Guarantees of the Rights of Educational Participants
In order to enforce the rights of educational participants, it is necessary that the institutions adhere to statutory guarantees. The Public Education Act and Decree No. 11/1994 (VI. 8.) of the Minister of Public Education and Culture set out a number of different rules of guarantee. Provisions on the information of participants of education are of exceptional importance among these guarantee provisions. The right to receive information is included as a general principle in the Act on Public Education among the rights of educational participants.
On the part of schools, providing information to parent is not only relevant to studies undertaken by the student, but it is also important in terms of ensuring that the child's upbringing yields results and that parental supervision is fully exercised.
A parent contacted us with the question as to what she can do about her 15-year-old son, who has been skipping school for three weeks. In her petition, she also noted that because the teachers failed to inform her in time, she had no reason to be suspicious, as her son left home every morning as though he was going to school. We informed the mother that we could not be involved in the resolution of a personal conflict between her and her son, and we advised her to contact organizations that are well equipped to deal with issues of this sort. Pursuant to Article 14 of the Public Education Act, parents have a right to receive detailed and substantial information on the development, behaviour and academic progress of their children, and advice or help them in the upbringing of their children on a regular basis. Pursuant to Point f), Paragraph (7), Article 19, the teacher shall be obliged in particular to regularly inform the parents on the education, teaching, and development of their child; the parents and students about the questions that concern them; and to warn the parents, if measures are required to be taken with regard to the protection of the rights of their child or in order to promote the child's development. This parental right is set out in detail by Paragraph (3), Article 20 of Decree No. 11/1994 (VI. 8.) of the Minister of Public Education and Culture, according to which if a student is absent from class, the school must notify the parent upon the first occurrence of unjustified absence. The parent's attention must be called to the consequences of unjustified absence in a note. We informed the mother that she could contact the head of the institution or the maintainer, because of the nonfeasance of the teacher. (K-OJOG-402/2006.) |
Although there are many schools that prefer the practice, whereby the teacher informs the parents on a family visit, the obligation to provide information as set out by the Public Education Act may not require the teacher to carry out tasks outside working hours. In addition, the parent may not be required to receive the teacher in his or her own apartment.
In a petition, a teacher inquired about whether it was legal for the school principal to require her to visit her students' parents within the framework of a family visit, using her own car. Based on the above we informed the teacher that our position is that family visits may be considered as a form of liaising, but that there are other ways to inform parents, and therefore teachers may not be required to visit families. One of the essential components of family visits is the fact that the teacher visits students and parents in their homes. In accordance with Article 82 of Act IV of 1959 on the Civil Code, the right to private residences is protected by law. Pursuant to this-excluding certain exceptions none of which is teachers visiting parents and students in their homes-parents cannot be obligated to receive anyone in their private homes. (K-OJOGB-424/2006.) |
Provisions on the internal regulations of educational institutions are also considered to guarantee provisions, as these regulations tend to supplement statutory requirements in many respects. In these matters, regulating the details is a right reserved by the institution. Relevant statutory provisions, however, must always be considered when internal regulations are drawn up.
A petitioner inquired about whether the opinion of the Civil Servant Council needed to be sought when a school's educational program is reviewed. We informed him that Pursuant to Paragraph (1), Article 44 of the Public Education Act, educational and teaching work in an educational institution is performed on the basis of a teaching program. The educational and teaching programs are adopted by the teaching staff and become effective with the approval of the maintainer. The maintainer is obliged to obtain the opinion of an expert-who is featured in a specialization corresponding to the given type of institution of the National Expert Register-before approving the education and teaching program. If the National Expert Register does not contain a specialization corresponding to the type of institution at hand, then school must seek the opinion of such an expert who has had at least five years of teaching experience in the given type of institution. Pursuant to Point a), Paragraph (5) of Article 30 of Decree No. 11/1994 (VI. 8.) the opinion of the professional staff community-in its specialization-must be sought before the teaching program can be adopted. Furthermore, we also informed the petitioner that the Public Education Act and the above-cited decree do not contain any additional provisions on the Civil Servant Council except for the employment related provisions thereof referenced above (Point II/12, Part III of Annex No. 1.). (O-OJOG-141/2006.) |
The sources of the rights and obligations of educational participants do not only include statues, but local regulations as well. The contents of the regulations obviously cannot be contrary to the statues. It is important to emphasize, however, that the creators of local regulations must always bear the objective they wish to achieve in mind. Any regulations that go beyond these objectives are disputable, and sometimes even in violation of the law.
