European Journal for Education Law and Policy 5: 101, 2001.© 2003 Kluwer Academic Publishers. Printed in the Netherlands.

101

Equality in education: Germany

Hans-Peter FüsselHochschule, Bremen, Germany

Equality in education

a) Article 3 Basic Law, the Federal Constitution guarantees“Equality before the law” (al. 1), equality of men andwomen including the obligation to guarantee equalityin reality (al. 2), and forbids the discrimination andprivilege for reasons of sex, descent, race, language,origin, faith, religious or political opinion (al. 3) andfinally forbids the discrimination of handicapped people.The constitutions of nearly all sixteen German statesguarantee equality and the equality clause is valid alsoin education.

b) No, not within the Basic Law. The School Law of somestates guarantee a “right to education”.

c) Pupils, students, parents, teachers and foreign peoplecan appear to the equality principle. Public institutionssuch as public schools and universities cannot appearto the equality principle but the entrepreneurs of privateschools and private universities can.

d) The criteria of sex, religion, politics and so on ismentioned in article 3 al. 3 Basic Law are strict criteria.Unequal treatment in education cannot be based on oneof these criteria if not education itself is based on one ofthem. Girl-schools are not for boys and catholic denomi-national schools are not for protestants and vice versa.The general equality principle (article 3 al. 1) promotesunequal treatment of equal facts, if there is reason, andspecifically if the reason for the unequal treatment canbe found in the constitution itself. Moslem girls are notforced to take part in sports with the other boys andgirls because their religion prohibits the exposition of thenaked body, even if its only partly naked.

The application by the constitutional court

a) Yes, the Federal Constitutional Court has the power todecide on the application of the equality principle ineducation. This is also true as far as education is astate matter. In this case the citizens can also appeal tothe state constitutional courts on the basis of the stateequality principle.

b) The competence of the constitutional court is important,the practical use is nearly of no account.

− Yes, the court analyses the purpose of unequal treat-ment and the relationship between purpose and meanson the basis of the principle of proportionality. Theprinciple of “legality” is part of German constitutionallaw and is based in the principles of democracy andrule of law. This is also true for the field of educa-tion but the “principle of legality” was only introducedin this field in the seventieth of the last century bythe Federal Constitutional Court and this was objectof public conflict. There are only very few decisionswhich are mainly based on the equality principletherefore there is no overview.

− Equality of opportunity is an important principle inthe field of judicial review of examinations. This isan important matter in Germany and incomparable toother European countries. The general equality prin-ciple on the other hand is not important in the fieldof education. The reason is that unequal treatment onthe basis of competence and achievement are accept-able. That competence and achievement refer to theinequality of sex, descend, class etc. is not seen. Thecourt can give no opinion of opportuneness.

− There is no principle difference between educationand other fields regarding the equality principle.Nevertheless the importance is very different.

International law

The German Constitutional Court does not refer to the inter-national law and to European courts in their decisions ineducation.

Concluding remarks

I get the impression that the discussion on equality of educa-tion as a legal principle – so important for the seventieth ofthe last century – is now a little outdated. The meagre resultsof the jurisprudence seem to justify this development. Thediscussion on inclusion and exclusion replaced the discus-sion on the equality of education. The importance of thisdiscussion in the field of law is not yet seen, at least not inGermany.