In January 2015 (No 2 of 27 January 2015), Current Concerns reported a ruling of the German Federal Constitutional Court in which the communes were granted the right to decide for themselves whether a school was to be closed or not.
The ruling came on the basis of a suit filed by the town of Seifhennersdorf. The district, which includes the town Seifhennersdorf had decided to close down the local secondary school in 2010. The town’s opposition, however, remained unheard. Therefore, the town filed a lawsuit at the competent administrative court in Dresden against the ruling of the district administration aimed at closing down the school. And this court decided to check the school closure and the underlying Education Act with respect to constitutional law before it formed a judgment.
The court stated inter alia: “The administration of primary and secondary schools, which have been regularly organized as independent ‘Elementary Schools’ (ages 6–14) in the past, is a communal task that has historically developed and thus a matter in the authority of the local commune. The tasks associated with the school administration particularly include the decision – usually to be taken by the state’s participation – whether a school is to be built or closed down.”
This judgment has been largely hushed up so far. Nevertheless, the following applies: Following this ruling, all other federal states have to revise their existing legislative and political practice. More than that: There is every reason to think about the necessary consequences resulting from the Constitutional Court’s ruling and about a political culture in Germany, that focuses on the citizens, their will and their living environment.
In our interview, the mayor of the town Seifhennersdorf, Karin Berndt, reports about her experiences in dealing with the authorities of the Free State of Saxony and the background to the dispute over the rights of the commune’s decision when it comes to closing down schools.
Current Concerns: Mrs Berndt, how did it happen that you decided to take legal action?
Karin Berndt: In 2008, our participation in the decision threatened to be withdrawn for the first time.
What does that mean?
The Free State of Saxony cannot simply close down schools, but it may withdraw the “participation” in maintenance when school authorities refuse to give up their school voluntarily. This means that the school will no longer be allocated any teachers, and thus no teaching is possible. The classes or grades may not be formed, and thus the number of pupils enrolling at the school quickly shrinks. Once a school site will be classified as “insecure of continuation”, all promotional aids, such as the money for school refurbishment, will be cancelled. This usually happens when no 40 new pupils enroll! In that case you are in trouble.
How was this number 40 fixed?
It is the legally required number, at present. The Saxon school law requires at least 40 applications for new fifth graders in secondary schools. Especially many rural schools did not reach the necessary quantity and were thus made closure candidates resulting in their trying to poach pupils from each other. The word “school cannibalism” was en vogue, and only a few schools could work peacefully as so-called “safe school sites”. Many schools were given the status “under observation” and constantly had to fear for their existence. Who wants to lose the school site? Everyone can imagine the adverse effects that all this uncertainty and unrest had on education, on the school climate, on teachers and students, and we can report some wretched experience. The secondary school in Seifhennersdorf has been “under observation due to insecure continuation” since 1994.
Through all these years authorities and politicians had known that you cannot decide on school closures from top down, since this is basically only possible by the municipal council’s or town council’s decision. Therefore, the Education Act was amended in 2001. The legislature then shifted the power of decision to close schools onto the district level. Since then, a school network has been established at the district level, and there you find the sites earmarked for closure. The district council decides and the Ministry of Education then approves of the school network (if it meets the requirements). Thus they virtually disenfranchised the communes, undermined their say, and this is why the Constitutional Court in Karlsruhe has to decide now.
This means that since 2001 schools have been closed in Saxony on the basis of an unconstitutional law?
Yes, unfortunately! Of the approximately 1,000 closed schools in Saxony, all primary and secondary schools, the biggest part, was affected. However, since 2002 the “Landtag” has had a legal opinion on its desk expressing doubts about the legality of the amendment of the Education Act. Even then, there was evidence that parts of the Education Act might be inconsistent with the “Grundgesetz” – unfortunately the legal opinion was put into cold storage. Obviously, no one wanted to know about that. During our 2011 lawsuit that we filed against the adverse school network, I learned about this paper. I remember talking to our lawyer, who said, “This has already been said in the ‘Landtag’s legal opinion at the time.” At first that really shocked me: Well-known people in state government, the Ministry of Education and the state parliament as the legislative apparently had knowledge of the illegal character of their actions.
