Federal Administrative Court: Judgment of 19.02.1992 (6 C 3.91)

As part of the prognosis decision as to whether the denominational school will meet the requirements with regard to the qualification to be taught, the licensing authority must also examine whether the teaching objectives may be missed as a consequence of the special, denominational educational objectives and in particular the way in which they are taught; this does not constitute an inadmissible examination and assessment of the denomination.

The requirement of “not falling short” of the teaching objectives does not require positive proof of the equivalence of the teaching objectives, but merely a – verifiable – prognosis based on concrete findings that – presumably – there will be no significant deficits compared to the teaching objectives of the corresponding public schools.

The Hamburg Private Schools Act in its version of December 4, 1990 does not violate the freedom of private schools guaranteed by Article 7 (4) and (5) of the Basic Law by declaring that the educational objectives prescribed for public schools in the Hamburg Schools Act are also binding for private alternative schools, including denominational schools; these educational objectives are already essentially derived directly from the constitution itself, in particular Article 1 (1) and (2) in conjunction with Article 2 et seq. and Article 20 of the Basic Law.

The educational goals of a denominational school must also include a minimum degree of tolerance in the sense of tolerance towards the differing convictions of others and respect for and promotion of the pupils’ individual ability to perceive and judge, but not neutrality and openness in the sense that at the end of school education there should not be a clear commitment to certain beliefs and a commitment to certain values; within this framework, the promotion of one’s own denomination is also permissible.

If, contrary to the earlier forecast, the teaching at the denominational school falls short of the requirements mentioned, the state can and must counter this with the means of state school supervision.

Facts of the case

The parties involved are in dispute as to whether permission to establish a private elementary school as a denominational school may be refused on the grounds that its denominational teaching objectives in particular are inferior to the teaching objectives of corresponding public schools within the meaning of Article 7(4) sentence 3 of the Basic Law.

The plaintiff, the association Freie Christliche Bekenntnisschule – FCBH -, was founded in 1986 for the purpose of establishing and sponsoring FCBH as a private alternative school. The school is to be established as a Christian “evangelical” denominational school on a biblical basis. The basis of faith is to be the Bible alone, the products of faith are to be the Apostles’ Creed and the Declaration of Principles of the Evangelical Alliance of 1846. Only converted and born-again Christians (according to the understanding of § 2 of the statutes of the Evangelical Alliance of 1846) who practice confession and forgiveness may join the association; the same applies to all teachers. However, the school’s concern should only ever be represented as an offer to parents and pupils.

In December 1986, the plaintiff applied to the defendant, the Free and Hanseatic City of Hamburg, for the approval of a Christian denominational school with the name “August-Hermann-Francke-Schule” as a private alternative school; in the course of the administrative proceedings, he limited his application to the approval of the establishment of an elementary school. He submitted a pedagogical concept according to which all teaching was to be based on the Bible; this would be the sole yardstick for any discussions with other ideologies and world views that might become necessary in the course of teaching. However, the school should be open to pupils of all denominations, provided that the parents or guardians agree to the educational concept pursued by the school. With regard to the teaching objectives, the guidelines and curricula for state schools would be adhered to in principle; however, special emphasis would be placed on the plaintiff’s denominational commitment.

At the request of the defendant, the plaintiff submitted a revised pedagogical concept in December 1987, which he revised again on two points in March 1990 during the appeal proceedings. According to this concept, the Bible at FCBH is the decisive standard for education, training and academic work for every lesson and for school life as a whole. Among other things, the educational goal of forming pupils as whole personalities is stated: “Overall, spiritual and character education has priority over other areas of education. Nevertheless, the intellectual level should be at least equal to that of state schools … Spiritual education serves the education for faith in Jesus Christ, the Son of God, and for Christian life in the community of the Holy Spirit. The school wants to and can provide encouragement and support for this, because it is responsible for offering God’s salvation in Jesus Christ with love and emphasis. But it cannot guarantee Christian faith as the success of its educational measures, and it will not exert any unwholesome pressure.”

When the approval procedure initiated by the defendant came to a standstill, the plaintiff initially filed an action for failure to act in October 1988. In a decision dated July 26, 1989, the defendant refused to approve the elementary school planned by the plaintiff. The reason given was that it was not a “denominational school” within the meaning of Article 7 (5) of the Basic Law, because this only included schools of the Protestant regional churches, the Catholic Church and the Jewish communities. Furthermore, the planned school did not meet the requirement of equivalence with the educational objectives of public schools with regard to its educational objectives.

The plaintiff then amended his application with the consent of the defendant and requested that the decision of July 26, 1989 be revoked and that the defendant be ordered to grant him permission to establish an elementary school as a denominational school under the name “August-Hermann-Francke-Schule”.

The Administrative Court dismissed the action in its ruling of January 17, 1990. In its opinion, the teaching objectives of the school planned by the plaintiff were inferior to the teaching objectives of corresponding public schools within the meaning of Article 7 (4) sentence 3 of the Basic Law. It held that the educational objectives that private schools must also strive for include those whose implementation in public schools is prescribed by the constitution. In particular, it included the principles of openness and tolerance as a prerequisite for an objective debate with dissenters; since the entirety of the plaintiff’s educational concept did not correspond to these educational objectives, the elementary school planned by him could not be approved.

On the plaintiff’s appeal, the Hamburg Higher Administrative Court, in its judgment of November 26, 1990, amended the judgment of the Administrative Court and, annulling the defendant’s negative decision of July 26, 1989, ordered the defendant to grant the plaintiff permission to establish an elementary school as a denominational school under the name “August-Hermann-Francke-Schule” [see SPE n.F. 238 No. 15]. It stated the reasons for this: The elementary school planned by the plaintiff was a denominational school within the meaning of Article 7 (5) GG. The defendant’s view that the term “denominational school” in this provision, like Articles 146 and 147 of the Weimar Constitution (Weimarer Reichsverfassung – WRV), only covers the denominational schools of the Protestant regional churches, the Catholic Church and the Jewish communities, is not supported by the wording of Article 7 (5) GG and inadmissibly restricts the right to approval of a private elementary school as a denominational school. Art. 4 para. 1 GG protects the freedom of religious and ideological confession without restriction, not only the freedom of religious confession on the basis of the Protestant regional churches, the Catholic Church or the Jewish communities. The defendant’s reference to the “Weimar School Compromise”, as reflected in Articles 146 and 147 of the German Constitution, from which the provision of Article 7(5) of the Basic Law is derived, cannot justify a narrower understanding of this fundamental right. Rather, with regard to the guarantee of private schools, the Basic Law deliberately went beyond the legal situation of the Weimar period. Since the plaintiff wanted to operate the school planned by him on the basis of a Christian confession, whereby the testimonies of faith were the Apostles’ Creed and the Declaration of Principles of the Evangelical Alliance of 1846, it was a confessional school within the meaning of Article 7 (5) of the Basic Law.

