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April 5, 2016
The challenges are immense: schools built of mud, overcrowded and collapsing classrooms, unsanitary toilets, inadequate water supply, insufficient electricity, and a painful lack of science labs, libraries, computer access, and sports fields. For years, our partners in South Africa, Equal Education (EE) and Equal Education Law Centre (EELC), have fought for safe, quality schools—and won many important victories. Now a new short film is documenting their ongoing work, sharing the stories of affected students and highlighting how community activism and creative lawyering can bring about real change.
EE first launched its infrastructure campaign back in 2010; a hard-won court victory against the Minister of Basic Education led to the promulgation of binding norms and standards for school infrastructure in 2013; and by November 2016, all schools across the country will be required to have running water, basic sanitation, and electricity, while no schools can be built entirely from wood, mud, metal, or asbestos.
The film, made in partnership with Adam Stofsky’s (JD ’04) New Media Advocacy Project, documents infrastructure problems in the Eastern Cape in particular. Students, teachers, parents, and principals speak about the devastating impact that poor facilities have on learning outcomes. The piece is an inspiring testament to the power of storytelling and to the movement that EE and EELC have built. Our Clinic is proud to have supported it since 2012.
August 17, 2015
Posted by Cara Solomon
We have some pretty fantastic news to report today: Susan Farbstein has been named to Massachusetts Lawyers Weekly’s “Top Women of Law” list for 2015.
It’s no surprise to us, given the criteria for making the list. The honor goes to “women who have made tremendous professional strides and demonstrated great accomplishments in the legal field, which includes: pro bono, social justice, advocacy, and business. The awards highlight women who are pioneers, educators, trailblazers, and role models.”
We are thrilled to see Susan honored in this way, and look forward to celebrating with her at the official ceremony in October.
March 31, 2015
Posted by David Victorson, JD '16
A few weeks ago the Harvard Human Rights Program tweeted about the fact that many students in rural South Africa have to walk more than 20km each day to get to and from school. They cross rugged mountains and flooded rivers. They navigate dangerous highways and treacherous weather. They face physical injury and emotional harm.
Surprisingly, shortly after we posted our tweet, a small number of Twitter users pushed back. One accused us of ignoring how lucky these students are to even be at school, implying that the difficulties of getting there are inconsequential. Another responded that if “it doesn’t kill you it makes you strong.” But as those paying attention to news reports over the past month know, a poor learner transport system has, in fact, already led to the death and injury of multiple children this year. And on our recent trip to Nqutu, KwaZulu-Natal, it didn’t take long to find students who have personal experience with the risks of robbery, rape, kidnapping, and even the death of friends – all created by the long journey to school.
How can this be inconsequential? How does this make anybody stronger?
Faced with such a difficult journey to school, many affected students drop out before completing Grade 12. During our trip, we heard from those who have continued attending school that they arrive exhausted, hungry, and have difficulty focusing in class. When they get home late at night, they may have responsibilities such as caring for livestock, fetching water, and helping to bathe siblings, nieces, and nephews before they can study. Some students go to bed at 11:00 pm, only to rise at 4:00 am and start their journey again.
Because of the many hours lost traveling to and from school, these students are forced to fit a full 24-hour day into something much less. Many struggle to do so by sacrificing homework and sleep, which has long-term consequences on their ability to stay healthy, to concentrate and to learn, and ultimately, to reach their full potential as adults.
Meanwhile, South Africa’s unemployment rate currently hovers around 25%. Among the youth labor force, this numbers jumps to over 33%. Nearly one-third of those aged 15 to 24 are not in employment, education, or training. They are detached from the labor force with seemingly no way to better their situation.
The consequences for South African society stretch far beyond these unemployed individuals. Continue Reading…
October 24, 2014
Posted by Elizabeth Loftus, JD '16
In the coming month, all across South Africa, over half a million students will be sitting down to take the National Senior Certificate exam. Some will be sitting at individual desks in state-of-the-art classrooms. But others will be sitting on cinder blocks and at shared desks in buildings that lack water, electricity, and toilets. Wherever they are, students will be taking the same high-stakes test, one that will determine their future. Students who pass will graduate from high school and gain access to higher education opportunities. Students who fail will not.
The exam has a broader purpose, as well: the South African government uses pass rates to identify public schools that lag behind national performance standards. Institutions at which less than 60% of students pass the exam are designated “underperforming.” Underperformance trends in the South African school system reveal startling inequalities and show that the Department of Basic Education’s own underperformance in addressing this critical issue is inexcusable.
Following last year’s exam, 1,407 schools across South Africa qualified as underperforming. The poorest performing provinces were the Eastern Cape and Limpopo, which had pass rates 15%-20% lower than those in the majority of other provinces. Nearly half of the schools in the Eastern Cape failed to meet national performance standards. Shortcomings such as poor infrastructure, inadequate materials, overcrowding, and negligent management all suppress success in vulnerable schools. Not coincidentally, underperformance in the education system disproportionately affects learners in the poor, rural, historically black areas of the country.
