ENFORCEMENT OF RIGHTS DIRECTLY RELATED TO EDUCATION
Rights Rooted in the Freedom of Education
The Articles 70/F and 70/G of the Constitution state that the Republic of Hungary guarantees the right to education to its citizens. This right is implemented t hrough the dissemination and general access to culture, free compulsory primary schooling, through secondary and higher education available to all persons on the basis of their ability, and furthermore through financial support for students . The Republic of Hungary respects and supports the freedom of scientific and artistic expression, the freedom to learn and to teach .
Within the meaning of Article 6 (1) of the Public Education Act, in the Republic of Hungary education is compulsory for every child. Parents often seek advice from our Office inquiring about at what age their children are liable to start their compulsory education. Under Article 6 (2) of the same Act, a child who reaches the level of development required for schooling becomes liable for compulsory education earliest in the calendar year when he or she reaches the age of six, or the latest in the calendar year when he or she reaches the age of eight . A child having reached the level of development required for schooling shall start his or her compulsory education in the calendar year in which she reaches the age of six years between the beginning and May 31 of that calendar year. Pursuant to the provisions of Article 6 (4) (a) of the same Act, it is the head of the school who makes the decision about the beginning of compulsory education on the basis of the kindergarten report, or if the child has not attended kindergarten or the kindergarten requests so, on the basis of the education counsellor's report. Under Article 6 (3) of the Public Education Act, compulsory education lasts until the end of the school year in which the student reaches the age of eighteen. In the case of students with special educational needs, compulsory education may be extended as long as the end of the school year in which they become twenty years of age. In its transitional provisions the Act states that compulsory education for children who started their education in the first grade of primary school in the school year of 1997/98 or before shall last until the end of the school year in which they reach the age of sixteen. In the case of students with special educational needs, compulsory education may be extended as long as the end of the school year in which they become eighteen years of age.
A parent requested information about whether - in view of her son's weak physical condition - she had the option to enrol her son in school in the subsequent year despite the fact that the educational counsellor's report declared that her child reached the development level required for schooling.
We informed her of the aforementioned provisions of Article 6 (2) of the Public Education Act. Furthermore, we also informed the parent that since her child had reached the development level required for schooling and would become six years of age until 31 May 2005, he is liable to start his compulsory education in the same calendar year (i.e. in September 2005). If as a parent she refuses to accept the expert report of the educational counsellor, she may initiate proceedings for the review of the expert opinion with the notary of the local government that has competence in the village, town, town of county rank, or the district in Budapest where her child's domicile or, in the absence thereof, residence is located. (K-OJOG-261/2005.)
The guarantee of the right to free choice of school stipulated in the Public Education Act is one of the primary forms in which the freedom to learn is manifest. Accordingly, parents may submit their children's application for admission to any education institution - provided that it is located in the territory of the Republic of Hungary - of their choice. Once the applications for admission to the school have been submitted, pursuant to Article 66 (1) of the Public Education Act the head of the institution shall decide which applicants are admitted to the institution. In his or her decision on admission, the principal of the school shall act in compliance with the relevant statutory provisions. According to Article 42 (1) of the same Act the school may define certain requirements as a precondition of admission, however, these may only be related to studies and group or class organisation.
