Exclusion of a pupil from in-person classes due to refusal to participate in an outbreak test during the COVID-19 pandemic

Facts

Parties and procedural history: The complainant [A.] , father and holder of parental authority over his minor daughter [B.] , contests the temporary exclusion of his daughter from in-person classes ordered by the School Board of [U.] for a period of ten days (29 March to 7 April 2021) due to her refusal to participate in a COVID-19 outbreak test mandated by the school authorities. The lower courts – the District Council of [V.] and the Administrative Court of the Canton of Zurich (4th Division) – dismissed the complainant’s appeals. The complainant filed an appeal against the Administrative Court’s judgment of 25 November 2021 with the Federal Supreme Court on 27 January 2022.

Details of the facts:

In March 2021, four COVID-19 infections occurred in two different classes at the Primary School Zentrum in [U.] , including one in [B.] ’s class. The cantonal medical service ordered an outbreak testing for all teachers and pupils on 25 March 2021, scheduled for 26 March 2021 as a “saliva-spit test.” Parents were informed that refusal to participate would be deemed an indication of infection and that a temporary exclusion from in-person classes for the duration of quarantine would be imposed as an alternative measure. As [B.] ’s parents refused to have their daughter tested, the girl was excluded from school classes from 29 March 2021 for ten days. The School Board partially confirmed this decision retroactively on 31 March 2021.

The complainant challenged before the lower courts and now before the Federal Supreme Court, in particular, violations of the right to be heard, incomplete findings of fact, and the lack of a legal basis for the school exclusion. Among other things, he argued that the testing order had not been issued by the cantonal medical service, that PCR tests were unreliable, and that the infections had occurred externally (e.g., at a football event). He further contended that the proportionality of the school exclusion had not been observed, as milder measures (e.g., testing by the family doctor) had not been possible.

Considerations

Admissibility of the appeal: The Federal Supreme Court accepts the appeal even though the complainant’s current interest in having the school exclusion lifted has ceased to exist. This is a matter of fundamental public interest that may arise again at any time. The complainant is entitled to represent his daughter as the holder of parental authority (Art. 304 para. 1 CC). The appeal was filed in due time and form (Art. 42, 100 para. 1 FSCA).

Obligation to raise objections and scope of review: The complainant must explicitly and sufficiently substantiate any violations of fundamental rights or cantonal law (Art. 106 para. 2 FSCA). The Federal Supreme Court reviews the application of cantonal law only for arbitrariness. The factual findings of the lower court are binding on the Federal Supreme Court unless they are manifestly incorrect or arbitrary (Art. 105 para. 1 FSCA).

Right to be heard and assessment of facts: The lower court examined the complainant’s objections – in particular regarding the specificity of PCR tests and the origin of the testing order – and, referring to the scientific knowledge available at the time (including that of the Swiss National COVID-19 Science Task Force) and the finding that there were no indications of incorrect test results, dismissed them as unfounded. The complainant did not substantiate why this assessment should be considered arbitrary. His criticism of the failure to consider an expert opinion by Dr. med. Pietro Vernazza is irrelevant, as this opinion was not expressly raised in the appeal to the lower court. Moreover, whether the infections had occurred internally or externally was not decisive for the ordering of the outbreak tests, as these served to protect the school community and maintain school operations.

Legal basis for the school exclusion: The temporary school exclusion is based on Art. 38 para. 1 EpidA, which provides for measures against persons 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 (Message on the EpidA, FF 2011 311 ff., p.…