A petitioner contacted us with question as to whether it was possible for house rules to forbid students to smoke in front of the school building. The reason for the ban was that it is detrimental to the school's reputation if students are smoking around the school building. We informed the petitioner on the following. Pursuant to Paragraph (7) of Article 40 of the Public Education Act, the house regulations of the school or residence hall determine-beyond meeting educational requirements-how the student rights and obligations set out in the Public Education Act and statutes can be exercised and implemented. School house rules also determine student work schedule, the order of in-class and extra curricular activities, the use of school areas and equipment, as well as prohibited behaviour at out-of-school events organised by the school related to the implementation of the teaching programme. The scope of house rules may only cover the territory of the secondary school and the events organized by the secondary school held outside the premises thereof. The house rules of the secondary school may not contain mandatory rules for conduct outside the premises o the school. We also informed the petitioner that the student body of the school has the right to initiate the changing of the house rules. Pursuant to Paragraph (5), Article 63 of the Public Education Act the student body may formulate its opinion or make proposals in every question related to the operation of the education institution and the students. The student body of the school may put forth a proposal to amend the provisions of the house rules. Pursuant to Paragraph (3), Article 64 the school and residence hall student body exercises its right of consent when approving or modifying the house rules. House rules become effective with approval of the maintainer. (K-OJOGB-336/2007.) |
Another important guarantee of the enforcement of the rights of educational participants is adherence to the procedural provisions set out by the Public Education Act. The provisions of the act ensure that in the course of the proceedings the given case can be reviewed by parties other than the decision-maker.
A municipality inquired about whether it is the maintainer that has the rights to pass a decision in the second instance on a request for review submitted in connection with disciplinary proceedings. Pursuant to Paragraph (6), Article 83 of the Public Education Act, the decisive majority of requests for review (which can only be relevant to remedying violation of interests)-as opposed to requests for the verification of legality (which are aimed at remedying violation of rights)-is reviewed by the school board, or if there is no school board in the given school, then a three-member committee consisting of the members of the teaching staff. The municipality was to pass a decision of the second instance on the matter of a principal's cautioning. We informed the petitioner that-pursuant to Point b), Paragraph (4), Article 83 of the Public Education Act-different from the above-cited main rule-the representative of the maintainer shall act and pass decisions of the second instance with regard to requests for review on student disciplinary cases, not requests for review on disciplinary measures. However, the principal's cautioning is a disciplinary measure, i.e., it shall not be considered as a disciplinary case, considering that disciplinary cases shall refer to cases heard within the framework of disciplinary proceedings held in accordance with the guarantee-like statutory provisions relevant to disciplinary proceedings. (K-OJOG-320/2006.) |
Provisions whereby the Public Education Act defines the ways in which student status terminates or is terminated could also be considered guarantees. Article 75 of the Act regulates the termination of the student status. The statue sets these cases out incrementally, which means that the legal relationship can only be terminated in the cases and manner defined by the statute. There are only five cases where the school can unilaterally terminate a student's student status, but in schools maintained by a municipality these cases can only involve students for whom compulsory school attendance does not apply. In accordance with the law, the principal can terminate a student's student status on grounds of arrears on payments after demanding payment repeatedly and without results from the parent, or in cases of students of legal age, the student himself/herself, and after investigating the student' social standing, except in cases of disadvantaged students. The student's student status shall also be terminated, if the student has failed to complete at least the eighth grade and there is no adult education at the school or the student does not wish to continue his or her studies there. The student's student status shall also be terminated, if he or she has missed more compulsory classes than permitted by the statutes. Furthermore, students' student status shall also be terminated in cases of expulsion from the school on the day of the entry into force of the disciplinary decision. On the last day of the academic year, the school can unilaterally terminate student's student status, for students who are not under compulsory school attendance, if he or she has failed to complete the educational requirements for the second time in the same grade.