The elementary school planned by the plaintiff also fulfills the requirements of Art. 7 para. 4 GG “without restriction”. In particular, its teaching objectives are not inferior to those of public schools. In its rejection notice, the defendant – in contrast to Art. 7 para. 4 sentence 3 GG – does not speak of “teaching objectives” but of “educational objectives” and thus goes beyond the requirements of Art. 7 para. 4 sentence 3 GG. It could only be inferred from this provision that teaching at a private school had to encourage the pupils to achieve the qualifications they would receive at a public school. This was to be assumed in the case of the plaintiff because the school planned by him aimed at a level in the intellectual field that was at least equal to that of state schools.

However, according to the case law of the Federal Constitutional Court and the Federal Administrative Court, the term “teaching objectives” used in Art. 7 para. 4 sentence 3 GG also includes the “educational objectives” as a comprehensive term, because the state has an equal educational task alongside the parents in accordance with Art. 7 para. 1 GG. However, this does not mean that the defendant is entitled to make the educational and training concepts prescribed in its school law for state schools a binding standard for private denominational schools as well. Apart from that, the plaintiff’s educational concept essentially fulfilled the defendant’s requirements for the educational goals in state schools. Deviations are denominational and for this reason permissible, because the right to a private elementary school in accordance with their denomination granted to the legal guardians by Article 7 (5) of the Basic Law may not be undermined by the fact that the state examines the denomination, subjects it to an assessment and refuses approval on the grounds that the education of the pupils on the basis of their denomination is not as free and neutral as in public schools. Only where the teaching objectives pursued by the private elementary school violate fundamental values of the constitution may the state refuse approval.

This was not to be expected at the school planned by the plaintiff. Admittedly, a private denominational school would fall behind the public schools in its teaching objectives if it excluded from its curricula everything that had no validity before its denomination; however, this was not to be feared with the plaintiff, especially since its curricula hardly differed from the curricula of the state schools. Insofar as the teaching was influenced by the teachers’ denomination, this was legitimate in a denominational school. Finally, the plaintiff’s educational concept did not justify the conclusion that a confession was to be imposed on the pupils; in this respect, the plaintiff’s promise not to exert any undue pressure deserved trust in the first instance. Should undesirable developments occur after approval of the school, the defendant had the possibility to intervene with the means of state school supervision.

After the judgment on appeal was handed down on 26.11.1990, the Bürgerschaft of the defendant amended the Private Schools Act in the version of 21.07.1989 (HmbGVBl. p. 160) by the 3rd Act amending the Private Schools Act of 04.12.1990 (HmbGVBl. p. 245) in such a way that in the provision of § 7 para. 1 on the requirements for the approval of private schools as alternative schools, a new number 1 was added, according to which the educational objectives of the alternative school must meet the requirements of § 2 para. 1 and 2 of the Hamburg School Act of 17.10.1977 (HmbGVBl. p. 297) as amended on 18.06.1985 (HambGVBl. p. 143), as they apply to public schools.

The defendant has lodged an appeal on points of law against the judgment of the Higher Administrative Court, which was permitted by the Senate, in which it alleges a violation of the federal standards of Art. 7 (4) and (5). It submits the following grounds: The appeal judgment violates federal law for the simple reason that the private elementary school planned by the plaintiff is not a “denominational school” eligible for approval within the meaning of Art. 7 para. 5 GG. This provision had to be interpreted restrictively in accordance with the legal situation under the Weimar Constitution to the effect that only those schools which had traditionally existed in Hamburg could be included in the group of denominational schools eligible for approval. The reason for the preferential status of private denominational schools in accordance with Article 7 (5) of the Basic Law – namely against the background of the concept of the elementary school as a unified school under public sponsorship, i.e. the fundamental inadmissibility of private elementary schools – was not consideration for the fundamental rights of parents and pupils, but consideration for the claims of the large religious communities, which sought legal protection for the possibility of establishing elementary school as denominational schools.

The Court of Appeal also violated Article 7 (4) sentence 3 of the Basic Law, which also applies without restriction to the private elementary school regulated in Article 7 (5) of the Basic Law. The teaching objectives of the private elementary school planned by the plaintiff were in fact inferior to the teaching objectives of the corresponding public schools within the meaning of this provision. These teaching objectives also included the educational objectives. In this respect, the requirements of § 2 para. 1 and 2 of the Hamburg School Act, which have in the meantime also been prescribed by the Hamburg legislature for private alternative schools, must be assumed, at least in the appeal instance. According to the case law of the Federal Administrative Court, this provision of state law, which had only been enacted after the appeal judgment had been handed down, so that the Court of Appeal had not yet been able to apply it, had to be applied (for the first time) by the appellate court. On the basis of these educational objectives of § 2 para. 1 and 2 of the Hamburg School Act, which are now also binding for private alternative schools, the private elementary school planned by the plaintiff could not be approved because it fell short of these educational objectives. There were no constitutional objections to the binding nature of these educational objectives established for public schools for private schools; rather, they merely specified the requirements for private alternative schools directly standardized by the Federal Constitution in Art. 7 para. 4 sentence 3 of the Basic Law. Apart from this, the educational objectives prescribed by § 2 para. 1 and 2 of the Hamburg School Act, if interpreted correctly, did not in principle go beyond those requirements that already applied by virtue of the constitution and in this respect were also binding for the elementary school planned by the plaintiff in the opinion of the Court of Appeal. These included, in particular, those requirements that follow from the fundamental value decisions of the Basic Law, such as openness towards the pluralism of ideological and religious views in view of an image of man that is determined by the dignity of man and the free development of the personality in self-determination and personal responsibility. Although a private denominational school is free to align its teaching and, in particular, its educational objectives with its denomination, it must first of all be ensured that the private schools do not lag behind the basic teaching objectives, including the educational objectives, prescribed by the state for public schools. The Court of Appeal misjudged these requirements under federal law and granted the plaintiff a claim for approval of the private elementary school planned by him, although, according to the educational concept submitted by him, he was not striving for openness; rather, his interpretation of the Bible as the basis for teaching and education in all areas of life was based on rigorism and dogmatism. If the federal law standard of Art. 7 para. 4 GG is correctly applied, this excludes a claim by the plaintiff for approval of the private elementary school planned by him.

