Headnotes

to the Judgment of the First Senate of 22 November 2023

1 BvR 2577/15

1 BvR 2578/15

1 BvR 2579/15

Remarks in school-leaving certificates

1. A disability under constitutional law exists when a person has a long-term impairment as a result of an abnormal physical, intellectual or psychological condition that affects their ability to lead an independent and self-determined life. This does not include marginal impairments, but only those of considerable significance.

2. Art. 3(3) second sentence of the Basic Law also applies to disadvantages to persons with a specific disability as compared to those with another form of disability.

3. The scope of Art. 3(3) second sentence of the Basic Law also extends to constellations in which equal treatment under the law typically and foreseeably results in de facto disadvantages due to a disability (following BVerfGE 128, 138 <156>).

4. The goal of a school education includes the development of students’ personalities in a manner that allows their individual abilities to unfold regardless of their social background and, after the conclusion of their schooling, enables them to freely choose their further education or training and occupation based on their aptitude and interests, which can form the basis for an independent life. This includes neutralising the impact of any social disadvantages that might stand in the way of an unobstructed development of an individual’s potential to the greatest extent possible and inspiring and supporting an individual’s talents through differentiated educational opportunities. An education that, at a minimum, provides students the chance to develop their personalities regardless of their social background in order to obtain further education, training or an occupation is indispensable (following BVerfGE 159, 355 <383 f. para. 50 and 386 f. para. 57>).

5. The Abitur certificate, as proof of completion of the secondary education in preparation for higher education, serves an objective of constitutional significance under Art. 7(1) in conjunction with Art. 12(1) and Art. 3(1) of the Basic Law by offering all students the same opportunity of access to find further education or training and an occupation that corresponds with their scholastic achievement and individual abilities. The legislator fulfils this objective in particular when all Abitur candidates must demonstrate the same knowledge and skills obtained through a school education based on the same standards and when the varying levels of proficiency demonstrated are clearly reflected in differentiated grading that is documented in all certificates in a uniform, informative manner that permits comparison.

6. Remarks in school-leaving certificates that certain proficiencies were - in deviation from generally applicable examination standards –not graded at the candidate’s request due to disability-related limitations, which would otherwise not be ascertainable from the certificate, are justified in principle with regard to Art. 3(3) second sentence of the Basic Law in order to ensure an equal opportunity to access further education, training and occupations based on achievement, if included in a comprehensive manner so that the certificates are sufficiently transparent.

7. For Abitur certificates, which serve as proof of the completion of secondary education in preparation for higher education and in principle entitle the certificate holder to admission to any university study programme, such remarks are constitutionally required.

FEDERAL CONSTITUTIONAL COURT

- 1 BvR 2577/15 -

- 1 BvR 2578/15 -

- 1 BvR 2579/15 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

- 1 BvR 2577/15 -

- 1 BvR 2578/15 -

- 1 BvR 2579/15 -

the Federal Constitutional Court – First Senate –

with the participation of: Justices:

President Harbarth,

Ott,

Christ,

Radtke,

Härtel,

Wolff,

Eifert,

Meßling

on the basis of the oral hearing of 28 June 2023

Judgment:

hereby rules:

1. The judgments of the Federal Administrative Court of 29 July 2015 - BVerwG 6 C 33.14 and 6 C 35.14 - violate the fundamental rights of the complainants under Art. 3(3) second sentence of the Basic Law. They are reversed. The matter is remanded to the Federal Administrative Court for a decision on costs.

2. The orders of the Federal Administrative Court of 7 October 2015 - BVerwG 6 C 38.15 and 6 C 39.15 - are therefore inapplicable.

3. 3. The Free State of Bavaria must reimburse the complainants for the necessary expenses.

Reasons:

A.

The complainants, who obtained their Abitur qualification in the Free State of Bavaria, seek the removal of a remark in their certificates that indicates that their spelling proficiency was not graded as part of the Abitur qualification.

I.

According to the notice given by the Bavarian State Ministry of Education and Cultural Affairs on 16 November 1999, as amended by the notice of 11 August 2000 ([...]), which applied at the time the complainants took the Abitur examination in 2010, students in Bavaria with a specialist physician’s diagnosis of a reading and spelling disorder (dyslexia) could receive an exemption from grading of their spelling proficiency in the subject of German upon application; in foreign language subjects, they could apply to have their written work, which would otherwise carry twice the weight than the oral participation for grading purposes, carry the same weight as oral participation for the duration of secondary school. For the Abitur examination itself, only an exemption from grading of spelling proficiency in the subject of German was given. However, the complainants did not take any foreign language subjects as part of their Abitur examination. Pursuant to the aforementioned notice, the following remark was to be included in the affected students’ certificates: ‘Spelling proficiency was not graded due to a specialist physician’s diagnosis of dyslexia’. The remark also was required to note the variance in the weighting of written and oral performance for schoolwork in foreign language subjects. The relevant application had to be submitted prior to the beginning of the upper level of secondary school. In addition, students with a documented physician’s diagnosis of dyslexia, due to the need for additional time to read and write, received up to a further 50% of extra time, depending upon the nature and severity of their disorder, to complete the written portion of any test. No remark regarding this accommodation was to be included in the certificate. According to the administrative practice at the time, however, extra time was only granted when an application for an exemption from grading of spelling proficiency due to dyslexia was made (i.e. mandatory linkage of accommodations) [...].

[...] [Since 2016], the Bavarian legislator [...] has enacted legislation to take into consideration the various deficits of students that might affect the assessment of their scholastic performance.

II.

1. In 2010, the complainants obtained their Abitur with either good or excellent overall grades. They submitted medical certificate from a specialist physician that they had a reading and spelling disorder under ICD-10, the then applicable medical classification of diagnoses. Upon their application, spelling proficiency – in accordance with the notice by the Bavarian State Ministry of Education and Cultural Affairs of 16 November 1999 (para. 2 f.) – was not included in their overall grade or was only assigned a limited weight. The Abitur certificates of the complainants each contained a remark that their spelling proficiency was not graded due to a specialist physician’s diagnosis of dyslexia; in the certificate of the complainant in proceeding no. III, it was also noted that the written and oral proficiencies in foreign language subjects were assessed on a 1:1 basis.

2. The Bavarian Administrative Court in Munich, in its judgments of 26 February 2013 - M 3 K 11.2963 (complainants in proceedings no. I. and no. II.) and M 3 K 11.2962 (complainant in proceedings no. III.) - ordered the Free State of Bavaria to issue new Abitur certificates to the complainants that did not include a reference to their diagnosis of dyslexia. The complainants were unsuccessful in their further request to completely eliminate the remarks in the Abitur certificate. In its judgments of 28 May 2014 - 7 B 14.23 (complainants in proceedings no. I. and no. II.) and 7 B 14.22 (complainant in proceedings no. III.) -, the Bavarian Higher Administrative Court ordered the Free State of Bavaria to issue the complainants Abitur certificates without any remarks. However, the Federal Administrative Court vacated the judgments of the Bavarian Higher Administrative Court granting relief and rejected the complainants’ appeal on points of fact and law in its judgments of 29 July 2015 - 6 C 33.14 (complainants in proceedings no. I. and no. II.) and 6 C 35.14 (complainant in proceedings no. III.) -, which are the judgments challenged here. [...]

[…]

3. The complainants contend that the Federal Administrative Court’s judgments violate the prohibition against disadvantaging disabled persons in Art. 3(3) second sentence of the Basic Law (Grundgesetz − GG), the requirement of equal opportunity pursuant to Art. 3(1) in conjunction with Art. 12(1), the right to equality under Art. 3(1), Art. 2(1) in conjunction with Art. 1(1) (general right of personality), Art. 12(1) and Art. 101(1) second sentence of the Basic Law; the complainants in proceedings no. I. and no. II also assert a violation of their right to be heard under Art. 103(1) of the Basic Law. [...]

