“As the only Jewish High School in the Western Cape, Herzlia needs to assess its role in context of our community. It is the main source of Jewish and Israel education for many of our community’s youth and it is therefore vital that it provides a solid education. But is its current stance doing so? Is its hard-line, exclusive approach truly educating learners about Israel? Herzlia prides itself in making Israel advocates, but is this effective and is this the best possible way to develop critically thinking and engaged Herzlians?”

This is an excerpt from an article I wrote more than six years ago as a grade 12 student at Herzlia. It appeared in various Jewish community newspapers. Having spent six years at Herzlia, I observed that Herzlia engages in nothing short of indoctrination when it comes to Israel, and that it alienates anyone who questions its Zionist curriculum.

I wrote the article after Mr Geoff Cohen (no relation, but the same Mr Cohen who issued this letter) refused to allow me, on behalf of a student society, to invite Jonathan Shapiro (aka Zapiro) to speak to the school about freedom of expression in Africa. This was around the time of The Spear. The reason for Herzlia’s refusal was that Zapiro’s views on Israel are contrary to those of the school, and so he should not be given a platform there. The irony of preventing Zapiro from speaking on freedom of speech was not lost on my 17-year-old self. Hence the article.

And now unfortunately, there is this article, which is about Herzlia’s response to two students taking a knee during the singing of the Israeli anthem at a school prize-giving ceremony. The school issued a statement explaining that the situation had been resolved amicably, despite the threat of consequences for the students in a first statement.

But earlier this week, GroundUp published a piece explaining that the following consequences had been meted out by school authorities: The students were barred from wearing their colours, or representing Herzlia for six months; they were tasked with writing two 3,000 word essays and an apology letter; and mandated to attend four meetings with elected community members. In addition, the students have been disallowed from attending their Grade 9 farewell party, and perhaps most egregiously have been instructed by the school authorities not to speak to the media.

As far as I know, these are the consequences that the students presently face. If I am misinformed, I invite Herzlia to provide clarity.

A lot has been said about this incident on social media. In particular, the Constitution, freedom of speech, freedom of association, the right to protest, and the right to equality have been bandied about by people on all sides of the debate. My contribution to the debate explores exactly how the Constitution protects the conduct of the two students, and how it renders Herzlia’s response unlawful.

Section 9 of the Constitution along with the Promotion of Equality and Prevention of Unfair Discrimination Act gives everyone the right not to be unfairly discriminated against. There is a fair amount of case law on these sections. Perhaps the most relevant is MEC Education v Pillay where the Constitutional Court held that a public school’s policy preventing a student from wearing a religious nose stud constituted unfair discrimination and fell foul of the equality guarantee. In that matter, the court explained that unfair discrimination must be understood in three parts.

First, there must be differentiation in treatment. In this case, the two students are being treated differently from all other students — only they are being sanctioned.

Second, this differentiation must be based on a ground listed in section 9 of the Constitution. Here, the students are being treated differently because of their beliefs, which is a listed ground in section 9. Herzlia has explicitly denied this, stating that they take issue with the mode of the students’ expression and not the substance of their ideas. But this argument simply cannot be sustained.

As a group of alumni point out, the school would not have responded in the way it has if the students had knelt during the South African anthem to protest State Capture, for instance. Moreover, the nature of the sanctions imposed by the school authorities seeks to address the substance of the students’ views (evinced by the requirement of writing essays and meeting with community leaders) — a simple detention would have sufficed to address perceived misconduct.

Finally, is this discrimination fair? This part of the test is an all-things-considered analysis that balances the impact the discrimination has on the dignity of the complainant against the purpose of the discrimination.

The impact the school’s sanctions have on the students is self-evident. So is obvious power asymmetry between the students and the school. That the discrimination also has the effect of limiting the students’ right to freedom of expression and their right to demonstrate peacefully and unarmed also speaks to the unfairness of the discrimination.

Even if we consider the flip side, there are four factors in this case that the school may try to use to tip the scales of fairness in its favour.

The first is that it is a private school, and that it has the right to require its students to have a certain ideology. But it is unclear how the students’ beliefs run contrary to the Zionist ethos of the school. They both avowedly believe in the existence of the state of Israel, and took a knee to protest against some of Israel’s policies. Notwithstanding, the Constitution Constitutional Court held in Pillay that “[u]nfair discrimination, by both the State and private parties… is specifically prohibited by sections 9(3) and (4) of the Constitution”.

So just because the school is private does not mean the discrimination is fair or permissible. This is because the Constitution does not distinguish between the state’s duty not to unfairly discriminate and private parties’ duty not to unfairly discriminate — both are tasked with the same duty under the Constitution.

The second factor is consent. The argument goes that the students consented to join the school, to be bound by the school rules, and to receive the sanctions for breaching those rules. There is nothing preventing them from going to another school. So, the argument goes, the discrimination is fair.

In Pillay the Constitutional Court acknowledged that there may “be occasions where the specific factual circumstances make the availability of another school a relevant consideration” in determining the fairness of discrimination. But in the same breath it held that requiring complainants to leave a school would marginalise them and undermine diversity within a school. And “our Constitution does not tolerate diversity as a necessary evil, but affirms it as one of the primary treasures of our nation”. The discrimination thus cannot be fair.

There is also the complex issue of whether one can “consent” to being discriminated against. The Constitutional Court has not pronounced on this issue.

In Mohamed, a case involving an unlawful extradition of a Tanzanian national from South Africa to the US, the Court was willing to assume that constitutional rights can be waived. But it held that there must be clear evidence that such a waiver was done willingly and without coercion. Given the power differential between the school and the students concerned, we do not know if another school is a meaningful option for the students. As Herzlia is the only Jewish high school in the Western Cape, it is unlikely that we can regard their consent as informed and free of duress.

The third factor is propriety. The protest took place during a prize-giving ceremony, and not at a forum conducive to discussion. It thus, according to Cohen, “showed a lack of respect, pride, gratitude, responsibility, compassion and understanding of community”. But as the Constitutional Court explained in Islamic Unity, freedom of expression is “applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”.

Freedom of expression means that the school cannot dictate to students when and how they express their ideas, even if in the principal’s view those ideas are expressed disrespectfully or inappropriately. The view of those managing the school on propriety is not the standard to which we hold the expressions of ideas.

The fourth factor is community. Herzlia may argue that it has a mandate of upholding and representing the Zionist ethos of the Jewish community through its education. Though the students’ conduct is compatible with Zionism, the school might argue that it can be perceived as anti-Zionist, and so should be sanctioned. But just because expression can be interpreted in multiple ways does not mean it should be censored.

In my view, perhaps John Milton, almost 400 years ago, in his famous defence of freedom of speech in Areopagitica, said it best:

“If it be true that a wise man, like a good refiner, can gather gold out of the drossiest volume, and that a fool will be a fool with the best book, yea or without book; there is no reason that we should deprive a wise man of any advantage to his wisdom, while we seek to restrain from a fool, that which being restrained will be no hindrance to his folly”. DM

Eshed Cohen is an alumnus of Herzlia. He was Deputy Head Student of the Middle School in 2009, and Deputy Head Student of the High School in 2012. He writes this article in his personal capacity.