Facts
The Political Municipality of Wil (appellant 1) and the Stiftung Schule St. Katharina (appellant 2, a private-law foundation) each filed an appeal in public law matters against the judgment of the Administrative Court of the Canton of St. Gallen, Division III, of 17 December 2019 (B 2019/144). The subject matter is Supplement I to the school contract on the operation of a girls' secondary school (Kathi).
On 30 October 1996, the Monastery of St. Katharina (a public-law corporation) and the Municipality of Wil concluded a school contract, which was approved by the Catholic Administrative Council and the Department of Education. The municipality assumed the school fees for girls from Wil; the Kathi also admitted private students from other municipalities. In early 2012, the private-law foundation Schule St. Katharina took over the operation of the school.
On 11 February 2016, the Wil Municipal Parliament approved a modified agreement (Supplement I), under which the foundation would take over the school contract, the admission of girls from Wil would be limited to 70%, and the municipality would be granted the right of selection. No referendum was launched.
Three electors ([B.] , [A.] and the party [C.] ) lodged a voting appeal with the Department of the Interior on 25 February 2016. After several procedural steps, the Department dismissed the appeal on 2 July 2019. The Administrative Court upheld the appeal filed against this decision on 17 December 2019, as the parliamentary resolutions lacked a legal basis.
By appeals of 3 February 2020, the Municipality of Wil and the foundation applied for the annulment of the lower court's decision, or alternatively its remittal. The respondents requested dismissal. By presidential order of 17 February 2020, the Federal Supreme Court granted the procedural requests for free schooling for the duration of the proceedings.
Considerations
The two proceedings 2C_136/2020 and 2C_137/2020 were joined, as they are based on the same facts and are directed against the same judgment (Art. 71 FSCA in conjunction with Art. 24 FCPA). The appeal of the Municipality of Wil is admissible: the municipality, as the holder of constitutionally protected autonomy, has standing to appeal (Art. 89 para. 2 lit. c FSCA); whether the autonomy actually exists is a question of substantive assessment. The foundation, as contracting party and co-party in the prior proceedings that was unsuccessful, also has standing to appeal (Art. 89 para. 1 FSCA). These are not voting appeals within the meaning of Art. 82 lit. c FSCA, but appeals against the substantive lawfulness of the resolution (Art. 82 lit. b FSCA).
In the area of compulsory schooling, the municipality enjoys relative autonomy: schooling falls in principle within cantonal competence (Art. 62 para. 1 Cst.), but there are no federal or cantonal rules that preclude the transfer of compulsory schooling tasks to private parties and their financial support by the municipalities. The Cantonal Constitution recognises the right to establish and operate private schools (Art. 3 lit. a KV/SG), and Art. 24 KV/SG permits the support of private parties in tasks of public interest. The municipality is therefore to be regarded as autonomous in this area (Art. 89 KV/SG).
The transfer of the operation of the regular classes of the public secondary school to a private body requires a sufficiently specific statutory basis in formal law. The agreement is a public-law performance contract. The outsourcing of state tasks to private parties must be based on a legal norm enacted by the competent authority and, for important regulations, on a generally abstract, sufficiently specific legal provision in the form of a statute (BGE 136 II 415 E. 2.6.1). The agreement is important because it affects the fundamental rights positions of the schoolgirls from Wil (discriminatory admission conditions, entitlement to religiously neutral instruction under Art. 15 para. 3 Cst.) and may financially impair the public school. In addition, Art. 25 para. 3 KV/SG requires that the conditions for transferring tasks to private parties be anchored in formal law. Reliance on an established cantonal practice is…