[...]

III.

The Bavarian Land Government, the Bavarian Landtag (state parliament), the Federal Association of Psychotherapists, the Professional Association of German Psychiatrists, the Federal Association for Dyslexia and Dyscalculia, the German Philology Association and the Association for Higher Education and Research submitted statements.

[…]

IV.

The Federal Constitutional Court conducted an oral hearing on 28 June 2023. The complainants, the Bavarian Land Government and the Secretary of the Standing Conference for the Ministers of Education and Cultural Affairs of the Länder were heard. The following expert third parties pursuant to § 27a of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz − BVerfGG) were also heard: the Federal Association for Dyslexia and Dyscalculia; the German Association of Child and Adolescent Psychiatry, Psychosomatic Medicine and Psychotherapy; the German Chamber of Commerce and Industry; the German Teachers’ Association, the German Philology Association, Director Prof. Dr. Lobin of the Leibniz Institute for the German Language, and the German Confederation of Skilled Crafts.

B.

The constitutional complaints are admissible only in part.

[…]

I.

[…]

1. […]

[In particular, the] […] assertion of a violation of Art. 3(3) second sentence of the Basic Law due to the mandatory linking of the grant of extra time to the exemption from grading of spelling proficiency with a remark on the certificate (linkage of accommodations), which was the practice at the time of the complainants’ Abitur examination for students with dyslexia […] does not satisfy the principle of subsidiarity of a constitutional complaint (§ 90(2) first sentence Federal Constitutional Court Act). It would have been possible and reasonable for the complainants to only request extra time in order to avoid the remark in the certificate and then seek legal protection against a possible rejection of such application, possibly combined with an application for preliminary legal protection. [...]. Moreover, the complainants have not shown that they themselves are individually affected by the linking of the two accommodations in terms of their fundamental rights. This would only be the case if the complainants had not submitted an application for an exemption from grading of their spelling proficiency, but instead had limited themselves to an application for extra time in order to avoid a remark in their certificates. [...]

2. […]

II.

[…]

C.

To the extent that the constitutional complaints are admissible, they are well-founded as to their outcome. The remarks that are the subject of the challenged judgments of the Federal Administrative Court violate the complainants’ fundamental rights under Art. 3(3) second sentence of the Basic Law (see I below). The requirement of equal opportunity in the context of examinations under Art. 3(1) in conjunction with Art. 12(1) of the Basic Law does not prohibit the use of remarks in school-leaving certificates (see II below).

I.

The inclusion of remarks indicating an exemption from grading examination-relevant proficiencies violates the complainants’ rights under Art. 3(3) second sentence of the Basic Law.

Dyslexia is a disability within the meaning of Art. 3(3) second sentence of the Basic Law (see (1) below). Students with dyslexia are disadvantaged by remarks in their school-leaving certificates in relation to other groups of students (see (2) below). A uniform inclusion of remarks in Abitur certificates indicating an exemption from grading spelling proficiency in deviation from general examination standards is justified in principle under Art. 3(3) second sentence of the Basic Law (see (3) below). By establishing transparency with regard to students’ actual individual performance, it serves to ensure a legitimate constitutional objective, as the Abitur , in accordance with Art. 7(1) in conjunction with Art. 12(1) and Art. 3(1) of the Basic Law, allows school leavers to have equal opportunity to access further education or training and an occuapation based on their achievement (see (3 a) below). It is not possible to enable students with dyslexia to participate equally when testing spelling proficiency by prioritising reasonable measures of accommodation and aid systems that are geared toward their disability (see (3 b) below). As a means to protect the equal opportunity of all students to access further education, training and an occupation that corresponds with their individual scholastic achievement and personal abilities, the inclusion of remarks in school-leaving certificates is in principle suitable (see (3 c) below), necessary (see (3 d) below) and appropriate (see (3 e) below). At the same time, the remarks challenged in these proceedings violate Art. 3(3) second sentence of the Basic Law, because the administrative practice at the time the complainants took their Abitur examination had a discriminatory effect on students with dyslexia (see (3 f) below). The inclusion of a remark in a school-leaving certificate indicating an exemption from grading certain proficiencies in deviation from general examination standards is consistent with the UN Convention on the Rights of Persons with Disabilities (see (4) below).

1. The complainants’ reading and spelling disorder, which has been confirmed by a specialist physician, constitutes a disability within the meaning of Art. 3(3) second sentence of the Basic Law.

a) A disability under constitutional law exists when a person has a long-term impairment as a result of an abnormal physical, intellectual or psychological condition that affects their ability to lead an independent and self-determined life. This does not include marginal impairments, but only those of considerable significance. The cause of the disability is irrelevant in this respect. People with chronic illnesses and psychological disorders are also protected when their affliction results in a corresponding severe and long-term impairment (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 96, 288 <301>; 99, 341 <356 f.>; 151, 1 <23 f. para. 54>; 160, 79 <111 f. para. 90>).

b) Pursuant to this, the scope of application of Art. 3(3) second sentence of the Basic Law also extends to a reading and spelling disorder (dyslexia).

aa) [...] [A reading and spelling disorder] constitutes a neurobiological developmental disorder that persists for life. An insufficient connection between certain areas of the brain leads to delays in brain function when reading or writing, as well as disordered spelling. Reading speed is significantly slower. Due to the delayed perception of individual words by the brain, reading comprehension is also significantly impaired. The spelling disorder results from an inadequate ability to correlate letters with their phonetic representation.

There are clear criteria for a diagnosis of dyslexia. [...] There must be a significant discrepancy between an individual’s spelling proficiency and their general level of intelligence. In addition, the possibility that the spelling disorder is due to inadequate learning opportunities, untreated problems with hearing or eyesight or another illness must be ruled out. [...]

The effectiveness of therapeutic treatment for the reading disorder is deemed to be minimal; treatment effectiveness for the spelling disorder falls somewhere in the middle range. Measures provided in schools are even less effective. [...] The consequences of this disorder for children are substantial. […]

bb) Based on the foregoing, dyslexia is a disability within the meaning of Art. 3(3) second sentence of the Basic Law.

(1) The reading and writing deficits associated with dyslexia are not due to causes without pathological significance, such as limited aptitude, a lack of learning opportunities or insufficient language skills, but instead reach the level of scientifically measureable neurobiological disruptions in brain function that constitute an abnormal physical condition. This condition can be definitively diagnosed as such and can be distinguished from other causes of reading and writing deficits.

(2) The symptoms of this neurobiological disorder, namely, significantly slower reading, writing and text comprehension, as well as considerably below-average proficiency in spelling, are long-term conditions, generally lasting for an individual’s entire lifetime. The accompanying limitations on living an independent and self-determined life are significant. Based on the findings at the oral hearing, this is particularly true during the school-age years. The significant mental illnesses that occur far more frequently than average in students with dyslexia are not themselves part of the clinical description of dyslexia. However, the presence of these illnesses makes clear the stresses students with dyslexia are exposed to when their difficulties in reading, writing, understanding texts and spelling come to the fore in the face of the demands of school. [...] One particularly severe impairment to a self-determined life is that students with dyslexia are far more likely to quit school and much less likely than average to attend a secondary school that prepares students for higher education (Gymnasium ), even though dyslexia does not have an effect on intellectual aptitude. Dyslexia can also significantly hinder those affected by it from developing according to their general aptitude in school, further education or training and in their occupation. Given the dominance of written communication in all areas of life, it must be assumed that delays in writing, reading and understanding text, in addition to spelling deficits, result in lasting impairment in many ways, even for persons with dyslexia who have succeeded in pursuing further education, training or occupations that correspond with their talents.