The plaintiff defends the contested judgment and expands on his previous arguments. He is of the opinion that his pedagogical concept also satisfies the approval requirements of § 2 para. 1 and 2 of the Hamburg School Act, especially since these abstain from any evaluation of content and, in view of the state’s obligation to strict religious and ideological neutrality, must also abstain from such evaluation. This was the starting point for his values, which in no way contradicted the state’s educational objectives, but merely filled them out in terms of content. In particular, the lessons at the private elementary school planned by him would not lack the required openness, even if at the end there was a clear commitment to the Bible and its view of humanity, which was, however, legitimate for a denominational school expressly permitted by Article 7 Paragraph 5 of the Basic Law. Furthermore, since, in view of its curricula, which corresponded to those of public schools, it also offered, in the opinion of the defendant, the guarantee that the pupils of the planned school would receive a qualification equivalent to that of attending public schools, and since its educational objectives also satisfied the (minimum) requirements of the Hamburg School Act, the Court of Appeal had not violated federal law by assuming a right to approval of the private elementary school planned by it.

The Chief Federal Prosecutor takes part in the proceedings. In agreement with the plaintiff, he denies a violation of federal law by the Court of Appeal because the value objectives set by the state, behind which the teaching objectives of the private elementary school planned by the plaintiff may not take a back seat, by no means exclude a denominational character of the entire teaching of denominational schools.

From the reasons for the decision

The appeal is admissible, but not well-founded. Although the contested judgment is not entirely consistent with federal law, it proves to be correct as a result (Section 144 (4) VwGO).

According to its statutes, the plaintiff wants to establish a private elementary school on a general Christian “evangelical” basis, bound to the Bible and opening up faith, in which young people are to be educated according to the biblical view of man and on the basis of the Bible as the revealed word of God; the Apostles’ Creed and the Declaration of Principles of the Evangelical Alliance of 1846 are to be testimonies of faith. The Court of Appeal rightly regarded such a school as a confessional school within the meaning of Article 7.5 of the Basic Law, which is to be approved under the conditions specified there and in paragraph 4. In particular, this does not require that the denomination in question can be assigned to one of the established churches – a Protestant regional church, the Catholic Church or a Jewish community. There is no sufficient evidence to support the defendant’s assumption that, in view of the fact that the wording of the provision of Article 7(4) and (5) GG is based on the provision of Article 147(1) and (2) WRV, the legal situation under the Weimar Reich Constitution must also be taken as a basis in terms of content. This cannot be inferred from the legislative history of Art. 7 (4) and (5) GG (cf. in detail the judgment of the Senate also of 19.02.1992 – BVerwG 6 C 5.91 -).

The fact that the private elementary school planned by the plaintiff is a denominational school within the meaning of Article 7(5) of the Basic Law follows – as the Court of Appeal correctly explained – from the necessary synopsis of this provision with Article 4(1) of the Basic Law, according to which freedom of faith, conscience and freedom of religious or ideological belief are inviolable. The coexistence of faith and conscience as well as religious and ideological beliefs in Art. 4 para. 1 GG makes it clear that, on the one hand, the Basic Law makes a clear distinction between religion and ideology, while on the other hand, from the perspective of the state, which is committed to religious and ideological neutrality (cf. Art. 4 para. 1 and also Art. 140 GG in conjunction with Art. 137 para. 1 WRV), it treats both as being of equal rank and in principle of the same nature, so that any “confession”, regardless of whether it is based on religion or ideology, is protected. In view of this guarantee of freedom under Art. 4 para. 1 GG, which encompasses every confession, the scope of protection of the specific confession ultimately does not depend on how the boundary between “religious” and “ideological” confession is to be drawn in detail; since every confession is protected and consequently none is “excluded”, a religiously based confession is not excluded from the scope of protection under Art. 4 para. 1 GG because, for example, it cannot be assigned to any of the established churches. The only prerequisite for the protection of Art. 4 para. 1 GG is therefore that it is a “confession” based on religion or ideology.

The Court of Appeal rightly takes the view that this also applies to the interpretation of Article 7(5) of the Basic Law, in that – in addition to the community school, which is not of interest here – it also refers to “denominational or ideological schools”. While Art. 4 para. 1 GG speaks of “religious and ideological confession” side by side and thus also uses the term “confession” in connection with an ideology, Art. 7 para. 5 GG, however, limits it to the (respective) religion, in that “confessional or ideological school” – distinguished from each other in this way – stand side by side. However, religious confession on the one hand and world view on the other hand equally presuppose a closed world view encompassing all areas of life; they differ only in that the religious confession is characterized by the God-relatedness of the world view, which is lacking in a world view school (cf. in detail the already cited judgment of the Senate also of 19.02.1992 – BVerwG 6 C 5.91 -).

