INDIVIDUAL AREAS OF EDUCATION
PUBLIC EDUCATION
ENFORCEMENT OF PERSONAL FREEDOMS
Pursuant to the decree regulating the operation of our Office in addition to conducting inquires, our task is to help the various educational participants to enforce their rights to the fullest possible extent. Accordingly, our Office receives many petitions in which those requesting our help do not ask us to investigate a particular legal infringement, or to launch proceedings, but to establish our legal opinion on the issue at hand. The people who contact us wish to decide whether they want to lodge a complaint with our Office based on our legal opinion. Our experience is that our legal opinion often helps those concerned to find their own ways of enforcing their rights.
In the course of the seven years of our operation, we have taken the position that out of the acts performed against students, corporal punishment is the gravest and most serious. Our Office receives a number of complaints every year in which our assistance is sought regarding the corporal punishment of students. In these cases, complainants seek our advice and request that a legal inquiry be launched into the legal infringement in question. According to the consistent position of the Commissioner for Educational Rights, the gravest form of legal infringement that can occur in an educational institution is, in fact, physical abuse. The right to human dignity is a universal and constitutional fundamental right - therefore, it extends to all participants of education-which prohibits the physical or psychological abuse of students, or their subjection to degrading punishment. Participants in education have the right to human dignity regardless of their age. Pursuant to Paragraph (2) of Article 10 of Act LXXIX of 1993 on Public Education, the personality, human dignity and rights of children and students shall be respected, and children and students shall be protected against physical and psychological abuse. Children and students may not be subjected to corporal punishment, torture, cruel, inhuman and degrading punishment or treatment.
Teachers may not deprive students of their human, civil, children's and students' rights, as these rights are not subject to pedagogical deliberation. The enforcement of these rights is not conditional on whether children and students meet their obligations at kindergarten or school; in other words, the fundamental human rights of students may not be predicated on the fulfilment of their obligations.
In our experience, teachers who resort to corporal punishment often say, as a means of justifying their actions, that when it comes to seriously disobedient children or students they have no other means of restoring order than corporal punishment. If a child is unruly then it is justifiable for a teacher to resort to some form of disciplining action against him/her. However, the teachers may not use any unlawful means to maintain discipline. In their educational and teaching activities, teachers are free to decide what pedagogical methods they wish to use for maintaining discipline. Their choice, however, is restricted by the law: They must not take disciplinary measures that violate the most fundamental rights of students, i.e. the right to human dignity and physical integrity.
If in the course of our inquiry, it can be proved that physical abuse did, in fact, take place, then our position is that the student's right to human dignity was violated. Therefore, in all such cases, we send an initiative to the head of the institution, in which we request him or her to take the necessary measures to ensure that in the future, teachers only use disciplinary measures that are allowed by the law, to prevent the violation of children's human rights and their right to human dignity in the institution in question.
Part of the petitions that we receive do not seek inquires, rather they seek the opinion and advice of the Commissioner for Educational Rights regarding corporal punishment. Our position is that physical abuse does not only put the physical integrity of the student at risk, but it also violates his or her right to human dignity. A part of those requesting our services inquired about the range of disciplinary actions that can be taken against teachers who use corporal punishment. Considering the gravity of the act of corporal punishment, our position is that disciplinary proceedings must be launched against any teacher resorting to such course of action.
Disciplinary proceedings were launched against a kindergarten teacher who used corporal punishment to discipline a child. An investigator designated by the holder of disciplinary powers in the case contacted our Office to ask for our opinion on corporal punishment. That is because it was not clear for the investigator how serious a breach of duty it was, if a teacher "smacked a child on the neck or ears". We informed the petitioner of the above and added that our position was that smacking a child on the neck or ears may constitute corporal punishment, and in any case it can be used to violate a child's right to human dignity. The holder of disciplinary rights, however, has to take every substantial evidence and circumstance of the case into account. Therefore, it might be important for a teacher undergoing disciplinary action what his or her conduct was like at the workplace previously, or whether the corporal punishment in question was a one-off occurrence or whether it happened more than once. (K-OJOG-391/2006.) |
In corporal punishment cases, usually the parents of the affected children or students ask for our assistance. According to parents, it is not uncommon for a teacher who engages in corporal punishment to violate the rights of his or her students in other ways as well.
