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NEL = Niedersachsen Education Law
Private instruction in this context means one-to-one instruction.
Response of the School Authoritiy of Niedersachsen to the arguments of a home educating family.
In the administrative law case of G and others VS the State Education Authority of Niedersachsen
I move on behalf of the respondent that
The action be dismissed
The action is admissible but unfounded.
The plaintiffs have no right to exemption from compulsory schooling for their minor children R, R and L.
R and R are subject to school attendance, as stated in Article 63, paragraphs 1, 64 and 65 of the Niedersachsen Education Law. L will be of school age in the school year 2007-2008.
The legal precept of universal compulsory schooling rests on the state’s mandate to educate, which is inferred from Article 7, part 1 of the Basic Law of Germany. Universal compulsory schooling and the further duties which arise from it, restrict, in a permissible manner, the guaranteed right of parents, in Article 6, section 2, first sentence of the Basic Law, to decide on the upbringing and education of their children and and personal rights of the schoolchild (see Maunz/Dürig Kommentar zum Grundgesetz. Stand 47 Ergänzungslieferung, Juni 2006 Art.7 Randnummer 55).
Compulsory schooling involves an obligation to attend school. School pupils are basically bound to attend a school and to take part in instruction there. The only exceptions which apply are those where private instruction may take place as per Article 63 Section 5 of the Education Law of Niedersachsen or where instruction may take place in a hospital or group home as per Article 69 (Seyderhelm, Nagel, Brockman, Kommentar zum Niedersachsen Schulgesetz, §63)
The plaintiffs have no right to the granting of private instruction for their above-mentioned children according to Article 63, Section 5 of the NEL. According to this regulation, private instruction may only be granted to school age children in the first 6 years in exceptional circumstances. Article 63, Section 5 states a rule-exception relationship. There must be important reasons to justify the granting of private instruction.
Grounds for an exception must normally have to do with the person of the child, i.e. his or her physical, emotional constitution or his or her character. Furthermore, private instruction can be granted to children who frequently change their residence.
No such important justification for allowing private instruction is given in this case. No frequent change of residence, in the sense of this regulation, has occurred here. The plaintiffs have not changed their residence for over 2 years. Nor does the work contract of the father show the need for a frequent change of residence. A letter of confirmation dated 31.10.2006 from the employer of Mr G states that such contracts normally last 18 to 24 months but can also last, in exceptional cases, for up to 36 months. In this light, one cannot speak of frequent change of residence.
In this context, we also refer to the circular from the Ministry of Education, “School education of children of professional travellers in the general schools” from 16.03.2002. According to 1.1 of this decree, children of migrant employees, are subject to compulsory schooling as per Art. 63 Section 1 of the NEL. These school pupils fulfil the requirements of compulsory schooling as follows: They are assigned to a regular school, which is responsible for supervising their education. This school prepares the pupils and their parents or guardians for the time when they will be on the road and supervises their learning from afar (see 2.3 of the decree.) Whilst on the road, the pupil fulfils the requirements of compulsory schooling by visiting a so-called support school. Children of people whose professions involve much travelling, e.g. inland sailors and circus employees, have to frequently change schools. Even so, they are subject to compulsory schooling, as required by the lawmakers, and are obliged to visit support schools whilst travelling. Although private instruction is not specifically mentioned in this decree, it could be granted if the pupil is constantly moving around with his or her parents. This does not apply in the present case.
Another comparison is that of the children of the members of foreign military stationed in Niedersachsen.. According to Number 3.1.1 of the decree of the Ministry of Education and Culture, "Supplementary regulations to compulsory school attendance and to the legal relationship to school" of August 29, 1995, compulsory school attendance exists independent of nationality. Children of members of stationed military forces are therewith fundamentally under the compulsory attendance law even in Germany. They fulfill their compulsory schooling, however, through attendance at schools run by the stationing armed forces. If this were not to occur, they would be required to attend school at a German school, and that would be regardless of the length of stationing of the parent, or parents.
