Guarantees of the Rights of Educational Participants
Based on the investigations carried out by our Office, it can be stated that in many cases the rights of the educational participants are infringed because the institutions fail to observe the provisions that serve as a guarantee and are essential prerequisites to the enforcement of the rights introduced above. We regard as provisions that serve as a guarantee the requirements concerning the internal regulations of education and teaching institutions because these regulations supplement the provisions of law concerning student status in a wide range of issues. Provisions related to the information given to educational participants, and the procedural rules of the Public Education Act and Decree 11/1994. (VI.8.) of the Ministry of Culture and Public Education also fulfil a guarantee function.
A parent contacted our Office in person to present the problem of her daughter. Last year, the student applied for admission primarily to the advanced class and secondly to the standard class of grammar school. The parents lodged an appeal against the decision refusing admission in which they requested their daughter's admission to the standard class of grammar school in the first place, and, in case their daughter was rejected, to the secondary school class. The parents claimed that acting in his competence as principal, the principal assessed their daughter's application and granted her admission to the secondary school class. It was later on, during the term that the parent learned that another student who scored less than her daughter was admitted to the grammar school class as a result of the remedy proceedings. The parent claimed that during the appeal procedure they suffered an infringement as ranking did not take place according to the scores. In 2004 the parent turned to the maintainer of the school. According to the decision of the maintainer the principal can transfer the student to the grammar school class if there will be a free place and if the student will achieve appropriate results. The parent also informed our Office that due to the illness of her daughter (spinal complaints, claustrophobic symptoms) it was difficult for her to study in the secondary school class where she was at a disadvantage. We initiated proceedings in the case, whereby we requested a declaration from the principal of the school. In his letter the principal informed us that the student applied for admission to grammar school but not to a vocational secondary school. Since she was not admitted, according to the principal the parent requested orally that the school admits her daughter to any secondary school class, even to vocational secondary school (despite the fact that formerly she had not applied for admission there). The principal told our Office that in the course of legal redress, it was not him but the representative of the maintainer who made the decision based on his proposal. The principal suggested that the student who scored less than the petitioner's daughter be admitted to the grammar school class solely because the parents of that student justified their application with medical reasons. The principal stated that the maintainer decided in accordance with his proposal.
As in his declaration the principal referred to the maintainer as an authority, we also contacted the maintainer to learn his position. In his declaration the maintainer informed us that following the rejection of the child of the petitioner, the principal, under authorisation from the maintainer, fulfilled the requirement that the student should continue her studies at the place of her residence. In the maintainer's view, there is no statutory provision in place regulating who can or should be admitted to the places that become vacant as a result of the remedy proceedings, as there is no provision in place either that would state that the school principal is liable to establish student status with one or more of the students listed in the admission proposal of the Admission Centre mandated by the National Public Education Evaluation and Examination Centre. According to the maintainer the principal acted in accordance with Article 66 (1) of the Public Education Act. The maintainer also informed our Office that the other student who achieved worse results in the entrance procedure than the petitioner's daughter was admitted on account of health problems, for the sake of equity. Finally, the maintainer called our attention to the fact that due to legislative deficiencies, currently there are no provisions relevant to the present situations, and therefore he suggested that we notify the Minister of Education of the inadequate legal background.
We adopted the following legal position in the case. The rules of the admission procedure are set out in Annex 8 to Decree 11/1994 (VI. 8.) of the Ministry of Culture and Public Education. Pursuant to the provisions of point 1.15. thereof, the school announcing admission shall publish the result of the admission procedure, the ranking of applicants together with their scores no later than three days from the last day of the entrance examination it organised. Consequently, the result of the admission procedure depends on the ranking of applicants and the ranking of applicants depends on the scores achieved. Admitting a student to the grammar school class on grounds of health problems is certainly something to be appreciated. However, another student should not suffer disadvantage simply because she is healthier than her peer. On the one hand, rights of students shall not be violated, on the other hand, the exercise of these must be guaranteed. In conclusion, we are of the view that disregarding the ranking of applicants - which is the result of the admission procedure - during the remedy proceedings is unlawful. In view of the above, we proposed to the maintainer to take the necessary measures for transferring the petitioner's daughter to the grammar school class of the institution . The maintainer accepted the proposal and transferred the student to the grammar school class. (K-OJOG-311/2005.)
The right to information appears in the Public Education Act as a general principle among the rights of the individual educational participants and has a guarantee function. According to our position, it is worth focusing special attention on the efficient flow of information between educational participants and the regular provision of information because this way several conflicts can be prevented. Our experiences show that educational participants are often ignorant of the rights they are entitled to, and as a result educational participants become more exposed than they would otherwise be due to the dependencies that exist in the world of the school.
A parent sent an e-mail in which she inquired if the school was required to help a student who is a private student for reasons of disease prepare for his exams. Pursuant to the provisions of Article 23 (4) of Decree 11/1994. (VI.8.) of the Ministry of Culture and Public Education, the school shall provide for the preparation of the student and the determination of his or her grades and marks if the student receives long-term remedial care at home on the basis of the professional opinion of an expert, and therefore pursues his or her studies as a private student. In our letter we expressed our hope that the school would lend assistance to the student not merely because it complies with its statutory obligation, but also because it is important for the institution too to help one of its students, who had an accident, with the continuation of his studies. (K-OJOG-244/2005.)
There are important provisions with a guarantee function ensuring that students can attend classes and take part in extracurricular activities. The exercise of the right to participation can be restricted if justified by the protection of other students' rights and only as long and to such extent as is necessary, in other words, restriction cannot acquire a general nature. Attendance of compulsory and optional classes, however, is certainly not only an entitlement, but also an obligation, as defined in Article 12 (1) (a) of the Public Education Act. This obligation can nonetheless be imposed on the liable party only to the extent and for the duration necessary for achieving the objective specified in terms of its content.
A student wanted to know whether he was obliged to attend foreign language classes after passing the advanced school-leaving examination in a foreign language. We informed him that under Article 24 (5) of Decree 11/1994. (VI.8.) of the Ministry of Culture and Public Education if a student has passed the early school-leaving examination in a subject, it shall be regarded as the fulfilment of the educational requirements specified for the subject. Therefore, students who have passed the school-leaving examination are not required to attend the classes of the subject concerned. (K-OJOG-962/2005.)
We received many questions concerning the funding of the services public education institutions provide. Based on Article 114 (4) of the Public Education Act, in the scope of free services, learning and acquiring the syllabus that is compulsory for all and is related to the implementation of the educational and the teaching program, daily physical exercise, extra mural cultural, art, sports related or other activities, excursions, and open-air sessions can be organised from the budget of the education and teaching institution. This provision came into force on 1 September 2003 and is set out in Article 75 of Act LXI of 2003 amending the Public Education Act. Pursuant to the preamble that is part of the amending Act, kindergartens, schools and dormitories often organise extra mural activities that otherwise serve the implementation of their educational and teaching programs, but the costs of which are not planned. Therefore, they make the parents of the children and students bear these costs. In many cases visits to museums, libraries, participation in outdoor environmental education or other extra mural sessions are not provided for certain students because their parents are not able to contribute to the costs. The Act makes it clear that within the scope of free services, these costs shall also be borne by the education and teaching institutions. (K-OJOG-56/2005., K-OJOG-124/2005.)