Since the world view of the plaintiff and, accordingly, his educational concept for the private elementary school planned by him are shaped and dominated by his commitment to God, to his word revealed in the Bible and to the biblical view of man, this school is – subject to further requirements – a denominational school within the meaning of Article 7 (5) of the Basic Law, and indeed – as already stated – irrespective of whether the plaintiff can be assigned to one of the established churches or not. The latter could at most become relevant in the context of examining whether “a public elementary school of this type” already exists in the municipality – in this case the Free and Hanseatic City of Hamburg – within the meaning of Article 7 (5) of the Basic Law. In this respect, however, there is no dispute between the parties that a public denominational school of the type that the plaintiff wishes to establish and operate does not exist in Hamburg.

However, with regard to the further, special requirements for a denominational school within the meaning of Art. 7 para. 5 GG, the contested judgment contains statements which – at least when viewed in isolation – could constitute a violation of federal law and therefore at least require clarification. This applies in particular to the view of the Court of Appeal that it is not objectionable on legal grounds if the plaintiff, according to its statutes, also wishes to admit children to its school whose parents cannot identify with the deliberately biblical objective of the school. It is true that the character of a denominational school – albeit presupposed as such – is not changed by the fact that a minority of the pupils come from a parental home that does not belong to the denomination of the persons running the school and the teachers, and that therefore pupils who have been brought up in a different denomination at home are not necessarily excluded from attending a denominational school. This presupposes, however, that the school concerned is already clearly characterized as a denominational school by a particular denomination and that it can therefore be assumed that a minority – and only a minority – of pupils of a different denomination or even without a denomination is not able to change the denominational character of the school. This is not clearly expressed in the contested judgment.

It should also be clarified in this context that Article 7 Paragraph 5 in conjunction with Paragraph 4 of the Basic Law does not grant the right to grant permission to establish a private elementary school as a denominational school to any school authority, but to the applicant legal guardians with regard to their right to education under Article 6 Paragraph 2 Sentence 1 of the Basic Law and their freedom of religion under Article 4 Paragraph 1 of the Basic Law, and that their (common) religion is therefore decisive. The assumption of a denominational school within the meaning of Art. 7 para. 5 GG therefore presupposes a common denomination of the legal guardians who (want to) send their children to the school, which “shapes” the school and its entire teaching (see in detail the already cited judgment of the Senate also of 19.02.1992 – BVerwG 6 C 5.91 -); the latter then requires, however, that the teachers – at least very predominantly – also belong to the denomination in question. Of course, the decisive factor of the common denomination of the legal guardians does not exclude the possibility that, as in the present case, for example, a religious community takes the initiative and acts as the school authority; in such a case, however, it must be ensured that the application for the establishment of a private elementary school as a denominational school is ultimately made by the legal guardians concerned, can be attributed to them, and that it is ultimately their common denomination that shapes the school and its entire teaching. Only if this can be affirmed is it possible, as an exception, to admit the children of parents who belong to a different denomination or at least do not share the denomination that characterizes the school.

According to the factual findings of the Court of Appeal, the school planned by the plaintiff fulfills this requirement. Admittedly, this could be doubtful according to the preamble of the plaintiff’s statutes in their original version; according to this, only the members of the plaintiff and the teachers of the planned school had to belong to the denomination represented by the plaintiff, while the legal guardians and their children should generally be free to decide whether they “can identify with the consciously biblical objective (of the school)”; they should know about the religious concern of the school, but also be sure that this concern would only ever be represented as an offer. However, the Court of Appeal considered these doubts to have been dispelled by the fact that all legal guardians who registered their children in writing for the school planned by the plaintiff “simultaneously” submitted an application within the meaning of Article 7 (5) of the Basic Law for the establishment of a private school as a denominational school and also declared their “agreement with the denomination and the educational concept of the school and the association”. Under these circumstances, the private elementary school planned by the plaintiff, including the planned educational concept, will be characterized by the confession to which the legal guardians have actually committed themselves by registering their children with the plaintiff.

However, it is not sufficient for a claim to the admission of a private elementary school pursuant to Art. 7 para. 5 GG that it is to be established and operated as a denominational school in a municipality in which a public elementary school of this type does not exist. Rather, the provision of Art. 7 para. 5 GG is (also) subject to the proviso of Art. 7 para. 4 sentences 2 and 3 GG, which applies to all private schools, according to which private schools require state approval as a substitute for public schools and are only entitled to approval if, among other things, “in their teaching objectives … are not inferior to public schools”.

This reservation is a direct consequence of the provision in Art. 7 Para. 1 GG, according to which “the entire school system is constitutionally under the supervision of the state” – this is the respective state under the order of competences of the Basic Law, Art. 30, 70 ff. and 83 ff. and thus under its responsibility. This corresponds to the outstanding importance of the school and education system for society and in particular for the realization of the fundamental rights granted equally to all citizens by the Basic Law, in particular Art. 2 Para. 1 and Art. 12 Para. 1 of the Basic Law; the supervision of the entire school system reserved to the state gives it the opportunity to fulfil this responsibility.

The fundamental rights which the state must observe in exercising its supervision over the entire school system and which limit its regulatory powers accordingly from the outset include, first and foremost, “the natural right of parents and the duty incumbent upon them first and foremost” to care for and educate their children, Art. 6 para. 2 sentence 1 GG; furthermore, the “freedom of faith, conscience and freedom of religious and philosophical belief”, Art. 4 para. 1 GG, of parents and children is of paramount importance in this context.

A concretization of these parental rights can be found in Art. 7 para. 4 and para. 5 GG: According to para. 4, the right to establish private schools is guaranteed in principle. However, it does not follow from this right that the state’s responsibility for “the entire school system”, as established by Article 7 Paragraph 1 of the Basic Law, is removed insofar as parents make use of this right. Rather, the right to establish and maintain private schools is only granted to a limited extent by the constitution in the sense of balancing the respective interests. This justifies the reservation that private schools, insofar as they are to be established as a replacement for public schools, in particular “in their teaching objectives … must not be inferior to public schools”.

