Richter, I. (2012). The right to education—the European model. In C. L. Glenn & J. De Groof (Eds.), Balancing freedom, autonomy and accountability in education: Volume 1 (101-114). Tilburg, NL: Wolf Legal Publishers.
If I were seeking the European model of the right to education, it would not be the Council of Europe and its European Convention of Human Rights of 1950, nor the European Union and its Charter of Fundamental Rights of 2000, but the principles of a common European educational law, to be found in the constitutions and the legal regulations of the European states, – a Ius Europeanum Communalis, if such a thing exists.
The German Constitutional Court in its two famous so called “Solange”- decisions supposed that there are common principles of constitutional law to be found in Europe, saying in the second decision that as long as (“solange”) they exist and are applied they will prevail over the German constitution ( BVerfGE 89, 155). In its also very famous Lisbon-decision the court took an important turn, now saying that the German educational system is a kind of crown jewel of German sovereignty which cannot be turned over to the European Union (BVerfGE 123, 267). Therefore I will search for such common European constitutional principles, and ask the question whether they contain something like a right to education.
To start with, I have to say that the European educational system is not based on a right to education, but on the principle of compulsory education, not on the right to go to school, but on the duty to go to school. The first country in the world to introduce compulsory education was a German Territory called Pfalz- Zweibrücken which forced boys and girls to go to school as early as 1592. Later, under the system of absolutism nearly all European monarchies followed in the seventeenth and eighteenth century. In England however, the introduction of compulsory education was left to the local communities. “All children, boys and girls, must go to school in order to learn to read and write at least a little, as well as to get acquainted with the holy catechism and the Christian songs and prayers. It is a shame that not only in the countryside but also in the cities you will not find many craftsmen, servants and day-labourers who will know how to read and write.” i The churches asked for compulsory religious education, the monarchs wanted loyal subjects and the economy needed well trained craftsmen, servants and workers. But, compulsory education was meant for the lower classes. The nobility, the clergy and the urban middle classes had the right to have their children educated in monasteries, noble academies or city schools under the supervision of the churches. And, they had the right to homeschooling or to send their children to private schools: “Parents are free to care for the training and education of their children in their homes if they follow the regulations of this statute. Only those who want to teach and educate professionally need permission by the public authorities.” ii Thus, the origin of the right to education was not an individual civil or human right, but a privilege of the upper and middle classes which were exempted from compulsory education and were allowed to teach their children at home or to have them educated in “private” schools.
The idea of a right to education as an individual civil and/or human right came up only with the French Revolution. “La liberté consiste à faire tout ce qui ne nuit pas à autrui. (Art.4 of the 1789 Declaration of the Rights of Man and of the Citizen) “Liberty consists in being able to do anything that does not harm other people.” The French Revolution abolished the regulatory systems of the French feudal society, and proclaimed freedom of action as a general principle. This should also have been true for the education of the children. The right to educate should have been an individual civil or human right of the parents. But, this was not the case. The declaration of 1789 did not mention such a right. The revolutionaries fought a fierce fight over education. Condorcet and the Girondins wanted to apply the principle of liberty also on education, whereas the Montagnards asked for state control of education in order to produce revolutionary citizens in the spirit of equality. As the Montagnards temporarily prevailed, public education became the principle, but it would be a misunderstanding to assume that Condorcet proposed a “private” educational system in the modern sense of “homeschooling”. He also proclaimed public education, but a public educational system not under the control of the state but under the control of the citizens. Finally, Napoleon founded the French public educational system, L´Education Nationale Française, which was based not on the right to education but organised and dominated by the national public administration. The principle of equal liberty after the French Revolution became the main principle of the civil society in the nineteenth century and dominated the public sphere and private life. There was a right to vote and a right to assemble, a right to found political parties and private associations, a right to marry and to trade – but no right to educate and no right to education. Freedom of commerce, but not freedom of education! This remains a basic contradiction of the legacy of the French Revolution.
