Communes have a right to schools

German Federal Constitutional Court strengthens communal self-government

by Karl Müller

Seifhennersdorf in the district Görlitz is a commune in Saxonian Upper Lusatia, located about 50 kilometers south of Bautzen directly on the German-Czech border. Since GDR’s accession to the area of application of the West German “Grundgesetz” (German Basic Law) the place has lost many residents. There once were 8,000, today there are still about 4,300. On 7 November 2014 the “Badische Zeitung” from Baden Freiburg even headlined: “Seifhennersdorf to be the unhappiest place in Saxony”. The report explains: “The Mayoress shares the fate of many mayors on the eastern edge of East Germany. She has to struggle with dark powers [...]. There are quiet forces at work being able to inexorably strangle a place. Young people and families move away, children and adolescents are missing, more and more old people needing help remain. The purchasing power gets less, shops and supermarkets just opened are not able to survive any longer. The culture withers, houses and land prices fall. A place is getting poor. And in Saxony since 1990, this is accompanied by a policy, which, devoid of imagination, drastically cuts spending additionally to the shrinking in the countryside. [...] Since 1990, Saxony closed over a thousand schools, also Seifhennersdorf was affected. Mayoress Berndt faught against it to the very end, now also her secundary school is vacant. Her action against the Saxon school plan is still pending before the Federal Constitutional Court. ‘Let’s see’, she says.”

The highest German court gives justice to Saxon commune of Seifhennersdorf

Visitors to the place speak of the citizens’ high degree of self-confidence and the courage of their mayoress. Since 19 November 2014, they wrote an important piece of German federal legal history. For on that day, the German Federal Constitutional Court (2BvL 2/13) declared the Saxony Education Act unconstitutional as well as the therein prescribed school network planning at district-level for the primary and secondary schools in the country and granted “effective co-decision rights” to the communes as school authorities. The summaries of the judgment say: “As historically evolved municipal responsibility, the trusteeship for primary and secondary schools, being regularly organized in the past as independent ‘elementary schools’, is a matter of the local community. The tasks, associated with the trusteeship for schools, especially include the decision – usually to be taken by participation of the state – to establish or to close a school.”
The Federal Constitutional Court had to decide on a bill of the Dresden Administrative Court. The latter had responded to a complaint submitted by the commune of Seifhennersdorf in March 2011, whose secondary school – in Saxony in addition to “Gymnasium” there is only the secondary school as a type of school for higher education after primary school – was to be closed, due to a supposedly too low number of students, however, against the wishes of the community. The Education Act had authorized the districts of the country, thus the level of government above that of the communes, to decide in so-called school network plans what schools are to be maintained and which are to be closed. The municipalities and communes had no co-decision rights at it.
The district, to which the commune of Seifhennersdorf belongs, had decided in 2010 to close the secondary school in the place. The commune’s opposition, however, remained unheard. It therefore addressed a complaint to the competent administrative court in Dresden. And this court had decided to have the Education Act, underlying the school closure, constitutionally reviewed before ruling on the commune’s complaint.

Tradition of communal self-government

Communal self-government – you may compare it to the Swiss communal liberty or communal autonomy – has a long tradition in Germany. It emanated from the Prussian reformers in the early 19th century. The mentor was Heinrich Friedrich Karl Freiherr vom und zum Stein. After the Nazi dictatorship, the cooptation of all levels of government and the centralization of political power, the authors of the West German “Grundgesetz” considered it as top priority, to prevent renewed concentration of authority in the hands of a few and to build the new state as decentralized and citizen-orientated as possible.The establishment of communal self-government in Article 28 of the new Constitution served this purpose: “The communes must be guaranteed the right to regulate all local affairs in their own responsibility within the framework of the law.”
It was underlined after the war that the right for communes to govern themselves is  closely related to active citizenship. For example, in Baden-Wuerttemberg the special adviser for communal law, electoral law, schools and special purpose associations to the “Gemeindetag Baden-Wuerttemberg” (Association of Baden-Wuerttemberg’s Communes) wrote in the association’s journal Die Gemeinde (BWGZ 12/2009): “The constitution of the communes is the manifestation of the constitutionally guaranteed self-government. Self-government – what  is that? The idea is that the citizens of the local community should take on responsibility to solve their affairs themselves. Civic responsibility is the linchpin of communal self-government. Citizens who commit themselves beyond the narrow circle of their families are also unrenouncable for a democratic society. The following core phrase from the communal code illustrates this: ‘The responsible participation in the civic administration of the commune is the right and duty of the citizen’ – § 1 para 3 Communal Code .” And in June 2014, it is said in the journal Die Gemeinde (BWGZ 11- 12/2014): “Citizens’ initiative and referendum are essential elements of the Baden-Wuerttemberg communal constitution and a normal procedure in Baden-Wuerttemberg. The Fathers of the Baden-Wuerttemberg Communal  Code have deliberately decided that. They wanted to stress the basic principle of communal self-administration, namely civic responsibility, and to revive  the interest of the citizens in their commune and its administration.”
In practice, these rights of communes and their citizens have often been questioned in recent decades. But with its judgement of November last year, the Federal Constitutional Court strengthened the communal autonomy under Article 28 of the German “Grundgesetz“ and highlighted its key importance in the political system of the Federal Republic  impressively. And the local school sponsorship and the consequent rights of communes and their citizens have been evaluated as an integral part of the right to communal self-government.

