on the available knowledge about public schools in an attempt to secure the best possible education for their child. Some buy houses to secure admission in a good public school. Others seek employment in the desired zone. And still others commit well over half their disposable income—from aggregate family incomes well below the poverty line—to education-related expenses so that their child might travel to a good school in another town, and sometimes, another province. This ability of parents to rank schools and act on such assessments satisfies the third criterion: the lexical ordering of preferences by consumers and the exercise of choice in light of those preferences.</p> <p>School variation, knowledge of such variation, and parental demand that correlates with such variation would not, alone, lead to a market in schools. An efficient market also requires price variation that simultaneously captures information about the quality of the product and the demand for that product. The law as it stands permits SGBs to establish a (proxy for) price for attendance at their schools. Where the first three conditions for market formation obtain, SGBs can set a price—school fees—for their product that communicates both quality and demand. The SGBs' ability to set a price enables parents—the consumers—to respond to this price by deciding whether the product offered warrants the current price. The ability of SGBs to set a price and the ability of parents to respond to quality and price variation generates the final feature of a market: the ability of sellers and buyers to act in a manner that determines price.</p> <p>A critical rider attaches to this description: not all South Africans have access to the market in public school education. Although, in theory, the legal framework created by SASA, NEPA and the EEA means that South Africa as a whole could constitute the market for educational goods, the market, in fact, is not that elastic. In most places, the necessary and the sufficient conditions for a market do not obtain. Most parents and most learners cannot exercise choice relative to the products offered in the South African market because the transaction costs associated with entrance into the market are prohibitively high. On the demand side, deeply entrenched, if not ineradicable, features of the South African landscape—poverty, geographic isolation, limited housing stock, high levels of structural unemployment, the cost of travelling the enormous distance between home and school—conspire to lock the majority of South African learners out of the market. On the supply side, other deeply entrenched features—poor school infrastructure, the absence of multiple schools in many locations—effectively means that the product variation necessary for a market to form does not exist.</p> <hd id="AN0021967585-18">The general shape, and the limits, of the quasi-markets in schools</hd> <p>In the previous section, we identified the four key features of actual markets and how one would determine whether any markets in education exist in South Africa. In this section, we assess the available data on how schools and parents respond to the open spaces created by the law and why markets are established in some South African communities and not in others.</p> <p>Not surprisingly, market formation occurs most readily in those urban areas with large variations in wealth and large learner populations. These urban areas have the resources necessary to produce a sizeable number of schools in relatively close proximity. The majority of residents know about these schools, have the ability to make reasonably nuanced assessments of their relative quality and tend to act on this information. School governing bodies—who set the price for their schools—are likewise aware of other schools, the competition, have the ability to make reasonably nuanced assessments of what the competition offers, and are able to make informed judgements about the relative quality and exchange value of their school. The SGB acts on this information by setting a price—fees—that it believes the market will bear and that will enable it to provide a competitive product. From year to year, the price—fees—will vary, as parents respond to new information about schools, and schools respond to the demand for their product.</p> <p>As we move beyond the urban and peri-urban environment, the market for schools becomes increasingly attenuated. Multiple willing sellers do not exist in sufficiently close proximity to sellers for an efficient market to form.</p> <p>It is true that many parents do overcome significant financial impediments costs in order to move their children from one school in one part of South Africa to another school some distance away. Were such movements to occur on a grand scale, it might suggest that South Africa's market in public schools extends from Cape Town to Messina. As we shall see below, the existing evidence suggests that such a market does not exist because the costs that attend such moves are prohibitively high.</p> <hd id="AN0021967585-19">The evidence for limited quasi-markets in schools</hd> <p>Systematic empirical work on the collective effect of these policy developments in creating quasi-markets is limited (Tikly &amp; Thabo, [<reflink idref="bib93" id="ref72">93</reflink>]; Harber, [<reflink idref="bib50" id="ref73">50</reflink>]; Pampallis, [<reflink idref="bib69" id="ref74">69</reflink>]). But initial studies support the hypothesis that open enrolment, parent preference, per capita spending, devolved budgets, compulsory school fees, school right-sizing, new post-provision norms, concurrent national and provincial competence over education and shared management responsibilities between the provincial executive and school governing bodies have all contributed to greater fluidity in the South African school system.[<reflink idref="bib34" id="ref75">34</reflink>]</p> <p>How did the quasi-market in South African schools actually develop? After the 1994 election, historically white schools had a surplus of places. Open enrolment and the elimination of race-based allocation of educational resources meant that black middle- and working-class children now had access to better schools. However, as the historically white schools began to reach capacity, some schools used their various advantages to become far more selective. Some historically white schools, through the admissions policies promulgated by their school governing bodies, began to make use of concepts such as 'community' to constrain enrolment and simultaneously secure greater control over their market placement. This assertion of control had the effect of increasing the value of enrolment in the school and making it possible to 'increase' price—through fees—by limiting supply (Chisholm, [<reflink idref="bib13" id="ref76">13</reflink>]).</p> <p>Where, as in the South African school system, demand at the 'upper' quality end of the market far outstrips supply, the public school selection/admission process concocted by some principals and school governing bodies exacerbated inequalities.[<reflink idref="bib35" id="ref77">35</reflink>] But the South African education market was not, and is not, static. Players other than the school governing bodies exert significant influence over the shape of the market.</p> <p>The standard accounts of the quasi-market in public schools describe a mass exodus of black children from township schools to historically Indian, coloured and white schools. Township schools allegedly stood empty, abandoned by their traditional clientele. This exodus was ostensibly mirrored by a similar trend in the historically white public schools. The white students' migration from former Model C schools to more exclusive independent schools certainly occurred. However, estimates of the extent of their abandonment of the public school system seem to be driven by the mutually reinforcing narratives of the privileged withdrawing to private spaces as the masses flowed into previously forbidden places. (In fact, the African community has provided, by far, the better part of the rapid increase in independent school attendance.[<reflink idref="bib36" id="ref78">36</reflink>])</p> <p>The opportunity to enrol children in schools far from home meant considerable financial sacrifice for most black parents in historically disadvantaged areas. These new learners not only incurred the costs associated with transportation, school fees, uniforms and books, they bore the additional burden of time. Given the spatial dislocation associated with apartheid and the absence of meaningful public transportation, learners travelling from township to suburb could expect to spend up to three hours a day getting to school and back.</p> <p>And yet, despite these enormous costs, the cost–benefit analysis was not difficult for most parents to make. Most parents were aware that their children were unlikely to pass matriculation examination in township schools that lacked the requisite culture of teaching and learning. Parents believed that suburban schools, by contrast, offered a lifetime supply of social and cultural capital and life chances of a completely different order.</p> <p>No empirical research has quantified the full extent of learner movement from historically African communities to schools in historically Indian, coloured and white areas. Anecdotal evidence suggests that the actual number, though significant, represents but a small slice of the overall learner pie. It is, in short, a niche market.</p> <p>However, two significant mass markets exist along side this elite niche market. A significant shift in the enrolment patterns in older townships can be attributed to changing residential patterns. By 2000, South Africa's low-income housing policies have created one million new homes over the past six years. In the Benoni/Brakpan District, for example, between 1994 and 1999 the state created 12 new lower-income townships and constructed 30,000 new homes. Most of the new houses were built on inexpensive land adjacent to older townships. New housing developments spawned new schools. In Benoni/Brakpan, the 12 new suburbs required 12 new schools. Some of the learners in these new schools were transfers from outside the province. The vast majority, however, moved from nearby township schools. Parents chose to enrol their children in the new schools closest to their new homes. In this mass market, open enrolments, parental preference and teacher redeployment made mass transfers possible. A Soweto principal, whose school experienced a dramatic decline in enrolment, identified changing residential patterns as the primary culprit: 'Young parents have moved to areas like Protea and parents are reluctant to send [their] children to schools [too] far away.'[<reflink idref="bib37" id="ref79">37</reflink>]</p> <p>The excess supply of places in old township schools created the conditions for competition.[<reflink idref="bib38" id="ref80">38</reflink>] As these institutions squared up against one another, parents began acting as consumers interested in purchasing the best service for their children. Schools that demonstrated good matriculation results were consistently oversubscribed (GDE, [<reflink idref="bib43" id="ref81">43</reflink>]). Community perception, on the other hand, was tied to a complex array of characteristics: the physical appearance of buildings, the reputation of the principal, and the actual performance of learners.[<reflink idref="bib39" id="ref82">39</reflink>]</p> <p>The primary facilitator of the market on the supply side was a post allocation model that enabled schools that attracted additional learners to command additional promotion posts. The possibility of promotion posts served as incentives for principal and staff alike to create a more attractive school environment.</p> <p>Fees, on the other hand, had only a marginal effect on the quasi-market in township schools. Fees certainly did not suppress competition. Schools that set fees at R100 would often attract more learners than schools that charged half that amount. Moreover, the alleged culture of non-payment in townships did not prove an insurmountable impediment in the collection of fees. Several schools with relatively high fee structures flourished.</p> <p>The new market in township schools offers a new form of accountability. Schools perceived to be dysfunctional saw massive outflows of learners. The Gugulesizwe Primary School in Daveyton had long enjoyed a good reputation within the community. However, an acrimonious conflict between the new principal, a group of teachers and a group of parents deepened over a period of two years and led to regular negative reports in the media. By the end of this two-year period enrolment at the school had dropped by almost 50%. Parents had removed their children from a place of conflict and moved them to the relative stability of alternative township schools. Open enrolment allowed parents to vote with their feet. In addition, the school experienced a significant redeployment of staff to other schools. Both student movement and staff mobility led to a radical depreciation in value for the Gugulesizwe Primary School.</p> <p>How did the state react to this new and unintended quasi-market in education? The constitutional commitments to equality before the law, to equal access to schools and to freedom of movement and residence, reinforced by comparable statutory requirements in SASA, NEPA and EEA, meant that the government could exercise little direct control over parental preference. Official responses varied. Some recognized, and even appreciated, the relatively benign consequences of the marriage between a fragile state and a progressive constitution. Others expressed frustration at the inability of the state to impose a grand plan for transformation on primary school education. One Minister stated that:</p> <p>Parents have the rights to take their children where they want to, but they won't contribute to good public schooling. They should be seeking solutions to the education crisis in their own schools. It's time for them to stop running away from the problem there and start helping to make sure that township schools are working. We have to turn them around. (<emph>Mail and Guardian,</emph>[<reflink idref="bib59" id="ref83">59</reflink>])</p> <p>The state is not without the resources required for a meaningful response to the kinds of market distortions appear to impede transformation. An early Gauteng Department of Education (GDE) circular barred the use of tests or other measures to exclude learners (GDE, 1995b). The GDE even established special district committees to ensure fairness in the admissions process in former Model C schools. These committees also reviewed early admission processes in township schools. Many parents suspected that schools massaged waiting lists to secure admittance for the 'right' kind of children. District directors reported that some schools attempted to keep the proportion of black learners to around a quarter of the school's enrolment through admissions processes that used a mix of interviews and complex application forms (Pampallis, [<reflink idref="bib69" id="ref84">69</reflink>], p. 14).</p> <p>Having accepted the reality of a quasi-market, the GDE took steps to mitigate its deleterious effects and to reshape the market in a manner that benefited learners from historically disadvantaged communities. As early as July 1999, the GDE issued a flier in four languages that informed parents about practices that constituted unfair discrimination and advised them of the available remedies. It produced a circular—and subsequent regulations—that echoed the school zoning requirements found in NEPA. These zoning requirements privileged the children of parents whose domicile lay within the zone and then gave priority to children whose parents were employed within the zone. Of course, these zoning requirements did not eliminate—and could not eliminate—the cohort of learners who sought admission to schools that fell outside their zone. The GDE introduced two additional rules to level the playing field for such learners. The first rule compelled schools to create a standard 'waiting list register'. The second rule required that schools provide a written explanation to parents whose children were refused admission.[<reflink idref="bib40" id="ref85">40</reflink>] In each successive version of the GDE's annual admissions circular, attempts have been made to ensure optimal fairness and equal access to state resources (GDE, 2003; [<reflink idref="bib41" id="ref86">41</reflink>]; [<reflink idref="bib42" id="ref87">42</reflink>]).</p> <p>These circulars, along with the elimination of fees for the lowest two quintiles of schools and recent litigation around admissions, reflect the competing political commitments that drive our social democratic state. The circulars, the elimination of fees and litigation around admissions policies can be read primarily as efforts to ensure greater equity in the distribution of education goods. But they can also be read through the prism of utilitarianism: these efforts ensure that greater numbers of students from historically disadvantage communities have access to better school facilities, thereby receiving a better education and thereby raising—the assumption goes—the overall productivity of our students. The willingness of the state to leave schooling in the hands of SGBs—after having tweaked the system to achieve greater equity and utility—reflects the state's recognition that the abstract relationship of state to subject will sometimes have to bow before the imperatives of kin, clan and commune. The state also understands that large stores of 'social capital' are to be found in public schools and that such capital can be shared, but never fully alienated.</p> <p>The previous paragraph also suggests the manner in which our working assumptions explain the state's behaviour around de facto school choice. School choice as an unchosen condition of public school education in South Africa clearly rankles. The state recognizes that the law has given rise to this phenomenon and has attempted to use the law—through policy formation (e.g. circulars), regulation (e.g. the elimination of fees) and litigation (e.g. admissions) to assert ever greater control over this domain.</p> <hd id="AN0021967585-20">Conclusions: politics and possibilities</hd> <p>The notion that a quasi-market in schools exists in South Africa—or parts of South Africa—is a descriptive matter: it is either true or false. We believe that the foregoing account establishes that a certain segment of South African society has access to quasi-markets in primary and secondary public schools. We have also demonstrated that school choice, where it exists, is not a function of deliberate or conscious state policy to offer 'school choice' to learners so as to secure the ostensible benefits of markets in schools. We have shown, instead, that school choice, where it obtains, is an unintended consequence of a set of laws and regulations that constitute the enabling conditions for market formation. Those conditions are necessary—in this context—but not sufficient conditions for markets or quasi-markets to form. We have, within the limits of available data, revealed the economic and social conditions that must obtain for quasi-markets in schools to exist.</p> <p>Whether such quasi-markets should exist is a prescriptive matter. Here one's analysis will turn on a mix of both empirical claims about the quasi-market in education and normative claims about what educational goods are really for. For example, when one asks whether the market produces better schools, the obvious question is better for what? If one is predisposed to see schools primarily as institutions designed to create citizens who meet and treat one another as equals than the desired outcome will be contingent upon the ability of a school to produce a given kind of ethos. Price-based competition between schools may or may not serve those ends. If one is predisposed to see schools primarily as institutions designed to create individuals whose skills will generate greater personal and societal wealth, then one will adopt an entirely different metric for assessing the value of price-sensitive and quality-based competition between schools.</p> <p>In the next section, we engage a variety of descriptive and prescriptive claims made by researchers, both here and abroad, about markets in schools. Having gleaned those insights to be had from this literature, we offer, in our final section, some fairly uncontroversial observations about the kinds of goods that quasi-markets in public schools can offer. We do not pretend to offer a full-blown theory regarding school choice and view any such theory as well beyond both the scope of this article and the current data available.</p> <hd id="AN0021967585-21">Critiques of choice</hd> <p>Critiques of choice come from a number of different quarters. We are quite sympathetic to some, and largely unmoved by others.</p> <p>In this section, we identify the four most prevalent critiques. The first two positions are inflected by a strong ideological bias. The arguments from false consciousness and citizenship possess a certain amount of surface plausibility. But they do not survive careful scrutiny. The second two critiques are impossible to gainsay. The limited empirical data collected on school choice—here and abroad—suggests that many of the most historically disadvantaged schools and learners actually decline in functionality under conditions of choice. The death-spiral experienced by schools that serve the poorest of the poor, married to the observation that school choice programmes have yet to demonstrate significant systemic improvement in academic achievement, suggests that any conscious decision to pursue 'choice' as a strategy to improve schooling must attend to the creation of design features that, at a minimum, do not harm the most vulnerable learners.</p> <hd id="AN0021967585-22">False consciousness</hd> <p>The argument from 'uninformed choice' suggests that the poor are often ill-informed about the range of available opportunities (Freire, [<reflink idref="bib33" id="ref88">33</reflink>]).That is, abject poverty creates a dependent class that is entirely reactive and cannot make decisions that will move either themselves or society towards more optimal outcomes. As mere echoes of the society in which they live, so this line of criticism goes, the choices of members of the dependent class might as well be random.[<reflink idref="bib41" id="ref89">41</reflink>] In order to avoid charges of false consciousness—or no consciousness at all—Simon Maile suggests that learner choices with regard to schooling ought to be assessed in virtue of their ability to realize, for themselves, a variety of constitutional norms: increasing access to education, enhancing equality and improving dignity (Maile, [<reflink idref="bib60" id="ref90">60</reflink>], p. 108).</p> <p>While we are not unsympathetic to arguments from false consciousness, they first must run a gauntlet of familiar objections: they are patronizing, authoritarian and undemocratic. That the argument from false consciousness may not be entirely justified is borne out by Ursula Hoadley's analysis of two historically disadvantaged schools in the Western Cape. Hoadley found that in two secondary schools in Khayelisha, learners who had immigrated from the Eastern Cape, and were consequently the most disadvantaged members of a disadvantaged community, attended the poorer performing of the two schools. Children from families in better financial condition and in more settled circumstances attended the better school. That pattern suggests that even with a limited amount of information—and under conditions of extreme duress—parents are capable of making choices that optimize the potential for positive outcomes for their children. John Pampallis's analysis of learner movement in township, peri-urban, and urban environments supports Hoadley's findings. He writes:</p> <p>The movement of black children from Black townships on the periphery of cities to the formerly White, Coloured and Indian schools in relatively more affluent areas is largely the result of the belief of Black parents and their children that those schools offer a better quality of education ... In general, it is a fact that those schools achieve better learning outcomes, have a better infra-structure and better learning and teaching resources, have better qualified teachers and school managers, and have an ethos that is more conducive to learning than that of most township schools. (Pampallis, [<reflink idref="bib70" id="ref91">70</reflink>], Zozi, [<reflink idref="bib107" id="ref92">107</reflink>])</p> <p>But even if the argument from false consciousness does not stand up <emph>in toto</emph>, there is an element of truth in its characterization of the problem of choice. That element of truth lies in what we might call 'information deficit' or 'information asymmetries'. Poor families are less able to take full advantage of conditions of choice than are higher-income families because they lack access to the requisite information about availability, quality and cost to make the 'best' possible judgement (Ladd, [<reflink idref="bib56" id="ref93">56</reflink>], pp. 1, 17.) Note, however, that this observation does not, in fact, entail an attribution of false consciousness. Nor does it impute a lack of capacity to make rational calculation. Hoadley's study rebuts both of those assessments. The observation regarding information asymmetries reflects the brute fact that the poor will not be able to take full advantage of the options afforded them in head-to-head competition with more affluent families. And that suggests a possible solution to the problem of choice that we explore at greater length below: the state must, under current conditions in South Africa, provide information that will enable all learners to make the 'best' possible judgement given their existing circumstances.