Facts

Parties and procedural history:

The complainant [A.A.] (born 2014) has Down syndrome and additional health impairments (congenital heart defect, visual impairment, speech disorder). From the 2019/2020 school year, he attended kindergarten for three years with support from a classroom assistant, low-vision support, and speech therapy. On 29 March 2022, the school board of the school district [U.] /SG ordered the complainant’s special schooling at the special school "[D.] " starting from the 2022/2023 school year for a provisional period of two years. The complainant, represented by his parents, appealed against this decision. The Education Council of the Canton of St. Gallen and the Administrative Court of the Canton of St. Gallen dismissed the legal remedies. With a public-law appeal dated 24 April 2023, the complainant appealed to the Federal Supreme Court and requested the annulment of the contested decision and the ordering of inclusive schooling in a regular class.

Development of the facts:

In the 2022/2023 school year, the complainant was provisionally enrolled in a regular class. With a ruling dated 16 May 2023, the request for suspensive effect for the 2022/2023 school year was granted, but denied for the 2023/2024 school year. With a ruling dated 13 July 2023, suspensive effect was also granted for the 2023/2024 school year and precautionary support measures were ordered. The Federal Supreme Court held a public hearing on 29 September 2023.

Considerations

1. Admissibility of the appeal:

The Federal Supreme Court reviews the contested decision of the Administrative Court of the Canton of St. Gallen of 2 March 2023 as the final decision at last instance in a public-law matter (Art. 86 para. 1 lit. d FSCA). The appeal is admissible since the complainant, as holder of parental authority pursuant to Art. 304 para. 1 CC, is entitled to representation and has a legitimate interest in the review of the decision. The appeal was filed in due time and form (Art. 100 para. 1, Art. 42 FSCA).

2. Review standard and binding effect of the facts:

The Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA) and reviews only the arguments raised, unless there are obvious deficiencies. The interpretation and application of cantonal law is reviewed only for arbitrariness (Art. 106 para. 2 FSCA). The facts are based on the findings of the lower court (Art. 105 para. 1 FSCA). New evidence is admissible only if it was prompted by the decision of the lower court (Art. 99 para. 1 FSCA). The reports and statements newly submitted by the complainant were qualified as inadmissible novae since they could either have been presented in the cantonal proceedings or were created after the lower court judgment.

3. Federal legal bases for special schooling:

The Federal Supreme Court explains the constitutional and international law bases for special schooling: Art. 24 CRPD (right to inclusive education), Art. 8 para. 2 Cst. (prohibition of discrimination), Art. 19 Cst. (right to adequate primary education) and Art. 62 para. 3 Cst. (cantonal obligation to provide special schooling). The DDA specifies these requirements and provides in Art. 20 para. 2 DDA for a preference for inclusive special schooling, provided this serves the best interests of the child and is feasible. The cantons have a margin of discretion but must comply with the minimum federal standards. Separative special schooling is justified only if the necessary support measures cannot be implemented in regular schools and this is required for the best interests of the child.

4. Review of the legality of separative…