Facts

Parties and procedural history:

The complainant [A.] (born 2015) is a child with early childhood autism who has been accompanied by the Heilpädagogischer Früherziehungsdienst [U.] /LU since March 2018. In March 2019, he attended a small playgroup and from that time participated in the Kita Plus programme at Kita [D.] . From summer 2020, he attended the Montessori children’s house [U.] /LU, also with the Kita Plus programme.

On 28 January 2021, the headteacher of school [E.] , with the parents’ consent, applied for the complainant’s external special schooling due to a special schooling need in the area of “behaviour and socio-emotional development: diagnosed autism spectrum disorder”. On 4 March 2021, the Department of Compulsory Education of the Canton of Lucerne ordered external special schooling at the Heilpädagogische Schule [U.] /LU for the period from 1 August 2021 to 31 July 2023, based on a special schooling need in the area of “cognitive development (complex needs)”.

The complainant filed an appeal against this order with the Department of Education and Culture of the Canton of Lucerne on 27 March 2021, seeking integrative special schooling in the mainstream school with disability-related support and assistance. The appeal was dismissed on 12 August 2021. The Lucerne Cantonal Court confirmed the separative special schooling at the Heilpädagogische Schule [U.] /LU in a judgment dated 9 March 2022.

With an appeal in public law matters on 2 May 2022, the complainant appealed to the Federal Supreme Court. He sought the annulment of the contested decision and an order for integrative special schooling in the mainstream school at his place of residence until 31 July 2023. In the alternative, he requested assignment to the ASS learning workshop in [V.] /LU or referral back to the lower court. He also sought the granting of suspensive effect and the obtaining of an expert report from the Autism Specialist Service of the Canton of Lucerne or another specialist body, as well as a specialist report from the Swiss Federal Bureau for the Equality of People with Disabilities.

The Federal Supreme Court rejected the application for suspensive effect in a ruling dated 25 May 2022. In the course of the hearing, both the Cantonal Court and the Department of Education and Culture requested the dismissal of the appeal.

Considerations

1. Admissibility of the appeal:

The Federal Supreme Court admitted the appeal since the contested judgment of the Lucerne Cantonal Court dated 9 March 2022 was a cantonal final decision in a matter of public law (Art. 86 para. 1 lit. d FSCA). The complainant had a legitimate interest in the review of the decision, as the separative special schooling in dispute was ordered until 31 July 2023. The appeal was filed in due time and form (Art. 100 para. 1, Art. 42 FSCA).

2. Review standard and duty to raise objections:

The Federal Supreme Court examined the appeal for violations of federal and international law as well as inter-cantonal law (Art. 95 lit. a, b and e FSCA). It applied the law ex officio (Art. 106 para. 1 FSCA), but limited itself to the submissions made, unless there were obvious legal deficiencies. It reviewed the application of cantonal law only for arbitrariness (Art. 9 Cst.).

3. Principles governing special schooling:

The Federal Supreme Court recalled the international and constitutional principles governing special schooling, in particular the priority of integrative special schooling pursuant to Art. 24 CRPD, Art. 8 para. 2 Cst., Art. 19 in conjunction with Art. 62 Cst. and Art. 20 DDA. This priority is not absolute: separative special schooling is justified if the child’s needs cannot be met through additional support in mainstream education. The best interests of the child are decisive (Art. 3 CRC). The cantons have a margin of discretion, which is however limited by the principle of proportionality and the prohibition of discrimination.

4. Right to be heard (Art. 29 para. 2 Cst.):

The complainant alleged a violation of the right to be heard, claiming that the lower court had not sufficiently addressed his submissions regarding integrative special schooling, intelligence diagnostics and the deficiencies in the school psychological report. The Federal Supreme Court found no violation of the right to be heard, as the lower court had examined the decisive points and sufficiently substantiated its decision. In particular, it had addressed the question of whether separative special schooling corresponded to the complainant’s needs, taking into account the principle of the priority of integrative special schooling.

5. Establishment of facts and assessment of evidence:

The complainant alleged arbitrary establishment of facts and assessment of evidence, in particular regarding cognitive performance and individual support needs. The Federal Supreme Court found no arbitrariness, as the lower court could base its…