[<reflink idref="bib42" id="ref94">42</reflink>]</p> <hd id="AN0021967585-23">Citizenship in a totalizing state</hd> <p>Another argument sets off parents as consumers against parents as citizens (Sayed, [<reflink idref="bib84" id="ref95">84</reflink>], pp. 146–7). The politics of parent <emph>qua</emph> citizen reflects a commitment to strong participatory democracy and a concomitant commitment to positive liberty—or self-actualization through self-governance. The politics of parent <emph>qua</emph> consumer relies, it is alleged, on the classical economic model of the self-interested, utility-maximizing, rational individual. In the first kind of politics, the 'parent is constituted in the image of the state' (Sayed, [<reflink idref="bib84" id="ref96">84</reflink>], p. 146). In the second kind of politics, the parent is 'self-aggrandizing' 'possessive' and 'acquisitive' (Sayed, [<reflink idref="bib84" id="ref97">84</reflink>], p. 146).</p> <p>One need not be a doctrinaire free-marketeer to identify two fallacies in Sayed's presentation of the range of possible forms of citizenship. First, as Michael Walzer has persuasively argued, one can defend a radically egalitarian liberalism simultaneously committed to strong political institutions, strong family ties and strong market forces (Walzer, [<reflink idref="bib96" id="ref98">96</reflink>]). The essential proviso is that the goods secured in one domain may not be allowed to dominate or to monopolize the distribution of benefits in another domain (Walzer, [<reflink idref="bib96" id="ref99">96</reflink>]). Second, Sayed's view of the parent as citizen seems to invoke a totalizing view of a politics. For reasons that remain unclear, only the state provides the legitimate setting for community and only the parent who identifies with the state possesses a genuine sense of community. A parent or set of parents who identify instead with a smaller political or social formation—a town, a region, a religion, a linguistic or a cultural group—treat the 'school community [as] a collective resource for self-aggrandizement' (Sayed, 1999, p. 146). As one of the authors has argued at length elsewhere, this is just another example of the communitarian shuffle (Woolman &amp; Davis, [<reflink idref="bib104" id="ref100">104</reflink>]; Woolman, [<reflink idref="bib102" id="ref101">102</reflink>][<reflink idref="bib103" id="ref102">103</reflink>]).</p> <p>Communitarians tend to privilege the political community over other communities, underplay existing and historical conflicts between the various communities that source the self, and often entirely elide the difference between the polity and other communities that make up a society. For example, George Fletcher writes:</p> <p>In a patriotic <emph>society</emph>, where all individuals share a common past and purpose, each can identify with others and find in them an equal partner in a common cause. The rooting of the <emph>self</emph> in a <emph>culture</emph> of loyalty enables individuals to grasp the humanity of their fellow <emph>citizens</emph> and to treat them as bearers of equal rights. (Fletcher, [<reflink idref="bib32" id="ref103">32</reflink>], p. 21, emphasis added)</p> <p>Fletcher's prose—like Sayed's—moves back and forth between discussions about society and polity in a manner that obscures the fact that the two are not coextensive. Polities contain multiple societies and cultures; cultures and societies are often rooted in a variety of different states.</p> <p>The difference between the two positions is important. The communitarian privileging of the state over other communities within the state—or in some cases conflating the state and those communities—has significant repercussions for individual and group flourishing, and, it must be said, for school policy. Once shared pasts, shared purposes and common causes are assumed, the state is free to assume that important differences between its citizens, and the smaller communities (or even larger communities) of which they are a part, do not exist. Once pluralism is no longer a concern, there is no reason for individual and group flourishing to be. The state is then truly free to impose a more and more homogenous and standardized way of life on its subjects.[<reflink idref="bib43" id="ref104">43</reflink>]</p> <p>A strong social democrat—a position more easily squared with the requirements of a constitution committed to such fundamental freedoms as speech, assembly, religion, association, language, culture, privacy and property—retains her commitment to pluralism. The primary role of the state remains the mediation and, and where possible, the resolution through rational discourse of disputes between different communities with different visions of the good life, and at all times, the roughly equal support for different communities with different visions of the good life.</p> <p>The upshot for arguments about the roles of parents in schools is that the collective action taken by parents in a school community—or non-nation state social formation—may not be any more self-aggrandizing or any less noble than action taken by parents in the context of the broader community. The setting for the right and the good can be a school, a book club, a municipal council, a trade union, a <emph>bosberaad</emph> or a church. The identification of the parent with the citizen—and the identification of the state with the good—can just as easily take place in fascist or totalitarian states as it can in a state committed to social democratic institutions.</p> <hd id="AN0021967585-24">The poor get poorer</hd> <p>When the middle class and the wealthy benefit from a given programme, one response is to say that they should not be able to exploit the state to further their already sizeable advantage over the working class and the poor. The other response is to argue that the poor should, in fact, be able to benefit from a given programme in the same manner as the middle class and the wealthy. The state, on this account, ought to do more to ensure that the poor are able to exploit such benefits.</p> <p>In the United States, the proponents of school choice are generally drawn from the middle and upper classes. Choice not only permits them to repatriate their taxes, it also frees them (to some degree) from the geographical limitations of the American public school system. (Moreover, even in systems without choice, the wealthy and the middle class are more likely to move—or be able to move—in pursuit of a better education.) Why, ask advocates for the poor, ought the less well-off have a more limited array of options? Howard Fuller has argued that:</p> <p>This is a debate about power. ... This is about whether parents of low-income African-American children should obtain a power that many critics of the choice movement exercise every day on behalf of their own children. (Fuller, [<reflink idref="bib34" id="ref105">34</reflink>])</p> <p>How does one answer this line of argument in South Africa? One answer is to admit the truth of at least part of it. In a country in which the vast majority of black South Africans found themselves and their movements strictly controlled by the state, restrictions on choice that result in restrictions in movement are politically untenable, if not constitutionally suspect. What form then does the argument against choice take when faced with a well-articulated desire by members of historically disadvantaged communities to exercise such choice?</p> <p>The argument must distinguish between elements of participation that enhance primary and secondary school education and those that do not.</p> <p>As we have argued above, parent, teacher and learner participation in school governing bodies—more than any other reform—has led to greater stability in and a concomitantly increased legitimation of township schools. Conversely, the fluctuations in student population created by discrete exercises of choice by parents actually appears to undermine school stability.</p> <p>Where parents have choice, they tend to view the quality of schools largely in terms of their socio-economic and ethnic mix. The parents who exercise their right to choose will move their children from schools with large proportions of poor and disadvantaged learners into schools with more advantaged learners. Those children who move into such environs will generally benefit from better teachers and better resources—as well as the benefits that flow from having more highly motivated parents and being exposed to more highly motivated and highly performing classmates.</p> <p>But what of the children left behind? Schools serving disadvantaged children that experience declining enrolments go into a downward spiral out of which it is difficult to pull. The students left behind tend to be more difficult to teach. Few new good teachers or managers are attracted to such difficult circumstances. Many look to leave. One could shutter such schools where enrolment declines precipitously. But even in countries with sizeable discretionary budgets for new housing stock, it is difficult to justify building new schools when available schools still exist. In South Africa, where many poor and informal communities have turned to fly-by-night independent schools because delivery on new and much needed schools has been slow, the argument for shutting schools down is 'politically and practically impossible'. The death-spiral experienced by schools and learners near the bottom of the performance scale must be one of the most compelling arguments against a generalized entitlement to choice (Ladd, [<reflink idref="bib56" id="ref106">56</reflink>], p. 22).</p> <p>That said, the data is agnostic as to the question of whether there should be choice at all. The evidence in the comparative education literature supports the contention that 'choice programs benefit ... more advantaged students' even if it does not support the contention that the competition between schools sponsored by a choice programme improves a state's system of education in general (Ladd, [<reflink idref="bib56" id="ref107">56</reflink>], p. 23). While class-based restrictions on choice should be anathema to policy-makers, any well-designed choice programme must, somehow, take into account differences in the ability of parents and learners to exploit the options made available to them.</p> <hd id="AN0021967585-25">Arguments from incompleteness</hd> <p>Two empirical arguments work against any argument that favours the expansion of choice or the express recognition of the policy in law. The first is that systematic studies in a broad array of different countries have yet to demonstrate that choice realizes significant improvement in academic achievement. The second is that it is difficult to track the outcomes of implementation of existing policy in South Africa because the educational environment being assessed is relatively unstable and the policy environment itself experiences a significant amount of policy churn.