Article 7 of our Basic Law states in paragraph 4: “It is a fundamental constitutional right of all parents to establish a free school and to send their child there and not to a state school. This privilege as a fundamental right – even before the fundamental rights to demonstrate, to form associations, to freedom of movement and free choice of profession and the inviolability of the home – shows the great importance that the Basic Law attaches to our independent schools. And a guarantee of existence, because Article 19 (2) of the Basic Law states that: “In no case may the essence of a fundamental right be infringed.”
The fact that the entire school system is “under the supervision” of the state was already the case in the Weimar Republic. And the conditions for exercising this fundamental right set out in Article 7 (4) and (5) are self-evident, especially for Christians: teachers should be economically secure, the schools should “not be inferior to public schools in their teaching objectives and facilities or in the academic training of their teaching staff” (but: they do not have to be the same!) and the schools should be accessible to pupils from all income groups. If these conditions are met, “approval shall be granted” – without “ifs and buts” from the state.
In 1969, the Federal Constitutional Court confirmed that the state must “ensure the diversity of forms and content” at schools. And: Teaching at independent schools may and should be “independently shaped and designed” (BVerfG 27, p. 200).
In the case of “elementary schools”, which still existed 70 years ago and which today are largely elementary school, there is something in Article 5 that looks like a restriction, but in most federal states actually allows great freedom.
How is this possible? From the restriction that independent elementary school may only be founded as denominational schools, schools with “pedagogical interest” or ideological schools, the Federal Administrative Court derived the requirement in 1992 in fundamental rulings that denominational schools must always be approved by the state if there is a denomination of parents, pupils and teachers that characterizes the school and the entire teaching(BVerwG, 19.02.1992 – file number 6 C 3/91).
So we are not only allowed to live and show our faith at confessional schools, we have to! As soon as a confessional school would stop confessing Jesus and the Bible, it would have to be closed by law. (In North Rhine-Westphalia and Lower Saxony, where there are still state-run denominational schools, the fundamental right to establish an elementary school is unfortunately restricted in that independent denominational schools may only be established if there is no state-run denominational school in the municipality).
Article 7 of the Basic Law and the ruling of the Federal Administrative Court therefore give us denominational schools great freedom: only the teaching objectives, the rules for school readiness, for transfers/school-leaving certificates are prescribed by the state and are controlled, as are the qualifications of the teachers.
The content is largely free – right up to the explicit freedom, for example in the Saxon Private School Act (§ 3), that “deviations in … the subject matter are possible” in independent schools.
The Protestant confession, properly anchored in the statutes of the responsible bodies and educational concepts, therefore has constitutional precedence over social fads such as “gender”, which are not in line with the Christian view of humanity. With regard to gender and diversity, the state government of Berlin, for example, has clearly stated: “Approved alternative schools may not be required to deal with diversity and sexual diversity in view of the freedom of private schools guaranteed by law.”
Thanks to these freedoms, we are now able to teach and educate more than 30,000 children and young people every day in more than 170 denominational schools – and even receive state funding for this. Although this financial support is less than that of state schools, it is still almost unique in a European comparison: only in the Netherlands are independent Christian schools in a better position – in France and the Catholic cantons of Switzerland, on the other hand, they receive virtually no funding.
On the 70th anniversary of our Basic Law, the Protestant denominational schools under independent (parental) sponsorship therefore have much reason to be grateful!
Prof. Dr. Wolfgang Stock, Secretary General of the VEBS
