Facts

Parties and procedural history:

The complainants, a minor girl ([B.] , born 2009) and her father ([A.] ), challenged a retroactive ten-day exclusion of the pupil from in-person lessons, ordered by the school board [S.] /ZH and the District Council of Bülach. The exclusion was imposed after [B.] refused to participate in a school-wide coronavirus outbreak test, despite several infections having occurred at her school. The complaint was initially dismissed by the Administrative Court of the Canton of Zurich, after which the complainants appealed to the Federal Supreme Court.

Details of the facts:

  • Order of the school exclusion: On 7 April 2021, the Department of Education of the Canton of Zurich informed the parents about an outbreak test at [B.] ’s school. In the event of refusal to participate, infection was to be assumed and a temporary exclusion from in-person lessons ordered. Since [B.] refused the test, she was excluded from attending school from 9 April 2021 for ten days.
  • Legal steps taken by the complainants: On 15 April 2021, [A.] requested in writing that his daughter be granted access to school without testing. The District Council of Bülach did not entertain an appeal with a decision of 11 August 2021, as [B.] was not entitled to lodge an appeal independently. The Administrative Court set aside this decision and referred the matter back. The District Council of Bülach dismissed the appeal on 13 April 2022. The Administrative Court of Zurich confirmed this with a judgment of 13 September 2022.
  • Federal Supreme Court appeal: On 20 October 2022, the complainants filed an appeal in public-law matters with the Federal Supreme Court and requested that the judgment of the Administrative Court be set aside. They alleged, in particular, violations of the right to a hearing (Art. 29 para. 2 Cst.), the principle of personal responsibility (Art. 6 Cst.) and the right to adequate and free primary education (Art. 19 Cst.).

Considerations

1. Admissibility of the appeal:

The Federal Supreme Court first examined the admissibility of the appeal. It found that the contested judgment was a final decision in a public-law matter and thus subject to an appeal in public-law matters (Art. 82 lit. a, Art. 83 e contrario, Art. 86 para. 1 lit. d, Art. 90 FSCA). Complainant [B.] had participated in the cantonal proceedings as a party and was particularly affected in her protectable interests by the judgment, so she was entitled to file the appeal (Art. 89 para. 1 FSCA). [A.] was also entitled, as the holder of parental authority, to represent his daughter and could file the appeal in his own name. Although the complainants no longer had a current legal interest in protection, the Federal Supreme Court waived this requirement exceptionally, as the legal questions raised were of fundamental importance and could arise again at any time (cf. BGE 147 I 478 para. 2.2).

2. Duty to state grounds and substantiate:

The Federal Supreme Court recalled that it applies federal law ex officio (Art. 106 para. 1 FSCA), while it only reviews cantonal law for arbitrariness (Art. 106 para. 2 FSCA). The complainants therefore had to clearly and in detail set out the alleged violations of fundamental rights. Insofar as they invoked a violation of the right to a hearing (Art. 29 para. 2 Cst.), the Federal Supreme Court held that any such violation had been cured, as the complainants had been able to submit written comments before the contested decision was issued and had again been given the opportunity to be heard in the subsequent instances (cf. BGE 142 II 218 para. 2.8.1).

3. Examination of the principle of personal responsibility (Art. 6 Cst.):

The complainants argued that the contested judgment violated the principle of personal responsibility enshrined in Art. 6 Cst. The Federal Supreme Court held that Art. 6 Cst. had previously been invoked only sporadically as an aid to interpretation and does not create any concrete individual claims against the state. It rejected the derivation of a right of parents to decide for themselves on the school attendance of their sick child, particularly since such conduct could expose third parties to a risk of infection. Instead, the provision serves as a fundamental values article and may be used as an aid to interpretation for other constitutional norms (cf. HÄBERLE, Basler Kommentar Cst., no. 12 on Art. 6 Cst.).

4. Examination of the right to primary education (Art. 19 Cst.):

The right to adequate and free primary education (Art. 19 Cst.) was identified as the central subject of examination. The Federal Supreme Court recalled that this right is violated if the child’s education is restricted to such an extent that equal opportunities are no longer ensured or indispensable teaching content is not conveyed (cf. BGE 144 I 1 para. 2.2). The temporary school exclusion constituted an interference with this right, so it had to be examined whether this interference was constitutional. To this end, the Federal Supreme Court applied the requirements of Art. 36 Cst. by analogy: legal basis, overriding public interest and proportionality.

5. Constitutionality of the school exclusion:

a) Legal basis: The Federal Supreme Court confirmed that the school exclusion could be based on Art. 38 para. 1 EpidA, as [B.] was considered a person suspected of being infected. A person is considered suspected of being infected if there are indications that they are infected with pathogens without being ill or suspected of being ill (cf. Dispatch on the EpidA, FF 2011 311 ff., p. 452). The lower court had found that several infections had…