</p> <hd id="AN0021967585-26">Equivocal data</hd> <p>Despite the myriad studies that have been carried out in dozens of countries over the past two decades, the data on school choice is rather equivocal. Part of the uncertainty stems from the pre-existing differences in the educational systems that have experimented with choice. Different initial variables make generalizations regarding outcomes difficult. And that observation appears to be true not simply between countries, but within as well.</p> <p>The absence of significant systemic benefit from choice, married to the observation that choice does, in fact, seem to leave the poorest learners even worse-off than before (and that is worse-off in an absolute and not a relative sense) supports Helen Ladd's contention that even advocates of choice ought to focus their questions on policy design so as to ensure that any choice initiative pursued minimizes its detrimental effects 'on the most vulnerable children' (Pampillas, [<reflink idref="bib70" id="ref108">70</reflink>], p. 158).</p> <hd id="AN0021967585-27">Policy churn</hd> <p>Policy churn is the term of art used to describe (a) the high rate at which policy meant to reform a given system is itself supplanted by a new set of policy imperatives and (b) the difficulty in drawing meaningful conclusions about the success of a given set of policies from long-term assessments because the policies have been so quickly supplanted or because new policies have made control of the critical variables impossible. In a country in transition, as South Africa most certainly is, policy churn is inevitable and its effect on any appraisal of choice ineluctable.</p> <p>As one of the authors has written elsewhere, South African education policy makers have begun to develop policy with such churn in mind. First, they accept the proposition that</p> <p>no single strategy nor set of policies, no matter how well-designed and faithfully executed, no matter how much political support they receive and teacher commitment they elicit, will deliver quality education for all. (Fleisch, [<reflink idref="bib30" id="ref109">30</reflink>], p. 198)</p> <p>Second, the enormous variation among schools led the state to conclude that it could not manage primary and secondary schools with a top-down, single-size-fits-all approach. The state decided that, so long as school governance reflected the outcome of democratic processes, it would take 'minimal decisions about what schools need' (Fleisch, [<reflink idref="bib30" id="ref110">30</reflink>], p. 68)</p> <p>Generalizations about school choice are difficult not just because the extant policy is an unintended consequence of other policies. Generalizations are further complicated because the policies enacted vary dramatically from province to province, district to district and school to school. How much school choice matters in this rather fluid environment is difficult to discern.[<reflink idref="bib44" id="ref111">44</reflink>]</p> <p>The flip side of this observation is that one cannot ignore the possibility that school choice will work to the benefit of some students in some environments. This much more modest conclusion would appear to be borne out by both the limited data set available here in South Africa and the data available internationally.</p> <hd id="AN0021967585-28">Constrained choice</hd> <p>Again, the limited data in South Africa and the available data internationally ought to impose a high degree of humility on any person attempting to think critically about choice. Given that the purpose of our project has been largely descriptive, our conclusions about choice are constrained by how little we actually know.</p> <p>It should clear that we are not opposed, as a philosophical matter, with the formal possibilities that choice might offer a system of public school education. Consistent with our view that a social democractic state will invariably invoke egalitarian, utilitarian and communitarian principles, it is possible to imagine a system of public school education that advocates a system of choice that coheres with such principles. Indeed, while the de facto system of choice we do have is neither optimal nor intended, its does, as we have taken pains to point out, manifest these three competing strains of political thought. So, for example, NEPA's commitment to placing the children of domestic workers on an equal footing with the children of other residents in a feeder zone and SASA's commitment to fee abatements and non-discriminatory admissions policies evince the state's duty to treat all its subjects as objects of equal concern and equal respect. The EEA and ELRC agreements that tie promotion posts to learner numbers or the SASA provisions that empower SGBs to charge fees based upon what the market will bear attest to the state's adoption of utilitarian measures of success. NEPA's treatment of the members of geographically discrete communities as bearers of entitlements with respect to school admissions and SASA's grant of decision-making authority to the parents of learners (in the form of SGBs) indicate the state's recognition that social units other than the state are constitutive of being and the primary bearers of meaning.</p> <p>None of these observations about the state's three primary colours has a bearing on whether school choice is a viable or a just way of organizing the distribution of educational goods. We have seen that limited numbers of sellers, information asymmetries and prohibitive costs means that quasi-markets in schools do not form for most learners. We have also seen that the evidence suggests that some of South Africa's most disadvantaged schools actually experience a decline in functionality under conditions of choice.</p> <p>At best, we think that the available data supports a mixed model on choice.[<reflink idref="bib45" id="ref112">45</reflink>] That mixed model would attempt to maximize the number of beneficiaries in and benefits available from that segment of the learner population with access to efficient educational markets and at the same time increase funding and improve outcomes for the vast majority who do not have access to the market. At a minimum, the mixed model would endorse current state initiatives to enforce fee exemption and to minimize information asymmetries through the reissue of circulars that inform learners and their parents of their rights with regard to such exemptions. The mixed model reflects the politics of a social democratic state committed to generally equal outcomes, greater overall utility, and the preservation of those social practices that provide the primary setting for meaningful action.[<reflink idref="bib46" id="ref113">46</reflink>] A defense of that proposition we will leave to a subsequent article and to other authors.</p> <hd id="AN0021967585-29">Notes</hd> <ref id="AN0021967585-30"> <title> Footnotes </title> <blist> <bibl id="bib1" idref="ref1" type="bt">1</bibl> <bibtext> 1. The politics and the policy imperatives in the Western capitalist democracies and post-apartheid South Africa could not have been more different. As one of the authors has written: On the wave of the election of a series of right wing governments in the 1970s and 1980s, school choice and the education market were increasingly promoted as 'the answer' to the problems of public education. Drawing on the private school model in which individual institutions were forced to be accountable to consumers, governments proposed various strategies to create quasi-markets or competition within the public system or between the public and private sectors. (Fleisch, [30], p. 87). The emphasis on transformation meant that language of privatization had little purchase in South Africa—even at the level of rhetoric. Despite the international prevalence of this policy approach, it made little in-roads in the South African policy discourse. Few policy analysts advocated competition as the high road to the transformation of education (Fleisch, [30], p. 87) But that did not stop a market in schools from being created: While few argued that market forces would improve the system, the legislative framework, as well as key aspects of the new constitution, inadvertently created the environment for quasi-markets or, more accurately, niche markets to flourish. The South African system would come to take on the certain characteristics of a market system with policies of open enrolment, parent choice, per capita spending, devolved budgets, and compulsory school fees. Open enrolment as a policy was the outcome of the new constitution's prohibition against unfair discrimination on the basis of race, class, religions, sexual orientation, and language. Given the historical legacies of apartheid which required certain people to live in specified geographic areas compulsory zoning regulations would constitute a form of 'unfair' discrimination as children from historically African areas would be prevented from gaining access to historically white schools. (Fleisch, [30], p. 87)</bibtext> </blist> <blist> <bibl id="bib2" idref="ref2" type="bt">2</bibl> <bibtext> 2. SGB autonomy has its roots in the very history of South African liberation movements. Many of the state's early education initiatives were predicated on the assumption that sustained school improvements must develop organically out of community participation and that community participation is contingent upon stronger (read autonomous) school governance structures (see GDE, [35]). See also GDE, [36] ('The key to successful school development lies in the capacity of communities at all levels to guide and manage their own development. ... In the short term, a priority is on the revitalization of participatory structure [<emph>sic</emph>] at the school governance level, and creating the space for their development and empowerment'); GDPW, [38], pp. 10–11 ('It was envisaged that community participation would prompt greater civil society participation in school governance, and stimulate emerging builders ... It was believed that the toilet project would help to transfer power from the state to school governing bodies'). See, generally, ANC, 1994 ('[T]he people affected must participate in decision-making ... Democracy is not confined to periodic elections. It is, rather, an active process enabling everyone to contribute to reconstruction and development'); ANC, 1992 ('Calls for dual structures of power: the state, on the one hand, community stakeholders on the other'). It is, among other things, a testament to the ANC's commitment to democracy that a party without a real opposition would divest itself of decision-making power based upon its belief that local schools and local communities would be best served by local political structures—in this case the SGB. However, the ANC's belief in the need for a strong central government to effect transformation may have militated against giving too much power to the community. See Sayed (1999, p. 143). (Sayed notes that community representatives—unlike parents—do not having voting status on SGBs in terms of SASA. However, it seems reasonable to ask why community representatives, who have no direct tie to the school, should have such status.) As we shall see in Part 2, the drafting history discloses how the multiple constituencies with whom the state had to contend and the conflicting imperatives within the state's own agenda led to greater decentralization of decision-making. Three points need to be made about this commitment to decentralization. First, the partial decentralization of decision-making may have had less to do with a belief that local is always better, and more to do with the state's need to ensure that no one interest group would be able to use the law as a means of organizing in opposition to the state. Secondly, the partial decentralization of decision-making flows from the inevitable conflicts between deontological, utilitarian and communitarian commitments manifest in the ANC's political agenda (as it would in any well-developed, non-reductionist political theory). Thirdly, while the de facto policy of choice that arose out of this conscious attempt to dismantle the old bureaucracy and to distribute power throughout the new educational system was not actually anticipated by the ANC, the new government did realize that this particular aspect of its agenda might have such unintended consequences. The drafting history is, as a result, replete with references to the provisional nature of the structures being created by the state and the state's commitment to revisiting and to revamping those structures as it consolidated its power and it shifted its policy imperatives.