Annual report 2000




Public education

In the course of investigating the complaints submitted to the Office, conflicts have often been found to originate from deficiencies of communication. This does not only include the lack of a dialogue, for in the majority of cases those involved in a dispute, pupils, students, parents or teachers, are not fully aware of their rights.

An oft-repeated question posed by teachers is why do teachers only have obligations when pupils and students have only rights. It is not enough to study the Act on Public Education for an answer, for the most important rights of persons are regulated by the Constitution. In respect of numerous rights, the Act on Public Education adjusts constitutional rights to the specific features relating to the age of children or translates them into the terminology of education. One of the key fundamental principles of domestic and international regulations concerning human rights is that the rights of some people are always matched by obligations of others. In our view teachers have a feeling that all they have is obligations, only because they are the ones who have obligations matching pupil s and students rights. On the other hand, the majority of the rights of teachers specified by the Act on Public Education are not matched by obligations of pupils and students, instead, their rights are balanced by the obligations of the heads of institutions or the maintenance organisations in charge of and operating the institutions. Recognition and acceptance of the above situation makes it possible to prevent or properly manage the majority of conflicts.

Another frequently voiced argument is that a pupil or student may exercise his or her rights only after the performance of his/her obligations. This is a widely held, and false, view, which is to be refuted in this report as well. In the above paragraph we referred to the principle that someone's constitutional right is always matched by someone else's legal obligation. Therefore, the exercising of the constitutional rights of a person cannot be regarded as subject to the condition of having met his/her own constitutional obligations. The Constitution contains a list of civil rights but it stipulates only four citizen 's duties: military service, compulsory education, general sharing of taxation and compliance with the law. A citizen would be justified in his or her indignation if he were prevented from voting in general elections just because he/she has been late in filing his or her tax return. There is and there cannot be any connection between the exercising of one's constitutional rights and the performance of the constitutional obligation borne by the same person.

Of course this does not mean that obligations do not have to be performed, since the law provides for sanctions to be applied in such cases. The performance of obligations, however, may be enabled by the promotion of co-operation among the participants in education. This is the way to enable teaching and education as specified by law whose substantive elements include the performance of obligations as well.

Act No. LXXIX of 1993 on Public Education

 

Pupils' and students' rights

It is an incontrovertible fact that children are individuals with a special status. They are granted special rights by law because - on account of their age - they cannot protect themselves against infringements and without such special rules they cannot exercise/enforce their rights in the same way as adults can. This does not mean that children are granted 'extra' rights, as in our view, the application of the rules on the protection of children's right guarantees equality of children before the law. These rules also apply in the case of the rights provided in the area of public education, for, given their age, pupils and students are children at the same time. Consequently, the democratic operation of certain educational institutions necessitates that pupils and students are treated by adults as partners, indeed, it requires that children receive active assistance in the exercising and enforcement of their rights. Of course, the Act on Public Education provides rights for pupils and students who have not yet turned 18; therefore, they qualify as individuals incapable to act or as individuals of limited capability to act. These pupils and students cannot exercise their rights alone, without participation from their legal representatives, in many areas of life, since they cannot make legal representations alone. However, one particular feature of life at school is that pupils and students can exercise their rights provided by the Act on Public Education alone, despite the above restrictions. This is an indispensable special feature in the world of education. Although its legal regulation is not quite unambiguous and may need to be reviewed, it is the only way for a pupil or student to participate in the life of the school as an equal partner with the other participants.

As has been mentioned above, the passive behaviour of adults is not sufficient for the creation of such a partnership. Pursuant to the provisions of the Act on the Protection of Children's Rights, the protection of the children's rights is part of the obligations of all individuals who are involved in the education, teaching, taking care of children or dealing with issues pertaining to children. Without stipulating this obligation it would not even make sense to talk about the rights of children without such obligations, as it would not be possible to exercise/enforce such rights. Accordingly, the rights of children may be exercised and enforced in educational institutions only if teachers, pupils or students, parents and the school authorities elaborate together the techniques of conflict management. Also, that they create the procedures and establish the assemblies to promote the exercising and enforcement of the pupils ' and students' rights, but of course at the same time they enable the exercising and enforcement of the rights of teachers and parents as well.

One of the fundamental principles of the international and the domestic regulation of children's rights is that in making its decisions concerning matters pertaining to children, an institution has to promote the interests of the children above all else. The resulting attitude should dominate the activities of the legislator and the bodies applying and enforcing the law, included in the day-to-day practices of schools. In our view, this is the only way for teachers, parents and organisations in charge of maintaining schools to lay down the foundations for a real partnership.

