For five years, the Hamburg state government had tried to prevent the parents’ initiative’s elementary school. The reason given: Denominational schools could only be founded by the large churches. Since February 19, 1992, it has been clear that this opinion of the authorities was wrong. “Any confession”, for example the “Common Basis of Faith of the Evangelical Alliance”, is sufficient as a confessional basis for a free elementary school as a confessional school.
This clarification of the constitutional provision in Article 6 of our Basic Law led to the founding of many more schools by Protestant parents: 30 years later, there are more than 150 confessional schools alone, which have the Bible, the Apostles’ Creed and the Evangelical Alliance’s Basis of Faith as their basis of confession.
As important as the ruling was for the founding of the many Christian denominational schools, it was quickly forgotten by many of the school founders at the time and even more so by their successors. The schools seemed unable to believe that a ruling by the highest German court for administrative matters had given their cause 100 percent justice!
In fact, the Federal Administrative Court had completely rejected the administrative understanding of Article 7 Paragraph 5 of the Basic Law that had prevailed for decades. In future, it should no longer depend on whether a school wanted to accept the confession of a Protestant regional church – “free” Protestant schools are permitted. Since 1992, “any confession” to which the freedom of confession and belief in Article 4 Paragraph 1 of the Basic Law applies can be made the basis of a confessional school.
What constitutes a creed and how it is defined was cemented by the Federal Administrative Court on February 19, 1992 in two rulings for elementary school: A ruling on ideological schools (the application for approval of a Scientology school was rejected because Scientology was not a “world view”) with the case number 6 C 5.91 and a ruling on “our” Hamburg denominational school (the wish of the school founders was granted) with the case number 6 C 3.91.
In “our” judgment, the court made references to its judgment on Weltanschauungsschulen, which is why we insert the core sentences of the judgment on Weltanschauungsschulen at the relevant points – but to be precise, we always refer to the two judgments of that day.
However, rights also include obligations, or in this case requirements, which must be fulfilled! The Federal Administrative Court states one thing very clearly: a denominational school must have a largely homogeneous denominational community. This means that non-believing parents and their children are permitted as a “silent” minority if they
- at least want to get to know our confession (“accept” is not enough)
- and do not disturb the confessional nature of school life with their otherness.
In other words: The everyday school life and teaching of a denominational school must be characterized by its denomination (guiding principle 1 of the ruling) – without objection from those who do not (yet) share our denomination. If this confessional character is missing or disappears, such an elementary school would have to be closed by the authorities!
However, after the 1992 ruling, these mandatory requirements for non-denominational schools were soon no longer observed so closely – neither by school founders nor by the authorities. With the exception of Bavaria, the federal states applied the ruling with regard to the possible denomination, but otherwise more or less adhered to the previously required conditions, according to which (former church) denominational schools as alternative schools had to largely correspond to public schools.
A bang from the Stuttgart Administrative Court in 2003: Islamic school foundation cannot be approved!
This changed in 2003, when the Baden-Württemberg Ministry of Culture rejected the application for approval for an Islamic denominational school planned in Stuttgart and the plaintiffs failed with their lawsuit against it in the first instance, despite good lawyers, because they had not complied with the 1992 rulings. Unlike the courageous Hamburg parents, they did not appeal, but capitulated.
This was because the ruling was “watertight”: the court had based its decision on the 1992 rulings on the absence of three essential requirements from the Basic Law, which were emphasized in 1992:
- the association’s application for approval could not be attributed to the will of the pupils’ parents (a free elementary school must be founded by parents),
- A denominational character of the school and teaching had not been sufficiently described
- and a common confession (here: Islamic) and above all a corresponding school community of parents, children and teachers could not be recognized by the court.
Rulings of the Federal Administrative Court from 1992 applied thoroughly for the first time
These were and are precisely the requirements for denominational and ideological schools within the meaning of Article 7 (5) of the Basic Law, as clearly specified by the Federal Administrative Court 30 years ago.