2. Students with dyslexia who receive remarks on their school certificates are disadvantaged in comparison with those who do not. The latter group includes students whose spelling proficiency was graded (comparison group 1). It also includes students whose spelling proficiency or other proficiencies were not graded for other reasons, but for whom no remark was included in the school-leaving certificate; this is the case for students with other recognised disabilities (comparison group 2) as well as those cases in which spelling proficiency was not graded at the discretion of the teacher (comparison group 3).

a) A ‘disadvantage’ because of a disability in the sense of Art. 3(3) second sentence of the Basic Law occurs when a human being is excluded, because of their disability, from opportunities of development and activity available to others, unless this is sufficiently compensated by measures of accommodation (cf. BVerfGE 128, 138 <156>; 160, 79 <112 para. 91>).

b) According to this, a disadvantage exists.

aa) (1) This conclusion is not precluded by the fact that only students with dyslexia who applied for an exemption from grading for spelling proficiency receive a remark in their certificates. The application relates only to the exemption from grading and not to the inclusion of a remark in the certificate. The latter action was unilaterally undertaken against the wishes of those affected.

(2) The remarks were only made in certificates of students with dyslexia. It is true that the remarks are not directly linked to the existence of dyslexia. The issue here is not about documenting the disability to those who might review the certificate. The remarks in the certificates are also not intended to exclude students with dyslexia from exercising their rights. Rather, the key issue is the exemption from grading spelling proficiency that is granted upon application. It must be made transparent in the Abitur certificate that, in deviation from the standard grading criteria for foreign language subjects and for German, this proficiency has not been assessed. In the time period at issue, however, the remarks were only included in the certificates of students with dyslexia because those were the only cases in which an exemption from grading spelling proficiency was made.

bb) Having a remark in their school-leaving certificate places students with dyslexia in a worse position than students whose spelling proficiency was graded (comparison group 1, cf. para. 44).

It is obvious from the face of the school-leaving certificate that such a remark is not included on a general basis, but rather only when spelling proficiency was not graded in deviation from the standard requirements. Those reviewing the certificate will draw the conclusion that the certificate holder has deficits in this regard that other candidates do not have. Furthermore, it is also likely to be assumed that the certificate holder has dyslexia. The disclosure of an existing deficit and a disability adversely affects the general right of personality under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law. As a right to determine the portrayal of one’s person, this extends to the right to be able to determine the public disclosure of events and conditions of one’s personal life (cf. BVerfGE 35, 202 <219 ff.>; 54, 148 <153 f.>). The remarks interfere with this right. Any remark in a school-leaving certificate indicating an exemption from grading for spelling proficiency reveals personal information of the holder without their consent, even when such disclosure is not in fact the aim of the measure (on the objectives pursued by remarks in school-leaving certificates, see para. 92 f.). Moreover, the remark is likely to worsen the certificate holder’s chances of success in applying for further education, training or employment. This not only occurs when the deficit revealed by the remark has a specific connection to the sought-after further education, training or occupation. In the oral hearing, it was explained that it was not uncommon for it to be assumed that a lack of orthographic competence also indicated a general insufficiency in writing and speaking skills.

cc) The practice in Bavaria with regard to remarks in the Abitur certificates at the time the complainants took their examination in 2010 also resulted in unequal treatment under Art. 3(3) second sentence of the Basic Law in comparison with students with other disabilities, whose spelling proficiency or other proficiencies were not graded (comparison group 2, para. 44). In this case, there are additional specific disadvantages.

(1) The complainants allege that at the time they took their Abitur examination, a remark indicating an exemption from grading spelling proficiency was only included for students with dyslexia. However, in cases where a deviation was made from the general examination standards in the grading of students with other disabilities (such as physical disabilities) due to disability-related deficits, a remark was not included in the certificate. The representatives for the Free State of Bavaria confirmed this at the oral hearing. [...]

(2) The fact that the unequal treatment occurs between groups of persons with different disabilities does not preclude the application of Art. 3(3) second sentence of the Basic Law. A certain portion of the legal scholarship views this differently. According to this view, this fundamental right only concerns improving the situation of persons with a disability as compared to persons without a disability. The disadvantaging of persons with a specific disability as compared to those with another form of disability therefore must, in their view, be assessed under the standard of Art. 3(1) of the Basic Law. ([...]). [...]

However, the wording of Art. 3(3) second sentence of the Basic Law itself, pursuant to which any disadvantage due to a disability is prohibited, regardless of the identity of the persons who are not disadvantaged, argues against such a limitation in scope. Such limitation would also conflict with the special protection afforded by this fundamental right. When a specific type of disability results in a disadvantage, the justification of such disadvantage depends on whether the unequal treatment compared to persons with other disabilities can be based upon the nature of that particular disability. It is precisely the special fundamental right in Art. 3(3) second sentence of the Basic Law that provides the appropriate standard to assess the specific disability-related interests of both sides in accordance with the standard of the principle of proportionality.

Moreover, if Art. 3(1) of the Basic Law were applied, the obligation of possible and reasonable measures of accommodations that follows from Art. 3(3) second sentence of the Basic Law might not necessarily come into consideration (cf. BVerfGE 96, 288 <303>; 151, 1 <25 para. 57>; 160, 79 <112 para. 93>). Finally, there is no reason to withdraw this protection from disabled persons if they are disadvantaged compared to persons with other disabilities, especially since the obligation to compensate for such disadvantage does not affect the legal position of the latter in any way.

(3) The unequal treatment of students with dyslexia through the inclusion of remarks in school-leaving certificates on an exemption from grading spelling proficiency as compared to students with other disabilities, for whom a deviation from general examination standards was also permitted, but no corresponding remark was included in the certificate, has specifically disadvantaging effects. By limiting the practice of adding remarks only in the case of students with dyslexia, this disability was uniquely marked as a condition for limited aptitude for school, further education, training and employment, in that this disability was singled out in particular and negatively distinguished from other disabilities. This discrimination was amplified by the common assumption that dyslexia is always associated with a general insufficiency in writing and speaking skills (para. 50).

dd) An unequal treatment of students with dyslexia compared to other students also exists insofar as Abitur certificates of students with dyslexia contained a remark on the general exemption from grading spelling proficiency (including with regard to other subjects such as the natural sciences), while no comparable remarks were included in other students’ certificates even when teachers, in exercising their discretion (cf. § 82a(1) second sentence in conjunction with § 58(1) second sentence of the Bavarian Rules on Gymnasiums , Gymnasialschulordnung – GSO, former version) chose not to grade spelling proficiency in particular subjects (comparison group 3, cf. para. 44).

3. This disadvantage is not justified in this specific case.

If – as is the case here – the measures are not indispensable in order to account for special aspects relating to a disability or other compelling reasons, then the justification of unequal treatment due to a disability can only be considered by balancing the conflicting provisions of constitutional law and on the basis of a strict proportionality test, taking into consideration the support requirement arising from Art. 3(3) second sentence of the Basic Law (cf. BVerfGE 151, 1 <25 f. para. 57, 59> with further references). In that regard, the unequal treatment must be suitable, necessary and appropriate for protecting another constitutional interest that is of at least equivalent weight (cf. BVerfGE 151, 1 <26 para. 59> with further references).

Based on this assessment, a uniform inclusion of remarks in Abitur certificates indicating an exemption from grading spelling proficiency in deviation from general examination standards for students with dyslexia, which would otherwise not be ascertainable from the certificate, is justified in principle under Art. 3(3) second sentence of the Basic Law (see a-e below). At the same time, the remarks challenged in these proceedings still violate Art. 3(3) second sentence of the Basic Law, because the administrative practice at the time the complainants took their examination unjustifiably discriminated against students with dyslexia (see f below).

a) There are legitimate objectives of constitutional significance that inform the inclusion of remarks in school certificates.

