On November 19, 2021, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) rejected several constitutional complaints that challenged school closures and a remote schooling requirement imposed as part of the “federal pandemic emergency brake” (Bundesnotbremse). The federal pandemic emergency brake was introduced in April 2021 and provided for uniform restrictions in all German states when the seven-day COVID-19 incidence in a county or independent city exceeded 100 for three consecutive days. It expired on June 30, 2021. The court held that the school closures were justified on the basis of the information available at the time they were enacted.
However, the court found, for the first time, that children have a constitutional right to education. This right is derived from article 2, paragraph 1 (free development of one’s personality) in conjunction with article 7, paragraph 1 (school system) of the German Basic Law (Grundgesetz, GG).
Facts of the Case
At the end of April 2021, the Fourth Act to Protect the Public in the Event of an Epidemic Situation of National Significance (Fourth Act), which amended the Infectious Diseases Protection Act (Infektionsschutzgesetz, IfSG), entered into force in Germany. It introduced the federal emergency pandemic brake, which, among other things, required that in-person classes in schools could take place only if teachers and students were tested twice a week and if there was a safety and hygiene protocol in place. Furthermore, if the seven-day incidence—which is published by the Robert Koch Institute, Germany’s public health institute—exceeded 100 for three consecutive days, in-person classes had to be alternated with virtual classes (hybrid learning). When the seven-day incidence exceeded 165, only virtual classes were allowed. Exceptions were allowed for senior classes in high schools and special education schools. The local competent authorities were authorized to offer emergency childcare. (Infectious Diseases Protection Act § 28b, para. 3 (as amended by the Fourth Act).) The measures expired on June 30, 2021. (BVerfG paras. 2–5.)
The complainants all work full-time and have children of mandatory school age. They alleged that the restrictions violated the children’s right to education and that such a right was protected by article 2, paragraph 1 of the German Basic Law and recognized by public international law. In addition, they alleged that the elimination of in-person classes disproportionately violated the parents’ right to shape their family life and direct their children’s education, as protected by article 6, paragraph 2 of the German Basic Law. (Paras. 9–13.)
The Federal Constitutional Court held that there is a constitutional right to education and that the prohibition of in-person classes imposed by the federal emergency pandemic brake severely impaired this right. However, the restrictions were justified in light of the pandemic situation at the end of April 2021, which required limiting in-person interactions. (Para. 42.)
According to the court, the duty of the state to provide education, codified in article 7, paragraph 1 of the Basic Law, corresponds to the right of children and adolescents to receive education rooted in the right to develop their independent personalities in society, codified in article 2, paragraph 1. The constitutional right to education has three components. It entails the state’s duty to provide education, the right of the individual to participate without discrimination in education provided by the state, and the right to be protected against state measures that restrict school operations. However, the court stated that, in general, there is no constitutional right to receive education in a specific format or setting. (Para. 44.)
The court explained that the constitutional right to education may be restricted if those restrictions are justified, in particular if they are proportional. In the case at issue, the pandemic restrictions affected the third component of the right to education, the right to be protected against state measurers that restrict school operations. The purpose of the prohibition of in-person classes was to limit in-person interactions to protect the life and health of others and prevent a collapse of the health care system. The court stated that experts agreed that children may get infected and transmit the coronavirus, even if severe cases of illness were rare. In particular, on their way to school and inside the school, they may infect family members and school personnel. Furthermore, the court explained that it was unclear whether regular testing and better hygiene control, in particular for younger children, would be as effective as and less invasive than school closures, as experts were divided on this point. (Paras. 72–87, 107–130.)
The court highlighted that the prohibition of in-person classes severely impaired the children’s right to education and listed several reasons. Firstly, in-person classes were not always substituted with virtual classes but with independent assignments. Furthermore, experts have concluded that eliminating in-person classes, meaning the social interaction component of school, leads to learning deficits and deficits in personality development, in particular for children in elementary school and children from socially disadvantaged families, and puts children at risk of behavioral problems, including psychosomatic symptoms. (Paras. 133–152.)
However, the right to education had to be balanced with the right to life and health of others. At the time the restrictions were enacted, COVID-19 case numbers were rising exponentially and intensive care units were filling up. Furthermore, new, more contagious, and more deadly virus variants were spreading rapidly. In particular, the court emphasized that the prohibition of in-person classes applied only when the seven-day incidence exceeded 165, unlike restrictions for other locations, which applied when the seven-day incidence exceeded 100. Furthermore, exceptions for senior level classes and special education schools were possible. The German states were required to compensate the loss of in-person classes with remote learning possibilities. In the opinion of the court, there are no indications that the state could have prepared more to prevent school closures. Lastly, the measures were set to expire on June 30, 2021. The court concluded that the limitations were proportional. (Paras. 153–192.)With regard to the rights of the parents codified in article 6, paragraph 1 of the Basic Law, the court held that the restrictions did not violate these rights. The additional burdens on family life caused by remote learning were an unintended side effect of the school closures. Furthermore, the law authorized the states to offer emergency childcare, provided compensation payments for lost earnings, and expanded sick leave options. In the opinion of the court, these possibilities fulfilled the state’s duty to support and protect the family. (Paras. 203–221.)