Act No. XXXI of 1997 on the Protection of Children and Guardianship

 

The basic constitutional rights of pupils and students

Among the rights of participants in education the Act on Public Education establishes a number of fundamental rights that are also included in the Constitution. One of the groups of cases of infringement of the rights of pupils and students is made up of complaints pertaining to these basic constitutional rights that have been adapted to the environment of education. Another group of submissions related to violations of rights relating directly to education.

Among the basic constitutional rights of pupils and students, a large number of submissions included complaints against the violation of their dignity. The right to dignity is a basic right guaranteed by the Constitution which is also protected by the system of personal rights as specified by the Civil Code as well as by the Criminal Code. Article 10 (2) of the Act on Public Education also provides that the personality and dignity of a pupil or student is to be respected and that pupils and students have to be protected against the use of physical force and psychological coercion. A pupil or student must not be subject to corporal punishment, torture, ruthless, inhuman or humiliating punishment or treatment. Although a relatively small number of complaints have been submitted to the Office concerning corporal punishment against students, we regard corporal punishment as the gravest violation of law, breaching the principle of personal dignity. In our view the principal of a school must never tolerate corporal punishment of pupils or students. During the operation of the Office so far we have found that heads of educational institutions also consider cases of corporal punishment as a grave violation of the law and they always investigate such cases. Where a teacher does apply corporal punishment it may result in disciplinary proceedings against that teacher and/or it may also constitute a criminal act.

One parent submitted a complaint to the Office because his child had been repeatedly subject to corporal punishment by a teacher in the vocational school the child attended. The child had been subject to derision as the teacher applied humiliating terms to the child in the presence of classmates. Having received the complaint the Office contacted the head of the institution who then launched an investigation concerning the case and then promptly dismissed the instructor concerned. (VI/204/2000.)

The above measure is in concert with a verdict brought by the Supreme Court which declared that teachers must never apply corporal punishment to children under their care. In such case the disciplinary infringement is of such gravity that even the most severe disciplinary sanction may be proportionate to it.

An educational institution is also responsible for ensuring that children under their care should not hurt one another.

A mayor submitted a petition to the Office with respect to the intolerable situation that had evolved in the school maintained by the local government. According to the submission there were frequent fights amongst children at the school. Cases of rough and humiliating treatment, bullying, children 'taking law into their own hands' were common. The school could not control the situation even by applying disciplinary punishments. (VI/265/2000.)

Our position laid out above with respect to corporal punishment was pointed out to the head of the institution in each of these cases. Since, however, in our opinion such conflicts may only be resolved on a local level, we proposed to those institutions and affected parties seeking our help should elaborate effective mechanisms to enable the avoidance of such grave violations in the future. We found that in the majority of cases local efforts involving methods of pedagogy succeeded in resolving conflicts amongst pupils or students.

According to the complaints submitted to the Office, even though the majority of teachers are highly critical of corporal punishment, the recognition and the appraisal other acts violating personal dignity is not as clear-cut. For in numerous complaints teachers complained about dealing with pupils or students who ridiculed them, insulting and hurting their personal dignity.

A former schoolmaster submitted a petition to the Office that was put together by the students of the school, who complained about the teaching and education methods of a particular teacher. According to the letter, the teacher treated them in a humiliating, offensive way, and hurting the students ' personal dignity. The teacher used vulgar expressions, derided students with speech problems, made fun of overweight children, and on several occasions the teacher stuck chewing gum in their hair. In some cases the teacher applied corporal punishment. The former schoolmaster submitted the petition to the Office only by that time that he learnt of these acts his mandate had already expired. After the receipt of the complaint, we contacted the new schoolmaster but he could no longer start disciplinary proceedings because of the expiry of the statutory deadline. Therefore, we asked the new head of the institution to investigate the case and to ensure that no such cases may occur in the future. In the course of the investigation, the behaviour of the teacher was proven to have been contrary to the law. According to the documents compiled concerning the case the teacher concerned had not realised the gravity of his behaviour because he thought he had been funny. Our initiative called on the teacher to change his behaviour and comply with the law. (VI/352/2000.)

In cases violating personal dignity it is usually difficult to prove the acts that were the cause of the violation. In the majority of cases, infringement is comprised of verbal expressions often where the two parties have a discussion between themselves. Where in the course of our procedures we found that educational rights had been violated, we not only addressed our initiatives to the infringing teacher but we also drew the attention of the head of the institution to take the measure. This being in his or her capacity as manager of the institution so as to ensure that the personal dignity of the students would not be violated in the future at the school concerned.