The consideration of spelling proficiency in the Abitur certificate, which the remark makes reference to by signalling an exemption from grading, is in itself permissible and serves a purpose of constitutional status. Art. 7(1) of the Basic Law charges the state with supervision of the entire school system and therefore the power to plan and organise the school system with the goal of providing a school education that affords all young citizens, in accordance with their abilities, educational opportunities suited to our society. This area of state responsibility also includes determining the content of courses of education and teaching objectives (cf. BVerfGE 53, 185 <196>). In this regard, there is considerable leeway to design (cf. BVerfGE 34, 165 <181>). Thus, despite the associated de facto negative impact on the chances of success of students with dyslexia, the state was allowed to make spelling proficiency part of the Abitur examination. The assessment of spelling proficiency according to standardised examination criteria, as part of the secondary education in preparation for higher education, serves the constitutional objective in the context of the mandate arising from Art. 7(1) in conjunction with Art. 12(1) of the Basic Law of designing the school-leaving certificate in such a way that it allows school leavers to have equal opportunity of access to further education, training and occupations based on achievement (see aa below).

Even the remarks in school-leaving certificates involve a legitimate objective of constitutional significance. When an exemption from grading certain proficiencies in deviation from general examination standards is made – as in this case – due to disability-related limitations, then the corresponding remarks in school-leaving certificates serve to ensure the objective of equal opportunity to access further education, training and occupations based on achievement, by providing transparency as to the actual performance (see bb below).

aa) The inclusion of spelling proficiency as part of the Abitur examination is in conformity with Art. 3(3) second sentence of the Basic Law.

It is true that students with dyslexia are indirectly disadvantaged due to their disability within the meaning of Art. 3(3) second sentence of the Basic Law by the inclusion of spelling proficiency as part of the Abitur examination. They cannot in fact participate in the examination with the same chances of success as their fellow students who do not have this disability (see (1) below; on the impossibility of a complete accommodation of students with dyslexia through educational support measures, see para. 94 ff.). This disadvantage is nevertheless justified under constitutional law (see (2) through (6) below).

(1) (a) A disadvantage under Art. 3(3) second sentence of the Basic Law is not only present when persons with a disability are treated unequally in a disadvantaging way as compared to persons without a disability or persons with a different disability (see para. 44). The scope of application of this fundamental right also extends to constellations in which equal treatment under the law typically and foreseeably results in de facto disadvantages due to a disability (cf. already BVerfGE 128, 138 <156>).

(b) Such a disadvantage exists in this case. Grading the spelling proficiency of students with dyslexia has a de facto negative impact on their chances of success in the examination, because due to their disability-related spelling deficits, they are unable to fulfil the requirements of the examination, or can only fulfil them to an extremely limited extent. This de facto negative impact is not only something that typically affects students with dyslexia; it affects all such students to an exceptional degree. Grading spelling proficiency can also negatively affect candidates who have spelling difficulties that do not stem from dyslexia. However, the disadvantage to students with dyslexia is distinguishable, among other things by the fact that their spelling deficits are usually more severe due to the effects of the disability. In addition, they are also different in nature because they cannot be avoided from the outset through practice, diligence or support and there is a discrepancy between the individual level of intelligence and the inadequate spelling proficiency caused by the dyslexia (para. 39). These disability-related disadvantages are foreseeable by the legislator in their nature and scope, in light of the well-known clinical description of dyslexia and the fact that the average share of students with dyslexia in all schools in Bavaria is approximately 3.4%, while the share of such students in Bavarian Gymnasiums is approximately 1.8%.

(2) The disadvantage arises from a legal basis that complies with the requirement that interferences be based on a statutory provision. The Bavarian school authorities permissibly determined that spelling proficiency, at least for the subjects of German and foreign languages, would be part of the Abitur examination that the complainants took in 2010.

(a) As in other areas, the principles of the rule of law and democracy obligate the parliamentary legislator to make the essential decisions as to the school system and not to leave these matters to school administrators. In the context of fundamental rights, ‘essential’ generally means ‘essential for the exercise of fundamental rights’ (cf. BVerfGE 34, 165 <192 f.>; 41, 251 <259 f.>; 45, 400 <417 ff.>; 47, 46 <78 f.>; 58, 257 <268 f.>; 98, 218 <251 ff.>; 162, 378 <418 para. 95> – Proof of vaccination (measles) ). ‘Essential’ therefore includes, among other things, the establishment of the types of school and the primary aspects of their qualification objectives. By contrast, in establishing individual learning objectives, it must be possible to make adjustments based on the evolution of pedagogical and didactic knowledge, new societal developments, or to react to requirements that result from the process of coordination across the Länder as to the content of school curricula (cf. BVerfGE 34, 165 <193>; 45, 400 <419>; 47, 46 <83>).

(b) Based on the foregoing, including spelling proficiency as part of the Abitur qualification for the subjects of German and foreign languages for the relevant year of 2010 is not objectionable.

In accordance with Art. 9(1) of the Bavarian Act on Education and Teaching (Bayerisches Gesetz über das Erziehungs- und Unterrichtswesen , hereinafter: the Act), a Gymnasium offers the immersive general education that is required for higher education; it also provides additional prerequisites needed for professional training outside of a university. Gymnasium concludes with the Abitur examination and accords the qualification of a general education in preparation for higher education (Art. 9(2) of the Act). The parliamentary legislator has thus made the fundamental decisions on the Abitur examination, from which the content of the examination can also be derived. The Abitur certifies the qualification for all courses of university study, as well as a number of training courses and occupations requiring a higher qualification (cf. BVerfGE 45, 400 <419>; 147, 253 <314 ff. para. 128 ff.>). Given the breadth of this qualification, which also includes, for example, university studies or occupations in the social sciences, which involve an advanced proficiency in written communication, it is consistent with the fundamental decision of the legislator to include the mastery of spelling rules as part of the Abitur.

The decision of the Bavarian school authorities to that effect for the subjects of German and foreign languages is not objectionable. [...]

(3) The consideration of spelling proficiency in the Abitur certificate serves an objective of constitutional significance, namely, to design the school-leaving qualification, as part of the mandate under Art. 7(1) in conjunction with Art. 12(1) and Art. 3(1) of the Basic Law, in such a way so as to offer all students the same chance of access to find further education, training or an occupation that corresponds with their scholastic achievement and personal abilities.

(a) Under Art. 7(1) of the Basic Law, the state is tasked with creating a school system that, by providing knowledge, skills, general education and social competences, affords all children and adolescents the chance to develop an independent and autonomous personality as part of society in accordance with their abilities; this corresponds with the right of children and adolescents vis-à-vis the state following from Art. 2(1) in conjunction with Art. 7(1) of the Basic Law to a school education in accordance with this mandate (cf. BVerfGE 159, 355 <382 ff. para. 47 f., 50, 57> – Federal pandemic emergency brake II (school closures) ; cf. also BVerfGE 34, 165 <182>). It should also enable children and adolescents to participate in the state and society by exercising their fundamental rights independently and with self-determination (cf. BVerfGE 159, 355 <384 para. 50>; ([…])).

Supporting the development of personality through a school education is particularly important to permit school leavers the chance to freely choose their further education or training and occupation in accordance with their fundamental right under Art. 12(1) of the Basic Law (cf. BVerfGE 58, 257 <272 f.>). The right to freely choose one’s education, training and occupation and to be able to set the foundation for an independent life is a specific manifestation of the more comprehensive right guaranteed in Art. 2(1) of the Basic Law to the free development of one’s personality (cf. BVerfGE 13, 97 <104 f.>; 30, 292 <334>; 63, 266 <286 f.>; 71, 183 <201>; 110, 226 <251>). Specific requirements for the design of a school education arise from this right.