The provision of Article 7 (1) in conjunction with Article 7 (4) of the Basic Law, with its express reservation in favor of state responsibility for the entire school system, also applies without restriction to the special circumstances of Article 7 (5) of the Basic Law. The special feature of this provision is not that it goes beyond or deviates from the provision of Article 7(4) of the Basic Law in the special aspects it addresses in the sense of an extension of parental rights; all these special aspects, such as special educational interest and community, denominational and ideological schools, are already covered by Article 7(4) of the Basic Law. On the contrary, Article 7 Paragraph 5 of the Basic Law contains a significant restriction on the fundamental freedom of private schools under Article 7 Paragraph 4 of the Basic Law, in that it excludes the establishment and operation of elementary schools, i.e. the basic and entry level of the entire school system, from the freedom of private schools and reserves it for the state; it only allows an exception to this fundamental prohibition of private elementary schools under the narrow conditions mentioned there.

With these exceptions, however – in addition to the aspect of special educational interest – the fundamental right of freedom of confession, Art. 4 para. 1 GG, is given a prominent position in connection with the parental rights protected by Art. 6 para. 2 sentence 1 GG insofar as Art. 7 para. 5 GG provides for an exception to the principle prohibition of private elementary schools solely for community, confessional and ideological schools at the request of the parents or guardians concerned. The content of Article 7 para. 5 of the Basic Law is limited to this exception; it therefore does not affect the basic provision of Article 7 para. 4 of the Basic Law, which applies to all private alternative schools, in such a way that private denominational elementary schools are allowed to take a back seat to public schools in terms of their teaching objectives for reasons of their denomination, for example in view of the special protection of freedom of denomination under Article 4 para. 1 of the Basic Law. Rather, the reservation of Art. 7 para. 4 GG applies to them in the same way as to all other private alternative schools, so that they are only entitled to state approval if their teaching objectives do not lag behind those of public schools.

As a result, the Court of Appeal rightly affirmed this, even if its legal standards are not in line with the applicable federal law, Art. 7 para. 4 sentence 3 GG, in several respects. The latter applies in particular to its view that the educational objectives of the state school system are not such a binding standard for a private denominational school that deviations which are caused by the religious denomination which characterizes the entire teaching stand in the way of the claim to approval; rather, approval can only be refused if the education is directed against fundamental values of the constitution or against the foundations of the state order.

In its assessment that the private elementary school planned by the plaintiff fulfills the requirements of Art. 7 para. 4 GG “without restrictions”, the Court of Appeal first distinguished within the concept of the “teaching objectives” of private schools, which must not be inferior to those of public schools, between the sub-areas of the “qualification” to be taught on the one hand and “educational assistance” on the other.

It then correctly stated that the private school is not (only) inferior to the public schools in its teaching objectives with regard to the part of the qualification to be imparted if the pupils are (to be) supported in such a way that their resulting qualification is equivalent to that imparted to pupils of a corresponding public school.

However, such a differentiated description of teaching objectives must not ignore the fact that the particular educational objectives pursued by a private school may well have an impact on the qualification to be imparted and may impair it, so that deficits may arise as a result in comparison with the corresponding public schools. Such deficits can arise in two ways: On the one hand, the special educational objectives can, as a consequence – which is particularly conceivable in the case of denominational schools – limit or even exclude the teaching of subject matter that is not in line with the denominational education, but is indispensable for an “equivalent qualification”. Such a deficit can also arise, however, if the prescribed learning material is offered in full in principle, but – as a consequence of the particular educational objectives – deficits or deformations arise “on the way” to the desired qualification, namely as a result of the way in which the learning material is taught. This can happen in particular if the subject matter is not presented sufficiently as general educational material, but in an abridged form in the light of the confessional educational objectives, or if its perception is predetermined from the outset by the excessive dominance of the special educational objectives conveyed on this occasion. If, in this way, an unbiased reception and unprejudiced independent assessment of the complete and unadulterated learning material by the individual pupil is blocked or at least made considerably more difficult, this results in a deficit compared to public schools. It is therefore necessary, as part of the examination of the qualification sought by the private school – and indeed as part of the teaching objectives in which it may not lag behind the public schools in accordance with Article 7 Paragraph 4 Sentence 3 of the Basic Law – to also examine its particular educational objectives to see whether they give rise to the specific concern that, as a consequence of their observance, considerable deficits arise with regard to the qualification to be imparted.

Such an examination of the effects of special educational goals of the private school on the qualification to be imparted does not conflict with the freedom of faith and confession of parents, pupils and teachers (Art. 4 para. 1 GG) or, in connection with this, the parents’ right to education (Art. 6 para. 2 sentence 1 GG) or the freedom of private schools granted by Art. 7 para. 4 sentence 1 GG with regard to these fundamental rights. In particular, it is not true, as the Court of Appeal believes, that the state, when it examines the qualifications to be imparted by a private denominational school for possible deficits in this way, inadmissibly “examines the denomination and subjects it to an assessment”. Rather, as has already been explained above, the sole purpose of such a review is to ensure, in the approval procedure directly prescribed by the constitution for private alternative schools under Article 7(4) of the Basic Law, the general primacy of state responsibility for the entire school system and specifically the achievement of the teaching objectives permissibly set by the state with regard to the “equivalent” qualification to be imparted, and is detrimental to the religious freedom of parents, pupils and teachers.

The defendant has argued that several individual statements in the plaintiff’s pedagogical concept, as well as the tendency inherent in it as a whole, give the impression that, at least in individual subjects, the subject matter to be taught is to be assessed only incompletely or at least predetermined from the outset and taught exclusively from the plaintiff’s confessional point of view. Such an assessment of the plaintiff’s pedagogical concept cannot be dismissed out of hand, especially insofar as it states that the Bible is the decisive authority in all questions and in all teaching areas the standard for the critical examination of prevailing and historical theories and ideologies (No. 3.5). However, these and other similar statements in the pedagogical concept (cf. no. 4.1 for German lessons in particular) do not in themselves justify the assumption that the teaching of general education in this school is abridged from the outset. Whether the concrete concern is justified that, as a consequence of denominational ties, considerable deficits arise with regard to the qualifications to be imparted is not to be assessed solely with regard to the abstract specifications of the pedagogical concept, but in connection with the curricula for the individual subjects. This is because the general and specific learning objectives, teaching content, methods and materials set out there only allow a sufficient conclusion to be drawn as to whether the school’s fundamental religious ties mean that the subject knowledge and general education it imparts fall short of the standard of public schools.