Indeed, many of today’s challenges troublingly echo conditions of twenty-five years ago, when the legal framework for education existed to perpetuate racially separate and unequal education. Under the apartheid education system, black schools were designed to underperform in comparison to their white counterparts in order to keep black South Africans undereducated and capable of performing only unskilled, low-wage jobs. The measurable effects of this policy were severe: the government spent 10 times more on white schools than it did on black schools; while there were 18 white students per teacher, the ratio in black schools was 39 to 1; the standardized exam passage rate for blacks was less than one-half that of whites. It is shocking how little these figures have changed since the end of apartheid. In a visit to the Eastern Cape in 2013, community-based education NGOs found primary school classrooms with over 50 students and secondary school classes with over 100 students. Some schools have no electricity and lack desks, chairs, textbooks, and library facilities.
The persistent, systemic deficiency in school performance requires a coherent, national policy solution. But, rather than designing a coordinated response, the Department of Basic Education (DBE) has largely overlooked underperformance as a problem in and of itself. National guidelines on improving school performance do not exist. At a more basic level, it is unclear that the DBE even fully appreciates the gravity of underperformance since it has failed to comply with monitoring, evaluation and remediation requirements outlined in the governing national legislation, the South African Schools Act (SASA). A recent example of the DBE’s inadequate approach is evident in the comparison of its 2013-2014 yearly action plan with its 2013-2014 year-end review. “Underperforming schools” appeared only twice in the action plan. The year-end review made only general references to underperforming schools, showing little follow-up on the action plan and providing almost no guidance for reform.
Luckily, groups like Equal Education (EE) and Equal Education Law Center (EELC) have turned their attention to the cause and have committed their considerable social resources to drawing others’ attention, as well. In a far-reaching approach, EE and EELC have undertaken a variety of advocacy strategies in Parliament, the court system, communities, and schools. EE has organized policymaker visits to underperforming schools. In 2012, in response to students’ call for help, EE launched litigation to compel authorities to address the dire learning conditions at Moshesh Senior Secondary School in the Eastern Cape. Recently, EE and EELC produced a shadow report for the parliamentary oversight committee on education, pushing the government to hold the DBE accountable for its shortcomings. All of these steps are important in forcing the DBE to acknowledge the problem and meet its obligations, such as those enumerated in the SASA. Only by living up to its own standards can the DBE help schools live up to theirs.
Elizabeth Loftus, JD ‘16, is a student in the International Human Rights Clinic currently working on education-related issues in South Africa, in partnership with EELC. She has previously worked on projects related to South Africa as a member of the Harvard Law and International Development Society.
December 23, 2013
Posted by Tyler Giannini and Susan Farbstein
A busy couple of days on the Alien Tort Statute (ATS) front had our International Human Rights Clinic in full swing right up to the end of the semester today.
First, along with co-counsel, we filed an opposition to a motion dismiss in our Mamani case last Wednesday with the district court in Florida. The ATS case, against the former Bolivian president and minister of defense, alleges that they devised a plan to kill civilians in order to quash popular protests against their government’s economic policies. In urging the Court to allow the case to proceed, the brief argues the Defendants executed their plan by agreeing to use military force to kill thousands of civilians until the population was terrorized enough to abandon demonstrations. The deaths that followed, including those of Plaintiffs’ family members in late 2003, were, according to the brief, “the intended result of a systematic plan in which military sharpshooters repeatedly shot and killed or injured civilians, in multiple locations over many weeks.” Defendants fled to the United States to escape criminal prosecution in Bolivia and have sought safe haven here for more than ten years, refusing to return to Bolivia to face trial.
We also filed our second and third amicus curiae briefs of the term in key ATS cases, on Thursday in D.C. (Doe v. Exxon), and today in California (Doe v. Cisco). These briefs were similar to the amicus curiae brief on behalf legal historians that we filed in November with the Fourth Circuit in Al Shimari v. CACI. The briefs make it clear that when the Founders enacted the statute in 1789, they would have expected the ATS to apply to U.S. defendants. The Exxon and Cisco cases, both currently before district courts, center on allegations that U.S. corporations aided and abetted human rights violations abroad—in Indonesia and in China, respectively.
Last Thursday, the Ninth Circuit also came down with a significant decision in Doe v. Nestle. Those who follow the ATS know that it has been a busy year, ever since the U.S. Supreme Court’s ruling in Kiobel last April established a new presumption against extraterritoriality for ATS claims; dozens of cases that were previously on hold are again moving through the courts. The Nestle decision is important because it affirms that corporate liability still exists under the ATS even after Kiobel, thereby rejecting an extreme and categorical position that would bar all ATS claims against corporations. Continue Reading…
December 18, 2013
Posted by Susan Farbstein
As South Africa and the world remember Nelson Mandela, there is perhaps no greater way to honor his legacy than to continue the struggle for social justice. A quality education for all children must be at the core of such efforts, as Mandela himself recognized. “Education is the most powerful weapon which you can use to change the world,” he said. In the week before his death, real progress was made on the education front in South Africa.