In yet another violation of personal dignity case, a rather serious case, where infringement affecting a large group of citizens was identified, the personal dignity of students was violated by a supplementary schoolbook, instead of the behaviour of teachers or students.

In the summer of 2000 representatives of civil organisations of the Roma minority submitted a complaint to the Office with respect to a supplementary textbook being used in the fifth grade of an elementary school. The complainants claimed that the attitude and the incorrect or distorted statements contained in the chapter on the Roma minority were violating the personal dignity of citizens belonging to the Roma minority, particularly that of students, e.g.) excerpts from the book {'A large part of the Roma minority [...] could not and did not want to adopt a civic European way of life. [...] Allegedly, they tortured György Dózsa and his men to death' (page 47) 'the life of some of the Roma minority is characterised by criminal activities.' (Page 49.)}.

The Office launched an investigation into the case to clarify, primarily, whether the statements in the criticised chapter can be considered as a violation of the personal dignity of individuals, particularly pupils or students belonging to the Roma minority, i.e. whether they violate the right to personal dignity provided for by the Constitution and by Article 10(2) of the Act on Public Education, as well as the provision comprised in Article 11(1) h) of the same act. These provisions stipulate that a pupil or student is entitled to have his or her religious, ideological or other convictions or national or ethnic identity to be respected by others.

In the course of the investigation we asked the chair of the National Self-Government of the Roma Minority as well as a deputy state secretary of the Ministry of Education in charge of public education, to have the criticised text be inspected by their experts. In their written response, we were informed that their experts had confirmed the complainants' allegations. Besides identifying other deficiencies of the text under review, the expert opinions attached to that letter unanimously declared that the text 'legitimates exclusive behaviour'. In our view the chapter of the book on the Roma minority contained substantive errors, wording that is considered as unfavourable to the Roma minority and terms confirming prejudice, therefore, a proposal was made concerning the withdrawal of the book.

In view of the expert opinions, the Office established that the complaint submitted to the Office had been well founded. The statements and the tone of the criticised chapter were considered to humiliate the personal dignity of persons belonging to the Roma minority.

In the course of the investigation, the Office was informed by the head of the Textbook and Teaching Aid Office of the Ministry, that in 1998 in the course of the procedure of acceptance as a schoolbook the Minister of Education had rejected the book. Also despite the subsequent appeal lodged by the publisher, the minister did not permit the listing of the book as part of the set of officially approved schoolbooks. In 1999, having promised to eliminate the deficiencies and to correct mistakes in the book the publisher applied repeatedly for the listing of the book as a supplementary schoolbook. Since the effective legal regulations does not require expert review of books for listing as supplementary schoolbooks the book was included in the list issued for the school year of 2000/2001. For responsibility for the contents of a supplementary schoolbook lies with the publisher, in the form of the expert report attached to the book.

As a result of our investigation, the Ministry of Education called on the publisher to recall the book. At the same time, the ministry informed the publisher that his request for the inclusion of the book in the list of supplementary books for year 2001/2002 had been rejected. Thereafter, the publisher informed the Office that he had contacted all the schools concerned, informing them of the withdrawal of the supplementary textbook and offered to refund the price of the books or to supply them with a corrected version of the book or with other similar textbooks.

The Office was also informed by the head of the Textbook and Teaching Aid Office of the Ministry, that the ministry was going to terminate the listing of supplementary textbooks. In this way, publishers could no longer avoid the inclusion of a textbook in the official list issued by the ministry, without technical/professional qualification. (VI/389/2000.)

Complaints of violations of other basic constitutional rights, which are provided for by the Act on Public Education, were also submitted to the Office during its first year of operation. Numerous questions were submitted to the Office with respect to the right to the protection of personal data, the freedom of speech, the freedom of conscience and religion. In such cases the submitters of the questions were informed of their statutory rights. In some cases, however, complainants also asked the Office to take various measures.