A parent lodged a complaint with our Office regarding her son in person. Her complaint was related to the fact that her son was slapped around in class by his head teacher. According to the parent, this was not a rare occurrence, as the head teacher was known to have used corporal punishment on other students, and often described students with degrading phrases that violate human dignity. The parent said that he or she contacted the head of the institution, and that she/he was heard by the representative of the school maintainer and the head of the institution, but that despite these events no action was taken on the part of the school. The parent made the copies of the minutes and documents made until the launching of the proceedings available to the Office. We launched an inquiry into the matter and contacted the principal of the school, who informed us in a statement that since the events have broken out, he or she has been following the work of the teacher closely, but that there was not evidence that the teacher had engaged in such behaviour in another occasion. The teacher was verbally reprimanded with the school maintainer's approval. As a result of the event, the student was placed into another group. The principal sent us the minutes, which serves as a record that the verbal reprimand has, indeed, taken place and that the fact thereof was acknowledged by both parties (parent and teacher). Considering the actions taken by the principal, we closed the case without putting forth an initiative. (K-OJOG-330/2006.) |
In our experience, parents usually take it very hard when their children are subjected to corporal punishment, and that is why they often think that the only possible solution is to launch disciplinary proceedings and dismiss the abusive teacher from the school. Parents tend to find it unjust that even if disciplinary proceedings are launched against the abusive teacher, in the end he or she tends to receive rather lenient disciplinary punishment. If the teacher is found to have resorted to corporal punishment, disciplinary proceedings must be launched against him/her, and such action may even constitute criminal offence. Our Office, however, does not hold inquiry or initiative powers with regard to labour law decisions, therefore, we cannot conduct inquires into any related employer decisions. Although we do not have any way of influencing the decisions-making process of the disciplinary committee due to the above reason, we wish to cite one of the ad-hoc decisions of the Supreme Court here, which states that teachers may not subject any child they have been entrusted to teach or supervise to corporal punishment; if the teacher is found to have acted in such a way then the breach of discipline committed by him/her shall be considered so grave as to even merit the most severe form of disciplinary punishment, which is dismissal. (BH 1998. 53.)
A parent contacted our office with the allegation that a teacher yanked his first-grader and a friend out of the sandbox, made them stand in the schoolyard and started verbally abusing them, because they were playing in school. The parent stated that the principal did not take any action to resolve the matter. We contacted the principal of the school who informed us in a statement that the parent in question and another parent went to see him and demanded the immediate dismissal of the teacher from the school. The principal made a promise to investigate the matter. The parents, however, disregarded the principal's assurances and went directly to the teacher and started hitting, scratching and beating him up in front of almost one-hundred kids. The principal was only able to launch his investigation into the matter after this has happened. According the teacher, on the day in question, the two students were playing in the remains of a sandbox that was no longer suitable for use, and students had been warned about it on many occasions before the incident took place. The two kids stuffed the sleeves of their shirts with the dusty material and hit any class/schoolmates that came near them. The teacher said the following to the students: "Stop fighting, come out of there, this is no way to play!" The teacher did not allow the children to play anymore in the remaining part of the break. The complainant's child acknowledged the instructions and there were no problems with him later that day. The other student, however, did not follow the teacher's instructions, so the teacher smacked him on the neck so as to make sure that the child understood what was asked of him. The teacher verbally reprimanded the teacher and pointed out the importance of abiding by the law for the other teachers. Neither the school, nor the affected teacher pressed criminal or other charges against the parents involved in the case. We informed the head of the institution about our position on corporal punishment. The teacher subjected a student to corporal punishment unlawfully, and the principal verbally reprimanded the teacher as a result. Considering the action taken by the school principal, we did not issue an initiative, but informed the parent that the hiring and firing of teachers and any other employer's measures, in this case launching disciplinary proceedings against the teacher, is the right of the holder of employer's powers (in this case the principal) and shall be based on his or her assessment of events. (K-OJOGB-524/2006.) |
The physical integrity of a student may also be put at risk, if he or she is physically abused by his or her school/classmates. Teachers' nonfeasance can also be an issue here, as it is the school's duty to ensure that students are supervised at all times.
