The Constitutional Ban on Segregation for Private Schools in Germany

Tom Woodward via flickr || Creative Commons

In many European countries, private schools are popular among parents and students alike. Different countries, however, have different government regulations for private schools. In Sweden and England, for example, private supplementary schools are up to one hundred percent government-subsidized and may not therefore charge tuition fees.

Privately owned schools also enjoy a high degree of popularity in Germany. Almost every tenth child goes to a private school. This is understandable as the private school landscape is extremely diverse. There are reform-pedagogical schools which work on Waldorf or Montessori principals. There are bilingual schools or others that place particular value on a good full-time program.

Financing Private Schooling in Germany Is Complicated

The German Constitution guarantees freedom for private schools – comparable to Article 14 (3) of the EU Charter of Fundamental Rights. Especially for private schools, however, there is an important rule to be observed – the ban on segregation (the so called “Sonderungsverbot”).

Private supplementary schools are those which supplement the basic provision of state schools – so essential in primary and secondary education. Such schools may only be authorised (not-withstanding other conditions) if “segregation of students based on the means of parents is not promoted “, according to the wording in article 7 paragraph 4 sentence 3 GG. This guideline is an expression of the constitutional authority’s fundamental interest in an egalitarian school system and a rejection of the formation of closed elites. This ban on segregation is understood as an important component of a transparent education system which provides equal opportunities.

For some time, however, this segregation ban has been construed by some experts in a manner which does not give a central position to equal opportunities. Instead, solutions to solve problems affecting state-run schools have been sought at the expense of private schools. The claim is that the Constitution and the segregation ban contain guidelines on certain models of tuition fees and, in particular, determine an average tuition fee.

Private School Freedom Is Crucial

As private schools are partly supported by the State, they come under the jurisdiction of the Federal States. One hundred percent state funding is usually not the case. Private schools are therefore not required to precisely stick to the curricula of the Federal States. What is required, however, is that students at the end of their school career received an equivalent qualification.

The financial funding from the public sector of teachers’ salaries in private schools makes up only a part of the salaries of teachers in public schools (usually between 70% and 90%). The difference must be made up by the institutions themselves e.g. through raising tuition fees. This is precisely where the current political debate unravels: the question of whether the level of tuition fees leads to the segregation of the students based on the means of their parents and ultimately to a disregard of the constitutional segregation ban.

Last year, a study by the Scientific Centre for Social Research, Berlin (WZB) criticized private supplementary schools for disregarding the mandate of constitutional law. The average tuition fee was allegedly too high in many cases. The authors stated that many families could not afford the fees. The social composition of private students differs significantly from those in public schools, was another assertion. This supposedly leads to the separation of students according to social classes. According to the authors, Michael Wrase and Marcel Helbig, the Federal States thus offend against the Constitution.

In addition, the study stated there is the practice of preferring children of wealthy parents. This assessment sparked a fierce debate; whether private schools may raise fees and whether this would eventually lead to “education islands for the better-off”.

The Friedrich Naumann Foundation for Freedom has commissioned the renowned constitutional expert, Prof. Dr. Frauke Brosius-Gersdorf, LL.M (Leibniz University Hannover) to give a legal opinion that more closely defines the Constitutional Segregation Ban for private schools. According to this opinion, this segregation ban means that private schools must select students regardless of the income and assets of the parents. Tuition fees must be affordable by parents from all income and wealth brackets.

The opinion thus refutes previous discussions which quote article 7 IV 3 GG as giving mandatory specifications for the level of average school fees that can be charged or a particular social composition of the student body in supplementary schools with regard to the means or the professional and educational level of parents.

This also applies when, due to the social impermeability of the education system in Germany, the fact is that more children of parents with a higher income or higher professional education attend private schools than children of parents with lower incomes or lower professional and educational levels.

The assessment asserts that the segregation ban on private schools simply means that they must firstly select students regardless of the income and assets of their parents. Secondly, tuition fees levied must be affordable by parents of all income and wealth brackets. These requirements cover various tuition fee models e.g. consistent tuition fees with a waiver upon application or graded fees based on income and assets. Parents may be required to disclose their income and assets only if they apply for tuition discount.

This opinion is an important contribution to pull the debate on private school freedom away from an ideological “sulking-corner”. It is essential that state schools do their homework. This also involves more pedagogic diversity, reliable organisation of lessons, improved refurbishment of school buildings, concern for teachers and digitalization. Private schools are important supplements to really achieve freedom in education. Whoever wants the best education and to take individual requirements of students and their parents into consideration should not play one against the other.

The Opinion in German

Christine Vrohn