One teacher reported that a vocational school permitted trainees over the age of 16 to smoke in the schoolyard. The Act on Public Education establishes the right of pupils and students to being educated and taught in a secure and healthy environment. Article 6 (9) of Decree No. 11/1994. (VI.8.) MKM issued by the former Ministry of Education and Culture on the operation of educational institutions prohibits the sale and consumption of goods detrimental to human health. Consumption of these goods is not allowed on the premises of educational institutions and at organised events for pupils or students outside the premises of educational institutions. Also, Article 2(9) of No. XLII Act of 1999, on the protection of non-smokers and on certain rules of the consumption and distribution/sale of tobacco products, provides that persons below the age of 18 shall not smoke even at places designated for smoking in public buildings, at indoor events and vehicles of public transport. The act defines a public building as a facility that performs public duty for those concerned. Educational institutions perform public duties; therefore, the regulation enabling students to smoke at the premises of the school is contrary to the law. After the review of the statues the Office submitted an initiative to the headmaster of the institution asking him to provide for the termination of the infringement within a period of 30 days. The headmaster accepted our initiative and took the necessary measure. (VI/30/2000.)

A teacher at a secondary school found it contrary to the law that students were not permitted to leave school after the last class on a day, as a punishment for disorderly behaviour. The Office established, and the headmaster of the school admitted, that this course of action violated the students' freedom of movement, as provided for by the Act on Public Education. We submitted an initiative to the head of the school to exercise the power of the schoolmaster and take all necessary measures to ensure that no similar infringement may take place in the school in the future. The schoolmaster accepted our initiative. (VI/290/2000.)

Pupils' and students' rights in public education

Amongst the rights of pupils and students, due to their legal position as pupils or students, we will initially discuss questions and grievances relating to the secondary school entrance examination. A large number of such complaints were submitted to the Office. In the 1999/2000 school year, the rules of the admission procedure were amended and many parents were not quite aware of the details of the changes, therefore, many parents called the Office by telephone as well.

Article 42 of the Act on Public Education enables secondary schools to select prospective students through the application of entrance examinations. Secondary schools may specify the achievement criteria, i.e.) the entrance requirements, for the establishment of the legal position between student and school, which has to be disclosed in publications on secondary school admission. As the establishment of the entrance requirements and the evaluation of the entrance examination is part of the autonomy of the school and of the teacher, the Office may take action only if procedural rules have been violated. One such procedural rule is that the entrance examination may be organised only in accordance with the provisions of the decree issued each year by the Minister of Education, regulating the timetable of the given school year. According to the decree, an application for admission to a secondary school is to be submitted with the participation of the primary school using the application form introduced for this purpose. Participation in an entrance examination cannot be subject to participation in a preliminary preparatory course for the entrance examination.

One complainant stated that the pupil had to attend a preparatory course in order to enable a successful entrance examination, which placed a heavy financial burden on the family. The complainant was informed that since the secondary education institution is entitled to select prospective students through an entrance examination. Also, the secondary education institution can organise courses so as to help increase performance in the examination, and that participation in the preparatory course was strictly voluntary. As a result, the Office decided that the school did not violate the law or anyone's right. (VI/479/2000.)

Numerous other cases, also involving the pupil's legal position, related to the question of absences from school. The Office received a lot of letters concerning the certification of justified absences, both from parents and from teachers. Questions were raised concerning absences from school, absences from classes as well as late arrival in the morning or being late to classes during the day. Since the majority of the submissions asked for our position concerning the problem on hand rather than for investigations of infringements, in our responses we stated that Article 4 (1) of Decree No. 11/1994. (VI.8.) MKM issued by the former Ministry of Education and Culture on the operation of educational institutions provides that the organisational and operational rules (OOR) of the given educational institution has to regulate the certification of the justification of absences of students from school or from classes. The regulation permits numerous equally compliant arrangements. However, this issue must, by all means be regulated, for if the OOR does not regulate the regime of confirmation of justified absences, the teachers will apply different approaches to handle absences and its confirmation which may then lead to infringement of the rights of pupils and students.

A number of complaints resulted from parents perceiving it as a sign of lack of trust that the school demanded doctor's confirmation after a pupil's absence of a few days and where parents had to sign the confirmation issued by the doctor. Complainants explained that in their view, by doing so, the school questioned the reason for the absences, implying that their children were absent from schooling for reasons other than ill health. Parents explained that by doing so the school forced them to pretend to be doing something that is not true and that it instigated a process of growing distrust. In this case, we informed parents that they could enforce their position themselves. For upon the adoption and modification of the rules of organisation and operation, the school board and the pupils' or students' councils, including delegated parents and pupils or students, could exercise the right to agree or disagree as specified by law.

The question of absences and of the certification of its justification is all the more important for it carries a variety of legal consequences. Pursuant to Article 28 (2) of Decree No. 11/1994. (VI. 8.) MKM, the legal position of a pupil or a student who misses more than 30 classes without justification is expelled, with the exception of those of the age of mandatory schooling. One pre-requisite for this, however, is that the school informs the parents in writing, at least twice, of the consequences of unjustified absences.

