J Beckmann A DANCE OR A MARRIAGE ? THE RELATIONSHIP BETWEEN EDUCATION AND THE LAW IN SOUTH AFRICA SOME PERSONAL OBSERVATIONS FROM TWO VANTAGE POINTS

This article deals with the debate in education and law circles about the convergence of the two fields of knowledge in an area conveniently called education law. It recognises that there is no universal acknowledgement of the existence of such a discipline. Although the article does not present a full scale analysis of the relationship between education and law, it does present some views emerging from the existence and functioning of two organisations in South Africa namely the South African Education Law Association (SAELA) and the Interuniversity Centre for Education Law and Policy (CELP). Both of the organisations aim to promote education law research and training. In light of the existing literature the relationship is likened to a marriage of convenience or a dance in which the quality of the relationship between the two fields varies. The author examines and concurs with opinions that there are grounds to support the notion that a discrete field of inquiry named education law does exist in South Africa. However, the relationship still needs to be developed for the field to mature as an academic discipline. Among the problems that have to be addressed are the lack of interest in universities (especially law faculties at former English universities) in this field, the subsequent imbalance between educators and jurists active in the field and the failure of educational administrators to abide by the law even if they are aware of what the law requires. Added to this failure is a lack of knowledge among administrators of education law and the presence of a phenomenon termed the use of imagined power among them. The article concludes that there are indications that the relationship between education and the law can lead to the development and promotion of a discrete field of law named education law.


Introduction
In an article in TSAR 2007 Mawdsley and Visser, 1 two eminent jurists from the United States of America (USA) and South Africa respectively explore the development of education law as a discrete field of inquiry in the law. They conclude that, insofar as the criteria they mention can be applied in South Africa, a critical mass of knowledge about the field has probably developed. They propose that education law can be recognised as a discrete field of study, even though it is still in its infancy in South Africa compared with the situation in the USA and Europe, for instance.
Two or more fields of inquiry may be applicable to the work done in a specific area.
Normally a relationship between the fields of enquiry develops and it can vary in nature from harmonious cooperation to tension and intense conflict. One could describe such a relationship as a dance with some moments of nearness and some moments of tension.
In some instances hybrid fields of study develop from the two or more of fields of inquiry which are applied in a specific profession or research focus. Such hybrids can develop and be accepted as full and independent fields of inquiry in a particular area of study. Examples of such hybrids are maritime law, military law and medical law.

My comments are derived from my involvement with the South African Education Law and Policy
Association (SAELPA) and the Interuniversity Centre for Education Law and Policy (CELP). I was the first chairperson of SAELPA and the first Director of CELP and remained a member of their executives for approximately fifteen years. I do not claim to have studied the relationship between the law and education in depth and in its entirety for that would be a presumptuous claim for someone of my training and academic background. However, I have observed aspects of the relationship from two specific vantage points and it is these observations I want to share with relevant role players. To my mind, a closer relationship between education and law practitioners is essential for the improvement of the education system. J BECKMANN PER / PELJ 2015(18)6 2062 "Education Law", as described by Mawdsley and Visser, aspires to the recognition of its status as a discipline of law. It would be wrong to argue that the study of human activity in the area where education and the law necessarily have to function in conjunction with each other is universally recognised as an area of law study. This fact is apparent from the literature and the various ways in which this field is described, such as education and the law, education law, school law and even education policy and law.
In this contribution, and based on his personal involvement in developments in this regard in South Africa from 1981 onwards, the author presents personal and other observations on the relationship between education and the law within the context of education. The metaphor of a dance is used to portray the relationship. To a certain extent the author revisits the article of Mawdsley and Visser and proposes further thoughts for consideration in this regard, also with regard to an exploration of relevant literature.

The beginning of the dance
As recently as in the 1980s people started exploring the area where education and the law as academic fields of enquiry in South Africa appear to overlap. For any field of activity to be recognised as a (hybrid) discipline or a partial discipline of established and recognised fields of enquiry, certain criteria need to be met. Some of the criteria are set out in an article by Mawdsley and Visser. 2 In this paper, I want to share observations from specific vantage points on the developing relationship between education and the law, including relationships between educationists and jurists. This relationship is often likened to a marriage of convenience, but it seems to me that it oscillates between a courtship dance and a marriage. A dance implies a constant change of position and a degree of tension. It was only after I had read the paper on which this contribution is based at a conference 3 that Prof TK Daniel of Ohio State University in the USA pointed out to me that the metaphor of a dance had already been used to depict the relationships between various disciplines. A draft article he made available to me after the conference 4 does not seem to provide conclusive proof that the metaphor of a dance had been used before. However, the notion of a marriage is evident in the draft article.

