Facts
The Federal Court decision deals with the constitutionality of an amendment to the Compulsory School Act of the Canton of Bern, which allows for the temporary exclusion of students from instruction. The appellants allege a violation of the fundamental right of their children to adequate and free primary education under Art. 19 and Art. 29 para. 2 of the Cantonal Constitution.
The Federal Court first examines the scope of the relevant constitutional provisions. It finds that Art. 19 of the Federal Constitution guarantees an individual entitlement to basic education, while Art. 29 para. 2 of the Cantonal Constitution further establishes a child's right to protection, care and support.
In the case of restrictions on social fundamental rights such as the right to primary education, the provisions on the limitation of fundamental rights under Art. 36 of the Federal Constitution are not directly applicable. Instead, the limits of the entitlement to performance must be developed from the substance of the respective fundamental right, whereby the state remains bound to the core content of the constitutional claim.
Considerations
The Federal Court considers the temporary exclusion from instruction to be generally permissible if it is necessary to maintain orderly school operations and respects the principle of proportionality. It must be observed that the state also has to provide for appropriate care and occupation of the student during the exclusion.
The provision of the Compulsory School Act regulating the…