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Germany: Constitutional Court Declines to Hear Complaint Challenging Alternating Schedules in Schools

(Aug. 5, 2020) In an order published on July 15, 2020, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) declined to hear a case in which the complainants challenged a COVID-19 regulation limiting in-person classes in schools in Bavaria when a physical distance of 1.5 meters (4.9 feet) cannot be maintained. The court further denied the request that it issue a preliminary injunction stating that the complainants’ and their children’s rights to the free development of their personalities (Basic Law art. 2, para. 1), to education, to equal treatment (art. 3), to the special protection of marriage and the family (art. 6), and to occupational freedom (art. 12) must give way to the right to life and physical integrity (art. 2, para. 2, sentence 1) of other people.

Facts of the Case

The complainants challenged section 16 of the Sixth Bavarian Regulation to Protect against Infectious Diseases (Sixth Regulation), which provides that in-person classes in schools may take place only if a physical distance of at least 1.5 meters can be maintained. Furthermore, schools must establish a protection and hygiene protocol that contains measures to ensure that the minimum physical distance be observed and the infection risk minimized. Such measures may be a reduction in class size or alternating schedules. Local conditions and school-specific requirements must be taken into account. The regulation provided that the challenged provision would automatically expire on July 19, 2020. (BVerfG para. 2; Sixth Regulation § 24.)

The complainants both work full-time and have three children of mandatory school age. The children rotate weekly between attending in-person classes and staying at home. The Bavarian Higher Administrative Court (Bayerischer Verwaltungsgerichtshof, BayVGH) ruled against the complainants. The complainants therefore filed a constitutional complaint against this decision as well as a request for a preliminary injunction with the Federal Constitutional Court. They alleged that there is no conclusive evidence that regular school classes contribute to a rise in COVID-19 infection rates and that children can pass on the virus. Furthermore, they contended that there are more appropriate measures to stop the spread of the virus than physical distancing. (BayVGH paras. 9, 10; BVerfG paras. 1, 3, 4.)

Decision

The Federal Constitutional Court denied the complainants’ request for the court to hear the constitutional complaint because the complainants had not exhausted their legal remedies. The exceptions to the exhaustion of legal remedies, meaning a complaint that is of general relevance or a case where prior recourse to other courts would cause the complainant severe and unavoidable disadvantages, are not applicable. The court pointed out that there is no settled case law from the highest courts with regard to coronavirus restrictions. Furthermore, the complaint requires that the court interpret not only constitutional law questions but also epidemiological, virological, medical, and psychological assessments and risk evaluations regarding the contentious issues of what infection risks exist from opening schools and whether children can transmit the virus. (Paras. 5–12.)

The court further refused to issue a preliminary injunction because the required weighing of competing constitutional rights would result in a decision to the disadvantage of the complainants. The complainants alleged that not having regular in-person classes significantly affects their family and work life and results in disadvantages for their children’s personal and social development possibilities and educational opportunities that could not be offset. However, the Bavarian Higher Administrative Court found that it is currently unclear what effect the introduction of regular in-person classes will have because there are no clear scientific studies that confirm whether children can be carriers of the virus. The Robert Koch Institute in Germany therefore recommends that children and adolescents also observe physical distancing and hygiene rules. The court therefore concluded that by granting the preliminary injunction, an appropriate safety measure to contain the spread of the virus would be eliminated. The rights of the complainants must give way to the right to life and physical integrity of other people. (Paras. 19–25.)

The court added that in-person classes had at least resumed with an alternating schedule and that the provision in question would expire on July 19, 2020. Presumably, regular classes would resume after the summer break. Lastly, the state program “Learning at Home” would compensate at least partially for the loss of in-person classes. (Para. 25.)