KONRAD v. GERMANY
Inadmissible
The four applicants are Mr Fritz Konrad, a Swiss and German national born in 1951, Mrs Marianna Konrad, a Swiss national born in 1956, and their children, Rebekka, a Swiss and German national born in 1992, and Josua, a Swiss and German national born in 1993. They live in Herbolzheim (Germany) and were represented before the Court by Mr W. Roth and Mr R. Reichert, two lawyers practising in Bonn. The applicants belong to a Christian community which is strongly attached to the Bible and reject the attendance of private or State schools for religious reasons. The applicant parents find that school education does not suit their beliefs since sex education is taught, mythical creatures such as witches and dwarfs appear in fairy tales during school lessons, and physical and psychological violence among pupils at school is on the increase. They educate their children at home in accordance with the syllabus and materials of the “Philadelphia School”, an institution based in Siegen which is not recognised as a private school by the State. The institution specialises in assisting devout Christian parents in educating their children at home. The school’s syllabus contains both books and materials which are used by State or private schools and materials specially prepared to support the education of religious beliefs. Teaching by parents is supervised by staff trained by the Philadelphia School. The teaching is supplemented by occasional gatherings of parents, children and staff members. The applicant parents applied for their children to be exempted from compulsory primary school attendance and for permission to educate them at home. The third and fourth applicants reached the age for compulsory school attendance in 1999 and 2000 respectively. At present, they do not attend a private or State school. On 28 August 2000 the Offenburg Education Office (Staatliches Schulamt Offenburg) rejected the application pursuant to section 72(1), in conjunction with section 76(2), of the Baden-Württemberg School Act (Schulgesetz Baden-Württemberg). The Freiburg Regional Education Office (Oberschulamt Freiburg) dismissed an objection by the applicants on 30 October 2000. On 11 July 2001 the Freiburg Administrative Court dismissed a request by the applicants for exemption from compulsory primary-school attendance. The court noted that the Basic Law granted the parents both freedom of religion and the right to educate their children with regard to religious and philosophical convictions, which also included the negative aspect of keeping their children away from convictions which would be harmful in their opinion. That freedom, however, was restricted by the State’s obligation to provide education and tuition. Hence compulsory schooling was not a matter for the parents’ discretion. The applicant parents’ wish to let their children grow up in a “protected area” at home without outside interference could not take priority over compulsory school attendance. Even if the children could be sufficiently educated at home, the State’s obligation to provide education under the Basic Law would not be met if the children had no contact with other children. Attending a primary school, with children from all backgrounds, would enable the children both to gain their first experiences of society and to acquire social skills. Neither would be possible if the parents were authorised to educate the children at home, in particular because the applicant parents had openly stated that they wished to avoid their children having regular contact with other children. The court noted that the State’s obligation to educate would also further the children’s interests and served the protection of their personal rights. Because of their young age, the applicant children were unable to foresee the consequences of their parents’ decision to opt for home education. Therefore, they could hardly be expected to make an autonomous decision for themselves. Moreover, the applicant parents’ right to educate their children would not be undermined by compulsory school attendance as the parents could educate their children before and after school, as well as at weekends. They were also free to send their children to a denominational school, which would possibly be more sensitive as to sex education than a State school, although the court questioned whether the issue of sex education would be of any relevance in a primary school’s syllabus. On 18 June 2002 the Baden-Württemberg Administrative Court of Appeal dismissed an appeal by the applicants. It found that, even though the applicant parents’ right to educate their children included religious education, they were not exclusively entitled under the Basic Law to educate their children. The State’s constitutional obligation to provide the children with an education was on an equal footing with the parents’ right. The court stressed that the decisive point was not whether home education was equally as effective as primary school education, but that compulsory school attendance required children from all backgrounds in society to gather together. Parents could not obtain an exemption from compulsory school attendance for their children if they disagreed with the content of particular parts of the syllabus, even if their disagreement was religiously motivated. The applicant parents could not be permitted to keep their children away from school and the influences of other children. Schools represented society, and it was in the children’s interests to become part of that society. The parents’ right to provide education did not go so far as to deprive their children of that experience. Parents