School closures were permissible on the basis of the information available in April 2021

Press Release No. 100/2021 of 30 November 2021

Order of 19 November 2021
1 BvR 971/21, 1 BvR 1069/21

In an order published today, the First Senate of the Federal Constitutional Court rejected several constitutional complaints challenging the partial or complete prohibitions of classroom lessons at general education schools imposed for the purpose of infection control (“school closures”) under the “federal pandemic emergency brake” (Bundesnotbremse) applicable from 22 April to 30 June 2021.

With this decision, the Federal Constitutional Court recognised, for the first time, a right to school education afforded children and adolescents vis-à-vis the state. The school closures implemented in Germany since the start of the pandemic amounted to serious interferences with the right to school education; this is clearly shown by the expert statements regarding the actual effects of these measures. Given the highly unpredictable spread of the virus when the “federal pandemic emergency brake” was adopted at the end of April 2021 – at a time when the vaccination programme had only just begun –, these interferences had to be weighed against exceptionally significant interests of the common good, namely the protection of the public from dangers to life and health and the proper functioning of the healthcare system. According to the legislator’s assessment, which was tenable on the basis of the findings available at the time, these dangers could be countered through measures including school closures.

The legislator could reasonably expect pupils to tolerate the cancellation of classroom lessons despite the heavy burdens this placed on them. The following aspects were relevant in this respect: Unlike other contact restrictions, complete school closures did not take effect when the number of new COVID-19 cases per 100,000 inhabitants within seven days (seven-day incidence rate) in a given district or city exceeded 100, but only once it exceeded the significantly higher threshold of 165. Under constitutional law, the Länder were required to replace cancelled classroom lessons with distance learning wherever possible, including when the “federal pandemic emergency brake” applied. School closures were limited to a short time period of just over two months; this ensured that the heavy burdens would not last beyond a point in time when the protection of life and health might have become less urgent, for example due to the progress of the vaccination programme. Finally, even before the “federal pandemic emergency brake” was adopted, the Federation had taken precautions aimed at reducing, as far as possible, the heavy burden that potential future measures affecting schools might place on pupils. This includes a study funded by the Federal Ministry of Health examining the effectiveness of protective measures (the “Stop COVID” study), as well as financial assistance of EUR 1.5 billion provided by the Federation to the Länder in the context of the “Digital Compact for Schools” to improve the conditions for digital distance learning.

Facts of the case:

School closures pursuant to § 28b(3) of the Protection Against Infection Act (Infektionsschutzgesetz – IfSG) were part of an overall protection strategy consisting of a range of measures enacted through the Fourth Act to Protect the Population During an Epidemic Situation of National Significance (Viertes Gesetz zum Schutz der Bevölkerung bei einer epidemischen Lage von nationaler Tragweite) of 22 April 2021, a federal act with effect across Germany, to curb the spread of SARS-CoV-2 (referred to as the “federal pandemic emergency brake”). If the number of new SARS-CoV-2 infections per 100,000 inhabitants in a given district or city within seven days exceeded 165 on three consecutive days, classroom lessons at general education and vocational schools were prohibited completely; if the incidence rate exceeded 100, classroom lessons were only allowed in the form of hybrid learning, with two alternating cohorts in the classroom for a limited time each (§ 28b(3) second and third sentence IfSG). The Länder were authorised to exempt final-year classes and special needs schools from the prohibition of classroom lessons and to provide emergency child care on the basis of criteria to be defined by the Länder. Classroom lessons could only be held subject to compliance with adequate sanitary and protective measures implemented by schools. Pupils and teachers were only allowed to take part in classroom lessons if they got tested for SARS-CoV-2 twice a week using a recognised test. When the incidence rate fell below the relevant threshold, the restrictions were lifted. The provision could only be applied in the context of an epidemic situation of national significance, and was set to expire by 30 June 2021 at the latest.

The pupils who lodged constitutional complaints mainly challenge the violation of their right to school education. The parents of these pupils, who also lodged constitutional complaints, assert, among other things, that the prohibition of classroom lessons disproportionately impaired their right to freely shape their family life, which is protected by Art. 6(1) of the Basic Law (Grundgesetz – GG).

The Senate gave many expert third parties from medical science, epidemiology, the student body, teaching and school research the opportunity to submit statements.

Key considerations of the Senate:

The constitutional complaints are unsuccessful.

A. The prohibition of classroom lessons pursuant to § 28b(3) second and third sentence IfSG did not violate the right to school education.

I. The prohibition amounted to an interference with the right to school education protected by Art. 2(1) in conjunction with Art. 7(1) GG.

