Access, Adequacy and Equality: The Constitutionality of School Fee Financing in Public Education

Abstract

This article explores the question of whether charging school fees for public education violates s 29 or s 9 of the Constitution. The article concludes that fees may be unconstitutional, for two reasons. First, charging school fees may violate learners' rights to basic education under s 29, because a fee-based financing systemcreates problems with both access and adequacy. Despite the availability of exemptions for the poor, the school fee regime of financing appears to completely bar access for some learners. It also unconstitutionally burdens the right to access for others by requiring families to expend significant portions of their income on fees. In addition to problems with access, fee-based school financing may also violate s 29 because this model of financing fails to provide a substantively adequate core level of basic education. Feepoor districts cannot adequately fund school needs through fees, and government currently does not provide sufficient state funding to remedy the shortfall. Second, charging school fees may violate the guarantee of equality in s 9 of the Constitution because fees discriminate on the basis of race and class. A school’s ability to charge fees - and to provide a learner with greater funding and resources - appears to correlate strongly to the class and race of the community in which the school is located. Research indicates that the practice of charging school fees appears to reproduce apartheid-era disparities in expenditures per learner between poor black learners and middle and high-income white learners.

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