Court ruling misses the mark on language rights

The South African Constitutional Court’s recent decision upholding the University of the Free State’s move toward English courses, though intended to ease racial tensions and promote integration, is long on memory but short on constitutional vision for language rights across the education spectrum. In the end, its use of language as a proxy for race and its reliance on English to transform society misses the mark on a number of key points.

Language has been a flashpoint in South African politics since the Afrikaner descendants of the early Dutch settlers forged a language-based national identity in opposition to British rule. The black population in turn embraced English as the language of resistance and redress against the horrors of Afrikaner apartheid.

In the past several years, these tensions have come to a head in court cases over the language of instruction at historically Afrikaans universities. The case against the University of the Free State, or UFS, is the first to reach the Constitutional Court.

Parallel language programme

The controversy began in 2003 when UFS officially adopted a parallel language programme offering English and Afrikaans instruction in separate classes. As university administrators later told the courts, the programme had the unintended effect of segregating students in lecture halls along racial lines and consequently heightened racial tensions.

In the wake of protests and demands by black students, in 2016 the university council and senate decided to make English the primary medium of instruction beginning in 2017.

To ease the transition, the university would offer a tutorial programme for first-year students in Afrikaans and several African languages. It would also maintain parallel classes in English, Afrikaans and two other official languages, Sesotho and isiZulu, in teacher education and theology where there was clear market demand. South Africa has 11 official languages of which English and Afrikaans are the most dominantly used in all aspects of public and private life.

AfriForum, an organisation that preserves Afrikaner identity and culture, and Solidarity, an associated trade union, took UFS to court. They argued that the plan violated the constitutional right of Afrikaans-speaking students to receive education in the official language “of their choice” where “reasonably practicable”. They also maintained that the plan was inconsistent with a ministerial policy recognising Afrikaans as a language of scholarship and science.

With the case having worked its way through the lower courts, AfriForum and Solidarity sought final relief in the Constitutional Court. A majority of nine judges denied them leave to appeal as they had no reasonable chance to succeed. The majority then proceeded to address the merits.

The opinion looks at the country’s apartheid past, its remaining scars and the lingering legacy of unequal education, all of which demand a “radical transformation” of South Africa’s formerly all Afrikaans universities. The Constitution expressly requires, the opinion notes, that “practicability” be guided by “equity” and the “need to redress the results of past racially discriminatory laws and practices”.

Here the parallel programme, the judges state, perpetuated segregation and racism and ran counter to building a “common sense of nationhood”. And while the ministerial policy, the opinion notes, does in fact recognise Afrikaans as a “national resource”, it also requires that the “language of instruction conform to constitutional norms like access, equity and inclusivity”.

Racial divisions

The majority opinion was undeniably correct to remember apartheid’s dark history and legacy of lasting inequality. That being said, its unblinking focus on past racial oppression without considering the other rights at stake elicited an equally sensitive and more nuanced minority opinion. The fact that all three dissenting judges were white while the nine judges in the majority were black suggests racial divisions on the court itself.

The minority opinion warns against “disproportionately and uncritically” burdening future generations with the “undeniable injustices perpetrated by white Afrikaans speakers of the past”. It further raises concerns with the majority’s refusal to allow a more robust review of the facts in an oral hearing despite its claim, citing the court’s 2010 landmark decision in Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo, that “reasonableness” depends on “all the relevant circumstances of each particular case”.

Navigating between these opposing views, one has to wonder whether the majority opinion is less about the force of English as a unifying neutral language or the intrinsic harms of racial separation and more about the symbolic association of Afrikaans with the racially motivated wrongs of apartheid and the settling of old scores with its speakers.

Admittedly it’s difficult to imagine white Afrikaners as the newly “oppressed”. Yet many of the university’s non-English speaking students are not privileged white Afrikaners but rather coloured students from disadvantaged backgrounds whose primary language is Afrikaans. Others are black speakers of African languages.

Reinforcing inequities?

Underlying the claims and counter-claims is the unresolved question of how to characterise Afrikaans. Does it still denote a white ethnic-Afrikaner identity grounded in past racial conflicts or does it now signify a non-ethnic linguistic identity disassociated from racial subordination? If the latter then those speakers have rights that demand constitutional protection.

The majority opinion, in fact, makes no mention of the constitutional obligation to promote all 11 official languages and not just English. Nor does it make note of the rich body of research supporting mother tongue instruction, that is, that students learn best when they learn in a language they understand.

Not only is the solution upheld in this case disproportionate to the problem, as the minority notes, but it may cause more harm than good and ultimately undermine the reconciliation project.

English classes ironically could reinforce inequities and pose additional obstacles for the more numerous but less privileged coloured Afrikaans-speaking students from under-resourced rural schools where shortages of English teachers produce graduates with poor English skills.

Meanwhile, white Afrikaner students, more often the product of privileged schools, may be better prepared to reap the economic benefits of English classes notwithstanding the loss to their community’s language and culture.

Moreover, in failing to give voice to white Afrikaners’ concerns in an oral hearing while accepting the university’s “practicability” arguments at face value, the ruling undoubtedly has caused deep resentments, which may simply heighten racial tensions.

The implications of the court’s ruling remain to be seen. Several related cases, most notably one involving Stellenbosch University, an elite stronghold of Afrikaner tradition, are now working their way through the lower courts while litigation against Afrikaans primary and secondary schools is on the rise.

Hopefully, the public discussion surrounding the decision has given the court a broader understanding of the competing interests that goes beyond a black/white racial binary. And hopefully it has given university officials pause to consider alternative programmatic and community building strategies that promote racial integration and relieve racial tension while remaining true to the country’s multilingual character and protecting the rights of all students to learn in the language of their choice.

Rosemary Salomone is the Kenneth Wang Professor of Law at St John’s University School of Law, United States. She is the author of True American: Language, identity, and the education of immigrant children (Harvard University Press) and is currently writing a book on global English, identity and linguistic justice for Oxford University Press.