Public schools were established in all European states in the course of the nineteenth century. But, they were mostly schools for the poor and they were compulsory . . . for the poor. The privilege of the upper and middle classes to teach and educate their children at home – as mentioned before – persisted everywhere, because compulsory education did not mean compulsory school attendance but compulsory education in a literal sense, meaning that no child should be left without an education, be it at home or at school. In many countries the big question was not so much homeschooling as the establishment of private schools. In order to implement compulsory education the states obliged the local communities to establish communal primary schools, to build school houses, to care for the maintenance, to hire teachers and to accept the supervision of the local clergy, and all this with local money which partly was supplemented by state subsidies. The Prussian Constitution of 1848/1850 reads as follows: “Für die Bildung der Jugend soll durch öffentliche Schulen genügend gesorgt werden. Eltern und deren Stellvertreter dürfen ihre Kinder oder Pflegebefohlenen nicht ohne den Unterricht lassen welcher für die öffentlichen Volksschulen vorgeschrieben ist.” (Art. 21) that is: The education of youth shall be cared for sufficiently by the establishment of public schools. Parents or caretakers have to provide for the same instruction of their children which is prescribed for the public primary schools.” Here it is again, the state prescribes compulsory education for everybody, but, the parents can provide the education for their children themselves at home. But then, the right to private education follows immediately in Art. 22. Everybody who has the necessary capability can offer private education in private schools. This too is a right to education, the right to establish private schools and the right to attend private schools. In the central and northern as well as in the southern European context this right to private education was a substitute for homeschooling and compulsory public education, for parents who wanted to avoid public primary education, but who also did not want to have their children taught at home by private teachers. As the public schools in these countries were Catholic or Protestant schools supervised by the clergy, in these countries private education was not primarily religious education.
This was completely different in countries with a basic separation of church and state in the aftermath of the French Revolution. As the public schools in these countries were not under the control of the churches, but under the control of the public administration, the right to establish private schools and the slogan of freedom of education meant the right to establish private religious (mostly Catholic) schools. The Belgian constitution of 1831 was the first European constitution to grant this right. The foundation of this state was based on a double liberation, independence from Napoleon´s France and separation from Protestant Netherlands. Based on a coalition of liberals and Catholics, compulsory public education on the one hand and l´école libre, a private Catholic school, on the other side, was the necessary compromise for the foundation of the new state. In France, the restoration of the monarchy after the revolutions of 1814 and 1830 did not abolish the public elementary school, but made room for private (Catholic) schools, in 1833 for primary schools and in 1850 for secondary schools. In 1848, after the next revolution, the right to establish private schools and the right to education in these schools was formally acknowledged in the constitution. Finally, in 1881 the famous education laws of Jules Ferry established “L´éducation publique, obligatoire, gratuite and laïque”, the complete separation of church and state in France, giving way at the same time for a Catholic education in private schools run by the Catholic Church. Thus, in France and neighbouring countries the right to education became the right to establish and to attend private religious schools, whereas in countries where the public schools were anyway supervised by the religious communities the right to education in private schools became a right to opt out of these public/religious schools — the opposite!
This “dual system” of public/private- state/church-relations with compulsory education for the masses and home/private education for the elites which dominated the European educational system since the reformation and lasted more or less until the end of the nineteenth century, became problematic with the fading of religious homogeneity in the European states. The Religious Peace Treaty (Augsburg 1555) and the Westphalian Peace Treaty (Münster/Osnabrück 1648) had created and protected homogeneous religious states with the Roman Pope or the Protestant sovereign being the summus episcopus in the Catholic or Protestant countries: Cuius regio, eius religio! Dissidents were free to leave the country or they were expelled. Other countries – like Prussia or the states in the New World – welcomed these refugees, and therefore became multi- religious states. Prussia guaranteed full religious freedom for everybody: “In meinem Staate kann jeder auf seine eigene Art selig werden” (Frederic II) – “In my state everybody can become happy (blessed) in his own way”. Therefore, Prussia established denominational/confessional schools, Protestant schools for the Protestant provinces and Catholic schools for the Catholic provinces, and the Jews got the right to run their own schools. But, what about the minorities? Parental choice was the solution. The parents got the right to determine the religious character of the (public) school, and more and more this parental right within the school became a parental right to educational co-determination, not only in religious questions but also on administration and finance, curriculum and personnel. Whereas in Catholic provinces the parental right to education was mainly regarded as the right to get a Catholic education for the children in public schools including religious instruction as part of the curriculum, in Protestant provinces the parental right to education was the right to elect a local school commission which had a say in nearly all educational matters.