The right of children and adolescents to the free development of their personality following from Art. 2(1) GG encompasses a right to receive state support and assistance in their development to become self-reliant persons within society through school education, as set out in the state’s educational mandate under Art. 7(1) GG (right to school education). The scope of protection of this right includes all education provided at school with the exception of vocational training. It thus covers the teaching of knowledge and skills as well as general education and pedagogical aspects including the bringing up of children. While it affords children and adolescents a right to have the state uphold the minimum educational standards that are necessary for them to develop into self-reliant persons on the basis of equal opportunities, it does not contain an inherent right requiring the state to design schooling in a certain way. In exceptional cases, exercising the right to minimum educational standards can be precluded by overriding constitutional interests that must be protected. However, the state cannot deny this right on grounds of its discretion regarding the use of scarce public resources. The right to school education also includes a right to equal access to state education in the framework of the existing school system. Moreover, it encompasses a defensive right against state measures that restrict a school’s currently available education programmes without changing the existing school system as such.

In the case at hand, the right to school education is affected in its dimension as a defensive right against state interference. The prohibition of classroom lessons constituted an interference with this right that must be measured against the requirement of proportionality, given that it solely served to combat the pandemic, leaving the school system as such – with classroom lessons as the standard type of lessons – unchanged.

II. The prohibition of classroom lessons was formally and substantively constitutional. The federal legislator had the necessary legislative competence and the Act did not require the consent of the Bundesrat. In substantive terms, the challenged provision satisfied the proportionality requirements.

1. Like the other contact restrictions imposed by the “federal pandemic emergency brake”, the prohibition of classroom lessons served to curb the spread of the virus and thus to protect life and health and to avoid overwhelming the healthcare system. The measure thus served legitimate purposes, which the legislator pursued in order to fulfil its duties of protection arising from Art. 2(2) first sentence GG.

2. The legislator concluded that the prohibition of classroom lessons in case of high incidence rates, together with other measures imposed by the “federal pandemic emergency brake” to restrict social contacts, is at least conducive to protecting life and health and the proper functioning of the healthcare system. This assessment is not objectionable under constitutional law. The expert third parties indicated in their statements that all existing virus variants can also infect children and adolescents, who can then transmit the virus to others, even though children and adolescents only rarely become severely ill with COVID themselves. According to the experts’ assessment, pupils can get infected with the virus when schools are open – not only through various contacts with other pupils and teachers in the classroom, in the school building or on school grounds, but also on their way to school – and can then transmit the virus to others in their family or to teachers. Thus, open schools are associated with the spread of the virus.

3. The prohibition of classroom lessons was necessary to protect the public from infection-related dangers to life and limb and to maintain the proper functioning of the healthcare system.

The prohibition would only have been unnecessary if it had been possible to establish with certainty that the spread of the virus could have been curbed at least as effectively through less onerous measures in the form of open schools combined with regular testing and sanitary measures. However, scientific knowledge in this area is characterised by a degree of uncertainty. It is true that one of the experts heard in these proceedings asserted that less onerous measures would have been just as effective. However, the other experts do not agree with this view. Several experts stated that a sound scientific assessment of this question could not be given because no data had yet been collected and analysed regarding the effectiveness of different measures taken at schools for infection control. Therefore, the experts’ statements regarding the effectiveness of the two options are rather vague. One expert suggested that the spread of the virus could not be curbed as effectively with rapid lateral flow tests at school, whereas PCR testing for all pupils would not be possible due to capacity constraints.

4. Measured against the information available when the Act was adopted, the prohibition of classroom lessons was not disproportionate to the purposes pursued.

a) Nevertheless, the prohibition of classroom lessons constituted a serious impairment of the right to school education of children and adolescents. According to the Federal Institute for Population Research (Bundesinstitut für Bevölkerungsforschung), schools were completely or partially closed for 173 days in the period from March 2020 until the start of June 2021. According to the President of the German Teachers’ Association (Deutscher Lehrerverband), classroom lessons were cancelled for half a school year on average. The expert third parties pointed out that in most cases classroom lessons were not replaced by digital lessons, but by assignments provided by teachers. According to the expert third parties, the cancellation of classroom lessons led to learning deficits and shortcomings in personality development. They emphasised that schools were important spaces for the psychosocial development of children and adolescents, which were no longer available when schools were closed. The expert third parties agreed that pupils at primary schools were hit especially hard by school closures as their educational outcomes hinge on direct interaction with teachers, with learning deficits in this early stage of education potentially affecting their entire school career. Moreover, the expert third parties assumed that learning deficits caused by the cancellation of classroom lessons were especially pronounced in children from socially disadvantaged backgrounds. According to the statements submitted by expert third parties, school closures together with the other measures taken to combat the pandemic adversely affected the physical and mental well-being as well as the family life of children and adolescents in many cases, indirectly hampering educational outcomes.

b) When the Act was adopted in April 2021, these serious impairments of the right to school education had to be weighed against the protection of the public from infection-related dangers to life and health and the proper functioning of the healthcare system, which are exceptionally significant interests of the common good. Infection rates were highly unpredictable. The virus spread exponentially. The number of COVID-19 patients requiring intensive care had increased considerably, and there was reason to fear that many hospitals would have to switch to emergency mode, further postponing planned surgeries. At the same time, there was a rapid spread of new virus variants that were more transmissible and deadlier. It had to be assumed that contact tracing would soon cease to be feasible in many areas. The vaccination programme had only just started.

