De vrijheid van onderwijs. Een onderzoek naar de betekenis van de vrijheid van richting en de doorwerking ervan in het Vlaamse onderwijsbeleid

This research project deals with the constitutional rights surrounding educational policy in Belgium and Flanders. It examines to what extent "pedagogical freedom" ("vrijheid van richting"), i.e. the freedom of schools and educators to determine the content of their education and the pedagogical method, as part of the constitutionally guaranteed freedom of education limits public authorities when they regulate education. Firstly, the historical roots of the freedom of education are uncovered on the basis of legal historical research. The freedom of education was enshrined in the Belgian Constitution in 1831 in response to the activist and centralist education policy of the Dutch, French and Austrian rulers. The active educational freedom, i.e. the freedom to organize and offer education, became the primary fundamental right in terms of education. It got priority over the right to get an education and the so-called passive educational freedom to choose what kind of education one wants for their children. The legality principle, which requires approval of the democratically elected legislative body, only strengthened the freedom of education as it prevented an activist action by the monarch and the government. The main actors of the Belgian revolution seemed united in 1831 when opting for educational freedom. Nevertheless different visions on the specific meaning and consequences of the new fundamental right started to emerge as soon as an education policy had to be developed. In two "School Wars" (1879-1884, 1951-1958) the political right (Catholics, Christian Democrats) and the political left (Liberals, Socialists) diametrically opposed one another in discussions on the role of the government in organizing schools of its own, on the place of religion in (public) schools and on the possibility of providing subsidies to private schools. The compromise that emerged from the 1958 School Pact was founded on the ideas of free choice of parents (the passive freedom of education) and an equal subsidization of private schools. In 1988 the main principles of the School Pact were enshrined in the Constitution. The result of these evolutions was an amended constitutional framework in which several new fundamental rights, including the right to education, were brought on equal footing with the freedom of education, which thus lost its status as the primary fundamental right in the field of education. As a consequence the legal evaluation of educational policy often involves a balancing of different fundamental rights, all having equal value. By granting the Constitutional Court jurisdiction over Article 24 of the Constitution and the different educational rights, this balancing exercise has been transformed from a political task to a judicial one. In a second part of the thesis, the case law of the Constitutional Court regarding pedagogical freedom, as it has been developed since 1988, is discussed. Two main principles can be distinguished. On the one hand, the Constitutional Court has accepted the introduction of mandatory minimum objectives or common curriculum standards ("eindtermen", "socles de compétences") for both public schools and private subsidized (or officially recognized) schools in order to safeguard the quality and equality of education provided with public funding, as well as the value of study certificates that are awarded autonomously by the schools. If the set objectives or standards go beyond an acceptable "minimum of required knowledge", they risk to infringe upon the freedom of education and, in order to avoid a violation of the Constitution, a possibility must be provided for schools and educators with a specific pedagogical or philosophical approach to propose an alternative set of minimum goals to attain that are more in line with their specific project. On the other hand, the Court accepts a regulation of home schooling, education provided by own means in a family circle or in non-subsidized private schools. The Flemish Community and the French Community subject those who attend home education to an inspection and to compulsory participation in centrally organized state exams. A twofold negative inspection or a twofold failure to pass the exams results in compulsory enrolment in a public school or a subsidized private school. In a range of poorly motivated judgments the Constitutional Court accepted these infringements upon the freedom of home educators and private schools, considering the right to education and the interests of the child had to prevail. The freedom of education, in particular the pedagogical freedom, thus fades. The evolving case law of the Constitutional Court leads to the conclusion that the pedagogical freedom, as part of the active freedom of education, is under pressure. The judiciary and the legislator are evolving in a direction in which the other fundamental rights of Article 24 of the Constitution prevail over the freedom of education: the right to education, the passive freedom of education, the principle of equality and the legality principle. The government is developing an ever increasing body of regulation in the field of education, thus limiting the autonomy of schools, educators, educational organizations etc. This evolution is to a certain extent being approved by the highest judges - the Constitutional Court and the Council of State. This dissertation provides different interpretative frameworks to evaluate this evolution as constitutional or unconstitutional. Two of those frameworks start from the assumption that the freedom of education is radically outdated (eaten by its own children and/or the 'primacy of politics', because of pedagogical and political reasons that transcend this thesis). Firstly, this evolution can be evaluated as an unlawful application of the Constitution. To lawfully change the meaning of a constitutional clause, an amendment of the Constitution is required, according to a procedure that offers sufficient guarantees in terms of democracy and legitimacy. Secondly, however, a more creative reading is possible, which can legitimize a radical shift in the meaning of the freedom of education through the jurisdiction of the Constitutional Court. To justify this judicial move, a rather creative interpretation of Article 22bis of the Constitution is possible. Article 22bis was amended in 2008. In a creative reading of the Constitution one could suggest the freedom of education, enshrined in Article 24 of the Constitution, was thereby amended as well, implicitly: the freedom of education is then overruled by 'the interest of the child' of which Article 22bis of the Constitution requires that it is a primary consideration in all decisions concerning children. Both previous scenarios assume a radical shift in the meaning of the freedom of education. A third scenario is possible, in which the meaning of educational freedom has not changed radically. The judgments on home schooling in which the Constitutional Court gives the child's interest an apparent automatic and absolute priority over the freedom of education can then be classified as accidents de parcours, legal mistakes. Instead of a radical change of meaning, the freedom of education is only subject to gradual change through a teleological reinterpretation, taking into account the intentions underlying the Constitution (as written in 1831 and amended in 1988) and evolving circumstances. The freedom of education thus still needs to be balanced against the other fundamental rights of education as a full and equal fundamental right. The judgments regarding minimum objectives/common standards remain the primary example of how this balancing can be done. The judgments on home education are to be considered as a legal faux pas of the Constitutional Court. Finally, the freedom of education, as it has been analysed in this work, functions as a lens to investigate three recent examples of educational policy. The first case study concerns the modernization of secondary education and the new generation of minimum objectives. Both can be evaluated as moderate policy measures in terms of limiting educational freedom. The possible introduction of central exams is a second case. Here, different tests can be placed on a continuum. Centrally validated, bottom-up developed tests that are only used in the context of quality control can be regarded as a proportional limitation of educational freedom. On the other hand, a centrally developed, compulsory test with a determining impact on the study results of individual students would form a major intervention in the freedom of education. Finally, the pedagogical freedom of religious classes is investigated, as well as the possible introduction of a more neutral class on citizenship and philosophy. The extent to which - in terms of both time and content - the religious authorities preserve control is decisive, as is the extent to which minimum objectives regarding citizenship and ethics would require the teaching of specific values. The more value-oriented the minimum objectives, the greater the risk of infringing upon the freedom of education.nrpages: 505status: publishe