As far as a “Right to Education” can be found in the European history of education, it was not the right of the child, it was the right of the parents and other adults to care for the education of the children. Although the French Revolution had created a civil society on the basis of individual civil and human rights, an individual right to education was not regarded as the right of the child. The first approach to the creation of an individual right in education was to be found in the European scholarly tradition which dates back to the Medieval Ages. Scholars and students had the right to change their universities and to engage and study at other European universities. This was a kind of mobility right in education, and it surely was an individual right. And in a certain way this was also true for craftsmen, because apprentices also used to travel all over Europe and pick up work here and there, and they were housed and fed by their fellow craftsmen. For basic education, however, it was self-understood that children did not enjoy an individual right to education. Their education was the parents’ right alone and a matter of societal concern.
This did not change with the upcoming socialist movement in the nineteenth century. Marx and Engels Communist Manifesto of 1848 stated that all education in the bourgeois society was in the interest of the bourgeois class and only served the exploitation of the proletariat. But, as for the future communist society it only asked for a “public and free education of all children”, which — of course – meant the abolishment of all forms of the privileged education of the bourgeois class. Even 70 years later, in the Constitution of the Russian Socialist Federal Soviet Republic (1918) it was proclaimed in Art. 17 that “In order to guarantee the real access of the workers to knowledge it will be the duty of the RSFSR to provide complete and free education to all workers as well as to the poor peasantry.” Nevertheless, with the socialist critique of the bourgeois idea of freedom and equality, a change of perspective became apparent. Although until then officially the education of children had to serve “the best interest of the child”, now the perspective changed. It was no longer the ruling class which had the right to determine the “best interest of the child”, but – although not the children themselves – “the people” decided on the educational system, and in a parliamentary republic this was supposed to be the parliament. Therefore, education became one of the main subjects of the constitutions and of the legislations of the beginning of the twentieth century. The constitutions of the parliamentary democracies after the First World War tried to merge traditional liberal human rights and the new social human rights, and the right to education became one of them.
The constitutionalisation of social rights transformed the idea of human rights. The traditional liberal human rights were individual rights prohibiting the state from interfering into the private sphere of the individual. Social rights on the other hand asked for state action in order to secure the right to education and other benefits. Therefore, when the post-war constitutions guaranteed social rights like the right to work or the right to education these “rights” were regarded as political declarations to be implemented by the legislator. They were considered as having no direct legal force. This was also the case when the United Nations 1948 General Declaration of Human Rights for the first time stipulated in Art. 26 a right to education: “Everybody has the right to education”. It was a political declaration – nothing more and nothing less! Its importance lay not so much in this wording, but in the more detailed following five principles of educational policy:
- Compulsory free education on the elementary and primary level.
- Free access to the secondary and tertiary level of the educational system as well as to vocational training.
- The target of education should be the full development of the human personality and the respect of the human rights and liberties.
- Education shall promote understanding, tolerance and friendship between all nations as well as between all racial and religious groups, and it shall favour the activities of the United Nations for peace.
- It is the parents which foremost have the right to decide on the kind of education of their children.