</bibtext> </blist> <blist> <bibl id="bib3" idref="ref3" type="bt">3</bibl> <bibtext> 3. Choice—from the perspective of learners and parents—is not simply about access to better institutions (cf. Sekete, [86], p. 38). Indeed, the tendency to discuss choice in terms of student movement from township to suburb obscures the more interesting dynamics of choice (cf. Makhararamedza, [58], p. 11). Current patterns of student migration in South Africa are a function of a disparate array of factors (see Maile, [60], p. 97). The end of apartheid meant the end of restrictions on freedom and movement. Student migration occurs, in part, because families can move: in search of better work, better service delivery, greater proximity to family (see Vandeyar, [94], p. 92, noting confluence of job availability in industrial areas and ability of such areas to sustain better schools through higher fees). Some families move because of concerns about security. Indeed, school security—or lack thereof—is one of the primary reasons for learner movement (see Nzimande, [67], p. 241).</bibtext> </blist> <blist> <bibl id="bib4" idref="ref4" type="bt">4</bibl> <bibtext> 4. Although data on choice is limited, the 2001 Census shows that 'although the vast majority of schoolgoers (82, 3%) walked to school, this varied by province' (<emph>Statistics South Africa</emph>, [90], p. 104). That variation is significant: 'In Limpopo, 93, 9% of schoolgoers walked to school, compared with 59,1% in Gauteng' (<emph>Statistics South Africa</emph>, [90], p. 104). But what is particularly interesting is the large numbers of learners who took buses, taxis and trains to school. Almost 1.2 million out of 12 million learners used these forms of transport. Even assuming that many learners had to travel large distances to get to the primary or secondary school in their feeder zone, this statistic suggests that a large number travelled through feeder zones to a school of preference. This choice plus travel option appears to have been exercised primarily in Gauteng and the Western Cape. This correlates with both the higher incidence of better schools in more privileged communities and better systems of transport in and about the major urban centres. Furthermore, transport statistics do not account for those parents and learners who exercise choice through movement of residence or movement of employment.</bibtext> </blist> <blist> <bibl id="bib5" idref="ref10" type="bt">5</bibl> <bibtext> 5. This tension between liberation and reconciliation dominated the early documents produced by the Department of Education ([19], p. 5): 'The Review Committee proposes that the new structure of school organisation should create the conditions for developing a coherent, integrated, flexible national system which advances redress, the equitable use of public resources, an improvement in educational quality across the system, and democratic governance. The new structure must be brought about through a well-managed process of negotiated change, based on the understanding that each public school should embody a partnership between the state and a local community.' See also Sayed (1999, p. 142): 'Both the previous ruling National Party and the opposition anti-apartheid movement shared a commitment to some form of educational decentralization albeit for very different political and ideological reasons.'</bibtext> </blist> <blist> <bibl id="bib6" idref="ref11" type="bt">6</bibl> <bibtext> 6. Take the related subject matter of school fees (Fleisch &amp; Woolman, [31], p. 111). Shortly after ascending to power in 1994, the ANC promulgated several statutes—and a host of regulations—that permitted school fees. Although it ceded authority to SGBs to make significant decisions about such things as fees, policy makers underestimated the ability of parents to organize. Many policy makers believed that few SGBs would secure the statutorily required 50% approval rate of parents for fees if they attempted to charge excessive amounts. This initial miscalculation meant that the state did not anticipate the lengths to which the poor would go to fund the education of their children in fee-expensive schools and the concomitant interest some schools would have in excluding learners who would not or could not pay fees. It also underestimated the extent to which information asymmetries would skew the distribution of educational goods. Ten years later, the state has a much better conception of the interests that shape and distort the market in education. The national DoE has announced amendments to the South African Schools Act designed to correct various market distortions. See ELA Bill 2005. It plans to divest SGBs of some of their current authority to hire teachers. It seeks to eliminate fees for the poorest 40% of schools and to push for tighter enforcement of exemptions. It intends to reissue circulars that inform learners and their parents of their rights with regard to such exemptions. All of these initiatives are designed to minimize information asymmetries and to promote greater access to existing educational resources. The fragile state that governed from the mid-1990s through the <emph>fin de siècle</emph> did not possess the requisite power to effect such changes. An ever-strengthening state has announced its intention to reshape the environment in a manner that moves beyond reconciliation to redress.</bibtext> </blist> <blist> <bibl id="bib7" idref="ref13" type="bt">7</bibl> <bibtext> 7. (1986) 478 US 675, 681, 683. See, e.g., Dewey ([23]); Guttmann ([49]). For example, civics classes with community service components remain accepted features of the secondary school education landscape and often constitute a condition for graduation. These programmes are justified on the grounds that they promote awareness and acceptance of the responsibilities of citizenship. See Rutter and Newman ([80], p. 371).</bibtext> </blist> <blist> <bibl id="bib8" idref="ref23" type="bt">8</bibl> <bibtext> 8. FC s9, Equality, reads, in relevant part: '(1) Everyone is equal before the law and has the right to equal protection and benefit of the law ... (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.' See Albertyn and Goldblatt ([3]).</bibtext> </blist> <blist> <bibl id="bib9" idref="ref12" type="bt">9</bibl> <bibtext> 9. FC s21, Freedom of movement and residence, reads, in relevant part: '(1) Everyone has the right to freedom of movement. (2) Everyone has the right to leave the Republic. (3) Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic.' See Klaaren ([55]).</bibtext> </blist> <blist> <bibtext> 10. The picture of student movement is, of course, more complicated. Learners from African, Indian and Coloured communities seek access not only to the better resourced schools in predominantly white and privileged communities, but to better resourced schools in African, Indian and Coloured communities. In this respect race is a synecdoche for class.</bibtext> </blist> <blist> <bibtext> 11. <emph>Harksen v. Lane</emph> ([51]); <emph>National Coalition for Gay and Lesbian Equality v. Minister of Justice</emph> ([65]); <emph>Satchwell v. President of the Republic of South Africa</emph> ([82]); <emph>Bhe v. Magistrate, Khayelitsha &amp; Others</emph> ([10]). Our assumption is borne out by the comments of school officials simultaneously concerned with the rational and orderly management of schools and the twin imperatives of redress and transformation. See Affidavit of Margaret Webber, <emph>Sunward Park High v. MEC, Education, Province of Gauteng</emph> ([89]).</bibtext> </blist> <blist> <bibtext> 12. Once again it is important to emphasize the extent to which SGBs were not simply tools of the privileged, but were understood to serve the interests of the majority of South Africans. As one of the authors pointedly puts it: 'As an inclusive body of parents, teachers and learners at secondary schools, the election of SGBs did more than any other reform to stabilize schools' (Fleisch, [30], p. 101).</bibtext> </blist> <blist> <bibtext> 13. IC s 247, Special provisions regarding existing educational institutions, reads, in relevant part: '(1) The national government and the provincial governments as provided for in this Constitution shall not alter the rights, powers and functions of the governing bodies, management councils or similar authorities of departmental, community-managed or state-aided primary or secondary schools under laws existing immediately before the commencement of this Constitution unless an agreement resulting from bona fide negotiation has been reached with such bodies and reasonable notice of any proposed alteration has been given. ... (3) Should agreement not be reached in terms of subsection (1) or (2), the national government and the provincial governments shall, subject to the other provisions of this Constitution, not be precluded from altering the rights, powers and functions of the governing bodies, management councils or similar authorities of departmental, community-managed or state-aided primary or secondary schools, as well as the controlling bodies of universities and technikons, provided that interested persons and bodies shall be entitled to challenge the validity of any such alteration in terms of this Constitution.'</bibtext> </blist> <blist> <bibtext> 14. DoE ([18], p. 21): 'Parents or guardians have the primary responsibility for the education of their children, and have the right to be consulted by the state authorities with respect to the form that education should take and to take part in its governance. Parents have the inalienable right to choose the form of education which is best for their children, particularly in the early years of schooling, whether provided by the state or not, subject to reasonable safeguards which may be required by law. The parents' right to choose includes choice of the language, cultural or religious basis of the child's education, with due regard to the rights of others and the rights of choice of the growing child.'</bibtext> </blist> <blist> <bibtext> 15. The diffusion of power and the variety of goals that led to conditions are choice is reflected in the state's explanation of what the legal framework for the SGBs was designed to do: Both organisational structure and governance must be adequately uniform and coherent, but flexible enough to take into account the wide range of school contexts, the significant contrasts in the material conditions of South African schools, the availability or absence of management skills, parents' experience or inexperience in school governance, and the physical distance of many parents from their children's schools. (1) ensure both <emph>national coherence</emph> and the promotion of a sense of national common purpose in the public school system, while retaining flexibility and protecting diversity; ... (3) enable representatives of the main stakeholders of the school to take responsibility for school governance, within a framework of regulation and support by the provincial education authorities; (4) ensure that the involvement of government authorities in school governance is <emph>at the minimum</emph> required for legal accountability, and is based on participative management; (5) enable school governing bodies to determine the mission and character or ethos of their schools, within the framework of Constitutional provisions affecting schools, and national and <emph>provincial</emph> school law; (6) ensure that the decision-making authority assigned to school governing bodies is coupled with the allocation of an equitable share of public (budgetary) resources, and the right to raise additional resources, for them to manage; ... (8) ensure both <emph>equity and redress</emph> in funding from public (budgetary) resources, in order to a achieve a fair distribution of public funds and the elimination of backlogs caused by past unequal treatment. (DoE, [19], pp. 12–13, emphasis added)</bibtext> </blist> <blist> <bibtext> 16. The literature on fees in South Africa contains a lively debate about the extent to which concerns about white flight and the withdrawal of opinion makers from the system led to the current regime of school fees. It is certainly true that at least one international consultant raised such concerns as part of an argument in favour of school fees. What seems clear, however, is that a school fees regime would preserve the existing stock of good schools, ensure some access to well-resourced schools by members of historically disadvantaged communities and, most importantly, permit the state to divert funds away from schools in wealthier communities to schools in the greatest need without engendering a major political fight with middle-class (black and white) parents.