A parent contacted us with the complaint that her child's student status with an institution of basic arts education (music school) was terminated by the institution. The reason they gave was that the student did not reside in the town where the institution was seated. This way the child's student status was terminated in a manner that is not allowed by the Public Education Act. Upon the maintainer's instructions, the head of the institution "transferred" the student to another music school. The Public Education Act, however, does not allow for such a unilateral measure. We contacted the mayor of the maintaining municipality, who informed us in a statement that due to the dire financial situation of the town, the maintainer cannot finance the training of non-local students. Negotiations were initiated with the concerned municipalities, but not agreement was reached. Therefore, the maintainer asked the principal of the music school to offer non-local student the opportunity to continue their studies in a different branch of art (as that is less cost intensive), and if they do not accept, the students should be transferred to another music school. This is what happened to the student concerned as well. We established following legal opinion on the case. One of the guarantee provisions of the Public Education Act defines the ways in which the student status established between the student and the institution of public education terminates or can be terminated. Article 75 of the Act regulates the termination of the student status. The statue sets these cases out incrementally, which means that the legal relationship can only be terminated in the cases and manner defined by the statute. "Transfer" is not featured as a legal institution in the Public Education Act; therefore, the school does not have the right to unilaterally terminate student status. The maintainer, however, does have the right to determine the number of students that allows it to operate the institution, and it also has the opportunity to defer the admission of students due to lack of available places. On the other hand, already existing legal relationships can only be terminated in the cases and manner set out by the relevant statutes, which is why we established that this measure and the directive given for the measure is illegal, which is why we tabled a recommendation to the maintainer requesting it to take the appropriate steps to restore the child's student status with the music school in question. The maintainer accepted this recommendation. (K-OJOG-163/2006.) |
Expulsion coupled with coercion cannot be a legal solution to the problems posed by difficult students. Proving, however, that the student actually left the school as a result of the actions taken by it is a distinct challenge in every case like this. O-OJOG-467/2006., OKM-O-OJBT-24/2006.)
A parent contacted us with a complaint that despite the principal's promise, the parent's son was not transferred from night school to full time (day) training. We informed him that Article 75, of Act LXXIX of 1993 regulates the termination of student status. The parent failed to mention who terminated his son's student status in tenth grade and with reference to exactly what (the legal relationship was terminated due to health reasons). If a school fails to comply with the statutory guarantees set out in Articles 75 and 76 of the Public Education Act, such course of action will lead to the infringement of educational rights in all cases. Our experience is that it is a common occurrence that principals advise the parents of difficult students to find another school for their children. If the parent accepts the school's arguments, then they may decide to find another school for their child. If, however, the parent decides to discard this option, then the school may not terminate the child's student status unilaterally. The violation of educational rights can only be demonstrated, if the free will of the parent cannot prevail in the course of the decision, and the school resorts to some form of coercion. In a case like this, the situation of the parent and the principal representing the school is very different. In such instances, parents do not have a good bargaining position, since they want the best for their child and do not want their child to be forced to study in a hostile environment. Parents seemingly exercise the right of free choice of schools when they take their child to another institution as a reaction to the notice sent by the school, but in reality, they only give in to coercion, because they feel that there is no other option. Therefore, it is our position that expulsion combined with coercion must not occur in public educational institutions. The school has certain opportunities, set out by the relevant statues, to sanction a student's breach of duty, in justified cases the school is even allowed to use disciplinary measures, or launch disciplinary proceedings. Other, extralegal instruments must not be used; however, as such course of action could rob the student from the statutory guarantees associated with the application of the above-cited measures. Proving, however, that the student actually left the school as a result of the actions taken by the school is a distinct challenge in every case like this. If it was the parent's and/or the student's decision to terminate the student status and transfer to night school, then the school did not violate the relevant statutes, and there are no statutory requirements-despite the principal's promise-that would require it to admit the student to full time (day) training. We also informed the parent that if the school in question does not admit the student to full time training, then they could contact other schools with the same request, but that our Office cannot recommend any specialized secondary schools. If, however, the school terminated the student's student status without the grounds described above, and had done so unilaterally, then the school did not have the right to terminate the student's existing student status in night school. (O-OJOG-387/2006.) |
We encounter the problem of expulsion every year. Such decisions by the principal are usually based on the school's conviction that the educational assets/methodology at its disposal are insufficient to successfully deal with difficult students. Teachers think that these students are violent, do not behave as they are told and as such cannot be disciplined with ordinary methods. Additionally, the educational rights of other students might be jeopardized, as instead of moving on with the material, a large part of class time is spent on disciplining the unruly student.