This declaration was followed by numerous other conventions and declarations on the right to education, namely the European Convention on Human Rights (1950) and its Additional Protocol of 1952 (Art. 2) which is of particular importance for a European Model of the right to education, the International Convention on Economic, Social and Cultural Rights of 1966 (Art. 13), the Convention on the Rights of the Child of 1989 (Art. 28 and 29), the Convention on the Rights of Persons with Disabilities of 2006 (Art. 24) and many other declarations of international bodies. The conventions and declarations on the international level follow the approach of the UN Declaration on Human Rights, going more and more into the details. The right to education thus has become not only a social but also an educational right. Its initial merely political character has changed more and more into a legal character, transforming a “soft” right to education into an enforceable individual right. The reason for this is the new approach in international law which assumes that individual rights in international conventions are directly enforceable in the member states, if they are so detailed that they can be implemented directly in the states. This was not the case for the right to education of the 1948 Declaration, but it is the case for the before mentioned conventions and declarations, as they were specified by many other international conventions and declarations.
If we ask for a European model of the right to education, it is not enough to take a look at the constitutions of the European states and their education law or at the European Communities such as the Council of Europe and its Convention of Human Rights or the at the European Union and its Charter of Fundamental Rights, but at the complex history of education in Europe. There we find very different approaches to the right to education:
- In the era of the Reformation the European monarchies – Protestant as well as Catholic – introduced compulsory education for their subjects, but not necessarily for the upper and middle classes, which kept the right to educate their children themselves, to have them brought up by private teachers or as interns in private schools which mostly were run by the churches.
- The Westphalian Peace Treaty of 1648 confirmed the principle “Cuius regio, eius religio”, which imposed the confession of the monarch also on his subjects and gave the education into the hands of the churches. Dissidents got the right to emigrate to a country of their choice and religion.
- In “mixed states” – states like Prussia with Catholic as well as Protestant regions – the establishment of denominational schools guaranteed the right to education of the parents to have their children educated in a school of their religion. The state had to be neutral.
- Scholars and students had the right to study at any European university of their choice, and apprentices had the right to work in a workshop anywhere in Europe, while they took the road.
- Parents did not only have the right to raise their children themselves, but also to participate in the local management of the schools in “school boards”. This was mostly the case in Protestant regions, whereas in Catholic regions school supervision was with the local priest.
- The French Revolution introduced the strict separation of church and state in France and in the countries under French influence. The state had to be neutral. Other states developed a system of coordination of church and state. This gave rise to two different State-Church-Regimes in Europe with consequences also for the educational systems. In the case of the separation of church and state, the parents obtained the right to send their children to religious private schools.
- After the Socialist Revolutions and the Social-democratic reforms the right to education became a social right to a public, equal, free minimum education for everybody and a right to equal access to secondary schooling and higher education.
These seven developments are the basis of a common European right to education which can be found in the educational systems of nearly all European states and which – after many conflicts and political decisions – systematically can be differentiated in seven aspects of the right to education:
- Everybody, particularly each child has a right to a minimum education.This is an educational right which can be fulfilled within the family (e.g. by homeschooling), in private schools and in state schools. In state schools it is free of charge. The state can set standards for homeschooling and for private schools. The state can develop and implement curriculum guidelines and qualification requirements for teachers in private and in state schools. The state can offer central exams and certify the results. Compulsory education therefore nowadays does not mean anymore that every child has to attend the public local school, but that the right of every child to a minimum education is guaranteed.
- In democratic societies the state must be neutral regarding the diversity of political and social interests. Governments represent more or less specific interests, elections being the mechanism to change this representation of interests. But, the state itself is forbidden to identify with specific interests. Regarding the educational system neutrality can be either “negative”– the state is neutral in the sense that political and social interests are not represented within the educational system (negative neutrality) – or neutrality can also mean, that all social interests are represented within the educational system and that the state has the duty to balance the different political and social interests (positive neutrality). In this case the educational system must correspond to the needs of an open, free and pluralistic society. “Pluralistic” means that the educational system must represent the diversity of societal interests, be they religious or ideological, political, social or economic. “Free” means that every social group can bring forward its interests. “Open” means that the status quo of interest consideration is not stable but flexible and open to change. The right to education therefore is also a right to distinctiveness. Several models are possible: (a) external plurality, which means that the state leaves it to the forces on a quasi-market to represent the different social interests in education; (b) internal plurality, which guarantees that all relevant social interests are represented within a state school system; (c) mixed, which guarantees a certain internal plurality in state schools, but also acknowledges the right to private schooling.
