Schools can take away freedom of speech

education

Joachim Wieland

Prof. Dr. Joachim Wieland, Chair for Public Law, Finance and Tax Law, German University for Administrative Sciences Speyer

There is currently intense discussion about expressions of opinion in school. What is and what is not covered by the fundamental right of freedom of expression? Which statements must and when should a teacher intervene? A clarification of the legal situation with many case studies.

A teacher discusses with students in a classroom. (& copy picture-alliance, PhotoAlto)

The problem

Teachers should not do politics in class, but should be neutral in terms of party politics. At the same time, they should always stand up for the free and democratic basic order that is anchored in the Basic Law. Like schoolchildren, teachers can also invoke the fundamental right to freedom of expression. When pupils express themselves politically in school, teachers may be required to react pedagogically. What framework does the legal system provide in this regard?

The legal framework

1. The civil service law
The civil service law obliges teachers to carry out their tasks impartially and to commit themselves to the free-democratic basic order in the sense of the Basic Law through their entire behavior and to advocate its preservation. If teachers are politically active, they must maintain the moderation and restraint that results from their position vis-à-vis the general public and from consideration of the duties of their office (Section 33 Civil Service Status Act).

Teachers are not allowed to engage in party politics either in class or outside of class. You are committed to loyalty to the constitution, so you have to actively campaign for the constitution and its values. According to the case law of the Federal Constitutional Court, the obligation extends to the entire applicable constitutional order, also insofar as provisions of the Basic Law can be redesigned by way of constitutional amendments. A mere verbal affirmation of the constitutional value system is not enough. Rather, the teaching office must be carried out in accordance with the spirit of the constitution. Essentially the same applies to salaried teachers.

2. The school law
School law aims in the same direction, although the wording differs in the individual countries, but is essentially the same in all countries. The following illustration is based on the School Act of the State of North Rhine-Westphalia (SchulG NW). However, the results can be transferred to other countries.

School lessons and school education are based on the Basic Law and the state constitution, in particular their educational and upbringing goals. Educational and upbringing goals are respect for human dignity and the willingness to act socially. The upbringing should take place in the spirit of humanity, democracy and freedom, but also in love for the people and homeland, as well as for the international community and the spirit of peace, and lead to respect for the convictions of the other (Art. 7 state constitution of North Rhine-Westphalia). Schoolchildren should be enabled to take part in political life. They should learn to express their own opinion and to respect the opinion of others, to meet people of different origins without prejudice, to stand up for a non-discriminatory coexistence and for democracy and to understand the basic norms of the constitution.

The school maintains openness and tolerance. It respects different views within the framework of the free and democratic basic order. Schoolchildren must not be influenced one-sidedly. Teachers are not allowed to make any political statements in school that endanger or disrupt the neutrality of the country towards pupils and parents or the political peace at school. Behavior that gives the impression that teachers are acting against the free and democratic basic order is not permitted (§ 2 SchulG NW).

3. The fundamental rights
Teachers and pupils can also invoke their basic rights in school. This applies in particular to the fundamental right to freedom of expression. The civil service law and the school law restrict the fundamental right of freedom of expression permissible. With this restriction, however, the great importance of freedom of expression must be taken into account. The restrictions must be strictly proportionate. In particular, this means that they must be reasonable for both teachers and students.

4. An intermediate result
Teachers, like pupils, can invoke the fundamental right to freedom of expression. However, the use of fundamental rights is restricted by official law and school law. According to civil service law, teachers are obliged to carry out their duties impartially, to admit to the free-democratic basic order in the sense of the Basic Law through their entire behavior and to advocate the preservation of this basic order. School law obliges teachers and their students to educate and educate them in the spirit of the constitution. In this respect, the freedom of expression of teachers and students is restricted.

The implications

1. Situation with the teacher in class on the subject of the EU and its external borders
  1. One schoolgirl says "jokingly": "Germany is actually much bigger than on the map, the borders from before 1945 are also part of it."
    The teacher must point out to the pupil that, according to the preamble of the Basic Law, the reunification of Germany will be complete. Areas outside the territory of the Federal Republic of Germany therefore do not belong to Germany within the meaning of the constitution. With such a notice, a teacher fulfills the duty to advocate the entire applicable constitutional order.

  2. Shortly after the end of the class, a pupil shows the Hitler salute in the classroom.
    Showing the Hitler salute is punishable according to § 86a StGB (use of symbols of unconstitutional organizations), even if it is not intended to express a commitment to National Socialism. According to the case law of the Federal Constitutional Court, the freedom of expression of the pupils is restricted in a permissible manner. Since showing the Hitler salute is no longer within the framework of the liberal-democratic basic order, but is punishable as a threat to the democratic constitutional state, teachers are no longer allowed to respect behavior as a mere different point of view, but must actively promote the constitution and its values start when the behavior takes place on the premises of the school, even if the lesson has already ended.
2. Situation with the teacher in class, discussion on the subject of "Asylum / Migration"
  1. A student demands: "Germans first! Our social security system should always give preference to Germans".
    The demand that our social security system should generally give preference to Germans is within the scope of freedom of expression. Social insurance is based on the principle of solidarity and makes insurance benefits dependent on the payment of contributions. Foreigners and refugees are therefore not automatically entitled to social security benefits. However, teachers should point out that the constitution's guarantee of human dignity guarantees everyone a subsistence level. This requires respect for human dignity.

