Key facts of the case - Greek-Orthodox parents wanted to have their child inscribed to a Catholic elementary school. The child was refused admission by school authorities on the ground he is not Catholic. The parents claim that this violates the principle of equal treatment as set out in Article 3 GG (basic law). They consider the refusal as discrimination based on religion. The school authorities argued that the school was over-subscribed: with the capacities for 90 children and in order to choose these 90 children from the 101 who applied, the criterion of religion is permissible.

Main reasoning of the court - The Court found that the school authorities’ choice could not be based on the boy’s religion. The relevant regulation, which is the local regulation on the course of education in elementary schools, foresees certain criteria that the choice of students can be based on. The students’ religion is no such criterion. The Court further held that the school authorities could not refuse the admission of the boy with the argumentation that now all the capacities are full. The Court sent the case back to the authorities so they could decide anew.

Comment - The Court had to send the case back to the school authorities together with the order to decide again. The Court does not have the competence to decide on whether the boy has a right to be accepted in the school. Because of the separation of power, the authorities have to make a new decision against the background of the Court’s decision.
For a comparable case in the United Kingdom, see 1992-06-11 - House of Lords, Choudhury v Bishop Challoner RC School [1992] 3 All ER 277, [1992] 3 WLR 99.