The goal of a school education includes the development of students’ personalities in a manner that allows their individual abilities to unfold independent of their social background and, after the conclusion of their schooling, enables them to freely choose further education or training and an occupation based on their aptitude and interests, which can form the basis for an independent life. This includes neutralising the impact of any existing social disadvantages that might stand in the way of an unobstructed development of an individual’s potential to the greatest extent possible and inspiring and supporting an individual’s talents through differentiated educational opportunities (cf. BVerfGE 34, 165 <187 f.>; 45, 400 <417>). An education that, at a minimum, provides students the chance to develop their personalities regardless of their social background in order to obtain further education, training or an occupation is indispensable (cf. BVerfGE 159, 355 <386 f. para. 57>).

(b) The requirements that Art. 7(1) of the Basic Law imposes on the design of school-leaving certificates need not be exhaustively determined here. However, when the legislator ascribes to the Abitur the general qualification for higher education and intends it to be a standardised proof of qualification and the certificate awarded, in principle, provides the right to admission to all courses of university study, then the requirement of designing the qualification in a manner that provides equal opportunity based on achievement as laid down by Art. 12(1) in conjunction with Art. 3(1) of the Basic Law becomes especially significant. The legislator fulfils this objective in particular when all Abitur candidates must demonstrate the same knowledge and skills obtained through a school education based on the same standards and when the varying levels of proficiency demonstrated are clearly reflected in differentiated grading that is documented in all certificate in a uniform, informative manner that permits comparison (cf. BVerfGE 37, 342 <354>; 79, 212 <218 f.>; 84, 34 <51 ff.> on the requirement of equal opportunity under Art. 3(1) in conjunction with Art. 12(1) of the Basic Law in professional qualification examinations; cf. also BVerfGE 147, 253 <333 ff. para. 173 ff.> on the requirements of comparability of Abitur grades across the Länder for an equality-based allocation of scarce university admission spots based on aptitude; Decisions of the Federal Administrative Court, Entscheidungen des Bundesverwaltungsgerichts – BVerwGE 152, 330 <336 para. 21 f., 340 para. 34>). In addition, the mandate of the social state also includes guaranteeing equal opportunity for further education, training and an occupation that should be the least affected by social background as possible (cf. BVerfGE 134, 1 <14 para. 40>). In its statement, the Bavarian Land Government points out that if school-leaving certificates lose their informative value and ability to be compared, they will be replaced by aptitude assessments conducted by training centres and employers, for which the best prepared applicants would be those who have the financial means to attend preparatory courses.

(c) The grading of spelling proficiency of all candidates in the subjects of German and foreign languages serves the goal of the Abitur qualification to provide all holders of an Abitur certificate with an equal opportunity to access further education, training and occupations (cf. para. 73, 77).

The Land legislator has designed the Abitur to be proof of the general education in preparation for higher education (Art. 9(1) of the Act). With this qualification objective, the Abitur certificate is intended to demonstrate the aptitude for all courses of university study, as well as for a number of other training courses and occupations requiring a higher qualification. This is done through a determination of a wide range of abilities, numerous specific areas of knowledge and skills, but also those indispensable fundamental competences that form the basis of a comprehensive general education. The Abitur is well suited for providing information on general cognitive skills and personality-based traits such as interest, motivation, diligence and attitude (cf. BVerfGE 147, 253 <314 ff. para. 128 ff.>). A high informative value is therefore ascribed to the Abitur grade with regard to aptitude assessment, as it is based on a number of assessments that are carried out over a prolonged period in various subjects by different examiners (cf. BVerfGE 147, 253 <316 para. 131>).

The Bavarian school authorities have determined, within the scope of their leeway to design (cf. BVerfGE 34, 165 <182>; 159, 355 <384 f. para. 53 f.>), that the mastery of spelling rules is one of the competences that form the general education in preparation for higher education and that spelling proficiency is therefore to be demonstrated, graded and included as part of the Abitur certificate. In this way, the grading of spelling proficiency also serves the aforementioned constitutional objectives of the Abitur qualification.

(4) The grading of spelling proficiency is also suitable for achieving these objectives.

(a) The suitability requirement under constitutional law is satisfied if there is a possibility of achieving the objective. A provision can only be found unsuitable if it counteracts the objective or cannot further it in any way. In this respect, the legislator is accorded a margin of appreciation and assessment (cf. BVerfGE 161, 299 <367 f. para. 166>).

(b) According to this standard, the assumption of the Bavarian school authorities that grading spelling proficiency in German and in foreign languages supports equal opportunity for holders of an Abitur certificate to access further education, training and an occupation (para. 78 f.) because the mastery of spelling rules is a necessary part of the secondary school education that is imparted by the Abitur is not objectionable.

The task of teaching spelling rules in school and evaluating spelling proficiency has not been rendered obsolete by the development of self-learning computer spell-check applications. As was explained in the oral hearing, spell-check applications in particular are not capable of fully compensating for spelling deficiencies. In addition, there are a number of occupations in which spelling cannot be entirely delegated to spell-check applications and where an independent orthographic competency is necessary. Mastering the spelling rules is particularly important in order to quickly recognise words in recurring forms and understand their correct meaning. When orthographic competency is lacking, reading comprehension is also impaired, as individual words must be deciphered letter by letter and there can be misunderstandings of the meanings of similarly sounding words. Thus, the ability to effectively communicate with ease also requires mastery of the spelling rules.

Based on the foregoing, it is not only tenable to include spelling competence as part of the general education in preparation for higher education that is conferred by the Abitur , it is an obvious decision. Accordingly, grading spelling proficiency according to standardised criteria also helps to provide equal opportunity for holders of an Abitur certificate to access further education, training and an occupation (cf. para. 77 ff.).

(5) There are no other means that would be less burdensome to students with dyslexia that would have the same effect in regard to equal opportunity of access to further education, training and occupations without burdening third parties or the general public than establishing spelling proficiency as part of the Abitur examination. It would not be a milder means to teach spelling, but not include the acquired skills in the Abitur certificate. Spelling competence would then no longer be documented to those who might review the certificate, even though according to the plausible assessment of the school authorities (para. 83 ff.), it is a necessary part of the Abitur qualification. This would run counter to the interest of other holders of an Abitur certificate in having a proof of qualification that best supports equal opportunity to access further education, training and occupations. Finally, it can be assumed that it would not be possible to teach spelling proficiency with the same degree of success if it is no longer necessary to demonstrate these skills in the examinations.

(6) The constitutional objective pursued by grading spelling proficiency as part of the Abitur qualification is not disproportionate to the disadvantage to students with dyslexia that is associated with such grading.

(a) Including spelling proficiency as part of the Abitur qualification has a negative impact on the chances of success of students with dyslexia, whose ability to perform is considerably limited by their disability. The fact that it is not possible to create equal opportunity for both students with and without dyslexia through school measures of accommodation aimed at eliminating the deficits in spelling is an aggravating factor (para. 99). However, the statements at the oral hearing demonstrated that students with dyslexia are only unable to obtain the Abitur qualification when their spelling proficiency is included in their marks in exceptional circumstances. Instead, applications for an exemption from grading spelling proficiency are regularly submitted in order to avoid missing out on crucial tenths of points in the average grade that are necessary to be admitted to university study programmes with restricted admission.

(b) On the other hand, there is a weighty interest in keeping the Abitur as a suitable instrument for equal opportunity for Abitur certificate holders to transition to further education, training and occupations by continuing to grade spelling proficiency.