When it came to the above-mentioned Islamic elementary school for Stuttgart, the Stuttgart school administration and the administrative court suddenly saw this very clearly. The homogeneity of the parents’ and pupils’ denomination and the consistent denominational character of the school and teaching would certainly have been received rather critically everywhere until then. If a school had taken this seriously, it would probably have been accused of discriminating against parents and pupils with different or no denomination, of violating Article 3 of the Basic Law (“… No one may be discriminated against because of … disadvantaged or favored because of his or her faith, religious or political views…”) or was “fundamentalist” and in any case to be rejected.
However, eleven years after the 1992 ruling, the city and the administrative court demanded that this Islamic primary school founding initiative demonstrate the homogeneity of the denomination and a consistent denominational character. The authorities also demanded proof that the first parents of the pupils were Muslims and that they ultimately applied for the school. Secondly, it had to be explained in detail that and how their Islamic faith would affect the teaching and education in the planned school. As the founders were also unable to describe this afterwards, the founding of this school had to fail. [1]
The state school administrations are gradually reacting
The Islamic plaintiffs felt that they had been treated unfairly as a result. Their accusation that Christian denominational schools had been generously approved (because compliance with the conditions had not really been checked) was true, but did not help the plaintiffs in their case – there is no right to equal but unlawful treatment (“equality in injustice”) in Germany.
In many federal states, the outcome of the trial gradually led to a closer examination of the requirements demanded by the Federal Administrative Court for denominational schools. Increasingly, declarations were now required from the parents of the founding cohort, who no longer only had to “agree” with the educational concept and the school’s confession, but also had to personally and explicitly support the confession described in the school association’s application for approval.
In Baden-Württemberg, there were also (justified) questions about the commitment of parents, children and teachers and often the complaint that it was not clear from the submitted statutes of the school associations to what extent the participation of parents in the running of the school as a denominational community was guaranteed. Repeated requests were made to include the following passage in the statutes, which is not entirely in line with case law: “Educational staff, pupils and parents identify with the school, jointly support the school profile and develop it further.” One denominational school, which could not believe these changes in legal opinion, received a friendly reply from its school authority: “Today, the clocks tick a little differently than they did back then” – differently than before 1992. The judgments began to have an effect.
Existing schools must fulfill all legal requirements on a daily basis
Since then, it should be clear to all those responsible that they must know exactly what the legal basis of their independent denominational schools is and observe it in the long term. This applies in particular to denominational schools at primary and entry level because – according to our Basic Law – they would be prohibited without the admission requirements for the “exemption” in Article 7 Paragraph 5 of the Basic Law. However, not many exceptions can be considered for secondary schools of one and the same school association due to the stipulations in the association statutes that are usually made for all types of schools.
It is also important to note that this is not only important for the approval process of new schools, but must be fulfilled by existing schools on a daily basis. The constitutional requirements for approval must not only be met at the start of a school, but in the long term.
The fact that these requirements are actually met is also important for religious education and other areas of law (e.g. the prohibition of discrimination under Section 9 AGG and employee co-determination under Section 118 of the Works Constitution)!
The judgments show how wonderful our constitution is
Reading the judgments is also worthwhile beyond these specific purposes, as the court sheds light on the legal basis of free schools in Article 7 of the Basic Law in an almost textbook manner.
To make reading easier, the VEBS provides the text of the judgments on the following pages, carefully abridged and with explanatory notes in the margins.
The Federal Administrative Court began its new case law on February 19, 1992 with its ruling on the approval of an ideological school (case number 6 C 5.91). The Hamburg school was approved as a denominational school in a further ruling on the same day (case number 6 C 3.91).
Since the only legal difference between the terms worldview and confession is that the confession, unlike the worldview, has a reference to God, the same law largely applies to both types of school, similarly for schools with a special educational profile.
Denominational schools must be different, but “equal”
The main regulations for denominational schools are summarized in the “guiding principles” of the rulings.
