Article 7 of the Basic Law for the Federal Republic of Germany

from Wikipedia, the free encyclopedia

Article 7 of the German Basic Law (GG) is in the first section of the Basic Law, which guarantees fundamental rights . The article regulates the German school system .

Normalization

Since the Basic Law came into force on May 24, 1949, Article 7 of the Basic Law has read as follows:

Article 7 of the Basic Law - a work by Dani Karavan on the glass panes on the Spree side at the Jakob-Kaiser-Haus of the Bundestag in Berlin.

(1) The entire school system is under the supervision of the state.

(2) The legal guardians have the right to determine whether the child is to participate in religious instruction.

(3) Religious instruction is a regular subject in public schools with the exception of non-denominational schools. Without prejudice to state supervisory law, religious education is given in accordance with the principles of the religious communities. No teacher may be obliged to give religious instruction against his will.

(4) The right to establish private schools is guaranteed. Private schools as a substitute for public schools require the approval of the state and are subject to state laws. Approval is to be granted if the private schools do not lag behind the public schools in terms of their teaching objectives and facilities, or in the academic training of their teachers, and if pupils are not promoted according to their parents' ownership. Approval must be refused if the economic and legal position of the teaching staff is not sufficiently secured.

(5) A private elementary school is only permitted if the teaching administration recognizes a special educational interest or, at the request of a legal guardian, if it is to be set up as a community school, as a denominational or ideological school and a public elementary school of this type does not exist in the municipality.

(6) Preschools remain suspended.

Art. 7 GG regulates the state education system as a supplement to the parental rights from Art. 6 GG. Details are not specified in this article, as these are reserved for the federal states. Only the relationship between public schools and private schools and questions of religious or ideological orientation are defined. Art. 7 GG contains numerous provisions relating to the school system. In some cases, these are civil liberties that enable citizens to defend themselves against sovereign interference in a legal position. Other regulations of Article 7 of the Basic Law oblige the state to create institutions and dictate to the state how these are to be organized. Thus, despite its systematic position in the section on fundamental rights, Art. 7 GG only represents such a thing to a limited extent.

History of origin

The Weimar Constitution (WRV) of 1919 contained constitutional provisions on the school system . According to Art. 144 WRV, the school system was under the supervision of the state. With this, the legislature wanted to limit the church's influence on the school system.

School supervision, Art. 7 Paragraph 1 GG

Art. 7 paragraph 1 GG assigns the state to supervise the school system. The school inspection refers to the entire organization and administration of the school system. School supervision is carried out by the federal states.

The state school inspectorate represents a barrier to the basic rights contained in Art. 7 GG, so it allows interventions in these.

Religious instruction, Article 7 paragraphs 2, 3 GG

According to Article 7, Paragraph 2 of the Basic Law, the legal guardians have the right to determine whether their child will participate in religious instruction up to the age of 14. This provision is a right of parents to defend themselves against sovereign interference. The right guaranteed by Article 7, Paragraph 2 of the Basic Law exists as long as the child is not of religious age. This contradicts the wearing of a headscarf for adolescents who are not religious. The headscarf is always a visible and conscious proof of the religious affiliation exemplified by the parents. In the headscarf controversy , this type is becoming more and more important. According to some constitutional lawyers, the tolerance of wearing the headscarf in school for children who are not of religious age would be contrary to Article 7 (2) of the Basic Law; rather, the interpretation of this article would serve its actual purpose of enabling all who are not yet of religious age to make a free decision.

According to Article 7, Paragraph 3, Clause 1 of the Basic Law, religious education is a regular subject in schools. According to this, it is given equal status as a school subject compared to other subjects. Religious instruction aims to convey the beliefs of a religious community . He does not limit himself to communicating these, but teaches them as truth. The standard obliges the state to offer religious instruction as a subject. Religious communities can sue for compliance with this obligation. Art. 7 paragraph 3 sentence 1 GG is the only provision of the Basic Law that does not apply in its entire area of ​​application. Through the Bremen clause of Article 141 of the Basic Law, the federal states of Bremen and Berlin are not bound by Article 7, Paragraph 3, Sentence 1. The application of Art. 141 in the new federal states is legally controversial. The content of religious instruction is determined by the religious communities in accordance with Article 7, Paragraph 3, Clause 2 of the Basic Law.

