Home schooling after COVID-19 – Federal Supreme Court confirms the legality of the strict requirements

In its decision 2C_1005/2018 of August 22, 2019 (officially published), which concerned the Canton of Basel-Stadt, the Federal Supreme Court confirmed and supplemented its previous case law on home schooling. The School Act of the Canton of Basel-Stadt stipulates as requirements for the approval of home schooling that (a) there are documented reasons why attendance of the public school is not possible, (b) private tuition is compatible with the welfare of the child, (c) the quality of the tuition is adequate, (d) the tuition ensures connection to the next educational programme and (e) the respective teacher has a state-approved teaching diploma in the second year of home schooling at the latest. The Canton of Zug has similarly strict requirements for the approval of home schooling, but goes even further than those of the Canton of Basel-Stadt insofar as the teacher must already have a recognised teaching diploma at the start of home schooling.

First, the Federal Supreme Court dealt with the fundamental right to adequate and free primary education derived from Article 19 of the Federal Constitution (BV). In Art. 19 BV, the Federal Constitution only lays down the basic requirements for primary school education. Within this legal framework, the cantons have a wide scope of discretion. The cantons thus decide for themselves whether or not to allow home schooling at all. In any case, however, they must ensure that sufficient primary school education is guaranteed. The Federal Supreme Court confirms its case law on Art. 19 BV and denies any claim to home schooling derived from it. The complainant’s argument that such strict conditions would be accompanied by a de facto ban on home schooling did not find a majority in the Federal Supreme Court.

In the specific case, the complainant also referred to the right to respect of the private and family life derived from Article 13(1) BV. The Federal Supreme Court had not yet examined this question. On the other hand, it has already been decided that, among other things, the parents’ right of education falls under the protection of Article 13( 1 ) of the Federal Constitution. The right of education is a right that is established and limited by the welfare of the child and that is to be exercised fiduciarily in the interest of the child. This means that the parents must arrange their upbringing in such a way that it is good for the child’s personality and development. In the field of education, the parents’ right of upbringing is subject to cantonal school law. The school must provide the child with the skills that will enable him or her to participate in society and in the democratic community. The Federal Supreme Court has stated on several occasions that the obligation to attend school is of major public interest. On the other hand, home schooling can reduce the integration of children or even lead to their complete isolation, which would jeopardise their right to sufficient primary schooling (Article 19 BV). For these reasons, the Federal Supreme Court ruled that even restrictive cantonal regulations on home schooling do not violate the protection of private and family life established in Art. 13 para. 1 BV.

Such a claim cannot be derived from Art. 8 ECHR either. The European Court of Human Rights has itself denied a claim to home schooling based on Article 2 of Additional Protocol 1 of the ECHR, which is not binding for Switzerland.

In the light of this current case law of the Federal Supreme Court, the requirements for home schooling in the Canton of Zug also appear to be permissible and in conformity with the constitution. A claim to home schooling cannot be derived from the Federal Constitution. However, the determination of whether home schooling is possible still depends to a large extent on the circumstances of the individual case. Our specialists will be happy to provide you with further information.

Simon Fricker
Attorney at Law Certified Specialist SBA Employment Law
[email protected]
Philipp Bachmann
Attorney-at-Law, Notary Public, LL.M. Certified Specialist SBA Employment Law
[email protected]

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