A parent contacted us, because she thought that her child was being physically abused by his classmates at school. As a result of the ensuing psychological trauma, she had to seek psychological treatment for her child. In his statement the principal stated that neither he, nor any teacher in his school had any knowledge of the child's alleged continuous abuse by his school/classmates, but he did, on the other had, acknowledge that the child in question was, in fact, beaten up by students going to a higher grade. According to his statement, however, the complainant's son started the fight on both occasions. The teachers in the school reacted to these fights immediately, but there were no signs of struggle, bruises or scratches on the child, medical assistance was not required and the child attended classes that day as usual. According to the information provided by the principal, all involved in the fight received punishment, including the complainant's son, as all of them violated house rules. In the principal's opinion, the psychological treatment of the complainant's child is necessary, because of the specific personality issues of the child. The principal also informed us that the institution always abides by its obligation to provide supervision for the children at all times.
The following was established in the case: Pursuant to Paragraph (5) of Article 41 of the Public Education Act, educational institutions must ensure the healthy and safe conditions of supervising and educating children/students in their care; explore and eliminate the causes of student/child accidents; and organise regular medical examinations for children/students. The 'definitions' section of this Act includes the definition of 'supervision'. Accordingly 'supervision' is defined as ensuring the protection of the physical and moral integrity of children/students starting from the time of entry into the educational institution to the time of exiting the educational institution lawfully and during the compulsory activities and programmes organised outside the educational institution as part of the educational/pedagogical programme of the institution. Students must be protected from all risks that may endanger their health and safety. As part of this obligation, teachers must endeavour to prevent the violation of rights and accidents, and identify in time the sources of danger that may harm the health or physical integrity of students. Physical abuse may provide grounds to taking disciplinary measures or launching disciplinary proceedings against abusive students. The application of the above largely depends on the internal regulations (e.g. house rules) of the institutions at hand. In the course of our inquiry, however, we concluded that the school did, in fact, meet its obligation to provide supervision for students at all times, which is why we did not issue any initiatives in the case. (K-OJOG-390/2006.) |
The fact the institution is obligated to provide supervision for children, students according to the above provisions of the Public Education Act creates a number of obligations for the teachers. It is, however, a question as to where the boundaries of these obligations lie in extreme situations.
A vocational secondary school principal asked for our opinion about the following problem. Two detectives dressed as civilians came to the school to take in two students, who were minors. The school requested that the head teacher of the youth protection officer be allowed to accompany the children until the police notified the parents. The detectives replied by saying that the students were only going to be interrogated as witnesses and not as suspects. They did not provide the school with any details regarding the case itself, but promised that the parents were going to be notified from the police station immediately. The police abided by their promise according to the principal. In the end, the principal gave his permission and allowed the detectives to take the students with them. Later it turned out that the students were, in fact, responsible for the crimes they were charged with. The principal's questions were directed at whether or not the school violated its obligation to provide supervision, when it allowed the detectives to take the students with them.
We drafted the following opinion on the case: Within the territory of the school, the right of supervision shall be held by the institution of public education, and the teacher, during school hours with regard to any students under the age of eighteen. What this means is that during this time the teacher has the same rights and obligations as the parent. As a result, the teacher may only release the students from his or her supervision, if an official request is presented by someone, for instance a state body. Effective statutes on criminal proceedings and the police force provide investigating authorities with a number of legal options to take students under supervision into custody, and the teacher does not have the right to protest The investigating authority, however, must always have a written document at its disposal to prove that this course of action is justified, in most cases the authority should have a warrant at its disposal. If, however, it is unable to justify its action with such a written document, the teacher is not obliged to release the student. This is true if they wish to question the student as a witness or as a suspect.
When the student is taken into custody by the authorities, the student is released from the supervision of the school, and from this point forward the school shall not hold any rights or obligations in connection with the student. Notifying the parents is the duty and responsibility of the investigating authority, although the school can also notify them. The student should only be accompanied by school staff, if the parent expressly requested the school to do so, but it is by no means obligated to provide such services. The school does not have any duties related to the criminal proceedings. (If the student is convicted and receives a prison sentence, his or her student status will presumably be terminated, either by continuing his or her studies in another educational institution, designated by the penitentiary, or, in the case of a student who has already completed his compulsory school attendance obligations, by terminating the student's studies altogether.) (K-OJOG-287/2006.) |
If there is a dispute between the parents in terms of the placement of the child, or parental custody rights, one parent may feel that, within its supervisory role, it is the school's duty to protect the student from the other parent.
A mother asked for our opinion about the following problem. Her ex common law spouse visited their child in school breaks on a regular basis, thereby continuously harassing, in the mother's opinion, their son. The child custody lawsuit was in progress between the parents and the mother was worried that until a decision is reached by the court, the father can visit their son on a number of occasions.
