Facts
Parties and procedural history:
The complainants [A.], [B.] and [C.] filed an appeal against the resolutions of the City Parliament of the political municipality of Wil dated 11 February 2016, by which Supplementary Agreement I to the school contract between the Convent of St. Katharina and the municipality of Wil was approved. Supplementary Agreement I provided that the Stiftung Schule St. Katharina, a private-law foundation, should take over the management of a public girls' secondary school. The Administrative Court of the Canton of St. Gallen set aside the resolutions of the City Parliament on 17 December 2019 on the grounds that there was no legal basis for the resolutions. The municipality of Wil and the Stiftung Schule St. Katharina then appealed to the Federal Supreme Court, which set aside the judgment of the Administrative Court and referred the matter back to the Administrative Court for examination of the legal basis (Judgment 2C_136/2020 / 2C_137/2020 of 5 November 2021).
The Administrative Court of the Canton of St. Gallen decided again on 11 April 2022 and dismissed the appeal of [A.], [B.] and C. It considered the provisions in the modified school contract on the transfer of the management of the public secondary school to the Stiftung Schule St. Katharina to be equivalent to a formal law and denied a violation of the principle of legality, economic freedom, freedom of religion and conscience, or the principle of equal treatment.
With an appeal in public law matters dated 23 May 2022, [A.], [B.] and [C.] again appealed to the Federal Supreme Court. They requested the annulment of the contested decision of the Administrative Court of 11 April 2022 and of the resolutions of the City Parliament of Wil of 11 February 2016. The Stiftung Schule St. Katharina, the municipality of Wil and the Administrative Court requested the dismissal of the appeal. The Department of the Interior of the Canton of St. Gallen waived a hearing.
Background of the school contract:
On 30 October 1996, the Convent of St. Katharina, a public-law corporation, and the political municipality of Wil concluded a contract for the management of a girls' secondary school by the Convent. The contract was approved by the Catholic Administration Council and the Education Department of the Canton of St. Gallen on 16 September 1997. The school contract provided that the Convent of St. Katharina would run the school in accordance with the statutory educational mandate and set additional accents arising from its affiliation with a religious order. In addition to female pupils from Wil, the school also enrolled private female pupils from other municipalities.
On 11 February 2016, the City Parliament of the municipality of Wil approved Supplementary Agreement I to the school contract, which provided for the transfer of the management of the school to the Stiftung Schule St. Katharina. The supplementary agreement granted the municipality of Wil the right to decide on the admission of girls resident in Wil to the school. No referendum was launched against the resolutions of the City Parliament.
Core issue in dispute:
The complainants allege that the modified school contract violates freedom of religion and conscience (Art. 15 Cst.), the prohibition of discrimination (Art. 8 para. 2 and 3 Cst.) and the principle of equal treatment of the sexes. They argue that the Stiftung Schule St. Katharina operates an intensively denominational school that is incompatible with the religious neutrality of the public school. Furthermore, the monoeducational orientation of the school leads to unconstitutional discrimination on the basis of gender.
Considerations
State's fundamental rights guarantee responsibility:
The Federal Supreme Court first confirms that educational sovereignty lies with the cantons (Art. 62 para. 1 Cst.) and that they are responsible for providing adequate, free basic schooling (Art. 62 para. 2 and Art. 19 Cst.). Although education does not require a state monopoly, basic schooling is subject to state leadership or supervision. Private schools are permissible provided they are subject to state supervision and respect fundamental rights. When public tasks are transferred to private entities, the state remains responsible for guaranteeing fundamental rights. The transfer itself must comply with fundamental rights, and private providers must be subject to state supervision. In the present case, the transfer of the management of a public secondary school to the Stiftung Schule St. Katharina is fundamentally permissible, but it is questionable whether it is compatible with the state's guarantee of fundamental rights.
Violation of freedom of religion and conscience (Art. 15 Cst.):
The Federal Supreme Court examines whether the transfer of the management of the public secondary school to the Stiftung Schule St. Katharina violates the principle of religious neutrality of the public school. The Stiftung Schule St. Katharina runs the school as a Catholic institution with intensive religious influence. Daily school life includes numerous religious activities such as church services, pilgrimages, meditations and visits to religious sites. These activities are not sufficiently separated from the rest of the teaching and go beyond optional denominational instruction. Moreover, there is a risk of latent pressure to participate in religious events, which violates the negative freedom of religion and conscience of the pupils. The school sees itself as an institution that aims to guide pupils towards the Christian faith, which is incompatible with the principle of neutrality of the public school. The municipality of Wil, as the public school authority, must ensure that fundamental rights, in particular freedom of religion and conscience, are respected. This is not the case here.
Violation of the prohibition of discrimination (Art. 8 para. 2 and 3 Cst.):
The Federal Supreme Court examines whether the monoeducational orientation of the Kathi violates the prohibition of…