However, according to the findings of the Court of Appeal and the undisputed facts in this respect, there is no concrete concern of this kind. According to these findings, the school planned by the plaintiff strives for a level in the intellectual field that is at least equal to that of state schools. The pupils are “taught about the state of the art”. This is confirmed in particular by the fact that the defendant expressly and unconditionally assessed the curricula and timetables submitted by the plaintiff – albeit after several improvements – as sufficient and that the defendant’s specialist authority supported the approval of the private elementary school planned by the plaintiff in view of this. In the oral hearing before the Senate, the defendant confirmed that the eligibility for approval of the school planned by the plaintiff was not in question with regard to the technical and educational requirements. The curricula in the files to which the Court of Appeal referred give the Senate no reason to deviate from this assessment.

The Court of Appeal also rightly denied that the special educational objectives pursued by the plaintiff were in any case inferior to those of the public schools with regard to the requirements to be placed on the educational objectives under federal law – as a further sub-area of the teaching objectives within the meaning of Art. 7 para. 4 sentence 3 GG.

However, it also misjudged the requirements of Art. 7 para. 4 sentence 3 GG for the teaching objectives of private alternative schools, including denominational schools within the meaning of Art. 7 para. 5 GG, and thereby violated federal law when it held that the defendant was not entitled to make the “educational and training concepts” laid down in § 2 of its school law a binding standard for the school authority of a private alternative school. With regard to the sub-area of educational concepts (which the Court of Appeal otherwise referred to as the qualification to be imparted), however, it did not apply this incorrect standard itself, but – as already discussed above – required private alternative schools to impart a qualification equivalent to that of public schools. In contrast, the state should only be allowed to prescribe educational objectives to private alternative schools to a very limited extent. It should only be entitled to refuse to approve an application for the establishment of a private elementary school if the “teaching objectives” pursued by the school (although this primarily refers to “educational objectives”) violate fundamental values laid down in the constitution or are directed against the foundations of the state order in accordance with the provisions of Art. 20 Para. 1 and 28 Para. 1 GG.

In taking this view, the Court of Appeal misconstrued the content of the overall provision of Article 7(1), (4) and (5) of the Basic Law. Admittedly, it must itself concede that the power of the state to prescribe minimum requirements also for private alternative schools necessarily follows from Article 7(1) of the Basic Law, according to which the entire school system is under the supervision of the state. Nor can it be ignored that the content of the term “teaching objectives” in Art. 7 para. 4 sentence 3 GG is not limited to the qualification to be imparted, but also includes the educational objectives; thus the Federal Constitutional Court – irrespective of the educational objectives protected by Art. 6 para. 2 sentence 1 of the Basic Law – derived from Article 7 (1) of the Basic Law an educational task of the state that is equivalent to the parental right to education, and the Federal Administrative Court also included educational objectives among the teaching objectives within the meaning of Article 7 (4) sentence 3 of the Basic Law. Notwithstanding this, the Court of Appeal denies the defendant the authority to make the educational objectives laid down in its school law for public schools a binding standard for the school authority of a private alternative school.

When the Court of Appeal justifies its opinion specifically with regard to the denominational school planned by the plaintiff by stating that “the question of whether or not an education geared towards religious denomination takes second place to a non-denominational teaching objective of state schools concerns the freedom of private schools in its essential content”, this is clearly based on the concern that the state, by regulating binding educational objectives too extensively, even for private denominational schools, could restrict their freedom guaranteed by the freedom of private schools in Art. 7 para. 4 sentence 1 of the Basic Law (Grundgesetz – GG) for their own, specifically denominational educational goals. This concern would be justified if the state were authorized, on the basis of the provision of Art. 7 para. 4 sentence 3 GG, to prescribe specific educational objectives for private alternative schools, including denominational schools, as part of the “teaching objectives” and thus to prohibit other educational objectives at the same time. However, this is not the case (see, for example, the statements of the Federal Constitutional Court in BVerfGE 27, 195, 200 et seq.), and the defendant has not done so in its Private Schools Act by expressly adopting the educational objectives of § 2 para. 1 and 2 SchulG prescribed for public schools. In particular, it has not made any substantive stipulations which – such as an obligation to religious and ideological neutrality – could stand in the way of denominational teaching. Rather, it has limited itself to naming those requirements and declaring them binding for both public schools and private alternative schools which it may consider necessary – such as the requirement of tolerance, which is still to be discussed – in order to ensure – positively – a de? human image of the Basic Law (cf. BVerfGE 4, 7, 15 f.; 32, 98, 108; 41, 29, 50). This is to be explained in detail:

There is no need to explain further that the requirements that constitutionally apply to all actions of the executive and must therefore also be observed by the state and the municipalities as the responsible bodies for public schools are part of the minimum standard of teaching objectives within the meaning of Art. 7 para. 4 sentence 3 GG and specifically the educational objectives of all public schools. Since the state is responsible for the entire school system, including private schools, in accordance with Article 7 Paragraph 1 of the Basic Law, and consequently the teaching provided in private alternative schools is ultimately also attributable to it, the minimum standard of educational objectives directly required by the constitution also applies to private alternative schools. In detail, these are – positively – the requirement to respect the dignity of every human being, Art. 1 para. 1 GG, and in connection with this (“The German people therefore profess inviolable and inalienable human rights …”, Art. 1 para. 2 GG) the fundamental rights of Art. 2 ff. GG, in particular the right to free development of the personality, Art. 2 para. 1 GG, and the equality of all people before the law, Art. 3 para. 1 GG, and finally the constitutional principles of the democratic and social constitutional state listed in Art. 20 GG. This is ultimately also the view of the Court of Appeal, which, however, defines this minimum standard of state educational objectives, which are also binding for private alternative schools, – negatively – as a barrier to private school freedom, which may not be called into question by the private school.