We informed her that if house rules allow parents to visit their children during breaks, then allowing parents to exercise this right does not constitute an infringement, having regard to the fact that parents' rights shall be maintained in education until a court decides otherwise. (K-OJOG-317/2006.) |
Pursuant to Point h), Paragraph (1), of Article 11 of the Public Education Act, the student shall have the right to have his or her religious beliefs, creed or other beliefs respected. A student's religion may influence his or her school life as well, e.g., if he or she has to follow certain food related rules.
One parent contacted us, because he wanted his child to be able to get meat-free food in school. We informed the parent on the above provision of the Public Education Act and advised him to contact the principal of the school in order to find a solution to providing the child with vegetarian food. (K-OJOG-167/2006.) |
As in previous years, there were many questions this year as well about what kind of objects students were allowed to have on them in school. This question weighs heavily on the issue of the rules of mobile phone use in and outside class, as this device is particularly dangerous in terms of diverting the attention of students and disturbing instruction in class.
The use and possession of mobile phones is a partial faculty derived from proprietary rights. Pursuant to the fundamental right to property as set out by the Constitution and the right to possession and use set out by the Civil Code as a partial faculty to proprietary rights, any person may have a mobile phone that they own on them and use it any way they want. This right, however, may not be exercised without restrictions. Restriction of a fundamental right may only occur in the interest of enforcing another fundamental right and only by way of legislation as per the provisions of Paragraph (2) of Article 8 of the Constitution. Paragraph (8), Article 40 of Act LXXIX of 1993 on Public Education sets out such a legal restriction, by providing that house rules may require that students place certain objects brought by them to school in a safe (changing room), or that they notify the school on the presence of certain objects. House rules may prohibit, restrict or set out certain conditions for students to bring objects to school that are not necessary for the meeting or exercising of students' rights and obligations arising from their student status. If these rules are violated, the educational institution shall only assume liability for any resulting damage, if said damage was wilful.
This restriction, however, shall not be construed as general and full authorization.
It is important to see, however, that pursuant to this statue schools may not prohibit students from having any objects that are unrelated to learning on them in school. A decision regarding the prohibition of an object must always be reasonable, it can never be arbitrary. It can be generally established that objects usually taken by people to a given place may not be prohibited. Our position is that mobile phones are everyday devices that people, therefore students as well, have on them and use on a regular basis.
Based on all of this it can be established that institutions of public education may not ban all mobile phones as general principle, just as they may not ban all jewellery, portable CD players or mp3 players either. Schools, however, may ban extremely high-value mobile phones, just as they can ban extremely high-value jewellery or other expensive devices. Whether an object is an object that is considered an everyday object should always be subject to ad-hoc deliberation, only a very loose general rule can be drafted for this issue.
It should be noted, however, that this does not mean that students are not to be held accountable if they do not pay attention to the class and engage in other activities, such as playing with their mobile phones, CD players, etc. . In a case like this, students may be subject to disciplinary measures, or even disciplinary punishment in more extreme cases. Moreover, if the teacher cannot grasp the student's attention in any other way, he or she has the right to take the object that distracts the student away from him/her. This measure qualifies as a legal restriction on proprietary rights. On the other hand, the purpose of this legal restriction must be taken into account. Considering that the original goal was to ensure that the student pay attention to the material presented in class, the restriction, in this case taking the object away from the student, should only apply until this goal is still in effect. What this means in practice is that as soon as the class is over, the goal ceases to be relevant and the object must be given back. It shall be considered illegal for the teacher to keep the object from the student and only return it at the end of the day, month, etc.
As we have pointed out emphatically in our previous reports, the protection of personal data in educational institutions raises a number of particularly sensitive issues. Kindergartens, schools manage children's, students', and parents' personal data. Pursuant to Point 1, Article 2 of the Act LXIII of 1992 on the Publicity of public interest data and the protection of personal data (hereinafter referred to as Data Protection Act), any data that can be connected to a particular (identified or identifiable) natural person (hereinafter referred to as person concerned), or any conclusions that can be drawn as a result thereof shall qualify as personal data. Personal data shall retain this particular quality in the course of data management as long as its connection to the person concerned can be restored. A person is identifiable in particular, if he or she can be identified, directly or indirectly, on the basis of his or her name, identification number, and one or more attribute that characterises his or her physical, physiological, mental, economic, cultural or social identity. Pursuant to Point 9, of Article 2 of the Data Protection Act data management shall include, regardless of the proceedings applied, any operation or the totality of operation, for instance the collection, survey, recording, organization, storage, modification, use, forwarding, publication, harmonization, connection, closing, deletion, destruction thereof, or if further us of the data is prevented. Data management shall include the creation of a photographic, voice, or video recording as well as the recording of the physical characteristics of a person that can be used to identify him/her (e.g. finger or palm print, DNA sample, iris scan, etc.).