- Every generation has the responsibility for the socialisation of the next generation. In democratic societies the democratic state must take up this responsibility. It is believed that this task can only be fulfilled if the educational system guarantees that all citizens acquire a common basic knowledge and certain capabilities, that their attitudes and their behaviour quality for a life in the community. But, the educational system can be differentiated even if there is a kind of core curriculum. In organising the educational system the state itself has to be neutral (see No. 2), but the state can require a certain loyalty from his subjects. The right to education therefore can be restricted in the organisation of the educational system.
- Everybody has a right of access to any particular form of learning, be it special education for the handicapped, secondary general education, vocational training, higher education, further education etc. This is the fundamental right of choice in a differentiated educational system. The institutions of learning – private or public – can establish entrance requirements, personal (e.g. age) and/or qualification (e.g. entrance exams). The rationality of any access regulation must be open to judicial review. The right to education is also the right of a second chance, which corresponds to the right of access. The right to education basically is a right of the child, but parents also have a right to education for their children and they hold their children´s right as long as they are minors.
- The state has a legitimate interest to establish state run schools and to supervise homeschooling and private schools. This interest is threefold: (a) Citizen education for a democratic society. (b) Knowledge, capabilities, attitudes and behaviour for a developed modern society. (c) Identity and sociality including personality and community development. But, the state can restrict its interest in citizen education to a minimum and leave the instruction for useful competencies and the value education to private schools, e.g. organizing a school system which is based on the principle of separation of state and church. If the constitution cares for a co-ordination of the state and the religious communities within a state run system, the schools must be either neutral in the pluralistic sense, integrating all interests or they must be neutral in a negative sense, denying any identification with any particular political or societal interest.
- Education is not a “one way street”, therefore the right to education does not mean – as it is too often understood – that the state has to “deliver” education like a consumer product. Education can only be successful if the state creates the conditions for successful learning and if teachers, parents and students cooperate in the schools in order to establish a fruitful learning environment. Successful learning asks for motivated, capable, willing, fearless students who want to achieve something for themselves, for their families and for the society. Therefore participation is a keyword for the implementation of the right to education.
- Up to a certain age of their children the parents have the right to care for them themselves and educate them, to cooperate with other parents for the purpose of early childcare and education or to make use of public elementary education services which are offered by the local communities, by welfare organisations or religious communities. During school-age the state can organise compulsory education (see No.1-3). After school age vocational education, higher education and further training follow the principle of choice. Public and private organisations compete for the students. The state can regulate the competition.
- The right to education entails also the right to establish, to run and to attend private schools. These “private schools” can also be religious schools, established by religious communities. The states can subsidize private schools under certain conditions, but constitutions can also prohibit public subsidy of private schools.
If we now look at the European educational systems, we will find that they – more or less – guarantee these aspects of the right to education:
- The minimum education is guaranteed in all European states (see No. 1). There are variations in the right to homeschooling and to private schools, and the permission and the control intensity may differ. But, if the state set standards are met, there is the right to a minimum education all over Europe (Germany, the Netherlands and the Nordic states might be exceptions regarding homeschooling, for private schooling see No. 8).
- In Europe the state is neutral regarding the representation of political and social interests within the educational system, but, it can be a negative or a positive form of neutrality (see No. 2). The implementation of the right to education in Europe therefore does not depend on the political, religious, ideological or social orientation of the head of state or the government. (In some of the succeeding states of the former Soviet Union this principle might not exactly be implemented). The organisational implementation of the neutrality principle however (see No.2) varies considerably in the European states (see below).
- What the core curriculum is might differ among countries in Europe, but the right of all children to acquire basic qualifications is guaranteed everywhere. Some states prefer comprehensive schooling, some might organise a differentiated system. If the system is comprehensive, there should be some form of internal differentiation. If the system is differentiated, the common curriculum becomes more important. Thus, the equality principle should be guaranteed. Loyalty in the democratic European societies does not mean submission under the ruling elite but loyalty to a democratic neutral state.