Mastering spelling rules, as part of the core competences of reading and writing, continues to have a special significance, as was confirmed in the oral hearing (para. 84). As described above, there are a number of occupations and courses of study or training that require the correct use of spelling rules without technical assistance from spell-check applications in order to communicate effectively in writing in all situations. For this reason alone, spelling proficiency is particularly significant for a broad school-leaving qualification like the Abitur . It is all the more significant in that a lack of spelling proficiency impairs reading ability and because spelling proficiency is generally regarded as an indicator of an individual’s writing and speaking skills. In this respect, the Abitur certificate’s value as proof of a qualification that permits equal opportunity to access all courses of study in higher education and a number of training courses and occupations requiring a higher qualification would be considerably diminished if spelling proficiency were no longer part of the competences tested. This does not affect the discretion of the school authorities to determine the required competences for the Abitur qualification.

(c) In light of this, the constitutional objectives pursued by the Bavarian school authorities in including spelling proficiency as part of the Abitur qualification are reasonably proportionate with the associated disadvantage to students with dyslexia. This applies in particular when the option of not grading spelling proficiency is included, even when the effect of such exemption is lessened by the burden of a remark in the Abitur certificate.

bb) In light of the foregoing, remarks in a school-leaving certificate indicating that certain proficiencies were – in deviation from the general examination standards – not graded also serve a legitimate objective of constitutional significance, namely, the function of such certificate following from Art. 7(1) in conjunction with Art. 12(1) and Art. 3(1) of the Basic Law, which is to ensure equal opportunity to access further education, training and occupations (cf. para. 73, 77).

If it is not ascertainable from the school-leaving certificate that, in certain cases, there has been an exemption from grading of one or more competences in deviation from general examination standards, then the certificate would indicate proficiencies that were not in fact attained and would be inaccurate in this respect. As a result, the equality of opportunity to access further education, training and an occupation (cf. para. 73, 77) of those students who must demonstrate such competences is adversely affected. The fact that a school-leaving certificate provides a standard qualification implies that all candidates are tested on the same knowledge and skills, which – as is the case here with spelling proficiency – are as such part of the qualification evidenced by the certificate. Such false assumptions are avoided with a remark in the certificate as to the exemption from grading. The informative value of the certificates and their comparability is thereby improved. In those individual cases in which an exemption from grading an examination-relevant proficiency due to disability-related deficits is granted, a remark concerning the exemption allows for the possibility of comparing the actual differences in aptitude among applicants.

b) The system of including remarks in certificates could not have been avoided by implementing educational measures of accommodation to overcome dyslexia-related spelling deficiencies – as a preferable alternative to the exemption from grading spelling proficiency.

aa) A legal disadvantaging on the basis of disability is only justified when it is not possible or reasonable to overcome the disadvantaging through measures of accommodation and aid systems that can facilitate the same opportunities of development and activity as for persons without disabilities (cf. BVerfGE 96, 288 <303>; 151, 1 <25 para. 57>; 160, 79 <112 para. 93>).

bb) This obligation of inclusivity must also be observed in the context of school-leaving examinations. This means that deficits that are the result of a disability should only have a negative effect on the final grade to the extent that these deficits cannot be overcome through educational measures of accommodation. Such measures can only be required, however, when their cost in terms of personnel and material is tenable and they do not conflict with the interests of any third parties meriting protection (cf. BVerfGE 96, 288 <305 ff.> on integrated schooling with special pedagogical support).

With regard to the examination, the measures of accommodation that enable equal participation and are therefore required under Art. 3(3) second sentence of the Basic Law include modifications to examination conditions that, due to limitations caused by a disability, prevent students with a disability from being able to demonstrate their abilities as well as those without a disability (on equal opportunity in the case of deficits not caused by a disability, see para. 121). Measures to provide equal opportunity as between students with disabilities and those without disabilities can include, for example, permitting the use of specialised aids during the examination, making special rooms available or replacing the oral portion of the examination with a written examination, or vice versa ([...]). However, a measure is only required for inclusivity when a student with the disability must nevertheless demonstrate the same examination-relevant knowledge and skills as those students without a disability.

(2) This is to be distinguished from an exemption from testing or grading proficiencies due to disability-related limitations in deviation from the general examination standards. This includes exemptions from participating in lessons or full or partial exemptions from grading or assessing certain proficiencies in specific subjects – such as spelling proficiency in German or foreign languages in this case. These measures do not allow for the same participation by students with a disability as those without a disability. Instead, a special examination standard is created through which students with a disability receive preferential treatment vis-à-vis their fellow students, as the limitations caused by their disability are not negatively reflected in their school-leaving certificate. This type of preference is permitted under Art. 3(3) second sentence of the Basic Law, but is not required per se (cf. BVerfGE 96, 288 <302 f.>). Preferential measures are always inferior to measures of accommodation that can provide equal opportunity as between students with a disability and those without. This is because the primary protection that Art. 3(3) second sentence of the Basic Law provides to persons with a disability is keeping open the same opportunities of development and activity that are available to others. For this reason, recourse to alternative means of development is only to be considered when providing the same participation would result in an untenable burden or expense or would conflict with the interests of third parties meriting protection (cf. BVerfGE 96, 288 <303, 307 f.> on the proportionality of integrated schooling in regular schools for students with special needs as compared to the developmental alternative of a special needs school). […]

cc) It is also to be concluded following the outcome of the oral hearing that the spelling proficiency of the complainants could not have been improved through the preferred option of educational measures of accommodation to the point that the complainants would have had the same chances of success on the examination as their fellow students without an exemption from grading. As dyslexia is based on a neurobiological disorder, it is from the outset not possible to bring persons who are affected by it to the same level of ability as those who do not have this disorder. It is true that spelling proficiency can be improved through training. However, the effectiveness of such measures, even those carried out by trained personnel in specialised therapy centres, falls somewhere in the middle range of improvement. Measures provided in schools are even less effective (para. 40).

c) Remarks in a school-leaving certificate as to an exemption from grading of an examination-relevant proficiency are suitable to promote the constitutional objective of equal opportunity to access further education, training and occupations based on achievement. It is true that a remark cannot further promote a transition to further education, training and an occupation that is based on achievement if the certificate already indicates that certain proficiencies have not been included in the examination result in deviation from the general requirements, which may be the case with regard to exemptions from participation in lessons or from grading for an entire subject (cf. BVerwGE 152, 330 <346 para. 52>). However, this presupposes that it is clear from the certificate that lessons in the particular subject took place, and that the proficiencies demonstrated by other students in that subject were graded. The situation is different when the exemption relates to only certain proficiencies relevant to a particular subject, as is the case here with regard to spelling proficiency as one component of German and foreign languages. Without a remark, the exemption from grading would remain hidden.