If a child did not fulfil his or her duties, has disturbed the class, the work of his or her teacher and fellow students with his or her disobedient behaviour, then disciplinary measures can be used against him/her. Paragraph (1), Article 76 of the Public Education Act says the following: if a student breaches his or her duties deliberately and seriously, then the student may receive disciplinary punishment on the basis of disciplinary proceedings, mandated by a written decision. The explanatory notes of the act emphasize the possibility of launching disciplinary proceedings, when it states that the relevant article sets out the rules, in the interest of protecting students, of launching and conducting disciplinary proceedings, and that the grounds of disciplinary proceedings are primarily the deliberate and grave breaching duties. Teachers fulfil their obligations laid down in the Public Education Act, if they act in accordance with the procedures set out by law when it comes to children who breach their duties. In their educational and teaching activities, teachers are free to decide what pedagogical methods they wish to use to motivate and discipline students, however, their choice and use of those methods are restricted by the law. Article 76 of the Public Education Act provides statutory guarantees in respect of the conditions of launching and conducting disciplinary proceedings, the manner in which the proceedings must be conducted, possible punishment, and limitations of the application of said punishment. The question arises, however, what the scope of the responsibility of the principal is in terms of resolving and preventing existing conflicts. According to Paragraph (1), Article 54 of the Public Education Act, the head of the institution of public education shall be responsible for the professional and legal operation of the institution. When it comes to disobedient, difficult children, the school can fulfil its statutory obligations by not putting the child into a position of helplessness, and instead proceeds according to the provisions of the relevant statues, as it would with any other child. If a student commits a deliberate breach of duties, then the school shall hold him/her accountable in accordance with the provisions of the Public Education Act and the school's house rules. If the head of the institution or the teacher see signs of a behavioural disorder or diminished ability to adapt in the disobedient child, then they can call on the parent to take the child to an educational counselling centre, but they may not send the child to specialized screenings without the consent of the parent. In these situations, the law demarks the limitations of conflict resolution by providing statutory guarantees, but the content, i.e., the actual solution can only be achieved with the help of teaching/educational methods. The task of the head of the institution is to ensure that similar situations are resolved in the school in compliance with the provisions of the law and with the help of adequate educational efforts.
Rules on the termination of student status are different in schools that are not maintained by municipalities. According to Point d), Paragraph (1), Article 81 of the Public Education Act, if the institution of education is not maintained by a municipality, or a state body, then admission to kindergarten, school, residence hall; furthermore kindergarten placement, student status and maintaining membership in a residence hall may be subject to payment, set out in a written agreement. That means that it is possible to deviate from the statutory provisions in connection with the termination of kindergarten placement, student status, and residence hall membership, in accordance with a separate written agreement.
A parent requested information about whether it was legal for a the President of the Board of Trustees of a Foundation that maintains a school to withhold her child's report card due to the fact the child's tuition payments were late. We informed her that in accordance with the provisions of Paragraph (1), Article 72 of Act LXXIX of 1993 on Public Education students shall be given report cards upon the fulfilment of the requirements of the various grades, basic examination, School-Leaving Examination and vocational examination. Report cards shall be regarded as official documents. Pursuant to Article 27/A of Decree No. 11/1994 (VI. 8.) of the Minister of Public Education and Culture, a school may not withhold a student's report card for any reason whatsoever. The school can enforce its tuition claims by way of other-legal-actions. We called the parent's attention to fact that according to Point d), Paragraph (1), Article 81 of the Public Education Act, if the institution of education is not maintained by a municipality, or a state body, then maintaining student status may be subject to payment. Therefore, pursuant to an advance written agreement, her child's student status may be terminated due to her non-compliance with the tuition payment obligation. (O-OJOG-413/2006.) |
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