Abstract

Schools between executive responsibility, legal determination and judical control

Parliamentary prerogative and legal protection in case of refusing a student the access to a public school

In abandoning certain constructions that considerably limited the legal protection of fundamental rights in certain areas with a special relationship to state activity (“Besonderes Gewaltverhältnis”), the Federal Constitutional Court (“Court”) as early as the 1970s and 1980s found that fundamental rights are in principle fully applicable to school-related questions. As a consequence, the Court confirmed that access to courts is guaranteed under article 19 (4) of the German Constitution in the event that these rights are violated by public authorities. The Court also stated that the requirement of parliamentary legislation (which is based on the principle of democracy and is necessary in a state governed by the rule of law) has to be respected when dealing with school-related aspects. Nonetheless the legislative authorities of the states (Länder) have – to a large extent – left school-related questions to be dealt with by the administrators. It is common to refer to the specific characteristics of the school and the need to protect pedagogical freedom in order to justify this lack of parliamentary legislation. Against this background the present article deals with a (or even the) crucial question of schooling: the question of a student's admission or denial of admission to a public (state) school. Whereas the question of expulsion from school has long since been regulated in detail by legislation following explicit requests by Court jurisprudence (BVerfGE 41, 251; 58, 257), this is not the case with respect to the admission to a school. The huge variety of statutory law made by the Länder ranges from a total absence of legislation to vague hardship clauses and decisions of the school administration which are extensively regulated by statutory law. The analysis of the corresponding provisions not only shows that the lack of any legislative regulation of the student selection criteria is unconstitutional as it disregards the requirement of parliamentary legislation, but further illustrates that the criterion of materiality (“Wesentlichkeit”) as a measurement for the requirement of parliamentary legislation is more than a carte blanche in the individual case, when combined with the second criterion employed in order to define the extent of the parliamentary legislation: the “specific characteristics of the area to be regulated”. At the same time, the examples of choosing a school and selecting students reveal that leaving school related questions to be handled by the administrators cannot be justified by simply invoking the blanket formula of “specific characteristics of the school” and the “need to protect pedagogical freedom”. In fact, it is appropriate to evaluate the notion of materiality and the “specific characteristics of the area to be regulated” on a case-by-case basis, depending on the regulated area. Furthermore, the discussion about legal protection and access to courts in cases where admission to a particular school is denied is often over simplistic: In most cases a right to attend a certain school is denied in a formalistic way. The courts merely acknowledge that the students and the parents have a right to a decision which is free from abuse of discretion, but they do not even consider whether statutory law combined with the protective norm theory (“Schutznormtheorie”) grants more extensive subjective public rights – which is the case in the legislation of several states.