Separation prohibition

from Wikipedia, the free encyclopedia
QA law

This article was entered in the editorial right for improvement due to formal or factual deficiencies in quality assurance . This is done in order to bring the quality of articles from the subject area law to an acceptable level. Help to eliminate the shortcomings in this article and take part in the discussion ! ( + )

A special ban is the ban on approving substitute schools as long as funding is provided so that substitute schools can also choose their pupils according to their parents' ownership. The legal basis is Article 7, Paragraph 4 of the Basic Law , which is intended to prevent segregation .

The special ban should result in consequences for any school fees that may be required and the income-related graduation. However, the federal states do not take this requirement seriously in their recognition practice. There are no official requirements and jurisdictions on how required school fees are determined and how they must be graded according to income. A study by the Berlin Social Research Center ( WZB ) from August 2017 shows how differently the federal states interpret the Basic Law Art. 7 IV 3 (special prohibition).

School fees

A private school as a substitute for public schools must be open to all students regardless of the economic circumstances of their parents. The amounts to be paid must be such that they cannot only be raised by those with higher incomes. Approval for a private school cannot be granted if this condition is not met. When and where the limits of the reasonable willingness to make sacrifices have been reached has not yet been determined by a court.

In 1994, the Federal Constitutional Court ruled in the so-called waiting period decision that the necessary personal contributions of a private school of at least DM 170 to 190 per month in question - without state financial aid - could not be paid by all parents. The establishment of free places and scholarships also does not guarantee general accessibility.

In 2011 the Federal Administrative Court ruled that a graduation of school fees is appropriate to raise school fees in such a way that they meet the special prohibition.

On the other hand, since private schools are not allowed to lag behind public schools in their services and the state, which also determines the requirements for the equivalence of private schools through its funding of public schools, has continuously tightened these requirements, private schools can no longer rely on parental contributions alone finance without violating Article 7 (4) of the Basic Law. In this respect, the special ban also has consequences for state funding for private schools.

Ensuring private schools

The state guarantees the right to found private schools. “The right to freedom of founding and school diversity” is a subjective and individual right, a right to freedom that must not be undermined by a lack of state funding.

In the waiting period decision, the Federal Constitutional Court institutionalized school diversity and school pluralism as a public task in relation to Article 7 (4) of the Basic Law. In Germany there is deliberate competition between public and privately owned schools.

The parents' freedom of choice of school is not just about choosing between existing offers within the entire school system, but the freedom of choice also relates to equivalent substitute schools which, in relation to public schools, cannot be prevented simply because of their different forms of education and content .

"The quality requirements as a prerequisite for the approval of substitute schools in accordance with Article 7, Paragraph 4, sentences 2 to 4 of the Basic Law, which enable the realization of the fundamental right to freedom of private schools, are the starting point for state financial support for substitute schools."

Lt. However, the Federal Constitutional Court is only obliged to provide financial aid if the existence of the institution “substitute school” is clearly endangered.

Independent providers of school alternatives to the public school system therefore have no constitutional right to funding. All federal states pay state financial aid that goes far beyond what is constitutional. Individual federal states such as Bavaria or Saxony supplement the general flat rate with a school fee, depending on the need .

In 2016, a study by the Berlin Social Science Center (WZB) came to the conclusion that the inadequate implementation of the special ban on private school approval and control in the federal states is unconstitutional. Accordingly, there is a lack of transparent and comprehensible school fee limits in all federal states.

The reactions to the alleged disregard of the Basic Law are partly contradicting, representatives of the private schools reacted with demands for further state financial aid.

The federal government answers a written request about the consequences of the WZB study by referring to the sole responsibility of the federal states for the school system.

In decisions of the last few years, the Federal Constitutional Court has partly moved away from the previously more private school-friendly case law:

  • with BVerfGE 90,107 the special prohibition during the first years (waiting period until approval) was in any case overridden for the "founding parents",
  • Due to the BVerfG decision of March 4, 1997 - 1 BvL 26/96, 1 ​​BvL 27/96, the difference between school fees and required expenses no longer has to be reimbursed in full, but an own contribution can be expected and
  • According to BVerfGE 112.75, the state obligation to provide funding is only violated if the existence of the private school as a whole is endangered, i.e. if an individual school is not important.

