Friday, January 05, 2007

Part 5 Grounds for the Decision

Grounds for the decision
The plaintiffs’ appeal is permissible but unfounded.
The plaintiffs’ children have the obligation to attend school (1.).
The plaintiffs have no legal right to have their children released from the general obligation to
attend school (2.).

The plaintiffs cannot, as they claim, choose freely between their children’s obligation to attend school and the home education which they favour. Rather, the children are subject to the general obligation to attend school. This follows immediately as a consequence of Article 30 of the State Constitution of the Free Hanseatic City of Bremen. According to this a general obligation to attend school applies. Further details are laid down in the Bremen School Statute.

This is not contrary to the right of the parents to provide for the care and education of their children as guaranteed in Article 6, section 3, page 1 of the Basic Constitutional Law (Grundgesetz), for the latter is subject to limitations which are themselves stipulated in the
Basic Constitutional Law. This includes the obligation to provide for education which is assigned to the State in Article 7, section 1 (cf. Decisions of the Federal Constitutional Court (DFCC) 34, 165; 93,1). As a result of this the general obligation to attend school which has been enacted with a view to realising this state obligation represents a generally acceptable constraint. Individual conflicts arising between the parental right to educate and the educational obligation of the state are to be resolved by means of consideration according to the principles of practical concordance (praktische Konkordanz, German legal phrase) (cf. DFCC 93, 1). However, the state may also pursue its own educational ends independently of the parents (cf. DFCC 47, 47), although it must display neutrality and tolerance for parents’ educational ideas and may not exercise particular influence in favour of any given political, ideological or general philosophical trend.

The general obligation to attend school serves as a suitable and useful instrument for achieving the legitimate aim of realising the state education obligation. The assigned obligation is not confined to the transfer of knowledge and bringing up children to become independent personalities. It is also concerned with the making of citizens of the state who take part in the democratic processes of a pluralistic society with responsibility and equality.

Social competence in communication with those who think differently, practised tolerance, powers of self-assertion and the ability to defend minority views can be more effectively put
into practice if contacts with society in general and the differing views to be found in it are made not only occasionally, but are part of the daily experience which comes with regular school attendance (cf. FCC, B. v. 31.05.2006, 2 BvR 1693/04).

Furthermore, the obligation to attend school represents a reasonable measure in view of the
positive effects which are to be expected as a result of its being exercised for the state educational assignment and the interests of the common good which form its background. The
general public has a justified interest in counteracting not only religiously or philosophically
oriented parallel societies, but also certain educationally oriented groups whose obvious intention is to undermine the general obligation to attend school, e.g. by registering in an (international) private correspondence school or by establishing international or regional
educational networks, to deprofessionalise the education system and to cut themselves off
from society. (Translator’s note to the above: The original sentence was even more chaotic
than this (being a syntactical catastrophe); I have tried to convey the exact sense, if that’s the
right word.) In this regard it is irrelevant that with homeschooling the children experience a
large amount of familial attention and in respect of a number of school subjects in the primary
stage, for instance, receive an adequate, or even in the opinion of the plaintiffs a better education. The final determinant is the objectively assessed welfare of the child (cf. Bonn
Commentary to the Basic Law, dated 10.96, marginal note 195), which the plaintiffs justifiably claim to be able to judge. In this respect the FCC (E34, 165) refers to the parents as the ‘natural advocates’ for their children’s education. However, the plaintiffs fail to take into account that the children’s pleasant learning experiences at home do not alter the fact that their sons must reckon with serious disadvantages in the later course of their lives because their educationally motivated exclusion from the state school system may be expected to prevent them from acquiring the competence to assert themselves under ‘normal’ social conditions, so that they can only live according to fixed rules in a small, narrowly enclosed parallel society (thus Niehues/Rux, Schulrecht (School Law), 4th edition, marginal No. 321).

As a result they would be educated to a state of immaturity, which is not compatible with the
personality envisaged by the Basic Law and which therefore cannot be justified. In addition, it
is doubtful whether the plaintiffs are at all capable of providing their children by means of
homeschooling with the knowledge and skills which section 20 of the Bremen School Statute
prescribes for the schools subsequent to the primary stage (secondary school, comprehensive
school, grammar school) (in respect of state and state recognised alternative schools). The plaintiffs have said that they wish to cross such bridges as they come and take decisions on a
case-by-case basis.

No comments: