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2009-07-09 - Constitutional Court, n. 107/2009, ASBL École Notre Dame de la Sainte-Espérance et autres

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Home schooling has to provide teachings conform to democratic values in order to be recognized by the state but also to be authorized as an alternative to mandatory schooling of children

Key facts of the case - A Regional Decree decided that home schooling has to be compatible with values of the public school system and the Belgian Constitution in order to be recognized by State. The plaintiff, a confessional private school, invoked a violation of the parental autonomy and the freedom of education.

Main reasoning of the court - Freedom of education guaranteed by Article 24 § 1 of the Constitution guarantees the right to organise - and thus to choose - schools denominationally determined. It also means that private individuals may, without prior permission organise and provide instruction according to their own conceptions.
The freedom of choice by parents includes the right to choose a home instruction provided by parents, or teaching in a school that is neither organized nor funded nor recognised. Parental choice, however, must be assessed taking into account the interest of the child and his fundamental right to education and, secondly, respect for compulsory education.
With regard to educational institutions that choose not to use public subsidies, although the public authority is entitled to control the quality of education and the respect of core values of democracy and human rights, this examination has to remain not too intrusive. The reference to standard education’s core skills does not mean that such precise contents could be imposed on children within the home schooling system ; this reference means only that they are indicative criteria about some comprehensive knowledge and skills. All these regional norms are compatible with constitutional freedom of education. The right of the child to education has the primacy on the right of freedom of educative choice of the parents, if both rights are conflicting (ECtHR).
The fact that the control of the level of studies might impose a moving journey to children is not disproportionate as the control is accomplished by zone according to the domicile of the child.
As the right of the child to education is more important than its parents freedom of education, it is not unreasonable nor disproportionate to impose, after a long procedure (exams controlling the level of study of the child, notifications, meetings with the persons responsible for the education of the child) that in the hypothesis of two successive reports of deficiencies in the level of studies of the homeschooled child, the child has to be registered in a by the competent public authority organized or subsidized school.
The fact to impose exams on the home- or independently schooled child is not as such an infringement on parental freedom of education; contrarily, it helps the parents/schools to evaluate and possibly adapt their pedagogical tools.
Only the timing of final individual certification exams has been ruled by the Court as a violation of Constitution : the necessity for students under home schooling to pass the test at a younger age than students who are enrolled in a public educational institution.
The consequences linked to the non-obtaining of the basic studies certificate by home- or independently schooled children is disproportionate as it implies a change of school system for these children (and thus does not justify the difference of treatment between children home or independently schooled and children schooled in official schools).

See the decision (in French): 2009-07-09 - Constitutional Court, n. 107/2009, ASBL École Notre Dame de la Sainte-Espérance et autres.