The judgement is significant for all German states – even for Baden-Wuerttemberg

Following this judgement, all other federal states have to review their existing legislative and political practice. Also Baden-Wuerttemberg which is situated adjacent to Switzerland. Here, the method of regional school development is on the test bench. The Parliament of the state had modified the legal provisions of the regional education law on 22 May 2014, with an act to amend the Education Act, after the Ministry of Culture had previously ruled and even since then declared explicitly, the goal was “powerful and efficient school locations”, one wanted to avoid “shrinking school locations in the future.”
However, an “effective co-decision power” of school boards in the planned closures of schools, as it was specified by the Federal Constitutional Court, is not  provided. On the contrary, the notified laws from May 2014 lay out well-defined minimum number of students and invited local communes in case of failure to achieve the minimum number of students to modify regional school reform – which  means to achieve an agreement with the communes of the region, which schools will be rebuilt, which will be confirmed and which are to be closed – and determines that the school in case of refusal or failure to achieve the minimum number of students in the first classes twice in a row, will be closed by the Ministry of Culture. This mainly affects the school boards of secondary schools in the country.
This intervention in the right of local self-government can not hide the fact that the newly established regional school development emanates from the communes merely pro forma; for as soon as the number of students required by law falls below the minimum, in case the communes involved fail to agree in the following discussions – which is not unlikely, since no commune wants to give up its own school – the Ministry of Education will make the final decision – without any “effective co-decision right” of the affected community.

A judgement against centralisation and economisation of schools

Politically, the regional school development in Baden-Wuerttemberg – as in all German states – is another step towards more centralization, towards the so-called two-pillar model in the school system. The aim is to have only one type of school for all students and all levels beside the Gymnasium. Deliberately large units are to be created, the deliberate intention is to have students in the schools as diverse, as heterogeneous as possible. The result: In large units human relationships suffer, lessons given by teachers in a classroom community is made impossible. Economic arguments play a central role in this endeavor, as well in Baden-Wuerttemberg. Here as well, the state government wants to save money in the field of education. The OECD  made the respective specifications  years ago. The state is demanded to economise in education and in healthcare. In the summer of  2013, the Minister-President of the country, Winfried Kretschmann from the Green Party, commented on the strained financial situation of the country, claiming, that for this reason the planned “education reform” should be speeded up.

The alternative: Promoting the welfare of the residents and preserving the local historic character

The Federal Constitutional Court now  rejected this argument. Instead, it phrased, “guaranteeing local self-government is an expression of the constitutional decision for a decentralized administration supported by the citizens. [...] The concept of self-government [...] is significantly marked by the principle of participation. According to its intention communal self-government means to activate all parties for their own affairs which assembles all parties of the local community to fulfill their public functions independently, with the aim to promote the welfare of their residents and to preserve the local and historic character.”
The Court does not accept the assertion that the state should manage the tasks itself since the communes were lacking the money. Instead, it judges that “in order to identify the public affairs of the local community it is not important whether the administrative power of a municipality will be sufficient to cope with the task. The relevant question is whether a task in communal responsibility can be mastered in an appropriate way, that serves the specific interests of the residents and also whether other municipal functions can be carried out. Also, the financial strength of individual communes does not influence fundamentally the identification of  local communal affairs; in fact, according to article 28 paragraph 2 sentence 3 of the ‘German Grundgesetz’ (GG) the state has to provide the communes – as the case may be – with the resources needed to perform their tasks.”

Economic considerations have to be subordinated to political and democratic ones

“Efficiency” can not be the only yardstick, so the Court judges elsewhere. Instead,  the Federal Constitutional Court rules, that “the legislature has to bring conflicting interests of administrative efficiency and closeness to citizens to a reasonable balance.” Only for the sake of the common good, the legislative may take local tasks away from the communes. “The mere aim to simplify administration, or to concentrate jurisdiction – in the sense of making public administration clearer – is excluded as a justification for withdrawing a task [...].” The Constitution contrasts “economic considerations with the political-democratic aspect of the participation of local citizens in fulfilling their communal tasks and gives preference to the latter.”
Seifhennersdorf has fought for the preservation of its secondary school since 2010. Prior to the Court’s judgement the affected school was on the verge of collapse. All the commune’s efforts to preserve their school, despite the number of students falling below the minimum required by law, was opposed by the state government of Saxony and the authorities (parents themselves had organized the lessons for their children in the 5th and 6th class for two years by winning over retired and freelance teachers; parents even planned the establishment of a private school in order to enable their children to continue attending a local school). The citizens’ last hope in the small Saxon village was the Federal Constitutional Court.
On 14 April 2014, the Berlin “Tageszeitung” quoted the mayor’s position, “Karin Berndt went to the Administrative Court in the name of the commune to object to  the closure [of the school]. Why should children be sent across villages when there is a healthy school here? Why should they freeze at bus stops? Why waste lifetime in buses? Anyway, the school buildings belong to the communes, they are the owners – owners who have no say, because they are passed over in the decision to close the school. In short: the communes may pay for their schools, but they do not have a voice – an offense against the principle of local self-government.”
According to the judgement of the Federal Constitutional Court this has to change now – not only in Seifhennersdorf.     •

“As historically evolved municipal responsibility, the trusteeship for primary and secondary schools, being regularly organized in the past as independent ‘Elementary Schools’, is a matter of the local community. The tasks, associated with the trusteeship for schools, especially include the decision – usually to be taken with the participation of the state – whether to establish or to close a school.”

From the judgement of the Constitutional Court

“According to its intention communal self-government means to activate all parties for their own affairs which assembles all parties of the local community to fulfill their public functions independently, with the aim to promote the welfare of their residents and to preserve the local and historic character.”

From the judgement of the Constitutional Court