When it comes to the average Abitur grade – which is regularly used as an admission criterion for university study programmes with restricted admission – remarks in the school-leaving certificate can also contribute to equal opportunity to access further education, training and occupations based on achievement. A remark in the Abitur certificate does not change the average grade. The average Abitur grade is only a suitable criterion for an equality-based allocation of scarce university admission spots based on aptitude when a minimum informative value and comparability with regard to the Abitur grade can be guaranteed (cf. BVerfGE 147, 253 <308 ff. para. 108 ff., 333 ff. para. 173 ff.>). However, the informative value and comparability of the Abitur certificate is improved when an exemption from grading a particular proficiency, which would otherwise not be ascertainable, is disclosed. It is then left to the higher education institutions to determine – to the extent relevant to the subject – how to take this into consideration when selecting applicants. In light of the great significance given to aptitude for securing admission to university programmes with limited places and thus to equitable distribution of opportunity in life (cf. BVerfGE 43, 291 <314 ff.>; 147, 253 <308 ff. para. 108 ff.>), taking an exemption from grading certain proficiencies into consideration is obvious if these proficiencies are sufficiently relevant to the prospects of success in that programme and in subsequent employment.

d) Remarks in school-leaving certificates are necessary in order to allow for equal opportunity of access to further education, training and occupations based on achievement. It is not apparent how a remark in the school-leaving certificate as to an otherwise undisclosed exemption from grading of certain proficiencies could be replaced by less intrusive means that are equally effective in guaranteeing transparency.

e) Remarks in a school-leaving certificate as to an otherwise undisclosed exemption from grading of an examination-relevant proficiency at the candidate’s request are not only justified in principle, in view of the specific design of the Abitur qualification (see para. 77 above), they are constitutionally required. It is only in this way that a balance can be struck as carefully as possible between, on the one hand, the mandate of the state under Art. 7(1) in conjunction with Art. 12(1) and Art. 3(1) of the Basic Law to design school-leaving examinations in such a way that all school leavers have an equal opportunity – in line with their scholastic achievement and individual abilities – to find further education, training or an occupation and, on the other hand, the interests protected under Art. 3(3) second sentence of the Basic Law in ensuring that disability-related limitations affecting the ability to perform on school-leaving examinations do not have disadvantaging effects (cf. BVerfGE 93, 1 <21> with further references).

aa) As explained above, having deficits that are the result of a disability disclosed by the inclusion of a remark in the school-leaving certificate impairs an individual’s right under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law to determine the portrayal of their person and can worsen their chances of success in applications for further education, training or employment. This certainly applies to students with dyslexia, as it is not infrequently assumed that, in addition to having spelling deficits, their writing and speaking skills are also impaired (para. 50 above).

On the other hand, a person would generally only apply for an exemption from grading if, in view of their desired higher education programme, training or occupation, they expected the advantage of a better overall grade to outweigh the disadvantage of a remark. Based on the findings at the oral hearing, applications for an exemption from grading of examination-relevant proficiencies are primarily submitted to avoid the negative impact of the disability-related deficits on the average Abitur grade, which is decisive for admission into study programmes with restricted admission. In this respect, the overall advantage of this measure is obvious. Not grading a proficiency can open up educational, training and job opportunities that would otherwise remain closed due to the principle of merit-based selection as practised with regard to admission to scarce university admission spots (para. 101 above) under the constitutionally permissible general examination standards. The same applies when an application for an exemption from grading is submitted in order to achieve a passing grade on the Abitur examination, which, according to the findings at the oral hearing, is generally the exception. In this case, too, the advantage of not grading prevails, as the qualification conferred by the Abitur certificate, regardless of the remark, opens up a number of highly qualified courses of further education, training and careers. This general overall advantage relativizes the impairment associated with the remarks not insignificantly.

bb) This can be compared with a scenario in which school-leaving certificates did not include any remarks as to an exemption from grading that would otherwise not be ascertainable. In this case, the public interest following from Art. 7(1) in conjunction with Art. 12(1) of the Basic Law that all school leavers of a Land be offered the same opportunity to access further education, training and occupations based on scholastic achievement would be impaired.

It would be incorrectly assumed that, for all candidates, the same knowledge and skills obtained through a school education were assessed based on a common standard and that the assessments were uniformly considered in assigning grades (para. 93). If, however, certain proficiencies are not graded, then the overall grade is based on an individual performance that does not correspond to that of the other candidates who received the same grade. The objective aptitude of applicants for a course of training or job opening therefore cannot be compared and assessed on the basis of the grades in the certificate alone. By disclosing the exemption from grading, false assumptions in this regard can be avoided. This is particularly important for the Abitur certificate’s role in providing equal opportunity to access further education, training and occupations based on scholastic achievement following the conclusion of school (para. 77). If the exemption from grading of a portion of a subject is not made transparent through the inclusion of a remark, the individual performance behind each grade is not comparable with the performance of other students who took the examination. The Abitur certificate then loses a certain amount of its informative value and comparability with the consequence that it can only fulfil its role in providing school leavers a corresponding access to further education, training and occupations in a limited fashion. In addition, such a devaluation of the school-leaving certificate in its function as proof of personal qualification impairs the social state mandate of equal distribution of opportunity in life regardless of social background or wealth (para. 76 f., 108). This lends additional significance to the public interest in including remarks in school-leaving certificates regarding an exemption from grading.

Remarks in school-leaving certificates can also fulfil an important function in the admission of applicants to study programmes with restricted admission. They can improve the possibility for higher education institutions to allocate admission spots based on aptitude, at least in cases where the non-graded proficiency has a direct relation to aptitude for the desired degree programme (para. 101). Such improvement in the informative value of Abitur certificates for the admission process in the case of study programmes with restricted admission is of significant weight in view of the importance of equality-based admission to study at state universities for the allocation of opportunity in life (cf. BVerfGE 33, 303 <330 ff.>, 43, 291 <314 ff.>; 147, 253 <305 ff. para. 103 ff.>).

cc) (1) Accordingly, remarks in school-leaving certificates that are included in all cases in which a portion of a subject is not graded in deviation from general examination standards, which would otherwise not be ascertainable, is appropriate in principle. The public interest in the transparency of the certificates outweighs the countervailing interest in avoiding all disadvantages due to a disability in regard to the school-leaving examination. However, the inclusion of a remark in the school-leaving certificate is only appropriate for establishing transparency when it sufficiently encompasses all significant deviations from the examination standards. This is because it is only when the comparability of overall grades and the equal opportunity of access to further education, training and occupations that is thereby secured is achieved to a sufficient extent through corresponding transparency that this objective carries sufficient weight to justify the unequal treatment of including a remark in the certificate (cf. para. 110 f. on the obligation in principle to include remarks in school-leaving certificates). This may not be the case, for example, if measures to take disability-related limitations into account are to a certain extent wrongly categorised as measures that merely result in an equal participation in the examination in accordance with the general examination standards. The delimitation of measures to promote inclusivity that are required by Art. 3(3) second sentence of the Basic Law and in which case remarks must not be included in the certificate (para. 97) from deviations from the general examination standards (para. 98) depends on the particular examination, and which specific knowledge and skills are to be tested and graded according to the examination requirements. Remarks in school-leaving certificates as to such measures are not justified when the examination-relevant knowledge and skills of students with a disability are considered in the same way in terms of grading as the performance of their fellow students. An additional requirement for appropriateness is that only the students concerned and their parents have the ability to decide whether grading of an examination-relevant proficiency should be waived due to a disability. Any coercion as to this decision would violate Art. 3(3) second sentence of the Basic Law. There is no legitimate purpose in forcing students with a disability to accept an exemption from grading, if they have declined such exemption due to the disadvantage associated with the remark in the school-leaving certificate.

(2) When balancing the relevant interests, it must be taken into consideration that in an Abitur certificate as designed here (para. 77, 79 above) the uniform inclusion of remarks is required in all cases in which an exemption from grading that was given in deviation from general examination standards would not be ascertainable.

An exemption from grading in deviation from general examination standards on its own impairs the function of the Abitur certificate in providing all school leavers equal opportunity in access to further education, training and occupations according to their individual aptitude. The disability-related limitations in ability do not negatively affect the Abitur grade. This structurally disadvantages those students whose proficiency is taken into account in the grading. This disadvantage can be particularly severe if the opportunities in life depend upon the average Abitur grade, as is the case with the allocation of admission spots to study programmes with restricted admission (para. 101, 108). The lack of transparency as to the actual performance that the grades in the certificates are based on also impairs the equal opportunity of access to further education, training and occupations in other ways. Without a remark in the school-leaving certificate as to the exemption from grading certain proficiencies due to disability-related limitations, a false assumption will arise that the grades, and therefore also the aptitude of the individual candidates, who are of course in a competitive relationship in regard to one another (cf. BVerfGE 37, 342 <353 f.>), are comparable. Depending on the extent to which an exemption from grading was granted, a certificate without a remark to this effect might lose its informative value as proof of qualification, as the individual achievement behind each grade might not be comparable with that of other candidates (para. 107). Therefore, establishing transparency as to the actual performance in order to protect equal opportunity of access to further education, training and occupations in a context such as the Abitur examination as it is presently designed (cf. para. 77) is of such weight that the remarks regarding an exemption from grading certain proficiencies at the candidate’s request must be included, especially since generally an overall advantage remains for those affected.