Web links

Individual evidence

  1. ↑ STB Web: School fees for private schools in other EU countries, regardless of their amount, deductible as special expenses. On the judgment v. February 14, 2008, Az: 10 K 7404/01 Rn. 47 March 26, 2008, archived from the original ; Retrieved on June 4, 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 a year. "
  2. ↑ Private schools: Federal states disregard the Basic Law. School policy and administrative practice cement the social isolation of private schools. In: Waldorf Education. Bund der Waldorfschulen eV, November 2016, archived from the original on June 5, 2018 ; accessed on June 4, 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. "
  3. ↑ Overview of the requirements for compliance with the special prohibition in the federal states
  4. ↑ Scientific services: special prohibition (Article 7, Paragraph 4, Sentence 3, Basic Law (GG)) and private school funding. WD 3 - 3000 - 453/10. German Bundestag, November 11, 2010, p. 4 , accessed on June 4, 2018 .
  5. ↑ BVerfGE 112, 74 - Private School Financing II. Federal Constitutional Court, November 23, 2004, accessed on June 4, 2018 : “1. Guiding principle: "Art. 7 para. 4 GG only obliges the state to financially support private substitute schools if, without such support, the existence of substitute schools as an institution would be clearly endangered (continuation of BVerfGE 75, 40; 90, 107). ""
  6. ↑ Kmk: Overview of the financing of private schools in the federal states of the Federal Republic of Germany Compilation of the Secretariat of the Conference of Ministers of Education (decision of the Conference of Ministers of Education of March 12, 2004 in the version of February 25, 2016). Secretariat of the Standing Conference, archived from the original on June 5, 2018 ; accessed on June 5, 2018 .
  7. ↑ Press release of November 18, 2016 - Approval of private schools: Federal states disregard the Basic Law : "School policy and administrative practice cement the social isolation of private schools"
  8. ↑ Michael Wrase, Marcel Helbig : The disregarded constitutional requirement - How the special prohibition according to Art. 7 IV 3 GG is circumvented , NVwZ 2016, 1591–1598.
  9. ↑ "Bremen's control is a joke" According to a study, the Bremen Senate allows private schools to isolate themselves socially. Marcel Helbig explains why this is dangerous. TAZ.de, January 13, 2017.
  10. ↑ See also sueddeutsche.de of November 17, 2016, 6:54 pm - School - "If you were to take the Basic Law seriously, Salem Castle would have to be closed
  11. ↑ Johann Peter Vogel, Hamburg: Disregard of the special prohibition according to Art. 7 (4) sentence 3 GG? Information publication Law and Education of the Institute for Educational Law and Educational Research, March 2017, accessed on May 13, 2017 .
  12. ↑ BUND DER FREIEN WALDORFSCHULEN EV: Press release: Federal states disregard the Basic Law - Free Waldorf schools demand a significant improvement in public funding for substitute schools. German Associations Forum, December 22, 2016, accessed on May 13, 2017 .
  13. ↑ FOR FAIR FINANCING OF LOWER SAXONY FOREST SCHOOLS! POSITION PAPER. Association of Independent Waldorf Schools, Landesarbeitsgemeinschaft Niedersachsen / Bremen, November 2016, accessed on May 15, 2017 .
  14. ↑ Öczan Mutlu (Member of the Bundestag Bündnis 90 / DIE GRÜNEN): What conclusions does the Federal Government draw from the study "The Disregarded Constitutional Law" by the legal scholar Prof. Dr. Michael Wrase and the educational researcher Prof. Dr. Marcel Helbig (https://beck-online.beck.de/?vpath=bibdata/zeits/NVWZ/2016/cont/NVWZ.2016.1591.1.htm), in which the thesis is put forward that Article 7 of the Basic Law of many private schools are disregarded and access to private schools is not open to everyone, and what measures is the federal government taking to prevent this? In: BT-Drucksache-18/10773 (No. 58). December 23, 2016, accessed May 13, 2017 .
  15. ^ Hufen, Friedhelm / Vogel, Johann Peter (eds.): No future prospects for independent schools? - Jurisprudence and reality in the area of ​​protection of a threatened fundamental right (PDF; 76 kB), Duncker & Humblot 2006, ISBN 978-3-428-12124-3