Another right of parents that pertains to the scope of free choice of school is their right to freely decide not only about the admission of their children, but also about any subsequent transfer to another school, and the termination of student status in the old school. Over the past few years, we received a number of complaints claiming that institutions dismissed students. Article 75 of the Public Education Act lists item by item those cases in which the student status in schools maintained by the local governments is terminated. These do not include the case where the school proposes the termination of student status. The list is not a set of examples, but an exhaustive one, therefore the cases not listed therein are considered unlawful irrespective of what the students or their parents had committed before, if they had committed anything at all. The Public Education Act and its implementing decrees (in this respect, in particular Decree 11/1994 (VI.8.) of the Ministry of Culture and Public Education on the Operation of Education and Teaching Institutions is of relevance) regulate the means a school may employ to sanction the improper conduct of students. The public education institution may apply so-called disciplinary measures (warning, cautioning, reprimand, etc.), or may start a disciplinary proceeding. A significant difference between the two courses is that while disciplinary measures are not regulated in detail by the legislator in the law, the specific forms of these, the conditions and the rules of their application are to be set forth in the internal regulations of the given public education institution, each and every tiny detail of disciplinary proceedings is governed by statutory provisions. The reason for this distinction, among others, is that disciplinary proceedings have grave legal consequences. If it finds that the student has breached his or her obligations, the public education institution may choose from among the listed courses. It may not choose, however, to propose that the student be dismissed from the school, as this way it would evade the conduct of disciplinary proceedings, the importance of which lies exactly in its guarantee function for both the student and the institution. Disciplinary proceedings require the presentation of evidence and a reasoned decision which can be appealed. Dismissal is worrying not only because it does not comply with the verbatim interpretation of legislative rules. It is no excuse that a request or proposal of this kind has no legally binding effect, as in itself it is enough to exert considerable pressure on the parents. The position of the parent and that of the principal who is representing the school are rather different. In such a case the parent is not in a position to bargain. Naturally, he or she means no harm to his or her child, and does not want the child to study in a possibly hostile environment. Seemingly, the parent exercises the right to free choice of school when he or she decides to transfer the child to another institution as a result of the school's request thereto, but in fact the parent gives in to pressure simply because he or she has no other choice. Through this kind of solution the school avoids the law in a case which, according to the law, should be solved in a strictly regulated manner. (K-OJOG-156/2005. , K-OJOG-366/2005.)
The freedom to learn includes the right of the student to select the subjects he or she wishes to study and, where possible, select the teacher who teaches the given subject. Parents representing their children endeavour to make the best possible decision in such a case. The ideas of parents however, do not always harmonise with the options institutions can offer, and the exercise of the right to free choice of subject and teacher is strongly limited by institutional arrangements. Pursuant to Article 11 (1) (k) of the Public Education Act, the rights of students shall be in particular to choose subjects they are wishing to study during their study, within the scope defined in the framework curriculum, the teaching program and the regulation of the secondary school maturity examination. According to Article 8/A (2) of the same Act, the framework curriculum shall contain the aims and contents of education and teaching, the system of subjects, the defined compulsory and common requirements of education and teaching, the time interval for acquiring the curriculum which conforms to schools' local educational and teaching particularities and for fulfilling the requirements, and the number of classes a student can be required to attend on one instruction day. Within the meaning of Article 45 (2) of the Act the school shall draw up a teaching program and as part thereof a local curriculum based on the National Core Curriculum, or choose curricula from among the ones drawn up in this way and build it into its teaching program. Under Article 48 (1) (b) the local curriculum of the school shall define the subjects taught in the various grades, the compulsory and optional classes and their number, the required teaching material and its requirements. It stems from this provision that the elective nature of subjects is decided by the head of the institution, and our Office is not authorised either to challenge or to change it. Article 11 (1) (k) of the Public Education Act also states that the rights of students shall be, if there is possibility, to choose the teacher who teaches the subjects. The above provision of the Public Education Act creates the possibility for selecting the teacher, however, the Act itself restricts this right of students by stating that this right can be exercised subject to the options institutions offer. According to the provisions of Article 54 (1) of the Public Education Act, the head of an institution of public education shall exercise employer's rights and make decisions on every issue connected with the operation of the institution which is not assigned to the sphere of authority of any other person or institution under the legal regulations or collective agreement (regulations for public employees). In consequence of this statutory provision, the assignment of the teachers to a particular class is the competence of the head of the institution, and our Office is not authorised either to challenge or to change it. (K-OJOG-45/2005., K-OJOG-162/2005., K-OJOG-187/2004., K-OJOG-447/2004., K-OJOG-1155/2005.)