A teacher inquired about whether it was possible to forward a table containing the evaluation of all students to all of the parents concerned. Based on the above we established that the results of the evaluation qualify as personal data and the disclosure thereof qualifies as data management. According to the Annex 2 to the Public Education Act, student's personal conduct, diligence and performance evaluation related data can be disclosed within the class concerned, the educational body of the school, to the parent, the examination committee, the organizer of practical training, the entity concluding the study agreement, and if performance evaluation is not performed in the school, then such data may be disclosed to the school, in case of changing schools to the new Our position is that other parents should only be able to learn about the performance evaluation of other children, in case of the lack of a relevant statutory authorization, if the person concerned authorizes them to do so. The right to consent shall be exercised by the legal representative of minor students below the age of fourteen, while in the case of children above the age of fourteen such rights shall be exercised jointly by the student and his or her legal representative. (K-OJOG-77/2006.)
Pursuant to Paragraph (1), Article 11 of the Public Education Act, students have the right to freely express their views, abiding by their obligation to respect human dignity, on any issue, inter alia, on the performance of the teacher teaching them. There are many instances where schools ask their students to evaluate the performance, educational activities and professional knowledge of their teachers in an organized manner, in writing. In the course these evaluations, personal data are generated, which raise many data protection related problems.
A teacher asked for information about whether or not a school principal had the right to ask for the evaluations given by students from head of the quality assurance department. Based on the above-cited provisions of the Data Protection Act we informed the teacher that pursuant to Paragraph (1), Article 3 of the said act, personal data can only be managed, if the person concerned authorizes such data management, or if such data management is required by law, or is mandated by law for a particular group of persons, or a municipal decree requires such data management. Considering that there is no such legal authorization for data management in this case, provided for by any statute (including the viewing of said data), data management is only possible with the consent of those concerned. (K-OJOGB-344/2006.) |
Students' data includes their educational identification number. If the card containing the identification number is lost, the issuing authority shall be obliged to replace it.
A person contacted our Office saying that his documents, including his educational identification card, have been stolen. We informed him that pursuant to Paragraph (3), Article 6 of Decree No. 32/2005 (XII. 22.) of the Ministry of Education on the Amendment of Decree No. 11/1994 (VI. 8.) of the Ministry of Culture and Public Education 8.) the head of the institution 22.) shall be obligated to ensure that the eleven-digit identification number of the student is entered subsequently on the certificate forms issued and used before the entry into force of the Decree, on the page that features personal data, in an identifiable manner. Pursuant to Paragraph (1), Article 12/E of Government Decree No. 20/1997 (II. 13.) on the Implementation of Act LXXIX of 1993 on Public Education any student's data who establishes a student relationship shall be sent to the Office by the head of the institution of public education within fifteen days of the establishment of such a legal relationship for the purpose of issuing the identification number. The Public Education Information Office (Közoktatási Információs Iroda) shall generate an eleven-digit number for the student and shall make it available to the head of the institution within fifteen days of receiving the request online via the Public Education Information System (Közoktatási Információs Rendszer). The head of the institution shall ensure that the student or his or her legal representative is apprised of the issued identification number. If the student or his or her legal representative requires that a certificate be issued on the issuing of the identification number, the institution of public education shall be obliged to issue it free of charge, within eight days. The data featured on this certificate and the format of thereof shall be made publicly available at the KIR website. Pursuant to Paragraph (2) of the same section, any changes in the data listed under Point 6, under title "The Information System of Public Education" shall be disclosed to the office within fifteen days by the head of the institution. Based on the student's report, the head of the institution shall issue a certificate, retaining the original identification number, free of charge within fifteen days of the report, if the said certificate has been lost, destroyed or damaged, or if the data featured therein have changed. (O-OJOG-437/2006.) |
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