For the rest, it is not apparent that there are particularly subjective grounds in the persons of the children which would speak for the granting of private instruction. The children of the plaintiffs have now been in Germany for over two years. The examples of other children who have come to Germany from other countries illustrate that a successful integration into the German school system would have taken place. In this respect, it is noted that the children of the plaintiff attended a state-recognised private school in Bavaria. The attendance of such a school fulfils the compulsory school attendance requirement. Compulsory schooling could even now be carried out by attendance of such a school in Niedersachsen. Why the attendance at such a school in Niedersachsen should be an unreasonable imposition is not conceivable.
As has already been explained in our rejection of the plaintiff’s application for exemption, the Clonlara School is not a school in the sense of the NEL. An education through this school is not in accordance with the requirements of the NEL. In the jurisprudence it has been acknowledged that instruction by the parents of his or her own children within the family can never be “school” in terms of the education law, independent of whether the parent is a qualified teacher or not. (see Hebeler/Schmidt Schulpflicht und elterliches Erziehungsrecht - Neue Aspekte eines alten Themas? in NVwZ 2005 page 1369, with reference to Mannheim NVwZ RR2003 562).
Private instruction can also not be allowed for other reasons. According to no. 4 of the decree "Supplementary regulations to compulsory school attendance and to the legal relationship to school", the granting of private instruction is only to be allowed when the instruction complies with the requirements for instruction in the various schools. According to the guidelines, the instruction must be carried out by a teacher who has been specially trained for this purpose. (see Seyderheim, Nagel, Brockmann 63, No. 7). The Clonlara School obviously does not instruct according to the guidelines, so that home education cannot be allowed for this reason.
An exemption from compulsory schooling cannot be granted under the aspect of unreasonable hardship. In this context, the plaintiffs maintain that the right of the parents to direct the upbringing of their children in the Basic Law Article 6, Section 2, paragraph 1 pre-empts the universal supervisory power of the State in Article 7. Furthermore, they maintain that Article 7 does not assign the State a mandate to educate.
It is noted in this regard that the Constitutional Court and the prevailing opinion understand the relationship between Basic Law Article 6, Section 2, paragraph 1 and Article 7 Section 1 in the sense of competing, basically equally ranked, mandates to educate which do not circumscribe each other’s areas of responsibility. (see Sachs, Commentary to the Basic Law, 1996, Article 7, Note 35.) Therefore Article 6, Section 2, paragraph 1 cannot be seen as having precedence. Likewise, universal compulsory schooling, in the form of compulsory school attendance is seen as a constitutionally legal manner of restricting the parents’ custody of their children. (see Maunz Döring above). It is also the prevailing opinion that the state makes use of its mandate to educate and has the right to set its own educational goals.(See Sachs Article 7, Note 22)
Furthermore, the plaintiffs’ point of view, that the State’s supervisory duty only applies to schools and not to education in general, cannot be followed. The jurisprudence of the Constitutional Court has made no indication of this being the case.
In addition, the requirement of unreasonable hardship is not fulfilled, because this is not an atypical case. It has arisen from "Supplementary regulations to compulsory school attendance and to the legal relationship to school” that a person is regarded as being resident in Niedersachsen and subject to compulsory schooling when he or she has resided here for more than five days, even if he or she does not intend to remain here permanently. This applies regardless of the person’s nationality. The lawmakers have ordered compulsory schooling even for only a short stay in Niedersachsen. The children of the plaintiffs have resided in Niedersachsen for more than 2 years, which illustrates that this case is not atypical.
It is asserted in the complainants’ grounds that there is unacceptable discrimination and factually unjustified unequal treatment because some German children living in other countries are able to utilise approved distance education. They also give the example of the boy band Tokio Hotel. These cases have totally different underlying circumstances. These examples cannot be compared with the case in point.
Furthermore, the complainants presume that their children are being disadvantaged with respect to children in other EU countries and the rest of the developed world. There is also no comparison with the situation here. The children in other countries are subject to another legal system.
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