</bibtext> </blist> <blist> <bibtext> 17. NEPA Admissions Regulations (1998). Regulations 33 and 34, entitled School zoning, read, in relevant part: 33. A Head of Department, after consultation with representatives of governing bodies, may determine feeder zones for ordinary public schools, in order to control the learner numbers of schools and co-ordinate parental preferences. Such feeder zones need not be geographically adjacent to the school or each other. 34 If a feeder zone is created (a) preference must be given to a learner who lives in the feeder zone of a school or who resides with his or her parents at an employer's home in the feeder zone; (b) a learner who lives outside the feeder zone is not precluded from seeking admission at whichever school he or she chooses. However, access to a chosen school cannot be guaranteed; (c) a learner who lives within the feeder zone of a school A must be referred to the neighbouring school B if school A is oversubscribed. If school B is oversubscribed, an alternative school within a reasonable distance must be found by the Head of Department. If that is not possible, school A must admit the learner; (d) the preference order of admission is: (i) learners whose parents live in the feeder zone, in their own domicile or their employer's domicile; (ii) learners whose parent's work address is in the feeder area; or (iii) other learners: first come first served. See Pampallis, [70], p. 150. (No delineated feeder zones had been established by any provincial HoD as of 2000.)</bibtext> </blist> <blist> <bibtext> 18. Basic Conditions of Employment Act (BCEA) ([5]) S1 (a domestic worker is 'an employee who performs domestic work in the home of his or her employer and includes—(a) a gardener; (b) a person employed by a household as driver of a motor vehicle; and (c) a person who takes care of children, the aged, the sick, the frail or the disabled'.) See also BCEA Sectoral Determination 7 ([6]).</bibtext> </blist> <blist> <bibtext> 19. Attempts to clarify this issue have been made in various education departmental circulars. These circulars arrogate to the provincial department of education the power to declare a school 'full'. Until the school has been officially designated as full, the school has an obligation to take children on the waiting lists. Whether a provincial Department of Education possesses such power has been the subject of recent litigation. See <emph>Mikro</emph> ([99]) (Supreme Court of Appeal held that SASA, s6(2), grants the SGB the authority to determine the language policy of a public school and that the provincial department of education has no power to substitute its judgment regarding the appropriate language policy for that of the school).</bibtext> </blist> <blist> <bibtext> 20. See NEPA Admissions Regulations, ss6–10 and SASA, s5(5). NEPA Admissions Regulations, ss6–10 read, in relevant part: 6. The Head of Department is responsible for the administration of the admission of learners to a public school. The Head of Department may delegate the responsibility for the admission of reamers to a school to officials of the Department. 7. The admission policy of a public school is determined by the governing body of the school in terms of section 5(5) of the South African Schools Act: the policy must be consistent with the Constitution of the Republic of South Africa, 1996 ... the South African Schools Act ... and applicable provincial law. The governing body of a public school must make a copy of the school's admission policy available to the Head of Department. 8. The Head of Department must co-ordinate the provision of schools and the administration of admissions of learners to ordinary public schools with governing bodies to ensure that all eligible learners are suitably accommodated in terms of the South African Schools Act 1996. 9. Subject to this policy, it is particularly important that all eligible learners of compulsory school going age are accommodated in public schools. The admission policy of a public school and the administration of admissions by an education department must not unfairly discriminate in any way against an applicant for admission.</bibtext> </blist> <blist> <bibtext> 21. For example, in Gauteng, public school admissions policies are subject to the Gauteng School Education Act 6 of [46] (GSEA), the South African Schools Act 84 of [92] (SASA), the Gauteng Education Policy Act 12 of [44] (GEPA), the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA), all regulations issued under the aforementioned Acts and all relevant provisions of the Final Constitution. Standard canons of statutory interpretation dictate that PEPUDA provides the departure point for equality analysis. See Woolman (forthcoming, 2006). PEPUDA sets out by far the most stringent framework for analysis of discrimination. See PEPUDA, SS1, 13, 14 (Section 1 reads: '"discrimination" means "any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantage on; or <emph>(b)</emph> withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds. ..." "Prohibited grounds" [are] "race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth".) PEPUDA ss13 and 14 lay out the test for discrimination, which, in the case of discrimination on a prohibited ground, require the party that engaged in discrimination to prove that such discrimination was fair. That requirement is not easily satisfied. The equality jurisprudence of the Constitutional Court under the Final Constitution provides a similar rubric. See FC ss9(1), 9(3), 9(4) and 9(5); <emph>Harksen v. Lane</emph> (1998) at para. 53. <emph>See also</emph> SASA ss5(1)–(5). ('5. (1) A public school must admit learners and serve their educational requirements without unfairly discriminating in any way.') See the regulations passed under the GSEA, s11(1), and the Gauteng Education Policy Act 12 of [45], s4(a)(i), entitled 'Admission of Learners to Public Schools', General Notice 4138 of 2001 (PG 129 of 13 July 2001) ('3. Unfair discrimination: (1) Admission policies for schools must not unfairly discriminate against any learner in any way, ...; (b) a governing body of a school may not administer any test related to the admission of a learner to a school, or direct or authorise the principal or any other person to administer such test; and (c) no learner may be refused admission to a school or discriminated against in any way on the grounds that his or her parent—(i) is unable to pay or has not paid the school fees, ... (ii) does not subscribe to the mission statement of the school and code of conduct of the school'.)</bibtext> </blist> <blist> <bibtext> 22. See <emph>Mikro</emph> ([99]) (Supreme Court of Appeal held that FC s 29(2)—the right to receive education in an official language at a public educational institution if practicable—did not encompass the right to receive such education at each and every public educational institution. It further held—against the state—that SASA, s6(2), grants the SGB the authority to determine the language policy of a public school and that the provincial department of education has no power to substitute its judgment regarding the appropriate language policy for that of the school.) See also <emph>Sunward Park High</emph> (2005) (High Court holds that public school, though at capacity, must attempt to accommodate request by HoD to take on additional students who have not been granted access elsewhere.)</bibtext> </blist> <blist> <bibtext> 23. McGinn and Street ([61], p. 471); Weiler (1990, p. 433). Weiler, McGinn and Street suggest that the motivation for decentralization is to create the impression of deferring to the will of the people in their own community. The state, 'portrays itself as being one with the people.' See Sayed (1999, p. 143). Even if one is neither cynical nor sceptical about the state's motivations, there is always going to be an inescapable tension between government retaining sufficient power to undertake, unilaterally, what it believes to be necessary changes in policy and the government devolving sufficient control to local stakeholders to enable government to be responsive to the experiences and the needs of different communities. See <emph>Gauteng School Education Bill</emph> ([28]) (Recognizing legitimate power of the central government to set national norms and standards that inevitably trench upon individual and group autonomy.)</bibtext> </blist> <blist> <bibtext> 24. Understanding the character of these overlapping interests is critical for any account of how the law's open spaces create such unintended consequences as the de facto policy of school choice. Cf. Beckmann ([7]), p. 159). Beckmann states that the SGB governs and the principal manages. The evidence of ten years of this arrangement suggests that SGBs and principals do both.</bibtext> </blist> <blist> <bibtext> 25. Studies in the United Kingdom suggest that principals and head teachers play exactly this role in environments where students can migrate and where perceptions of 'good' or 'better' schools encourage such migration. See Smith ([88]).</bibtext> </blist> <blist> <bibtext> 26. FC Schedule 4 includes 'Education at all levels, excluding tertiary education'.</bibtext> </blist> <blist> <bibtext> 27. The principle of subsidiarity dictates that policy be executed at the most appropriate level of government. See De Villiers ([22], p. 208); Beckmann ([7], p. 159); Woolman et al., ([106]).</bibtext> </blist> <blist> <bibtext> 28. Many commentators would prefer that the state reflect less variation. The less variation the easier it may be to control policy and effect desirable outcomes. See Sayed (1909, pp. 148–9) (Sayed laments the ability of Western Cape—through Western Cape Schools Bill—to undermine national imperatives). But Sayed's conclusions are occasionally undermined by his mischaracterization of the law. For example, Sayed states that: '[S]chooling is a provincial competency. In other words, the governance and the administration of schooling is a function of the nine provinces' (Sayed, [84], p. 148). As a statement of the law under the Final Constitution, Sayed's description is incorrect. Given that his article appeared in 1999, two years after the certification of the Final Constitution by the Constitutional Court, and three years after its promulgation by the Constitutional Assembly, one would assume that Sayed refers to the Final Constitution. However, even assuming that he has let time slide, he misconstrues the position under the Interim Constitution. The provisions dealing with conflicts under the Interim Constitution did not privilege, in any meaningful way, provincial legislation over national legislation any more than the comparable provisions in the Final Constitution. Indeed, if it had, the text of the Final Constitution could not have been certified. See <emph>Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa,</emph>[26] (1996).</bibtext> </blist> <blist> <bibtext> 29. Most commentary regarding current national and provincial legislative competences concerns itself with the resolution of conflicts in the exercise of such authority (Bronstein, [12]). However, state actors are under a constitutional obligation to try to resolve any conflict through political processes before resort is had to court (Woolman et al., [106]). Indeed, words like 'conflict' have largely been purged from those constitutional provisions governing inter-governmental relations. The chapter 3 jurisprudence of the Constitutional Court suggests that this 'new philosophy' of cooperative government is governed by two basic principles (<emph>Liquor Bill</emph> (2000) at para. 40). (Chapter 3 'introduced a "new philosophy" to the Constitution, namely that of co-operative government.') First, one sphere of government or one organ of state may not use its powers in such a way as to undermine the effective functioning of another sphere or organ of state. Second, the actual integrity of each sphere and organ of state must be understood in light of the powers and purpose of that entity. In short, while the political framework created by the Final Constitution demands that mutual respect must be paid, a sphere of government or an organ of state may able to dictate the ends of another and the means by which those ends are carried out.) <emph>Premier, Western Cape</emph> (1999) at paras 54–55, 83 ('Co-operation is of particular importance in the field of concurrent law-making and implementation of laws'); <emph>DVB Behuising</emph> (2000).