Contrary to the opinion of the Court of Appeal, the state – according to the order of competences of the Basic Law, the respective Land – does not have to limit itself to this minimum standard when standardizing educational objectives as part of the “teaching objectives” within the meaning of Art. 7 para. 4 sentence 3 GG, behind which the private alternative schools may not fall, but it can go beyond it. The present case does not give rise to a comprehensive and detailed discussion of where to draw the line in this respect in order to ensure that private schools, which are constitutionally permitted and protected by Art. 7 para. 4 sentence 1 GG, and in particular the denominational schools, which are particularly emphasized by Art. 7 para. 5 GG, have sufficient freedom to realize their own legitimate educational ideas. Rather, the following (partial) delimitations are sufficient here:

The danger assumed by the Court of Appeal that the examination of the plaintiff’s educational goals in particular to determine whether they fall short of the educational goals prescribed by the defendant could lead to an inadmissible examination and evaluation of his religious beliefs does not exist. The state is obliged to maintain strict religious and ideological neutrality, in particular under Article 4 (1) of the Basic Law, and may therefore neither – positively – prescribe its own corresponding content as educational objectives nor – negatively – evaluate certain denominations as such or even impose an unworthy judgment on them. However, the latter does not exclude the possibility that – as explained above – with regard to its responsibility for the school system as a whole and specifically for compliance with the teaching objectives it has permissibly standardized – taking into account, inter alia, the fundamental right to freedom of religion and belief, Article 4(1) of the Basic Law – it examines the teaching objectives of private alternative schools within the meaning of Article 7(4) sentence 3 of the Basic Law to determine whether they are inferior to those of public schools. In this context, private alternative schools are free 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 conflict with the state objectives, especially since the state educational objectives typically leave room for filling in the content of specific lessons. In this respect, however, no further elaboration is required here; on the one hand, the defendant in no way denies the plaintiff the right to pursue its own educational objectives, which are conditioned by its denomination; on the other hand – as will be explained below – it is to be expected that the school planned by the plaintiff will observe the educational objectives standardized by the defendant (also) for private alternative schools, without being prevented from also pursuing its own educational objectives, which are conditioned by its denomination.

There are no constitutional objections to the fact that the defendant has now expressly declared the educational objectives, which were initially only prescribed for its public schools, to be binding for private alternative schools by means of a corresponding amendment to its Private Schools Act in December 1990. The Länder responsible for school law are not prevented from going beyond the minimum requirements already directly required by the Constitution when specifying the teaching objectives referred to in Article 7.4 sentence 3 of the Basic Law and, in particular, the educational objectives for private alternative schools, as long as the private schools authorized and supported by the Constitution under Article 7.4 sentence 1 of the Basic Law, and in particular the denominational schools, retain sufficient freedom to achieve their own legitimate educational objectives. This is the case with the educational objectives prescribed by § 7 para. 1 no. 1 of the Private School Act of the defendant in the version of 21.07.1989 (HmbGVBl. p. 160) and the 3rd Amendment Act of 04.12.1990 (HmbGVBl. p. 245) in conjunction with § 2 para. 1 and 2 of the Hamburg School Act of 17.10.1977 (HmbGVBl. p. 297) in the version of the Amendment Act of 18.06.1985 (HmbGVBl. p. 143).

The Court of Appeal was not yet able to consider this amendment to the defendant’s Private School Act of December 1990 as such in its judgment of November 26, 1990, even if it had already dealt with the substantive requirements of § 2 of the School Act, which – directly – initially only applied to the defendant’s public schools. In such a case, the appellate court is entitled and called upon to apply the state law regulation directly (for the first time), interpreting it in conformity with the federal constitution (see BVerwG, judgment of 20.02.1990 – BVerwG 1 C 30.86 – NJW 1990, 2768). It turns out that there are no objections to the educational objectives of § 2 para. 1 and 2 SchulG, which are now also expressly prescribed for private alternative schools, because they essentially only specify those requirements that already result from the constitution itself. In particular, there is no reason to fear that the private alternative schools will not have sufficient freedom to pursue their own educational goals. With regard to private denominational schools, it should be emphasized that there is no stipulation, for example, of denominational content that could inadmissibly compete with the content represented by the denomination concerned; conversely, there is also no obligation to religious and ideological neutrality that could stand in the way of denominational teaching. Rather, these educational goals are essentially limited to providing the pupils with guidance that enables them to determine their own lives in accordance with the concept of humanity in the Basic Law, without disregarding their community-relatedness and community-boundness (cf. BVerfGE 4, 7, 15 f.; 32, 98, 108; 41, 29, 50). This individual decision of the individual pupil may well be to bind himself to the values and content of a denomination; in this respect, the private alternative school must merely offer the conditions for this decision to be made as an individual decision free of constraints.

In the present context, the following educational objectives are of particular relevance: According to § 2 para. 1 SchulG, the school should help pupils to develop their abilities and inclinations, to think, judge and act independently and to lead their lives on their own responsibility and at the same time to be committed to the state and society; points 1, 4 and 7 of § 2 para. 2 SchulG, according to which pupils are to be helped to orient themselves independently, but also to commit themselves to values, which in particular can also mean a confessional commitment; furthermore, they are to be prepared to assume political and social responsibility and to participate in the shaping of society in the sense of the free democratic basic order; finally, they are to be enabled to develop and assert their individual perception and judgment skills in an information society characterized by new media and communication technologies. Of particular interest here is No. 5 of § 2 Para. 2 SchulG, according to which pupils should be helped to form relationships with other people in accordance with the principles of justice, solidarity and tolerance.

Contrary to the opinion of the defendant, according to the factual findings made by the Court of Appeal regarding the educational objectives pursued by the plaintiff, as they result from the pedagogical concept submitted by him, there is no reason to fear that these do not meet the requirements set out in § 2 para. 1 and 2 SchulG. It is true that individual points mentioned above in connection with the discussion of the qualification to be imparted give the impression at first glance that the aim is to bind the pupils to a particular creed and to evaluate works of literature accordingly, for example, at a stage at which the individual pupil is not yet in a position to form his own judgment due to a lack of sufficiently complete and neutral information, and consequently runs the risk of being more or less blindly bound to the plaintiff’s creed. The same applies, for example, to the goal mentioned in No. 2.2 of gladly submitting oneself to the spirit and will of God “while renouncing autonomy and self-assertion”, as well as to the reduction of susceptibility “to the illusion of life fulfilment through self-realization”, which is the aim of No. 3.4. However, there are other statements of the same pedagogical concept which – especially in connection with the curricula and timetables presented – suggest that the plaintiff and his school as a whole will strive for an open atmosphere. For example, he wants the commitment he advocates for parents and pupils to be understood initially only as an offer, which includes the possibility that this offer will not be accepted without the pupil concerned being “excluded” as a result. In addition, the aim of an open debate and unbiased research is repeatedly emphasized (cf. e.g. No. 2.6). As far as the confession advocated by the plaintiff is concerned, this should be offered to the pupils “emphatically”, but without “undue pressure”.

