Op-ed by Lisa Draga, attorney at the EE Law Centre.
Teenage pregnancy and the stigmatisation that accompanies it continue to expose deep seated prejudices that exist in our society. Given the prevailing attitude of vilifying pregnant girls it should come with little surprise that many schools opt for a punitive response by banishing pregnant girls from school. This response leads to the further alienation of pregnant teens when they so desperately need support and encouragement to successfully complete their schooling.
In 2007 the Department of Education attempted to address the issue of unfair discrimination against pregnant learners by introducing national guidelines titled: “Measures for the Prevention and the Management of Learner Pregnancy”. These guidelines boldly proclaim that no pregnant learner may be discriminated against but then go on to entrench an untenable position that does precisely that. The Measures champions the unlawful view that a pregnant learner may be required to take a leave of absence of up to two years to “exercise full responsibility for parenting”. Even more disconcerting, is the policy position that pregnant learners will not be allowed to return to school in the same year that they took time off to give birth.
Instead of advocating for the sensitisation of principals, teachers, district officials and community members the Measures condone and reinforce existing negative stereotypes which exacerbate gender discrimination. This is done by making it the pregnant girl’s responsibility to “understand that some members of the school community might not readily accept and be supportive of their situation because of the value systems to which they subscribe”. These Measures have therefore served as a nationally waved green flag to all schools to go ahead and introduce discriminatory pregnancy polices. The message is clear: The pregnant girl, who visibly displays the signs of her supposed misconduct, is the one who should pay the price. She is the one who must accept responsibility and bear the primary duty to raise the child. This is supposedly in the best interests of the new-born child if the Measures are to be believed.
After the Department received a number of reports of expulsions due to pregnancy the Acting Director General in 2009 issued letters to all provinces requesting them to relay to schools that learners may not be expelled from school due to pregnancy and that they must be allowed to return as soon as they are able after giving birth. The letter acknowledges that “some schools have used the Measures to exclude learners from school rather than to provide support” and records the Department’s intention to “review the Measures to ensure that there is no confusion at school level”.
In a recent Constitutional Court case involving the exclusion of pregnant girls from two Free State Schools, Harmony and Welkom High, the majority of the Court accepted that the learners’ rights had been violated. The learners were excluded when the school governing bodies concerned applied their respective pregnancy policies which provided for a ‘leave of absence’ for pregnancy. When the HOD heard of the plight of the two learners concerned, he instructed the principal to readmit the learners, contrary to the pregnancy policies that had been adopted. However, the Court was concerned with the manner in which the HOD intervened in the case. The judgment then hinged on appropriate interventions that could have been pursued. In this respect, the Court reflected on the mechanisms provided by the Schools Act where the HOD is entitled to withdraw a function of a governing body. The other alternative available to the HOD was to challenge the policy directly in court. The HOD and the SGBs were criticised for failing to work together to achieve a harmonious result. The promising outcome of the case is that the SGBs concerned were ordered to review their pregnancy policies together with the HOD and lodge revised policies before the Court.
Aside from Harmony and Welkom, it is unclear how many schools have continued to rely on these Measures. Recent reports of pregnant learners being excluded in terms of pregnancy policies in Gauteng show that discriminatory conduct continues to occur. Almost four years since the Department’s undertaking to review the Measures they have not been officially revoked and remain accessible to schools and the public through a government and other websites.
The necessity to clarify the confusion created by the Measures is also reflected in a judicial call for national regulations. In the 2011 Free State High Court decision which preceded the Constitutional Court hearing in Harmony/Welkom, the Judge expressed the need for legal direction to prevent further discrimination against pregnant girls:
“The Honourable Minister, Ms Angie Motshekga, will certainly appreciate the need to nationally regulate the learner pregnancy policy and the urgency of the matter. . . In my opinion it does not always take a court order to get a responsible Minister to put her shoulders to the wheel and urgently do something of national importance”
It seems that the Minister may finally have taken heed. The Department in its Annual Performance Plan for 2013-2014 has indicated that it intends to finalise regulations on learner pregnancy this year.
Once introduced, national regulations should require that school pregnancy policies ensure minimal disruption to pregnant learners schooling, that learners are allowed to stay in school for as long as they are willing and able, and are allowed to return to class as soon as they feel fit. The Department needs to be unequivocal in its stance that pregnancy can never constitute the basis for a suspension or expulsion. Regulations must be aimed at preventing the victimisation of pregnant girls.
It is telling that in the Harmony/Welkom case, the learners concerned successfully completed their school year after the Head of Department’s intervention. This clearly indicates that a year or more of schooling need not be squandered pointlessly. In the period in which the learner is not able to attend school, she must be able to continue with her schoolwork if she chooses to do so. In addition the Department should ensure that its employees and district officials are sensitised to the impact of pregnancy in schools and can act accordingly. It is ultimately in the interest of teen mothers, their children and society at large that they are able to complete their schooling, become productive members of society and are in turn able to adequately fend for and educate their own children.