  2. One student claims: "Foreigners are too lazy to work and just want to pull our money out of our pockets".
    The pupils should learn to meet people of different origins without prejudice. Teachers are therefore obliged to act in response to such xenophobic statements that are no longer covered by freedom of expression in schools. They have to convey to the pupils that foreigners are also entitled to respect like Germans and that the free order of the constitution does not cover any remarks that are defamatory.

  3. A schoolgirl draws conclusions from someone she knows: "Refugees are actually rich, you can see that on the smartphone that XY has".
    The statement that refugees are actually all rich, as can be seen from the example of one person, should still be covered by freedom of expression, but gives teachers cause for an educational reaction in the sense of the school's mandate to meet people of different origins without prejudice . It should become clear that such generalizations, especially with regard to refugees, represent prejudices that have nothing to do with the reality of life.

  4. Schoolchildren refer to a case known to them and conclude on all of them: "Foreigners are all criminals, as the case in asylum seekers home XY last week showed".
    This statement is on the verge of defamation and should not be punishable only because the offended group of foreigners is not clear. A pedagogical reaction is required regardless of the (lack of) criminal liability of the statement, because the pupils should learn to meet people of different origins without prejudice.
3. Expressions of opinion in the classroom by teachers or students
  1. One teacher is of the opinion: "You have to help people in need, even if you break the law, and that is why you have to take refugees on the ships in the Mediterranean off Malta, for example."
    Expressing the opinion that you have to help people in need, even if you break the law, is in principle covered by the teachers' freedom of expression. However, the teachers' freedom of expression finds its limit where civil disobedience is advocated through illegal behavior. Such an endorsement violates the requirement of moderation and restraint, especially since the Basic Law obliges all public officials to observe the law and justice. It would only be different if civil disobedience was dealt with as an ethical and legal problem in consideration of the arguments of supporters and opponents and not reduced to a bold statement.

  2. A student wears a button from party XY and says: "I think party XY is great".
    Students' commitment to a political party is covered by their freedom of expression and corresponds to the school's mission to enable students to participate in political life. Only if political school peace were seriously jeopardized in individual cases would teachers have to react pedagogically and work out the importance of freedom of expression and respect for the opinion of others.

  3. A teacher says: "I think the XY party is great".
    Teachers must perform their duties impartially and are not allowed to make any political statements in school that endanger the neutrality of the country. In this respect, their freedom of expression is restricted. Therefore, to say that a political party is great would be a violation of its official duties.

  4. One student: "I think Party XY should be banned because it railed against foreigners and stirs up insecurity".
    The statement is covered by the freedom of expression of the students. Teachers, however, must not leave them uncommented, but must stand up for the preservation of the constitution in such a way that a party ban is not permitted in the event of a bet against foreigners, but only if the abolition of the central basic principles of the free democratic basic order such as the guarantee Human dignity and the principle of the democratic constitutional state are strived for.

  5. One teacher: "Party XY should be banned because it railed against Islam".
    The statement violates the civil service requirement of political moderation and restraint. In addition, the weather against Islam is not enough for a political party to be banned.

  6. One student: "You don't need several parties, a well-positioned party is enough and the opposition has too many rights in general
    In response to this statement, teachers have to explain to the students that a parliamentary democracy is based on a multi-party system and on the division of tasks between the government and the opposition. This dictates their duty to stand up for the preservation of the free and democratic basic order.
3. Expressions of opinion in the school yard
  1. A schoolgirl loudly expresses her preference for a certain type of music that is clearly directed against foreigners, refugees or asylum seekers.
    Such statements by pupils require a reaction from the teachers who should enable pupils to meet people of different origins without prejudice and to respect the dignity of all people.

  2. A teacher hears insults from the students among each other using terms such as "Jew", "gay" or "disabled".
    In this respect, too, a pedagogical reaction of the teachers towards the pupils from the under a. mentioned reasons.

  3. A group of schoolchildren wears jackets that can be assigned to an extreme political direction.
    Wearing the jackets is to be accepted as an expression of the pupils' freedom of expression, as long as they do not stand for opinions that are incompatible with the free and democratic basic order and / or endanger the peace at school. A pedagogical reaction towards the pupils to reinforce tolerance and to stand up for the free-democratic basic order is indicated. The decisive factor for the teachers' reaction is whether the jackets represent political views that are extreme but not yet anti-constitutional. If wearing the jackets expresses anti-constitutional convictions, teachers must advocate the preservation of the free and democratic basic order vis-à-vis the pupils.

Source text

For information: The "Beutelsbach Consensus" in political education

The "Beutelsbach Consensus" of 1977 is still the guideline for political education offers. That means: The "prohibition of overcoming" (rejection of any indoctrination), the controversial requirement regarding the content in educational work (what is controversial in science and politics must also be treated controversially in learning) and the principle of the ability to judge (the participants pursue an independent interest in the educational process and represent their interests in the learning process independently).

The Beutelsbach Consensus does not stand for arbitrariness, but was written in the spirit of wanting to strengthen democracy. In this respect, it does not mean a political "imperative of neutrality" in the sense that anti-democratic opinions would also have equal priority - especially not when dealing with young people. The attachment to values ​​as well as the social and political challenges make resolute advocacy for democracy, human rights and the constitutional order of the Federal Republic of Germany indispensable.

Source: Publication "Learning for Social Democracy" by the Friedrich Ebert Foundation

This article first appeared as a background paper on "Political Education in Schools" in the educational policy portal of the Friedrich-Ebert-Stiftung. It can be found here.