How did things continue in your commune in 2008?
In 2008 and 2009, our running the secondary school in Seifhennersdorf was still tolerated. From 2010 on, the commune’s participation has been withdrawn by the then Ministry of Education and Culture. The town and some parents took action to court against this decision. As of 2011, the number of pupils’ registrations rose again slightly. Without undue influence and constant boycotting we would even have reached the required number of 40 registrations (in 2012, 42 children were enrolled). Finally, after the town had taken the liberty to sue the school network, they agreed that in the case of Seifhennersdorf “measures had to be taken”. So over the years the school conflict has developed beginning in 2009 into a bitter war between the authorities responsible for the maintenance of the school, the town Seifhennersdorf, and the families on the one hand and politicians and authorities of the Free State of Saxony on the other.
When did you decide to go to court?
In 2010. Thanks to the good preparatory work, the administrative court in Dresden, also decided in our favor in the first lawsuit. On 4 August 2010, we received the judgment, ruling that the children were allowed to go to school in Seifhennersdorf beginning on 9 August. We were all too pleased, but only three days later, on the very first day of the first school year, the town literally sank beneath the waves. Like many other places, Seifhennersdorf was devastated by a terrible flood. The damage was huge, a few families had lost everything, home furnishings, clothes, they even had no shoes left. For some pupils, the school year began without any school material, it was bad, the whole place was in a shock, and for many weeks there was nothing but crisis management. In this situation, we got the message: The Ministry of Education and Culture had appealed the case. Christmas and the New Year passed in great worries and constant fear, no one knew how things were going to turn out. Then, the Higher Administrative Court in Bautzen overturned the Dresden decision at the beginning of the year 2011, and suddenly it was said that the children had to go elsewhere after the winter holidays, that is they were allocated to other schools!
The lawyer advised the parents to file a lawsuit against this decision, to represent the interests of their children and to fight back. The town can only sue in the interest of the school’s administration but the children’s interests must be represented by the parents themselves. Thus the parents filed lawsuits as well, for the first time.
About how many parents did so?
For cost reasons, only five families sued. However, they all wrote petitions, organized protest demonstrations and asked politicians for help, and went to the district council and to Parliament. “What will happen with the children now? All that stress is not reasonable – the welfare of children is being damaged!” Those were their messages and criticism. We were all stunned, but none of the responsible politicians reacted. I, as mayor, was accused of “not negotiating on a par”, of rather cooperating with the mob on the streets, instead. This referred to a protest action in front of the Ministry of Education and Culture in which over 200 parents, grandparents and students from Seifhennersdorf participated.
Although the actions of the parents bore little success, there was a happy coincidence. At the time of the dissolution of the 5th grade in Seifhennersdorf and Kreischa (a secondary school also concerned), the Higher Administrative Court had not yet ruled on the parents lawsuits, and therefore the then Minister of Education, Mr Wöller, had to announce in a press statement that the classes were not to be dissolved at half-term and the children were allowed to stay in their schools for the entire school year. That meant rescue for the secondary school in Kreischa.
There was another happy coincidence which allowed you to support parents financially ...
We owe it to the former headmaster, Dr Matitschka, that we have got that far because he had published a remarkable article about the impending closure of schools in our local newspaper in 1999, which helped us unexpectedly to obtain the necessary money. The article was read by Mr Kühnel, a former inhabitant of Seifhennersdorf, who as a child had attended our school and had been living in Grossbott- war near Ludwigsburg in southern Germany ever since 1945. For local affinities, he always had the newspaper sent to him, although he had left the region just after graduating from high school. This article caused him and his wife to spontaneously donate half of their assets to the schools of his former home town of Seifhennersdorf. Thus, the commune was to be enabled to offer the best possible education and the school be spared closure. Mr Kühnel was very grateful because due to a good education he had been able to be an architect. This allowed him to live in prosperity, which he appreciated a lot.