The demands of the court,
- that the parents’ confession is decisive,
- that they must have a common confession (“homogeneity of confession of parents, pupils and teachers”),
- that the school and teaching must be characterized by this commitment throughout
- and that a binding community supporting this confession must be guaranteed (school association as confession keeper),
must be known in every school and must be adhered to.
Conversely, we can be grateful that the Federal Administrative Court has interpreted the concept of teaching objectives for the equivalence requirement of Article 7 (4) of the Basic Law very broadly: It includes both the educational objectives and the qualification to be taught.
The Federal Administrative Court has made it clear that a denominational school may not be inferior to corresponding public schools in terms of its educational goals or the qualifications to be taught due to its denominational character (no one would dare to make this insinuation of the state government at the time – on the contrary, mayors up and down the country praise the quality of independent Christian denominational schools). A denominational character should never result in “deficits” in general educational goods or the way in which the subject matter is taught should not lead to bias on the part of the pupils (no “deformations”).
Educational goals of a denominational school
Finally, the court specified the right of alternative schools “to pursue other educational objectives in addition to the teaching objectives specified by the state, including the educational objectives, which in any case do not contradict the state educational objectives, especially since the state educational objectives typically leave room for filling in the content of specific lessons”.
In doing so, it has gone into more detail on the generally binding state educational goal of “helping pupils to orient themselves independently and to lead their lives on their own responsibility, as well as to develop and assert their individual perception and judgment skills.”
This is precisely our concern if we want to empower young people to live out their faith in Jesus in the world.
The importance of the tolerance requirement for denominational schools
The principle of tolerance received particular attention among the educational goals. The reasoning behind this ruling was the only point on which the 1992 rulings of the Federal Administrative Court met with criticism from secular lawyers. It requires “when applied in conformity with the constitution specifically to denominational schools, only that degree of tolerance towards other, differing convictions” which “is a prerequisite for an open debate with other convictions“.
The following sentences are important for schools: “By its very nature, every “confession” is designed to profess and promote one’s own ideas and values in the conviction that they are correct. Article 7 paragraph 4 sentence 3 of the Basic Law thus presupposes an educational goal that promotes the confession as self-evident and therefore permissible “[2].
The reasons for the judgment have thus become a valuable legal interpretation of the confessional schools.
Even a driver who is not a lawyer can be expected to know the German Road Traffic Regulations (StVO)
The judgments could give the impression that dealing with these legal issues requires legal skills, which, however, cannot be demanded of school founders, school boards, head teachers and teachers in independent sponsorship…
Yes, that can be demanded!
Drivers, chimney sweeps and butchers are not lawyers either, and yet they all have to know the road traffic regulations, fire safety regulations or hygiene regulations that apply to them and comply with them exactly!
The association’s bodies and employees must meet these requirements if they do not want to jeopardize the raison d’être of their schools with their special character.
The Federal Administrative Court is currently even drawing consequences for religious education from its 1992 rulings
30 years is a long time – would the Federal Administrative Court one or two generations of judges later still rule the same way today as it did back then? A legitimate question, because case law “develops”, i.e. often changes.
But no – the Federal Administrative Court continued its case law with a ruling on religious education in 20193! With this decision, the court rejected an appeal by the state government of Baden-Württemberg against a judgment that was negative for it, because this was already ruled on in 1992 and the court expressly, even emphatically, adheres to this with more recent judges.
Article 7 (3) of the Basic Law does not prescribe religious education as a subject for alternative schools
Due to this remarkable reasoning, we are also printing the decision of the Federal Administrative Court from 2019 on religious education – although it has no direct significance for any of the schools in the VEBS, as the ruling only affects alternative schools that are only “approved” alternative schools according to the legal definition in Baden-Württemberg (in North Rhine-Westphalia, this is referred to as “provisional permission”); however, the decision applies to these schools nationwide. However, all schools in the VEBS are “recognized” alternative schools (in NRW “approved” alternative schools) or are striving to become so in the shortest possible time after their establishment.