could require the State to take positive measures in order to prevent their children being ill-treated by other children. The applicant parents had not, however, argued that the school authorities in Baden-Württemberg would fail to do so. Neither had the parents sufficiently argued that the applicant children would be exposed to religious influence which was opposed to their own views. The school’s obligation of religious neutrality would prevent the applicant children from any indoctrination against their will. In so far as the applicants complained that the school’s syllabus was too scientific and denied any divine influence on the creation and the history of the world, the court found that freedom of religion did not entail the freedom not to deal with any possible conflicts between science and religion. The “mythical figures” such as dwarfs or witches which the applicants considered to represent occultism were characters in fairy tales and children’s books which were well known to all children. At school, they would be introduced to children as fictional characters. Hence the State did not promote superstition through its schools. On 7 January 2003 the Federal Administrative Court dismissed an application by the applicants for leave to appeal on points of law. On 29 April 2003 the Federal Constitutional Court refused to consider a constitutional complaint by the applicants because it had already dealt with the decisive constitutional issues in its settled case-law. It pointed out that the administrative courts’ decisions had neither violated the applicant parents’ right to educate their children nor the applicants’ freedom of religion. The balance of interests between the applicants’ rights on the one hand and the State’s obligation to provide school education on the other did not require exemption from compulsory school attendance. The Federal Constitutional Court stressed that the State’s obligation to provide education did not only concern the acquisition of knowledge, but also the education of responsible citizens to participate in a democratic and pluralistic society. To hold that home education under the State’s supervision was not equally effective for pursuing these aims was at least not erroneous. The acquisition of social skills in dealing with other persons who had different views and in holding an opinion which differed from the views of the majority was only possible through regular contact with society. Everyday experience with other children based on regular school attendance was a more effective means of achieving that aim. The Federal Constitutional Court found that the interferences with the applicants’ fundamental rights were also proportionate given the general interest of society in avoiding the emergence of parallel societies based on separate philosophical convictions. Moreover, society also had an interest in the integration of minorities. Such integration required not only that minorities with separate religious or philosophical views should not be excluded, but also that they should not exclude themselves. Therefore, the exercise and practising of tolerance in primary schools was an important goal. Lastly, the Federal Constitutional Court considered that the interference was reasonable as the parents still had the possibility of educating their children themselves outside school hours, and the school system was obliged to be considerate towards dissenting religious beliefs. The relevant provisions of the Basic Law are the following: “1. Marriage and the family shall enjoy the special protection of the State. 2. The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall supervise them in the performance of this duty. ...” “1. The entire school system shall be under the supervision of the State. 2. Parents and guardians shall have the right to decide whether children should receive religious instruction. 3. Religious instruction shall form part of the regular curriculum in State schools, with the exception of non-denominational schools. Without prejudice to the State’s right of supervision, religious instruction shall be given in accordance with the tenets of the religious community concerned. Teachers may not be obliged to give religious instruction against their will. 4. The right to establish private schools shall be guaranteed. Private schools that serve as alternatives to State schools shall require the approval of the State and shall be subject to the laws of the Länder. Such approval shall be given where private schools are not inferior to State schools in terms of their educational aims, their facilities, or the professional training of their teaching staff, and where segregation of pupils according to the means of their parents will not be encouraged thereby. Approval shall be withheld if the economic and legal position of the teaching staff is not adequately assured. ...” Article 14 § 1 of the Constitution of the Land of Baden-Württemberg provides: “School attendance is compulsory.” The relevant provisions of the Baden-Württemberg School Act are the following: “(1) Compulsory school attendance shall apply to all children and juveniles who are permanently resident ... in the Land of Baden-Württemberg. ... (4) Pupils are required to attend a German school. The school supervisory authority shall decide on any exemption. ...” “(1) All children and juveniles are obliged to attend schools within the meaning of section 72(2)2 of this Act, unless provision is otherwise made for their education and tuition. Alternative tuition instead of primary-school attendance may only be granted in exceptional circumstances by the school supervisory authority. ...”