As is shown by the above provisions, the right to free choice of teacher cannot be exercised in every school and in respect of every subject. Working out alternatives is only an option ensured by the legislator for the decision-makers. If the institution concerned provides the possibility of freely choosing the group of students and the teacher, the relevant procedural rules must be laid down in the rules of operation and organisation and/or in the house rules.
The freedom to learn extends to not only parents' and students' rights, but also to those of teachers. One such right is the one ensured by that provision of the Public Education Act which states that in connection with his or her job, a teacher has the right to choose his or her educational and teaching methods, knowledge and teaching material on the basis of the educational and teaching program.
A parent turned to our Office with the question whether the teacher was required to make the children in the first grade of primary school jog for twelve minutes in the physical education class.
We informed the parent that within the meaning of Article 10 (1) of Act LXXIX of 1993 on Public Education, children and students shall have the right to receive education and teaching under safe and healthy conditions at an institution of education and teaching, to have a schedule at kindergarten and school which ensures time for rest, free activity, physical exercise, sports and the provision of meals, in line with their age and development . This right of students results in several obligations for the teachers and the institution. According to Article 19 (7) (a) of the Public Education Act, the fundamental task of a teacher is to ensure the protection of children's and students' physical and moral integrity in the framework of his or her educational and teaching activity. Within the meaning of Article 41 (5), the educational and teaching institution shall make sure that children and students in its care are under supervision, the conditions of education and teaching are healthy and safe, that reasons of accidents of students and children are discovered and eliminated, and that children and students are put under regular medical examination. The 'definitions' section of this Act includes the definition of 'supervision'. 'Supervision' is defined as the protection of the physical and moral integrity of children and students during the time elapsing between entering the institution and leaving it lawfully, as well as during the time of extra mural classes and programs which are compulsory as part of the teaching program . According to Article 8/A (2) of the Public Education Act, the education and teaching work in schools is based on the teaching program. The teaching program contains the educational program, the local curriculum, furthermore the vocational program in schools taking part in vocational training. Under Article 19 (1) (b) of the same Act, in connection with his or her job, a teacher has the right to choose his or her educational and teaching methods, knowledge and teaching material on the basis of the educational and teaching program. As part of this right, the teacher may decide to have the students jog for twelve minutes in the physical education class . However, he can only exercise this right without violating the rights of others, in compliance with the relevant statutory provisions, and on the basis of the teaching program. If, however, a situation in which the students' physical integrity is endangered emerges during the physical education class, the teacher can be reprimanded for his decision. (K-OJOG-1026/2005.)
The following authorisation by law also pertains to the rights of teachers. Article 19 (2) of the Public Education Act states that, without specifying the quality, type and price, teachers may request students to obtain clothing or other equipment which are indispensable for participation in the class they hold or for the acquisition of the subject matter of instruction, and are regularly and simultaneously used by all students in the class. (K-OJOG-1039/2005.)
A parent inquired about the position of our Office with regard to the fact that the school his child attends requests them to pay definite amounts for the photocopies used during the classes.
We informed him that the parents may jointly decide to make payments for certain purposes. They can mandate the head teacher to administer these payments. In this case, the amounts paid form the joint asset of the parents. Concerning the legal aspects of the case when the parents make such payments without having jointly decided to do so, we gave the following information. Pursuant to Article 114 (1) (b) of Act LXXIX of 1993 on Public Education, the services available free of charge at educational institutions maintained by local governments and organs of state, and in the context of the performance of the tasks of local governments are activities of educational classes and, among others, the use of school facilities (library, laboratory, computer centre, sports and leisure facilities). Furthermore, we informed the petitioner of the provisions of Article 19 (2) of the Public Education Act according to which where the use of photocopies is indispensable for participation in the classes, the teacher may request that these be obtained, but the school board may define certain limits with regard to the associated costs. The photocopies can be made by the school itself, which, however, cannot derive any lawful revenue from it in excess of the cost of production. (K-OJOG-923/2005.)