</bibtext> </blist> <blist> <bibtext> 30. One difficulty in an area of shared competence such as education is attempting to square national imperatives, provincial capacity and local variation. DoE (1995, p. 3): 'Given that Parliament and the provincial legislatures both have legislative competence in matters affecting schools, and provincial governments have executive responsibility for the administration of schools, it is essential for me to work with my colleagues, the provincial Ministers of Education, to achieve the highest level of agreement on the way forward. I know that these matters are of direct concern to their constituents.' In this regard, primary and secondary school education are profitably compared with tertiary education (Jansen, [54]; Sehoole, [85]). The national government possesses exclusive legislative competence over tertiary education (<emph>First Certification Judgement</emph> (1996) at para. 256). The relatively small number of tertiary education institutions, the direct control of their budgets by national government and exclusive national legislative competence has meant that the national government has been able to implement sweeping changes in institutional arrangements, internal policies, research agendas and pedagogical method. The complexity of the political landscape for primary and secondary schools is orders of magnitude greater. National government must cooperate with provincial and local actors who exercise meaningful constitutional and statutory authority—and who can thwart—or at least frustrate—the goals of the national Department of Education. Intergovernmental Relation Committees of Ministers and Members of Executive Councils (MINMECs) are entities designed to coordinate policy between the various spheres of government. The MINMEC for the education sector—the Council of Education—is responsible for drafting intergovernmental line-function policies, guiding the different spheres of government in the formulation of their own sector-specific policies, harmonising legislation that engages concurrent competencies, transferring information and ensuring the optimal utilisation of financial resources. As with many MINMECs, the Council of Education experiences two general problems. First, because provincial departments are often organized differently at the national and provincial level, some provincial MECs are left with responsibility for more than the education portfolio and thus responsibility for more than one MINMEC. Not surprisingly, this asymmetry may mean that the provincial MECs lack the time and the energy necessary to make meaningful interventions. The result is that policy may be determined de facto by the national government. Second, under-resourced provincial MECs often do not have the capacity to respond to all policies that set agendas or to do the research necessary to generate their own position papers. Once again, notionally shared national-provincial policy decisions are often taken, by default, by national government alone (De Villiers, 1997, pp. 208–9; Murray, [63], pp. 66, 76; Reddy, [76]).</bibtext> </blist> <blist> <bibtext> 31. In early 2005, national government announced plans to eliminate school fees for the poorest two quintiles of schools (see ELA Bill 2005). Some provinces were initially concerned that the abatement would become an 'unfunded mandate'. While provincial education expenditure is expected to grow some 2.3% a year, that will hardly suffice to make up for the shortfall in fees (see DoE, [21]; Wildeman, [101], p. 2). The Division of Revenue Act (DORA) is designed to prevent occurrences of unfunded mandates. DORA obliges the national government and provincial governments to consult on matters of concurrent competence and to reach agreement about the levels of expenditure necessary to realize shared policy initiatives. Such agreements are absolutely essential in education because the responsibility for service delivery falls almost entirely upon the province. As a result, the national government cannot expand an existing programme or create a new policy initiative unless it is able to commit the requisite resources to the provinces.</bibtext> </blist> <blist> <bibtext> 32. Although national government and provincial government share competence on education, the core enabling statutes, as well as the commitment to the principle of subsidiarity, place the responsibility for service delivery in the hands of the provincial governments. But just as national government can commit itself publicly to policy initiatives it cannot afford, so too can provincial governments spend money they do not have. The financial years 1997 and 1998 witnessed a massive budget crisis. The state's effort to rightsize and redeploy the South Africa's teaching corps—motivated in part by a self-imposed commitment to fiscal austerity and in part by the imperatives of transformation—precipitated a mini-financial melt-down in the education sector. The budget crisis was exacerbated by the provinces' generosity in extending voluntary severance packages to all those who applied and their failure to take accurate stock of existing commitments to suppliers. The national government contributed to the provincial overspend by introducing norms and standards for class sizes that permitted schools above the norm to hire additional teachers. This temporary teacher hiring policy resulted in more money being spent on personnel rather than less. In Gauteng, as one of the authors note, the education department had budgeted R3.98 billion, but actual expenditure was likely to be R4.9 billion. The Gauteng Department of Education was about to spend a billion rand more than it had (see Fleisch, [30], p. 55). One lesson of this crisis is that the bifurcation of responsibility for education often means that when novel problems such as an unanticipated budget crisis present themselves, government experiences a coordination problem that slows its response. A second lesson is that the state's capacity to carry out large-scale reforms is often outstripped by the speed at which a complex set of constituencies—learners, teachers, parents, contractors, unions, local government officials, international lenders—move in response. So, for example, when the national DoE attempted to deal with the revenue shortfall by re-drafting the regulations governing the hiring of teachers, the teachers' union was able to mobilize teachers around job security and parents and learners around issues of redress (the already historically disadvantaged communities would have borne the brunt of the hiring freeze and lay-offs) (Swartz, [91], p. 45). The other fascinating detail in the budget debacle was the national DoE's decision to divest itself of responsibility for negotiating with SADTU. The state's tactic was designed to force the union to negotiate with nine separate provinces—and thereby splinter the union's constituency and undermine its bargaining strength. The tactic, however, energized SADTU's base. A three-day strike forced the national DoE to re-draft the regulations and retain some responsibility for post provisioning. From the perspective of concurrent competence, this incident reveals three features of cooperative governance in South Africa. First, the national government often uses provincial government to advance its own interests—without much regard for how the exercise of its authority will play out in particular provincial settings. Second, the national government will delegate authority for tough decisions to the provinces when the political gain to be had is minimal or, put differently, where it does not want to take responsibility for the consequences. Third, because the ANC controls the national government and the nine provincial governments' power moves inexorably from the bottom to the top: power resides not in provincial legislatures or even Parliament, but in the ANC NEC. In 2005, large fluctuations in student numbers in a various districts placed an enormous strain on provincial governments and schools. The dual constitutional commitments to freedom of movement and residence and equal access to educational resources constrain state responses to such fluctuations <emph>Sunward Park High</emph> (2005).</bibtext> </blist> <blist> <bibtext> 33. Quasi-markets refer to markets in which some elements of an efficient market are missing. Markets in schools are, for example, notoriously inflexible in terms of the products offered and often highly asymmetric and inefficient when it comes to information dissemination.</bibtext> </blist> <blist> <bibtext> 34. Because of the limited mobility of educational goods and educational buyers at the primary and secondary school level, there can never be more than a quasi-market in public schools (Deem et al., [17]; Gintis, [47]).</bibtext> </blist> <blist> <bibtext> 35. But it seems inevitable, as Pam Christie ([14]) notes, that the most privileged schools in the most privileged communities will benefit the most from policy reforms specifically engineered for the most disadvantaged schools. The reasons for this are clear: when the rules for success change, the institutions, the communities and the association with the most real and social capital will have the wherewithal to learn how the new game is played and to alter their behaviour accordingly. So, for example, when a new curriculum was introduced in a Grade 1 pilot, many teachers at historically disadvantaged schools found themselves unable to adjust. The result was that the learners in Grade 1 in these schools were not taught how to read at the age-appropriate time.</bibtext> </blist> <blist> <bibtext> 36. African students made up 6% of independent school learners in 1988 (Pampallis, [70]). In Gauteng in 1998, African learners accounted for an enormous 69.02% of independent school learners (Pampallis, [68], p. 160). Whites, who made up 31.68 % of independent school learners in 1996, made up only 11.79% of learners in 1998 (GDE, 2000). Though hard numbers are difficult to come by, Pampillas believes that the vast majority of African independent school learners come from poor communities either without public schools or with poor-quality public schools.</bibtext> </blist> <blist> <bibtext> 37. <emph>Mail and Guardian (</emph>[59]<emph>)</emph>: 'Many Sowetan primary schools are half empty this year as tens of thousands of parents have chosen to send their children to schools in wealthier suburbs.'</bibtext> </blist> <blist> <bibtext> 38. Pampallis ([70]), p. 155): 'While part of the cost of students lost to relatively more privileged schools in White, Indian and Coloured, Townships came in the form of fees, the better part of the cost comes in terms of social capital: "since the parents who send their children away are likely to be the most educated parents in township communities or the most motivated to intervene in their children's education, school governing bodies lose some of their best potential members".'</bibtext> </blist> <blist> <bibtext> 39. Pampallis ([70]), p. 155): 'Despite an overall decline in learner enrolment in Soweto, the "good" schools—those with good matric results—"have experienced a lively demand for admissions, enrolling students from beyond the feeder zone".'</bibtext> </blist> <blist> <bibtext> 40. GDE ([39]) <emph>Circular on the Admission of Learners</emph><emph>in Public Schools in 2000</emph>. The flyer is published in English, Afrikaans, Zulu and Sepedi. It reads, in relevant part: If you want your child to go to a school away from where you live you may register your child at the school of your choice. But the school must put your child's name on a waiting register. The school must give you a letter to say that you are on the waiting list and what number you are on the waiting list. The school must inform you by the end of October whether your child has been accepted at the school if the school has space for your child. If you decide not to accept the place at the school for your child, you must let the school know.