However, corresponding administrative court proceedings are also underway for “recognized” alternative schools, again in Baden-Württemberg. The plaintiff is currently waiting for a court date in the second instance – after that, it is certain to go to the Federal Administrative Court, where a final ruling will be made by the middle of the decade.
In the 2019 ruling, the Federal Administrative Court confirmed that an approved alternative school is not obliged to offer the state church subject “religion”. Article 7 (3) of the Basic Law[3] does not apply to alternative schools, either directly or indirectly, because the state cannot deny the “equivalence” of these schools due to the lack of religious education.
Denominational schools can be pleased about the guiding principle of the ruling: “A private alternative school is not inferior to public schools in its teaching objectives within the meaning of Article 7 (4) sentence 3 of the Basic Law because it does not offer religious instruction” – this refers to “religious instruction” in accordance with the principles and under the control of the Protestant state church (e.g. compulsory vocation!).
In addition, the court backed up the quoted statement by stating that alternative schools “ may not be required to fulfill any school-related approval requirements other than those listed in Article 7 (4) sentence 3 of the Basic Law” “either by state law or by a specific structure of the school authorities’ approval practice”.
It based its decision on two rulings by the Federal Constitutional Court in 1969 and 1987: “The area removed from state influence is characterized by the fact that private schools provide teaching that is shaped and designed independently, particularly in terms of educational objectives, ideological basis, teaching methods and teaching content.”
Religious education not required – but compulsory “penetration” of all subjects with ethical issues!
The 2019 resolution grants independent schools a great deal of freedom in the organization of religious education: “For the constitutionally required minimum of values teaching in schools, there is no need for religious education or even a separate subject. Rather, other subjects such as German or social studies are also suitable for dealing with ethical issues .”
The court explicitly pointed out that, due to the subject matter of the dispute, its decision only applies to approval procedures and not automatically to the recognition of denominational schools. For this reason, the Ministry of Education and Cultural Affairs of Baden-Württemberg (which lost the case) reacted promptly to the decision: “The question of granting the status of a recognized alternativeschool, which gives the school the right to hold examinations and issue certificates in accordance with the regulations generally applicable to public schools, must be separated from this,” and decreed for Baden-Württemberg: “Recognized alternative schools must continue to be required to offer and hold religious instruction. “4
We are not alone in doubting whether this is legal – the Federal Constitutional Court will make a final judgment on this in a few years’ time!
Christian denominational schools have a wonderful legal foundation in Germany
We cannot be grateful enough for these legal foundations of Christian denominational schools, which we enjoy in Germany and which are the envy of Christian schools even in our immediate neighboring countries.
As good administrators, we therefore also have a duty not only to be aware of these foundations, but also to recognize the benefits, especially in more turbulent years. Above all, it means focusing on the legally required spiritual foundation of our schools and using it comprehensively for everyday life (administration and pedagogy).
This is not about “organizing” in order to meet legal requirements in a makeshift manner. No, in the spirit of the school founders and in line with our spiritual concerns, it is about implementing the required community of faith and the interpenetration of teaching and everyday school life that we want in such a way that our schools – God’s schools – can work well in the long term.
February 19, 2022
Prof. Dr. Wolfgang Stock
[1] Since then, however, there have been successful foundations of Islamic schools.
[2] The complicated quote from the judgment reads: “Article 7 (4) sentence 3 of the Basic Law thus not only does not exclude such an educational objective in a private denominational school, but conversely presupposes it as self-evident and therefore permissible.” (None of the two “not” may be omitted here, as has unfortunately already occurred in the legal literature – turning the statement into its opposite).
[3] “Religious education is a regular subject in public schools with the exception of non-denominational schools. Without prejudice to the state’s right of supervision, religious education shall be taught in accordance with the principles of the religious communities .”
