Between Norms and Facts: The Constitutional Court’s Commitment to Pluralism in South Africa’s Radically Heterogeneous Public Schools

Abstract

The recognition of pluralism constitutes a golden thread that runs through the Constitutional Court’s entire oeuvre of work. This ‘right to be different’ finds its initial footing in Gauteng Education Bill, Prince, and Bhe. Pluralism then inserts itself into our jurisprudence as a grundnorm. The Court affirms this status repeatedly through very different rights in such cases as Fourie, Pillay, Shilubana, Ermelo and Juma Musjid. Pluralism must be understood as a necessary condition for maintaining order in a radically riven heterogeneous society. It’s hardly surprising, then, that pluralism plays a similar role in our schools and our still nascent development of an inclusive education policy. Pluralism frames, and circumscribes, the manner in which individual schools may order their admissions policies, curriculum, discipline proceedings and other internal affairs. At the same time, it gives adequate effect to learners’ rights and the communal interests within which the school is situated. Pluralism doesn’t require us to like one another. Suspicion of members of other groups remains an inextricable part of humanity’s DNA. However, we do have to learn to live with one another. The problem of pluralism is not – as Habermas and Judt show – a uniquely South African conundrum. That said, it’s universality does not mean we can ignore it’s challenges. Our schools remain wonderful places to reshape the manner in which we engage others who appear foreign to us. This article concludes that until our schools take this reshaping qua pluralism seriously, the South African experiment in democracy will remain fragile indeed.