Law, College of


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Published in Columbia Law Review 103 (2003), pp. 614-661. Copyright (c) 2003 Columbia Law Review.


The South African Constitution epitomizes a new breed of modern constitution, enshrining socioeconomic rights rather than only "negative" liberties. Among these is the right to education. However, despite the Constitution's progressive values, many South African schools remain inadequate. This Note argues that, given the opportunity, the South African Constitutional Court should hold the current educational system unconstitutional as applied to the worst schools. Constitutional text, purpose, and precedent, indeed, mandate this outcome. Moreover, vindicating the constitutional right to education will help South Africa attain other social and economic goals. However, in keeping with its other socioeconomic rights cases, the Court must carefully craft its decision so as not to offend separation-of-powers principles. The Court must thus provide the legislature enough flexibility to consider budgetary and other constraints while ultimately protecting education's vital role in a healthy democracy.

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