</bibtext> </blist> <blist> <bibtext> 41. Hoadley ([53]); Maile ([60]) (Found that in two secondary schools in Khayelisha, learners who had immigrated from the Eastern Cape, and were consequently the most disadvantaged members of a disadvantaged community, attended the worst of the two schools. Children from families in better financial condition and in more settled circumstances attended the better school.)</bibtext> </blist> <blist> <bibtext> 42. But even perfect information is not sufficient to ensure that choice works for all. Choice programmes are, by their nature, dependent upon parents to ensure school accountability. However, parents, for obvious reasons, namely time, are in no position to ensure that the school that they select performs in an optimal manner. So, in addition to providing information to parents that will enable them to 'choose' better, the state must be able to put in place mechanisms that ensure that the schools are both adequate and accountable (Ladd, [56], p. 19).</bibtext> </blist> <blist> <bibtext> 43. That the South African state is <emph>not</emph> free to impose such a standard, homogenized vision of the good life on its citizens is evident in a broad array of decisions handed down by the Constitutional Court.</bibtext> </blist> <blist> <bibtext> 44. Of course, as we have already noted, in many places it is possible to generalize about school choice. As the 2001 Census demonstrates, the vast majority of students do not use transport in order to attend school. Transport figures are a fairly reliable indicator for choice. Thus, in most school environments it is fair to say that school choice does not matter at all.</bibtext> </blist> <blist> <bibtext> 45. As an abstract matter, it is possible to take five positions on school choice in South Africa. First, the state should not be in the business of providing education, it should be left up to the market, which will ultimately find optimization. Second, one can be sufficiently impressed by the alleged benefits of choice that one would think that the state's primary goal ought to be the creation of both the necessary and the sufficient conditions for all South African learners to participate in the market in educational goods. Third, one can take the view that because the benefits of choice obtain for but a small segment of South African society, and because the transaction costs that attend to the creation of a market outstrips any conceivable benefit that would flow from the creation of such a market, one ought to adopt a mixed model. That mixed model attempts to maximize the number of beneficiaries in that segment of the learner population with access to efficient educational markets and at the same time increase funding and improve outcomes for the vast majority who do not have access to the market. Fourth, one can take the view that the opinion that South Africa ought not to have any market in public schools and that those provisions in the existing legal framework that create the necessary conditions for a market ought to be eliminated. This egalitarian position rests on the premise that any departure from an absolutely equal distribution of public goods cannot be justified. Fifth, the egalitarian position with respect to education can be extended so as to include every learner in primary and secondary schools. That is, if no inequality in the distribution of educational goods can be sanctioned, then the state cannot tolerate the existence of private schools that might reinforce differences in class.</bibtext> </blist> <blist> <bibtext> 46. Our two-track model bears a family resemblance to Rawls' two principles of justice. The first principle grants each member the maximum degree of liberty or autonomy consistent with the exercise of an equal degree of liberty or autonomy by all other members of the community. The second principle commits the polity to distributive principle in which departures from equality can be justified only to the extent that the distribution makes the worst off better off than they would be under a purely egalitarian distribution. The two principles suggest two possible strategies to improve the existing mixed model. First, rigorous enforcement of exemptions married to an information campaign that describe the law as it stands would enable some learners in urban and peri-urban areas to take advantage of schooling opportunities in privileged communities. Second, lotteries should take place for a certain number of places in the best schools. The benefit of a lottery is that it not as readily subject to manipulation or abuse. It would effectively end the use of fees as a means for excluding a poor, and sometimes ill-informed, segment of the population (Saulny, [83]) (School system responds to charges that current choice policies favour wealthy families—often from outside the community—over the less privileged families who live within the district). The downside is that the very randomness of a lottery may undermine the efforts of those who spend enormous amounts of effort to secure places in the best schools for their children. When luck replaces planning as a method for distribution of goods, it diminishes incentives for undertaking a variety of strategies for securing a better education for one's child that have the added benefit of enhancing other dimensions of a child's well-being. 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| Header | DbId: eric DbLabel: ERIC An: EJ818055 AccessLevel: 3 PubType: Academic Journal PubTypeId: academicJournal PreciseRelevancyScore: 0 |
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| Items | – Name: Title Label: Title Group: Ti Data: South Africa's Unintended Experiment in School Choice: How the National Education Policy Act, the South Africa Schools Act and the Employment of Educators Act Create the Enabling Conditions for Quasi-Markets in Schools – Name: Language Label: Language Group: Lang Data: English – Name: Author Label: Authors Group: Au Data: <searchLink fieldCode="AR" term="%22Woolman%2C+Stuart%22">Woolman, Stuart</searchLink><br /><searchLink fieldCode="AR" term="%22Fleisch%2C+Brahm%22">Fleisch, Brahm</searchLink> – Name: TitleSource Label: Source Group: Src Data: <searchLink fieldCode="SO" term="%22Education+and+the+Law%22"><i>Education and the Law</i></searchLink>. Mar 2006 18(1):31-75. – Name: Avail Label: Availability Group: Avail Data: Routledge. Available from: Taylor & Francis, Ltd. 325 Chestnut Street Suite 800, Philadelphia, PA 19106. Tel: 800-354-1420; Fax: 215-625-2940; Web site: http://www.tandf.co.uk/journals – Name: PeerReviewed Label: Peer Reviewed Group: SrcInfo Data: Y – Name: Pages Label: Page Count Group: Src Data: 45 – Name: DatePubCY Label: Publication Date Group: Date Data: 2006 – Name: TypeDocument Label: Document Type Group: TypDoc Data: Journal Articles<br />Reports - Descriptive – Name: Audience Label: Education Level Group: Audnce Data: <searchLink fieldCode="EL" term="%22Elementary+Secondary+Education%22">Elementary Secondary Education</searchLink> – Name: Subject Label: Descriptors Group: Su Data: <searchLink fieldCode="DE" term="%22School+Choice%22">School Choice</searchLink><br /><searchLink fieldCode="DE" term="%22Educational+Legislation%22">Educational Legislation</searchLink><br /><searchLink fieldCode="DE" term="%22Educational+Policy%22">Educational Policy</searchLink><br /><searchLink fieldCode="DE" term="%22Elementary+Secondary+Education%22">Elementary Secondary Education</searchLink><br /><searchLink fieldCode="DE" term="%22Public+Education%22">Public Education</searchLink><br /><searchLink fieldCode="DE" term="%22Free+Enterprise+System%22">Free Enterprise System</searchLink><br /><searchLink fieldCode="DE" term="%22Educational+History%22">Educational History</searchLink><br /><searchLink fieldCode="DE" term="%22Racial+Segregation%22">Racial Segregation</searchLink><br /><searchLink fieldCode="DE" term="%22Foreign+Countries%22">Foreign Countries</searchLink> – Name: Subject Label: Geographic Terms Group: Su Data: <searchLink fieldCode="DE" term="%22South+Africa%22">South Africa</searchLink> – Name: DOI Label: DOI Group: ID Data: 10.1080/09539960600787317 – Name: ISSN Label: ISSN Group: ISSN Data: 0953-9964 – Name: Abstract Label: Abstract Group: Ab Data: School choice is often identified with right-leaning, voucher-happy, market-oriented public school systems like those found in the United States. Thus, the proposition that a social democratic state such as South Africa will offer many primary and secondary school learners far greater choice strikes many as counter-intuitive and implausible. The authors demonstrate that the three major pieces of education framework legislation--National Education Policy Act (NEPA), South Africa Schools Act (SASA) and Employment of Educators Act (EEA)--conspire with recent historical events and deep political and constitutional commitments to create South Africa's "unintended" experiment in school choice. The authors emphasize that the legal framework created by legislation and regulation are necessary but not sufficient conditions--they prefer to call them enabling conditions--for the creation of quasi-markets in schools. The generation of quasi-markets in schools depends on several other factors required for all markets. The absence of many of these features in much of South Africa explains why the majority of South African learners do not have access to quasi-markets in schools. The absence of such features is largely a function of apartheid's legacy of deeply entrenched patterns of inequality in primary and secondary schooling. Having demonstrated that historical, political, legal and economic conditions had the unintended consequence of producing school choice--and that school choice was "not" the result of the state's adoption of a conscious and deliberate policy--the authors examine the state's response to this de facto policy. The authors remain agnostic as to the desirability of the de facto policy and conclude with an exploration of some of the primary critiques of choice in South Africa. While they dismiss the "political" critiques as largely facile, the available empirical evidence suggests the limited systemic benefits and the potentially deleterious consequences for the poorest of the poor who reside in areas where quasi-markets exist. The state's current "conscious" attempts to re-engineer a modest mixed model, that emphasizes access to existing quasi-markets--and thus exploits superior existing school stock for the benefit of learners from historically disadvantaged communities--and that shifts public resources to those schools in the greatest need, accords with what little we know about the advantages and disadvantages of choice. (Contains 46 notes.) – Name: AbstractInfo Label: Abstractor Group: Ab Data: As Provided – Name: Ref Label: Number of References Group: RefInfo Data: 107 – Name: DateEntry Label: Entry Date Group: Date Data: 2008 – Name: AN Label: Accession Number Group: ID Data: EJ818055 |
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| RecordInfo | BibRecord: BibEntity: Identifiers: – Type: doi Value: 10.1080/09539960600787317 Languages: – Text: English PhysicalDescription: Pagination: PageCount: 45 StartPage: 31 Subjects: – SubjectFull: School Choice Type: general – SubjectFull: Educational Legislation Type: general – SubjectFull: Educational Policy Type: general – SubjectFull: Elementary Secondary Education Type: general – SubjectFull: Public Education Type: general – SubjectFull: Free Enterprise System Type: general – SubjectFull: Educational History Type: general – SubjectFull: Racial Segregation Type: general – SubjectFull: Foreign Countries Type: general – SubjectFull: South Africa Type: general Titles: – TitleFull: South Africa's Unintended Experiment in School Choice: How the National Education Policy Act, the South Africa Schools Act and the Employment of Educators Act Create the Enabling Conditions for Quasi-Markets in Schools Type: main BibRelationships: HasContributorRelationships: – PersonEntity: Name: NameFull: Woolman, Stuart – PersonEntity: Name: NameFull: Fleisch, Brahm IsPartOfRelationships: – BibEntity: Dates: – D: 01 M: 03 Type: published Y: 2006 Identifiers: – Type: issn-print Value: 0953-9964 Numbering: – Type: volume Value: 18 – Type: issue Value: 1 Titles: – TitleFull: Education and the Law Type: main |
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