On the constitutionality of school fees : a reply to Roithmayr : research article

Abstract

The constitutionality of school fees has attracted considerable public and academic debate of late. In her recent issue paper, Daria Roithmayr (2002) claims that the elimination of a user fees system in public schools is necessary in order to satisfy three constitutional requirements: (1) the right to access to basic education; (2) the right to an adequate basic education; and (3) the right to an equal basic education. This article analyses the strength of both the empirical claims and the legal arguments upon which Roithmayr and others base their attacks on the constitutionality of school fees. Available empirical evidence suggests that school fees do not constitute a significant barrier to access, cannot be organically tied or causally linked to an inadequate basic education and would not meaningfully enhance human dignity if eliminated. If the authors' assessment of such evidence is correct, then those constitutional arguments based upon a relationship between fees and access, adequacy and dignity lack purchase. That said, this article proffers only a qualified defense of the constitutionality of a user fee system. School fees may well be necessary to ensure the progressive realisation of equality, quality and accessibility in our public schools. However, as the convergence between Roithmayr and the authors' positions suggests, good policy, not constitutional law, requires the modification of the current user fee system.

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