Content of this paper
I propose to trace the beginning of the dance in South Africa, as well as its progress and development. I will examine local and international evidence relevant to the relationship between education and the law and conclude by offering a personal opinion on the current state of the relationship in South Africa. I will also make some suggestions for future practice and research.
For the sake of convenience, I will refer to the so-called marriage of convenience between education and law as "Education Law". I will use related nomenclature when I refer to the common ground between education and the law. This does not rule out concerns about the status of "Education Law".

The beginning
Unlike in the USA and parts of Europe, education law is a relatively young discipline in South Africa. In 1981, Stone 5 wrote that the value of education law was appreciated only in limited circles. It appears to me that the appreciation has not grown appreciatively since then. Education law seems to be alive and well in some (mostly former Afrikaans) universities and specifically in faculties of education, while it is struggling to find a firm foothold in faculties of law. It is not prominent in faculties of law and education at South Africa's traditionally English-medium universities.
Before SAELPA and CELP were formed in 1996 and 1997 respectively, there was a fairly lively debate about whether or not education law in South Africa could be 4 Daniel "Principal's Role". 5 Stone Commonality and Diversity.
identified as a field of law eo nomine. Prinsloo and Beckmann,6 Van der Westhuizen and Oosthuizen, 7 Oosthuizen and Beckmann 8 and Van Wyk 9 were among those who contributed to the debate and it seems that Oosthuizen and Beckmann's conclusion 10 in 1998 summarised the position fairly accurately: In South Africa, Educational Law 11 has made significant progress since Van Wyk's pioneering efforts. A group of educators and lawyers are devoting much time to its purposeful development. … It is hoped that initiatives such as SAELPA and CELP …will be able to accelerate the development … Thus, there was no agreement in South Africa that education law existed as a discipline by that name. 12 The fact that these two entities, namely CELP and SAELPA, were formed and carried the element "education law" in their names signalled the start of concerted efforts to advance the development of such a discipline of the law.
In a seminal article, Mawdsley and Visser suggested that: 13 Determining whether a new field of law needs to be recognised depends on the convergence of at least four factors: (a) a critical mass of existing legal material that has a common core; (b) a reasonable prospect that the rate of production of material in this common core is sustainable; (c) a recognition that failure to place the common core within its separate field could result in the conveying of fragmented, disjointed, and/or inaccurate information; and (d) "consumer" interest in, and demand for, a unified and separate source of information about the field.
They also contended that Education Law leads to "outputs that can be applied in the operation of schools". 14 Mawdsley and Visser 15 elaborated on the outputs to which they referred and proposed that: 6 Prinsloo and Beckmann Education and the rights and duties of parents, teachers and childrenan introductory orientation. In South Africa it is not common to refer to "educational" law. Most writers prefer "education law". The journal is published in Australia.

12
I refer to authors who wrote about the question as to whether a separate field of law by the name of "education law" existed. Many people have written on education law issues since the inception of CELP and SAELPA, and I acknowledge their contributions. 13 Mawdsley and Visser 2007 TSAR 155. 14 Mawdsley and Visser 2007 TSAR 158.
These outputs presuppose at least two sets of consumers: one set that studies and assimilates case, common and statutory law and distils from them principles and requirements applicable to education. A second set of consumers operationalises those principles and requirements within schools. The first group of consumers would normally be identified as law-trained persons skilled in interpreting the standard areas of law and extracting legal principles from new case law and statutes applicable to education, while the second group of consumers (skilled in pedagogy) must apply those principles to the management of schools. Although the functions of these two groups of consumers tend to suggest a sequential relationship, namely that educational practitioners look to lawyers for guidance (principles and requirements), the increased legal awareness in the United States [and South Africa] 16 of non-law-trained education practitioners through coursework and continuing education tends to make the relationship more of a tandem partnership.
These two sets of "consumers" (the law-trained ones and the educational practitioners) have interacted in the activities of both SAELPA and CELP. I am firmly rooted in the work of the second set of consumers and believe that the boundaries between the two sets should never become totally obscured although synergy between them is highly desirable. The synergy should also, in my opinion, be a natural one, as both disciplines aim at realising the principles of justice and fairness, which principles are prerequisites for education to play its required role in society.
The dance of these two disciplines should be a harmonious one. This is often not the case.
After considering the South African situation, Mawdsley and Visser were of the opinion that, when the South African developments are evaluated against the four criteria listed earlier, it may be concluded that a "critical mass" has probably developed. It could also be concluded that the other requirements for the recognition of "Education Law" as a distinct legal discipline had been met or were being met. 17 They added: For reasons of legal theory and practical expediency, it thus makes perfect sense to acknowledge 'education law' in South Africa -although it may in some respects still be in its infancy when compared with, for example, the position in the United States and Western Europe. 18 This conclusion by eminent jurists from two continents may have seemed to finally resolve the debate about education and law in South Africa. However, it seems to me that, while acknowledging that the law plays a positive regulatory role in education and that it helps to ensure fairness and justice in education, one should not view the relationship between education and the law as unproblematic.