I got to know about it only in 2008, so eight years later, when the Kühnel couple had died and their will was opened by the notary. The surprise was so great that I just could not believe it and suspected a joke on the radio. Of course, you would be happy with any amount and hope for a sum X, but when we learned that all three schools in Seifhennersdorf had inherited 330,000 EUR each, we were all speechless. At that time we had no idea that a large part of this money would have to be used for lawsuits on the school’s continuation. Without this inheritance all our efforts would not have been possible, so we were very, very lucky.
What else was important for your perseverance?
In the first place you need unity in the town council. The main basis was that the town council had always taken decisions in favour of the school confidently and courageously. This requires the community in place, parents and pupils, the many families who, despite negative propaganda, enrolled their children over and over again, and many sympathizers who trusted, helped and donated. Add good lawyers and money! If we had not inherited the money, the suit marathon would not have been affordable. The legal supervisory authority would probably have found ways to protect the town’s budget from such expenditure. For obvious reasons, disciplinary proceedings were initiated against me in 2012, and that way all the details of the school-combat were checked and X-rayed, which has still not been completed.
Did the state of Saxony initiate the proceedings?
The rural district of Görlitz has acted. Probably there were some agreements, just like in case of the action against the “school rebels”. To my surprise, certain structures work perfectly. In former times you would have called them cliques, now they are just networks. The declared intention of the Free State is “Closure of school in Seifhennersdorf!” This message comes over clearly, and any opposition to it should be in vain and must be prevented by almost any means. What has happened here in five years goes far beyond the tolerable and permitted level. It is bad when positions have become entrenched like that, and when nothing but arbitrariness and arrogance of power can be felt.
Thus, for example, the fining authority of the county has litigated a fining system with two to four penalty notes per family against the “school rebel parents”. The parents were accused of truancy. Several consecutive decisions with penalty notes of 528.50 euros and more were supposed to take effect and discipline the parents. The parents litigated against them. During the four days of trial before the district court in Zittau, all decisions were declared illegal not only for their content but also formally. Nevertheless, the families were still seen as lawbreakers, and the children were denied government certificates. Even the Minister of Education publicly called us “disturbers of social peace” during a parliamentary debate.
How did you treat the parents who were intimidated or wanted to give up or could no longer follow the path of action and resistance on other grounds?
Everyone has his own situation either professionally, privately, financially, denominationally and as a supporter of a political party. The policeman, the teacher, the independent dealers, the employed educator, craftsmen and many others. Everyone needs to think out of his own position, what he will do when he or she is asked whether he really wants to enroll his child in the Seifhennersdorf school and whether he has carefully reflected this decision. The message not to support the resisters were partially made very clear to the people. Those who did not want any stress and trouble preventively chose the quiet way. It was even difficult for couples with different opinions whether the child should remain in the rebel class or change to another school. We hope that we managed as good as possible not to bring the people in too great moral conflicts. Any decision of the parents is accepted, even if it is not understood by everyone. It always had to be prevented that conflicts arise in the group. Although some lacking registration or re-registration had bitter consequences, no one was allowed to say reproachfully “You leave us here out in the cold, and when the strain is over, everyone will return happily as if nothing had happened.”
It was always important to me that everyone was responsible for himself and must know what he can cope with. It is just like in a marathon race: A large field starts, but not all runners reach the end. For parents, it was always painful when someone withdrew, could go no further, but that is part of the whole thing. The burden was enormous, permanent doubt, concern for the children, the organization of lessons, permanent press requests, petitions and finding a solution to the problem. No one had the time and energy for a sideshow, or nobody wanted to create additional trouble with internal quarrelling.
How did you summon the strength to carry on?