These educational objectives of the plaintiff do not exclude the possibility that it also pursues the above-mentioned educational objectives prescribed by the defendant in § 7 para. 1 no. 1 of its Private Schools Act in the version of December 1990 in conjunction with § 2 para. 1 and 2 SchulG, also for private alternative schools, in a sufficient manner – as required by Art. 7 para. 4 sentence 3 GG. In this context, it is necessary to clarify that the requirement of Art. 7 para. 4 sentence 3 GG, according to which private alternative schools “must not lag behind public schools” in their educational objectives, although it is generally – simplistically – referred to as the requirement of “equivalence” of educational objectives, does not require positive proof of equivalence. Rather, the requirement of Art. 7 para. 4 sentence 3 GG is already satisfied by the fact that – on the basis of a concrete and detailed examination of the teaching objectives pursued by the private alternative school – it is possible to make a verifiable prognosis that it will – presumably – at least not lag behind the teaching objectives of the public schools; mere doubts are not sufficient in this respect to call into question an otherwise concretely substantiated prognosis. This is also the view of the Federal Constitutional Court when it states that although the approval of a private alternative school includes the expectation that it will provide an education and upbringing that is not inferior to that provided by a public school, among other things due to its educational objectives, whether this expectation will be fulfilled ultimately depends less on the planning and objectives of the school than on its practical performance, which can generally only be assessed after a certain period of time (BVerfGE 27, 195, 204). Moreover, the Court of Appeal correctly pointed out in this context that the school planned by the plaintiff as a private alternative school will be subject to state school supervision, irrespective of its character as a private denominational school. The defendant will therefore have the opportunity to identify any undesirable developments that cannot be specifically foreseen at present, but which cannot be ruled out, and to intervene with the means of school supervision.

According to this standard, it can be assumed on the basis of the factual findings made by the Court of Appeal that the school planned by the plaintiff will not be inferior to the corresponding public schools, even with regard to the educational objectives permissibly prescribed by the defendant within the meaning of Article 7.4 sentence 3 of the Basic Law. In this prognosis, it must also be taken into account in favor of the plaintiff that, according to the factual findings of the Court of Appeal, both the curricula submitted by him, which largely correspond to the state curricula of the defendant, and the training of the teachers selected by him, who must meet the same requirements as the state teachers, indicate that the teaching of the school planned by the plaintiff – apart from its special, denominational educational objectives – will initially correspond as far as possible to the teaching in the public schools and thus inevitably also take into account the state educational objectives. In this respect, according to the factual findings of the Court of Appeal regarding the plaintiff’s pedagogical concept, there is no concretely justified concern that the plaintiff will not take into account in his teaching the state educational goals of helping the pupils to orient themselves independently and to lead their lives on their own responsibility, as well as to develop and assert their individual perceptive and judgmental abilities.

Finally, this also applies – irrespective of the confessional character of the school planned by the plaintiff – to the educational objective emphasized by both the defendant and the Administrative Court of helping the pupils to form relationships with other people according to the principles of tolerance, among other things. In this context, tolerance does not mean openness and neutrality in the sense that the pupils should not be taught to develop a certain conviction of their own, to profess it and, if necessary, to defend it; rather, this educational objective, when applied in conformity with the constitution specifically to denominational schools, merely requires that degree of tolerance towards other, differing convictions which is a prerequisite for an open discussion with other convictions. However, this is precisely what the plaintiff’s educational concept expressly provides for. Although this minimum level of tolerance prohibits devaluation and, in particular, defamation of differing convictions, it does not in any way prohibit the promotion of one’s own convictions. Moreover, the permissibility of such advertising for a particular denomination already follows from the express authorization of denominational schools as private alternative schools by Art. 7 para. 4 and 5 GG; for every “denomination” is by its nature designed to profess and promote its own ideas and values in the conviction that they are correct. Thus, however, Art. 7 para. 4 sentence 3 GG not only does not exclude such an educational goal in a private denominational school, but conversely presupposes it as self-evident and therefore permissible.

That the plaintiff would pursue the educational goal of devaluing or even defaming other denominations, views, convictions and values in his planned denominational school – going beyond such permissible advertising – cannot be inferred from the factual findings made by the Court of Appeal. Insofar as the term “baseless, externally-driven pleasure-seekers” used by the plaintiff in his pedagogical concept in the version of November 1987 in No. 4.1 could give the impression not only of a moral condemnation of general developmental tendencies, but also of a general defamation of the attitude of dissenters characterized in this way, he corrected this by the new version of No. 4.1 of March 1990 and spoke more comprehensibly of a way of thinking that was geared towards the short-term satisfaction of needs in pursuit of his own interests and was therefore to be rejected from his, the plaintiff’s, point of view. The original formulation thus appears – and also in the overall context of the pedagogical concept – more as a verbal exaggeration and not – as it might appear in isolation – as an expression of intolerance. If their content is appropriately assessed, these critical comments on the concept also remain within the limits of what a confession and consequently also a confessional school may claim for itself for the purpose of clarifying its own point of view and distinguishing it from deviating evaluations of others, without therefore being “intolerant”.

According to all of the above, the legal assessment of the Court of Appeal that the school planned by the plaintiff will not be inferior in its teaching objectives “without restriction” to the teaching objectives of the corresponding public schools within the meaning of Art. 7 para. 4 sentence 3 GG is, in any case, correct in its result.