- The right of access and its judicial review is crucial in a differentiated system (see No. 4). It can be found in all European educational systems.
- In Europe the state implements the right to education. The state draws the line between homeschooling and compulsory education in public schools. The state defines the conditions for the establishment of public schools and regulates their funding (see No. 8). The right to education therefore has to be implemented, but also restricted by law.
- Participation of parents and students in the educational institutions may vary considerably in the European states (see No. 6). Student participation can be regarded as an important element of the educational process. Individual parent counselling is important everywhere. Parents can be asked to participate in the social organisation of the school. In some countries parents and students participate in the school government or in the local school administration.
- The right to education is a right of the child as well as a right of the parents (see No. 7). As long as the parents have to care for their minor children, this should be done in the best interest of the child. The family law of the European states regulates the supervision of the family education of the children, particularly in the case of child abuse. In some states parents are obliged to take into consideration also the wishes and opinions of their children when they make decisions on their education.
- The relationship between the state and the private schools differs a lot in Europe (see No. 8 and see below). But, the right to establish private schools and the right to attend private schools instead of public schools is guaranteed in all European states.
To conclude, one can say that the right to education is guaranteed in all European states, although there are important differences. However, the neutrality principle has been understood and implemented in very different ways. Basically we can identify four models, but the reality of course is much more complex.
A. Negative neutrality
The educational system basically is a state system which solely is based on a state interest. Any particular group interest has to remain outside the public educational administration and cannot be considered in the organisation of the educational system. Therefore the state can remain neutral in this sense. Group interests are private interests. If group interests in education fulfil the conditions for the establishment of a private school, a private school can be founded and run by individual entrepreneurs or corporations. Basically, such a private school has to be financed with private funds. There is a state supervision of the private schools. Teachers have to fulfil minimum state defined qualification requirements and the students will have to pass state exams in order to get state certifications of their entitlements.
France in general serves as an example for this model of school organisation. And indeed, in the more than 200 years since the French Revolution this model did prevail in France. But, there are important deviations from this model in France:
- Since the middle of the nineteenth century private schools were allowed in France. Since 1959 private schools can get state subsidies, if they sign a contract with the state. In this case, the private schools have to accept the state curriculum. The teachers are paid by the state. The students have to pass the state exams. 20 percent of all students go to private schools. 90 percent of them go to schools with a contract. 97 percent of these are in Catholic schools.
- The separation of church and state forbids any religious instruction in schools. Although the Conseil d´Etat in 1989 permitted the Islamic head scarf in schools as a symbol of religious freedom, a law of 2004 prohibited all religious symbols in public schools.
- The equality principle which dominates instruction in the French public schools does not contradict the development of the individual personality in the school which is an aim of the French educational system, and recently schools are asked to set up specific aims for their institution. So, even in a neutral public and secular system some variation seems to be desirable.
B. Positive neutrality
I. External Pluralism
There is no state school system. The educational system is “pillarized”. Every individual, group or association can establish a school or school system. There are no “private” schools, because all schools are “private” or “public”. The state is neutral, because the state does not identify with one of the “pillars”. Parents choose one of the schools for their children, or – if they are of sufficient number – they found new schools for their children. The schools are funded by state money, each school getting its share on the basis of the number of students they have. Teachers are certified by the state. There is a minimum national curriculum. All students have to pass the state final exams.
There is no educational system in the world which resembles this model, – not even by far. There is not one state in the world without state schools. The Dutch educational system, however, is the nearest to this model. It is rightly called the most pluralistic system in the world. The Dutch school system is “pillarized”, but the “pillars” are not only established by social groups. There are schools run by the local communities, and the local communities are obliged to provide school education in public schools for their inhabitants. And these local schools attract most of the students. But, then there are the religious “public” schools, which are Catholic, Protestant (four different streams of Protestantism), Jewish (orthodox as well as liberal), Moslem and Hindu. Lastly, you will find schools with a specific educational concept like Montessori, Steiner, Petersen etc. All these schools are public schools, because they all are funded equally by the state, because they are open to all students, because the quality requirements must be met by all of them, because they have to meet the national standards and the students have to pass the national exams. The curriculum of these schools is not identical with the national curriculum, but it must be equivalent. So, there are no real “private schools”, because everybody can establish a school and run a school system, if there are sufficient numbers of students and if the national standards are met. Nevertheless, there are some private schools that do not receive public funding, but not in significant numbers. Homeschooling for the same reasons is rare and extremely restricted.