A view from Europe
Wielemans In his contribution Wielemans 20 discussed the interaction between educators and jurists, as well as between education and the law. He made the following points that are relevant to a discussion of the development of education law in South Africa: 21 (a) His interaction with jurists on the editorial board of the TORB was an enriching experience for him, but in his opinion, the unique editorial mixture of law and education did not always automatically lead to cooperation.
(b) Discussions were sometimes dominated by inspiring confrontations.
(c) The marriage of convenience between education and law was often plagued by tiffs and there was seldom any fiery love between the two. (e) In centralist countries with detailed education regulations, it is hard for educational diversity to flourish. Jurists tend to guard "normality" and condemn "deviations".
(f) Jurists and educationists tend to agree on "the big picture", such as fundamental human rights, more specifically, the rights of the child. The law expects education to induct children into the existing social order. In this regard, the law and education cooperate happily. However, the understanding between the law and education diminishes when critical questions are raised about the assumptions of the social order, for instance, about what role the education system should play in the national economy.
(g) The commitment to and enthusiasm for the regulation of education lead to the diminishing of educational responsibility in society. The more a school is viewed as a business and education as an industry, the more they will need to be regulated in terms of the notion of new managerialism. The more education displays the characteristics of an educational community (family), the less it will have to be regulated.
(h) The roles of educators, adults and young children are "reduced" respectively to those of teachers and learners while they are essentially adults educating humans becoming adults. As educators and learners seek to break away from these roles in the process of education and growing up, education law is called on to create rules to counter and control the conflict so that the process and system can still be controlled. Thus, the law is administered as a kind of medicine for an ailing system.
Education law cannot be independent of education and it must serve the psychological and physical wellbeing of the youth. This will serve the mutual understanding of jurists and educators well in their forced marriage.
I will now discuss the origins of SAELPA 22 and CELP against the backdrop of the possibility raised by Wielemans that the sometimes problematic relationship between education and the law, and the likelihood of the dance of the disciplines (sometimes a war dance at arm's length and sometimes a freer and closer dance) will continue in the foreseeable future.

SAELPA
During 1995  We experienced the enthusiastic support and cooperation of the delegates and were promised more support. This agreement was formalised through the drafting of a memorandum of agreement which was signed by the steering committee and the 22 The "P" was later dropped from the acronym when the organisation was re-formed as the South African Education Law Association (SAELA). the Netherlands and the USA. We attended conferences organised in these countries and they attended conferences in South Africa. We wrote joint articles and conducted joint research.
It was noticeable that the assemblies of education law practitioners at these conferences were normally dominated by jurists. The Canadian conferences approached a more equal representation of jurists and educationists, while the South African conferences were generally better supported by educationists than by jurists.
It is possible that the varying mixes of jurists and educationists at education law conferences could be symptomatic of or a reason for the apparent tension between jurists and educators.
In 2005  What is noteworthy and and has not been mentioned in this paper so far is that the existence of CELP and SAELA directly and indirectly led to the introduction of LLB modules in education law as well as to master's and honours degrees specialising in education law.

10
The future: Some thoughts for consideration I believe that the dance of the disciplines will continue. As South Africa is not immune to global trends, a residual degree of tension between education and the law, as well as between education and law scholars, can be anticipated. I believe that education law's two parent disciplines of education and law should both retain and expand their roles, so that education can benefit from their joint efforts. I believe that there are good grounds for arguing the existence of a scholarly field called education law.
I hope that someday the dance of the disciplines could lead to a marriage, not of convenience, but one based on mutual respect. I hope it will also be based on a shared dream, a shared passion and a shared ideal, as well as the agreement of likeminded people in which the partners will pursue the same objective without losing 26 Beckmann