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n South African Journal on Human Rights - Realising the right to education in South Africa : lessons from the United States of America
Despite a crisis of inequality in education and the formidable socio-economic rights jurisprudence of our Constitutional Court, not a single case has yet come before the Court based squarely on the right to a basic education.
The long history of litigating for education and equality in the United States, where educational disadvantage has played itself out in ways remarkably akin to contemporary South Africa, is instructive. The retreat woven by the federal judiciary subsequent to the landmark case of Brown v Board of Education, in which strategies against de facto segregation have been severely circumscribed, has led to innovation in the state courts, under state constitutions that enshrine a right to education. Rose v Council for Better Education, in which the Kentucky Supreme Court declared the state's entire school system unconstitutional, shows that when a social movement builds moral consensus it can pave the way for systemic change to be brought about by courts. Fundamental to the outcome of that case was the active involvement of local teachers, learners and other ordinary citizens in devising and campaigning for particular standards of educational reform.
Similarly, the cases of Grootboom, Treatment Action Campaign, Mazibuko and Joe Slovo make clear, in their different ways, that firstly, a finding of constitutional breach is frail unless harnessed to a practicable and appropriate remedy, and secondly, that social justice litigation operates best as part of a broader strategy of mobilisation and organised mass-based activism, before, during and after the court process.
The formulation of creative remedies is increasingly important. This is referred to in the United States as the 'non-court-centric remedy' and in South Africa as 'meaningful engagement'. Particularly in cases where there is widespread activism and public participation, courts are able to formalise standards that have been devised by civil society, making the body politic itself central to the enforcement of judgments.
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