Based on all of the foregoing, the disadvantage as compared to comparison group 1 (cf. para. 44) is justified.

f) At the same time, the remarks challenged by the complainants in this case are not reasonable in comparison with comparison groups 2 and 3. This is because the inclusion of a remark in the school-leaving certificate is only appropriate for establishing transparency when it sufficiently encompasses all cases in which there was a significant deviation from examination standards. At the relevant time when the complainants took the Abitur examination, remarks were only included in the certificates of students with dyslexia who had applied for an exemption from grading spelling proficiency. In the case of students with other disabilities, however, no such remark was included in the Abitur certificate if spelling proficiency also was not graded, nor was it included for exemptions from grading other proficiencies that made up part of the subject. In addition, the general reference to the exemption from grading of spelling proficiency was excessive insofar as it did not constitute a deviation from general examination standards, such as when spelling proficiency in certain subjects was not graded for other students either within the discretion of the teacher.

aa) The then-applicable administrative practice of only including remarks for students with dyslexia did not fulfil the constitutional requirements. If remarks are only made in the case of certain disabilities (comparison group 2, cf. para. 44), then there remains uncertainty over the extent to which the grades in the certificate are comparable with one another, and which grades merely reflect the specific aptitude of the individual student. Sufficient transparency can only be established in this regard by a general indication in the certificate of any exemptions from grading for a portion of a subject (para. 92, 107, 109).

That exemptions from grading were only remarked upon in the certificates of students with dyslexia renders the resulting disadvantage in the sense of Art. 3(3) second sentence of the Basic Law particularly severe. Such discrimination against students with dyslexia vis-à-vis students with other disabilities is not justified. It is not apparent that the reasons for this were based on differences between the various types of disability. [...] This unequal treatment disadvantages students with dyslexia in a specific way (para. 56). When only their certificates contain a remark indicating an exemption from grading certain examination-relevant proficiencies, and not those of students with other disabilities, there arises a – false – impression that it was necessary to comment on a student’s spelling deficits due to their stronger negative impact on a student’s aptitude in regard to further education, training and employment than was the case with all other disability-related deficits. The weight of the disadvantage was made more severe by the common assumption that spelling deficits are always associated with a general insufficiency in writing and speaking skills (para. 50).

The complainants need not accept the type of discrimination based on their disability that arises from the remarks in the Abitur certificate, especially when any improvement to the informative value and comparability of the Abitur certificates would be limited, at best, as long as exemptions from grading are granted to students with other disabilities without a corresponding remark.

bb) Finally, a remark on a school-leaving certificate is only necessary to the extent that an exemption from grading a particular proficiency constitutes a deviation from general examination standards. That is not the case with respect to the assessments made at the discretion of the teacher (cf. § 82a(1) second sentence in conjunction with § 58(1) second sentence of the Bavarian Rules on Gymnasiums , former version – comparison group 3, para. 44). In these cases, grading of spelling proficiency in certain subjects − such as in the natural sciences, for example − was left to the individual discretion of the teacher, which, as was demonstrated at the oral hearing, was not practiced in a uniform way for all subjects and, as a result, the spelling proficiency of all other students was not always graded. When only the certificates of students with dyslexia contain remarks as to an exemption from grading, it resulted in an unreasonable disadvantage for the complainants.

4. The requirement that a remark in the school-leaving certificate be made in the event of an exemption from grading a portion of the subject of examination due to disability-related limitations is consistent with the requirements under the United Nations Convention on the Rights of Persons with Disabilities of 13 December 2006 (hereinafter: the UN Convention), which is to be used as a guideline for interpretation (cf. BVerfGE 111, 307 <317 f.>; 128, 282 <306>).

Art. 24(1) of the UN Convention requires the States Parties to realise the right to education ‘without discrimination and on the basis of equal opportunity’. In accordance with Art. 5(3) in conjunction with Art. 2 subpara. 4 of the UN Convention, the States Parties are obligated to provide ‘reasonable accommodation’ in order to ensure to persons with disabilities the enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms. It is recognised that includes the establishment of equal opportunity with regard to examinations, insofar as this does not involve a modification of the general requirements, but does not go beyond the establishment of equal starting conditions to include not grading examination-relevant proficiencies. This is considered a ‘positive measure’, which the States Parties are authorised to take under Art. 5(4) of the UN Convention, but are not obligated to do so (cf. Lüneburg Higher Administrative Court, Order of 10 March 2015 - 2 ME 7/15 -, para. 29; [...]). As an exemption from grading certain proficiencies due to disability-related limitations that is granted at the candidate’s request goes beyond the obligations under the UN Convention, a remark in the school-leaving certificate regarding such exemption cannot be in conflict with international law provisions.

II.

A violation of the requirement of equal opportunity under Art. 3(1) in conjunction with Art. 12(1) of the Basic Law cannot be established. In this regard, the complainants contend that an exemption from having their spelling proficiency graded takes the requirement of equal opportunity into account, which, as they assert, requires that their results must not be negatively affected by deficits that cannot be overcome. They argue that this should not be counteracted in part by the inclusion of a remark in the Abitur certificate.

It is not necessary here to conclusively clarify the extent to which the constitutional requirement of equal opportunity applicable to professional qualification examinations (cf. BVerfGE 37, 342 <354>; 79, 212 <218 f.>; 84, 34 <51 ff.>) is transferrable to school-leaving examinations. It stands to reason that the right to a deviation from standard examination conditions in order to create equal opportunity to demonstrate the examination-relevant proficiencies, which has been affirmed in administrative court case-law for school-leaving examinations (cf. BVerwGE 152, 330 <334 para. 16>), should be based on the requirement of Art. 3(1) of the Basic Law to not treat things that are essentially unequal equally when the unequal burden is based on actual inequalities in the nature of the underlying subject matter and is disproportionate (cf. BVerfGE 161, 163 <253 para. 241, 265 f. para. 280>). However, a requirement of differentiation of this kind is not intended to bring about the same examination results in the case of performance deficits that cannot be overcome, as the complainants contend. Instead, the very objective of performance-oriented school-leaving certificates, which provide a record of the various degrees of aptitude demonstrated by students, is to allow for equal opportunity of access to further education, training and occupations based on achievement (para. 73, 77). In light of this, an exemption from grading examination-relevant spelling proficiency was not required to establish equal opportunity among the candidates; on the contrary, it was likely to constitute an impairment of the equal opportunity of access to further education, training and occupations according to the mandate of Art. 7(1) in conjunction with Art. 12(1) and Art. 3(1) of the Basic Law.

D.

I.

As the challenged judgments of the Federal Administrative Court violate the complainants’ fundamental rights under Art. 3(3) second sentence of the Basic Law, they are reversed (§ 95(2) first sentence Federal Constitutional Court Act). The judgments of the Bavarian Higher Administrative Court of 28 May 2014 - 7 B 14.22 and 7 B 14.23 -, according to which the Free State of Bavaria is obligated to provide the complainants with Abitur certificates without a remark as to the exemption from grading spelling proficiency and − in the case of the complainant in proceedings no. III − on the grading of written and oral proficiency on a 1:1 basis, are final and binding. […]

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II.

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III.

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