After three years of sustained campaigning by our South African partners, Equal Education (EE) and Equal Education Law Centre (EELC), Minister of Basic Education Angie Motshekga finally released binding norms and standards for school infrastructure on November 29th. The norms represent a significant victory for future generations of South African students, and for South Africa itself.
The norms—which are legally binding—mandate substantial changes to public schools across the country, many of which must be realized on a relatively short time horizon. Mud schools must be replaced within three years; schools that currently lack water, power, and toilets must be provided such facilities within three years; all schools must have classrooms, electric connectivity, and security measures within seven years; and all schools must have libraries and laboratories within ten years. As a first step, provincial ministers will be required to develop school infrastructure plans within a year, and then report annually on their progress towards implementing the norms.
There are still serious concerns. The norms do not require provincial ministers to make either their plans, or their progress reports, available to the public. The norms also contain a potentially worrisome legal loophole, in the form of language stating that they must only be implemented “as far as reasonably practicable.” Equally troubling are some of the specific provisions, such as the proposed minimum number of toilets per student, which falls well short of international standards recommended by UNICEF and the WHO.
Nevertheless, the norms carry the promise of tangibly improving the education, and therefore the lives, of millions of South African schoolchildren. Our partners have fought long and hard to secure decent school infrastructure for all of South Africa’s students. The norms victory would never have been possible without the advocacy work of EE student and parent members, who joined voices to ensure that their demands could not be ignored. Their collaborative and creative efforts demonstrate that—as Mandela teaches us—while justice and equality may be a long time coming, a group of dedicated and committed people can transform a society. Our Clinic is proud to support their work.
November 22, 2013
Posted by Melissa Shube, JD '15
After soliciting feedback from hundreds of South African students and parents, Equal Education (EE) and Equal Education Law Centre (EELC) have submitted comments on the South African Minister of Basic Education’s second draft of minimum regulations for public school infrastructure. While the submission recognizes that the Minister’s draft represents important progress, EE and EELC raise significant concerns with respect to the draft’s long timeline for implementation. As Moto Singulakka, a Grade 10 learner at Oscar Mpetha High School in the Western Cape, asked, “What about now? Where are the learners going to learn?”
The legacy of Apartheid is still palpable in South Africa’s education system, where many rural and township schools lack basic infrastructure to provide students with a safe environment conducive to learning. Binding norms and standards will help promote equality in education for South Africa’s historically disadvantaged students by requiring all public schools to meet minimum thresholds in relation to physical facilities.
Recognizing that adequate norms and standards are desperately needed, EE has been campaigning for over three years for the development, release, and improvement of these norms. We at the International Human Rights Clinic have for the past year provided legal support to this campaign, which is based on student concerns about a range of infrastructure challenges, including overcrowded and collapsing classrooms, unsanitary toilets that make students sick, inadequate water supply, insufficient electricity, and a painful dearth of science labs, libraries, computer access, and sports fields. Mbali Cezula, a student from iQonce High School in the Eastern Cape, explained that there is a “lack of proper classrooms in my school. There are few buildings [and] some look like township slums. They are not safe as they could fall anytime.”
The regulations for school infrastructure are long overdue. A 2007 amendment to the South African Schools Act of 1996 empowered the Minister to implement binding norms and standards for public school infrastructure. However, such regulations were never released, despite the department’s 2010 proclamation that “[e]quity in the provision of an enabling physical teaching and learning environment is therefore a constitutional right and not just a desirable state.” Continue Reading…
April 3, 2013
Posted by Jeanne Segil, JD '14
Our partners in South Africa, Equal Education (EE) and Equal Education Law Centre (EELC), are at a critical point in their ongoing campaign to compel the South African government to establish minimum norms and standards for school infrastructure. The South African Schools Act of 1996 empowered the Minister of Basic Education to set minimum norms and standards for all schools. These regulations were never established and, as a result, many South African schools—particularly those in rural areas and townships—lack basic essentials such as running water, electricity, functioning toilets, libraries, laboratories, computer centers, and perimeter security. Binding norms and standards can help equalize the learning experience in a nation still suffering from the legacy of apartheid.
EE asked Minister Angie Motshekga to issue these regulations for years before eventually filing legal action in March 2012, represented by the Legal Resources Centre, to compel her to act. Last November, Minister Motshekga agreed to a settle the case and, as part of the settlement, to promulgate binding norms and standards. As a first step in this process, in January the Minister published Draft Minimum Norms and Standards for comment from interested parties.
Unfortunately, the draft is disappointingly vague on substance. Any school infrastructure, no matter how problematic, could meet its standards. For example, under the proposed guidelines, it could still be acceptable to have 70 students packed into a single classroom, or to provide three pit latrines and two water taps at a school of 3000 students. Equally troubling, the draft does not establish any timelines for implementation or any mechanisms for reporting or accountability. Continue Reading…
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