One parent complained because his child was dismissed from school because of the large number of classes skipped. The reason for this was that the form master did not accept parents' certifications after the three certifications by the parents as specified by the OOR as a maximum and this was the reason for the growth of the number of uncertified absences. The head of the institution warned the parents in writing, on two occasions, of the consequences of breaking the rule. Since the student exceeded the number of classes specified by law as the maximum permitted number of unjustified classes skipped, the student was dismissed from the school. The Office established that the institution proceeded in compliance with the law. (VI/116/2000.)

One secondary school student submitted a request for remedy to the Office because not long before the registration for examinations the school terminated the student's legal position with the school because he exceeded the maximum of 30 unjustified absences from class. In the course of our investigation we, established that the school had not met its statutory obligation to issue warnings before dismissal. Therefore, we submitted an initiative to the school to terminate the infringing situation and to proceed in with the due care when taking action to dismiss a student from the school. The schoolmaster accepted our initiative and informed the Office that the student was given an opportunity to take the necessary examinations. (VI/549/2000.)

Besides the termination of the legal position of the student with the school, absences may also prevent a student from going on to the next grade. According to the relevant legal regulations in the case of a total justified and/or unjustified absences of over 250 classes the student cannot be given grades at the end of the year, except if the board of teachers permits the pupil or student to take examinations for the year-end grades. If a pupil or student cannot be given grades at the end of the year he may go on studying by repeating the given grade. (VI/316/2000.)

The topic of disciplinary proceedings against pupils or students is of particular importance, for such proceedings may result in the establishment of the culpability (disciplinary responsibility) of the pupil or student concerned, which may entail grave legal consequences. Since the possible disciplinary sanctions may range from censure to exclusion from school, compliance with the procedural rules constitutes an important guarantee. The Act on Public Education and Decree No. 11/1994. (VI. 8.) MKM contain rules on disciplinary proceedings, including the rules of disciplinary hearing and of possible disciplinary sanctions.

To protect pupils of mandatory schooling age Article 76 (3) of the Public Education Act provides that the two most severe disciplinary sanctions, 'banning from continuing the school year in the given school' and 'exclusion from school', cannot be applied against pupils of mandatory schooling age. The penalty of 'transfer to another school' may also only be applied if the schoolmasters of the two schools have agreed on the transfer of the pupil.

A parent submitted a petition to the Office concerning the disciplinary penalty applied to his 16-year-old son. The Office established that the disciplinary measure that the parent objected to was contrary to the law. Since the law does not permit the exclusion of a child of mandatory schooling age from his or her school and that the mandatory schooling age extends to the end of the school year in which the pupil turns sixteen, this penalty could not have been applied to the child of the complainant. Having established the infringement the Office initiated the termination of the infringing situation and made certain that in the future the school applies due care in conducting disciplinary proceedings. (VI/220/2000.)

A number of parents asked for assistance with respect to cases relating to disciplinary proceedings when they received the notice of initiation of such a procedure. In such cases, we had to inform complainants that we could not act before the school authority had made a decision of the second instance, i.e.) a decision subsequent to an appeal. For in the case of disciplinary measure, the student, or if the pupil or student is a minor, the parent may lodge an appeal against the decision taken by the school authority within 15 days having received the decision.

Pursuant to the Act on Public Education, a student or the parent thereof may ask for the review of the decision. With the exception of the disciplinary punishments of 'censure' and 'severe censure', a request for a review will be accepted if they consider that it is contrary to the law or to provisions concerning students' legal rights. This may take place within 30 days of receipt of the decision of the second instance, which means that if they intend to go to court against the decision they object to, we should have to act within the 30-day period available. This is the reason for the small number of written petitions submitted to the Office whereas many students and parents asked, by telephone or in person, for information on disciplinary proceedings.

In several cases a parent have had to make a choice to either take their child to another school or to let the school start disciplinary proceedings. In our view this is a non-compliant practice for if the child had broken the rules then he had to be called to give account for it. Also, the conducting of disciplinary proceedings provides important guarantees for keeping order to the system. This is the only way to provide the necessary framework to enable the student to put forth his or her arguments and for legal redress that is sought against a formal decision or resolution.

 

  OFFICE OF THE COMMISSIONER FOR EDUCATIONAL RIGHTS
  1055 - Budapest, Szalay u. 10-14.; e-mail: panasz@oktbiztos.hu

 Impresszum  
Főoldal