Private schools, Article 7 paragraphs 4, 5, 6 GG

According to Article 7, Paragraph 4, Clause 1 of the Basic Law, citizens may set up private schools . This includes schools that supplement the educational offer of public schools ( supplementary schools ) and only have to be reported to the authorities, as well as schools that fulfill the function of a public school ( substitute schools ). According to Article 7, Paragraph 4, Sentence 2 of the Basic Law, the operation of a substitute school requires state approval. According to Art. 7 Paragraph 4 Clause 3 of the Basic Law, the operator is entitled to this if the quality of the substitute school is equivalent to that of a public school. Authorities that promote segregation of pupils due to a lack of guidelines and by dispensing with controls are not allowed to approve replacement schools - regardless of whether the private school also intends to select its pupils according to the ownership structure of their parents, for example in order to achieve high school fees or a specific one To achieve composition of the student body. As long as the licensing authorities encourage segregation of the students, the authorities are actually prohibited from authorizing substitute schools. So far, however, this requirement has been ignored in the federal states and not taken seriously. So far, there are no guidelines that substantiate the special prohibition and a school supervisory authority that would monitor it. “It is therefore not clear to the licensing authorities and school authorities how school fees can be determined and up to what level they can be raised.” Private pre-schools like in the German Empire remain suspended (see corresponding section in the pre-school article ). A law to delete paragraph 5 from Article 7 was drafted but not passed.

Application in case law

A lawsuit brought by legal guardians before the Federal Administrative Court related to the fact that Article 7, Paragraph 1 stipulates that the state is responsible for the supervision of the school system, but that it does not define what the school system is. The question to be answered was whether or not home schooling should be permitted under state supervision. This resulted in a conflict of fundamental rights between Article 6 (2) GG and Article 7 (1) GG. The Federal Administrative Court ruled in 2009 that there is basically no entitlement to replace compulsory education based on the state educational mandate from Article 7, Paragraph 1 of the Basic Law with state-supervised home instruction.

Another legal examination was introduced into the definition of the term religious communities . The Federal Administrative Court found in a process that z. B. a multi-level association (umbrella organization) can also be a religious community. An umbrella organization is in turn not a religious community if the umbrella organization is shaped by member associations that do not or only partially fulfill religious tasks.

literature

  • Hans Hofmann: Art. 7 . In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .

Web links

Individual evidence

  1. ↑ Hans Hofmann: Art. 7 , Rn. 2. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  2. ↑ Hans Hofmann: Art. 7 , Rn. 1. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  3. ↑ BVerwGE 18, 38 .
  4. ↑ Hans Hofmann: Art. 7 , Rn. 5. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  5. ↑ Thorsten Kingreen, Ralf Poscher: Fundamental rights: Staatsrecht II . 32nd edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4167-5 , Rn. 753
  6. ↑ BVerfGE 74, 244 (252) : Participation in religious instruction for non-denominational people.
  7. ↑ Janbernd Oebbecke : Scope and requirements of the constitutional guarantee of religious instruction . In: Deutsches Verwaltungsblatt 1996, p. 336 (341).
  8. ↑ BVerwGE 123, 49 (52).
  9. ^ WZB: Approval of private schools: Federal states disregard the Basic Law. Science Center Berlin for Social Research, November 16, 2016, archived from the original ; accessed on May 27, 2018 .
  10. ↑ Prof. M. Wrase, Prof. M. Helbig: Overview of the requirements for compliance with the special prohibition in the federal states.Updated and supplemented version based on the criteria developed in NVwZ 2016. (PDF) August 2017, accessed on May 27, 2018 .
  11. ↑ STB Web: School fees for private schools in other EU countries, regardless of their amount, deductible as special expenses. STB Web, March 26, 2008, archived from the original ; Retrieved on May 27, 2018 : “The FG Cologne justified its different decision by stating that this“ special prohibition ”was not taken seriously in the recognition practice of the federal states. For example, there are state-approved alternative schools with a school fee of up to 30,000 euros per year. ... FG Cologne, judgment of February 14, 2008, Az.:10 K 7404/01 "
  12. ^ Waldorf Education: Private Schools: Federal States disregard the Basic Law. Association of Waldorf Schools, November 2016, archived from the original ; accessed on May 27, 2018 : “The majority of the federal states do not specify the special prohibition in their own state laws. It is therefore not clear to licensing authorities and school authorities how school fees can be determined and up to what amount they can be charged. "
  13. ↑ Politicians of the FDP: Drs. 16/10235 Draft law to amend the Basic Law (Art. 7, Paragraph 5). (PDF) September 16, 2008, accessed May 27, 2008 .
  14. ↑ Lawyer Dr. Thomas Fuchs, Heidelberg: BVerwG, decision of October 15, 2009 - 6 B 09/27. Retrieved August 24, 2017 .
  15. ↑ Lexetius - Judgment of the Federal Administrative Court - Full text