I am very grateful to my parents and my teachers for a healthy, happy childhood which I was able to enjoy. At the time, agitation and propaganda did not play such a great role as later in the 70s and 80s. We had great teachers, for whom it was just normal to have a good general education and decent education in compliance and good cooperation with parents. We grew up freely, safely, responsibly and self-confident with the best possible educational opportunities. I become increasingly aware of the importance of this foundation for life. Every child has a right to it, and it is our prime duty to provide all children with a decent childhood and quality education for a perfect start in life.
Of course, I am suspicious when I notice deficits and distortions, but I am not allowed to respond. Criticism and a different opinion must be allowed and conflicts should generally be resolved by discussing the matter. I want to be able to believe in democracy and the rule of law and I do not want to be labeled troublemaker, rebel and criminal, as it did happen to us. No one opposed the authorities in civil disobedience, here! Town and parents just demanded their rights with the help of democratically approved means.
Your struggle to decide for the right of the commune to take the dicision could also be a model for many other communes!
Now you are talking about something very important. We have indeed freqently been asked during these five years, Why does it happen this way? Why this hardness, why this exaggerated arbitrariness, why this stubbornness? The wounded ego of an official alone may not be the only reason. Obviously, the signal “resistance is worth it” must not make the rounds, because it represents a threat to consolidated ruling structures. It has always been the case in the history of mankind, no matter what kind of society, what kind of party, what kind of time there was. We have also noticed it in public relations with certain things. Again and again the question: Why is that? Why does no one relent? Why is no compromise to be found? Why this hard stance? We have come again and again to the decisive point.
Many sensational speeches and good weather slogans are hard to bear, once you closely experienced such processes. For example, when in 2011 new 5th grades were stopped and the class that had enrolled in 2010 was dissolved. The Minister of Education announced at the beginning of the school year, he wished that parents would take greater responsibility for the needs of their children. You have to be iron-clad in order to stay calm. However, it was always extremely important to remain factual, polite, kind and correct, and not to lose one’s temper when provoked. Some parents, including the school’s Chairman of the Parents’ Association and Chairman of the Children and Youth Association who had cared so much, fell ill and suffered mentally and physically under these circumstances. The experience has changed us all, I realize even many effects on myself. You really have to be careful that the disappointments and negative experiences do not take too much vitality, power and idealism out of you, but cost “only” time, money and nerves.
Democracy is work, quite hard work from the bottom, and no one should say “I will leave that to others to take care of.” Our people in Eastern Germany have longed for and fought for freedom. Now they have to learn to deal with it and not see it as a one-way street with self-running character. Sometimes you get the impression that what constitutes freedom is hidden. That freedom is not only fun, but means enormous responsibility and hard work. I want to be able to experience and live democracy every day, it is not enough to convince the ever-growing non-voters with their boredom in politics with the argument “After all, we live in a democratic state based on the rule of law!” I grew up with propaganda about the “evil West German imperialist class enemy” or “Socialism wins” and I have felt and experienced the ever-growing doubt. It forms and raises doubt when suddenly patterns occur that are so well-known. The “all-round educated socialist personality” had to internalize, with or without party apprenticeship, what was intended for her, and had to function as conformly as possible and without contradicting. Bold ideas, even rebellious speeches or inconsistent behavior disturbed, endangered socialism and had to be brought “in line”. If disciplinary action unfolded no effect, examples were set. Conformity and line loyalty were rewarded, all dissenters and trouble makers were suspect, and quickly became misfits. Inevitably, this increasing political drill in the GDR destroyed many people’s belief in a just society. Now again worries and fears emerge and force people to protest in the streets, in niches, into resignation and apathy. On the one hand the events surrounding our school conflict are inconsistent with normal, democratic thinking and acting, because the whole thing would have never happened the way it did. On the other hand, one can also consider them a victory of democracy when a judgment based on the rule of law succeed in putting things on their feet again in the end.
Mrs Berndt, thank you very much for the interview. •
(Interview Karl Müller, Klaudia and Tankred Schaer)
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