Court Judgement Part 3

On 20.07.2006 an appeal was lodged against this refusal.
In addition to their previous statements in the original application and the appeal the plaintiffs
pointed out that even taking account of the arguments of the other side, sending the children
to a state school would be injurious for them. This was borne out by the intention expressed
by the school authorities to have the children examined by the school doctor to see whether
there was any medical reason why they should not attend school. Further, the school
authorities had not exploited their powers of discretion in respect of agreeing to an exception
to the rule, as was confirmed by their statement that they had never made an exception for a
pupil in the primary school section. Finally, the plaintiffs protested against the implication
that they had exercised an ideologically motivated ‘formative influence’ on their children
which would throw an unfavourable light on the institution school. Rather, on account of
major psycho-somatic detractions on the part of their children they had begun to question
whether an absolute legal obligation to attend school can be allowed to have priority over the
obvious welfare of the child. On an international level the German legal interpretation of the
right to education in the form of an obligation to attend a state (public) school which should,
if necessary, be enforced by coercion represents a puzzling anomaly. Therefore the plaintiffs
had taken account of the international legal situation in formulating their application. This
does not mean a general rejection of the institution school, but rather the freedom of choice
which is self-evident in most developed states today.
Furthermore the plaintiffs protest against the implication that their children may have
(behavioural) abnormalities, personal instabilities and social integration difficulties simply
because they did not go to school, but wished to learn more effectively at home. In most other
countries, including neighbouring countries such as Austria, Denmark, the Czech Republic,
Poland, Belgium, France, Italy, Sweden, Portugal and Finland, this desire is not only accepted
as normal, but legally guaranteed or even expressly included in the constitution (Ireland,
Spain).
The school authorities’ argumentation was based implicitly on the unproven assumption that
attendance at school is generally better suited for the education of children and especially
better able to secure their social competence than education and knowledge assimilation at
home or from home.
Article 6 of the constitution recognises parents’ status as independent agents responsible for
bringing up their children. For the sake of a child’s welfare neither parents nor a school as
responsible agents should be allowed to alienate the child against the respective other side nor
actively agitate against it. Parents and state can only fulfil their common educational tasks by
working together constructively. Conflicting interests are to be balanced out in way that is fair
to all parties and as favourable as possible. The common task is to promote the development
of the child so that it can become a responsible personality within the social framework.
Insofar as the parents do this, thus fulfilling their constitutional obligation, the ‘other
educational agent’, in this case the school, may not be allowed to force its own methods upon
the parents. This would have the effect of turning the relationship of equal standing between
the agents into one of higher and lower priorities. This is, however, in conflict with the
expressed aim of the constitution.