American School Finance Litigation and the Right to Education in South Africa

Abstract

This paper addresses the South African Constitution’s invitation to the Constitutional Court to “consider foreign law” in interpreting its provisions. Focusing on the education provisions found in Section 29 of the Constitution, I make two claims. First, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes for a poor resource in interpreting the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides the word “basic” encompasses. Second, however, certain aspects of these same American decisions, particularly the space they provide for a fiduciary approach to socioeconomic duties, could provide the Constitutional Court with a principled theory to undergird its ongoing rights-protective project that seeks to operationalize socioeconomic rights while also respecting institutional boundaries.

Keywords: South Africa, education, right to education, state constitutions, constitutional court, education law