II. Internal Pluralism
In this model the educational system consists of state schools only which might be run by local communities. Compared to the model of negative neutrality (see above) where the neutrality aims at excluding all specific political and social interests this models seeks to integrate all interests into the system. If this is the case, there is no need for private schools, even if the law permits private schools. The curriculum, the composition of the teacher force and the student body must allow all interests to be represented within the single school, so that nobody is discriminated against. As the history of the European educational systems shows, the conflict about education mostly ended in divided educational systems. Therefore the model of internal pluralism – against its original intention – will only be found in relatively homogeneous societies – if ever.
The Nordic states, particularly Sweden and Norway, seem to meet the conditions for internal pluralism on the basis of social homogeneity. And indeed, in these states private schools are – or were – rare, catering only for very specific religious or educational interests. Lately, the system was opened up and more private schools were admitted. Traditionally, the Nordic states met at the same time the desire for individual development of children and the need for national homogeneity.
III. Mixed Systems
Can the neutrality of an educational system be achieved at the same time by external and internal pluralism? Yes, it can. A state school system can be organised in a pluralistic way, giving room to different interests, and at the same time there can be a need for some kind of external pluralism, satisfying the needs of those groups which don’t feel represented within the system.
The German educational system was such a mixed system. Most of the German states had denominational public schools, Catholic or Protestant, depending on the will and the power of the local religious communities. Religious instruction was mandatory in these public schools, Protestant religious instruction in the Protestant schools and Catholic instruction in the Catholic schools, and segregated religious instruction in the community schools, which also could be established if the parents wanted them. The Weimar Constitution put power in the hands of parents, and after the Second World War most of the new Länder adopted this system. To that extent, the system was organised on the basis of an internal pluralism, but at the same time the Constitutions allowed private schools, and these private schools could be religious as well as schools based on specific educational ideas. There was also external pluralism. With the educational reforms of the seventies of the last century only two states kept the denominational schools as exceptions, whereas in all other states the community schools prevailed. And the numbers of students in private schools was small. So, at the end of the West-German Federal Republic the West German educational system was a reduced “mixed system.” With the massive integration of foreigners into the educational system of the unified Germany, internal pluralism took a new turn, now representing the educational interests of the new minorities, and a form of external pluralism because of the new interest in private schools.
The main result of my search for a common European right to education is to identify at least eight aspects of such a right in the constitutions and legal regulations of the European states, through which this right to education has been implemented in these countries. There are differences among countries, of course, but they are not essential. The accommodation of social diversity within educational systems is the only field where we see essential differences among the states. If one groups all European systems along the lines which I have tried to draw between the different approaches to plurality and neutrality, one would indeed find four different groups. But, finally it would not be very promising to do that. 1. As can be seen from the examples which I gave, even the prototypes do not fit very well into the scheme, 2. The present organisation is the result of the long history of conflicts and compromises, and 3. There is change just now: (a) migration to Europe and the migration within Europe has created new minorities and therefore new problems of integration and representation, (b) the private school sector which in the past was an accommodation of religious or ethnic minorities has now become a commercial alternative to the public school sector, and 3. Homeschooling, which barely exists in most of the European states, might become an alternative for parents who do not trust the public or private schools any more. But, whatsoever might happen to pluralism and neutrality in the European educational systems, already now one can say that the right to education guarantees in one way or another that all particular social interests are represented within the educational system and that the state is neutral regarding these social interests.
i Weimar School Regulation 1619.
ii Prussia, Allgemeines Landrecht 1794.