RIGHTS DIRECTLY RELATED TO EDUCATION

Rights rooted in the freedom of education

Articles 70/F and 70/G of the Constitution lay down that in the Republic of Hungary, everybody has the right to education. This is realised through public, general education compulsory and free primary school, and secondary and higher education accessible for all in accordance with their skills and the financial contribution of learners. The Republic of Hungary respects and supports the freedom of science and art, and the freedom of education and of teaching.

One primary manifestation of the freedom of education is the free choice of school, a right laid down in the Public Education Act. The actual meaning of this right is, however, not always clear for parents. Pursuant to Paragraph (1) of Article 13 of the Public Education Act, parents have the right of free choice of educational institutions. In accordance with the right of free choice of educational institutions, the parent may choose the school which best fits the child's abilities, skills and interests, the parent's religious belief, nationality or ethnicity. Parents are often confused about whether they can enrol their child with the school they like, or whether they must take the child to a school which is obligatorily allocated to them.

Local authorities may not restrict the parents' right of free choice of school, and may not limit the competence of the head of a public education institution with regard to deciding about the admission of pupils. The maintaining authority may only specify the catchment area of the school. Under Paragraph (1) of Article 90 of the law, the local authority maintaining the public education institution is required to specify the catchment area from which the admission of learners may not be refused by the school. This only means that the school is required to admit some pupils, and is not a specification of a single area from which admission is possible. Therefore, any decision or measure which hinders parents in exercising their right to enrol their children in the school of their choice is unlawful. In our opinion, the parents' right of free choice of school is also impaired when not all pupils may apply, if some children can not apply to a school of their choice. (K-OJOG-110/2002.)

Under the law, then, parents may send the application form of their children to any educational institution of their choice, as long as it is in the Republic of Hungary. Pursuant to Paragraph (1) of Article 66 of the Public Education Act, the head of the institution determines which pupils to admit. The principal must act in accordance with the relevant legislation when making such decisions. Under Paragraph (1) of Article 42, the school may set requirements as the condition of admission, but these may only be of an academic or group organisational nature.

A parent wished to send her younger child to the same school as her older child, and made a grievance of the fact that the school refused admission for the younger child for lack of capacity. Having to escort the two children to two different schools was problematic for the single parent. As the older child liked to go to the given school and was progressing well there, the parent did not want to take the older child to another school. As the school selected by the complainant was not the school providing mandatory admission, and there was a lack of capacity in the school, the refusal was not unlawful. It is also not unlawful that, as a result of the decision, the two children will not attend the same school. Only the school providing mandatory admission for the catchment area where the children live (or stay) has a legal obligation to admit both children. (K-OJOG-281/2002.)

The right to free choice of school does not belong to those which cannot be restricted.

A complainant asked us to provide assistance with enforcement of the right to free choice of school by his wife, who was doing her sentence at a detention facility located outside Budapest. The wife wanted to pursue secondary studies not at the local educational institution, but at one in Budapest. Section n) of Paragraph (1) of Article 36 of Decree-law 11 of 1979 on the execution of punishments and actions set forth that convicted persons have the right to conduct primary school studies, and if justified, also secondary and higher studies. Under Section f) of Paragraph (5) the right to education is restricted as a result of the imprisonment. The director of the institution may allow secondary studies, but is not required to do so. Consequently, no violation of the law was found. (K-OJOG-446/2002.)

In accordance with the provisions of Paragraph (1) of Article 7 of the Public Education Act, the constitutional right to the freedom of education includes the right of parents to decide about the form in which their child fulfils his or her obligation of compulsory schooling, that is, whether by school attendance or as a private learner. Both parents and heads of institutions have asked the Office for information on the conditions for a pupil becoming a private learner. The parent shall notify the relevant intention to the head of the institution. The principal shall obtain the opinion of the child welfare service competent according to the domicile - or if none, then place of stay - of the child within three days of receiving the notification, in order to decide whether or not the arrangement would be detrimental for the child. When the principal deems that not fulfilling the obligation of compulsory schooling would be detrimental to the child, or the studies started in this arrangement cannot be expected to be completed, the principal shall notify the chief executive of the local authority competent according to the domicile - or if none, place of stay - of the child, who will decide on the form in which the pupil shall fulfil his obligation of compulsory schooling. Thus, the principal cannot unilaterally refuse the request, but when the principal deems that exercising this right would be contrary to the child's interests, the right to decide in the matter is transferred to the chief executive. (K-OJOG-488/2002.)

There is another way of becoming a private learner under the law. Pursuant to Paragraph (3) of Article 23 of Decree 11/1994. (VI. 8.) MKM, the expert and rehabilitation committee examining the child's learning skills, and the educational counsellor service have the authority to recommend that a child with special needs, or experiencing problems with adaptation, learning deficiencies or problematic behaviour, pursue his or her studies as a private learner. The expert opinion is a recommendation for the parent, and only becomes mandatory when accepted and signed by the parent. The school, therefore, cannot ever decide about making the child a private learner in place of the parent. A frequent problem is that, even though choosing to become a private learner is the right of pupils, the heads of institutions exploit the ignorance or fear of parents and decide about the private learner status of a pupil unilaterally, for example because of the pupil's behavioural problems. Becoming a private learner, however, cannot be a sanction for behavioural problems. When pupils are undisciplined, they may be subject to disciplinary actions set forth in the rules of operation and organisation, or a disciplinary proceeding may be invoked and the disciplinary penalties specified in the Public Education Act may be applied.

One parent turned to us with the complaint that, pursuant to the principal's decision, his child must fulfil his obligation of compulsory schooling as a private learner, due to his behavioural problems. This was against the will of both the parent and the child. The documents provided to us supported the parent's claim. The pupil truly became a private learner, even though the expert and rehabilitation committee examining his learning skills issued a proposal for the academic year 2001/2002 that he should fulfil his obligation of compulsory schooling through school attendance. We found that the school's decision about making the child a private learner was unlawful, and initiated with the head of the institution that the necessary steps be taken to ensure that the child could fulfil his obligation of compulsory schooling in the form of school attendance. Upon our initiative, an agreement was reached between the parent and the school and the breach of law was remedied. (KOJOG-504/2002.)

Concerning teachers, the freedom of teaching includes, among others, the following sub-categories. The teacher has the right to apply the methodology and textbooks of his own choice in teaching. Naturally, there are certain limits to this right which cannot be ignored. One of them is that the teacher must respect the pupils' right to human dignity, health and safety, and must follow the school's pedagogical programme, and at the end of the preceding academic year, must inform the parents about the textbooks and other tools which will be necessary for schoolwork. (K-OJOG-6/2002., K-OJOG-75/2002., KOJOG-325/2002., K-OJOG-596/2002.)

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