In this situation, the legislator could assume that social interactions at relevant places of contact had to be reduced considerably in order to protect the public from dangers to life and health and from dangers to the proper functioning of the healthcare system that would occur if the virus spiralled out of control. In this context, the prohibition of classroom lessons forms part of an overall protection strategy combining various complementary measures.

c) The serious impairments of the right to school education of children and adolescents brought about by the cancellation of classroom lessons were not disproportionate to the exceptionally significant interest of the common good pursued, which was the protection of life and health; overall, an appropriate balance was struck between the conflicting interests.

aa) The Act did not one-sidedly give precedence to the interest of the common good. The special significance of classroom lessons for education as a basic prerequisite for the development of pupils into self-reliant persons was reflected by the fact that schools – unlike other places of contact – did not have to close completely when the incidence rate exceeded 100, but only when it exceeded 165. Furthermore, the weight of interference resulting from the prohibition of classroom lessons was reduced by the fact that the Länder were free to exempt final-year classes and special needs schools from the prohibition. Moreover, the Länder were authorised to put in place emergency child care in school, including for the purpose of allowing pupils to take part in distance learning if they did not have a suitable learning environment at home.

bb) It is significant for assessing the reasonableness (Zumutbarkeit) of school closures that distance learning, as a substitute for classroom lessons, was in principle guaranteed.

According to the experts’ assessments, skills and knowledge can be successfully taught through digital learning at least to secondary school pupils, provided that good digital equipment is available and teaching concepts are adapted to digital learning. It is true that the federal legislator could not itself ensure that the weight of interference resulting from its prohibition of classroom lessons was mitigated by distance learning as it does not have legislative competence for schooling. However, no separate statute for the purpose of balancing the opposing interests was needed in this case given that Art. 7(1) GG imposes an obligation on the Länder to ensure the minimum educational standards that are necessary for the personality development of children and adolescents. If the state falls short of these minimum standards because classroom lessons are cancelled over a longer period of time in order to protect life and health as overriding interests, like in the present case, the Länder must make use of the remaining possibilities to uphold these standards. Therefore, the Länder had to ensure that distance learning could take place wherever possible as long as classroom lessons were prohibited by federal law.

Insofar as individual schools did not provide any significant amount of distance learning despite there not being any major obstacles related to staff, circumstances or organisation, every pupil at these schools could demand suitable arrangements on the basis of the right to school education.

cc) When assessing the reasonableness of measures taken to avert dangers that impose a prolonged burden on affected persons in the context of a lasting danger such as the COVID-19 pandemic, it must be considered whether such measures could have been designed in ways that interfere less with freedom if the state had contributed to the improvement of scientific knowledge. The longer burdensome arrangements are in place or the longer the danger continues, the more sound the legislator’s assessments must be, provided that it would actually be possible to obtain better information. The state may not simply tolerate great dangers to life and limb because it did not contribute enough to the identification of alternative measures to protect against the danger in question that interfere less with freedom. By contrast, the fact that such less intrusive alternatives impose a greater financial burden on the public could become less significant in the balancing.

In the present case, there is no evidence of any such failure on the part of the state with regard to obtaining knowledge for assessing whether the prohibition of classroom lessons was reasonable. It is true that when the “federal pandemic emergency brake” was adopted in April 2021, the danger had already persisted for more than a year and it would already have been possible to collect some initial data at schools, which might have yielded information regarding measures to curb the spread of the virus at schools that interfered less with freedom. However, in light of the highly unpredictable situation, including the spread of new virus variants, it cannot simply be assumed that a sound assessment could have been made in April 2021 on the question of whether testing – while keeping schools open – would have been at least as effective in curbing the spread of the virus as school closures if data had already been collected earlier. In addition, with § 5(9) IfSG, the legislator provided for an evaluation of the effectiveness of different protective measures to be carried out under the responsibility of the state. A study that examines the effectiveness of measures at schools had already been commissioned by the Robert Koch Institute before the “federal pandemic emergency brake” was adopted (the “Stop COVID” study).

dd) When assessing the reasonableness of measures taken to avert dangers that impose a prolonged burden on affected persons in the context of a lasting danger such as the COVID-19 pandemic, it must also be examined whether the state, in an area under its responsibility such as schools, took timely, reasonable and obvious precautions in order to be able to design such measures in ways that interfere less with freedom. If the state fails to take such precautions, the interest of affected persons in being spared such avoidable fundamental rights impairments may become more significant in the balancing against opposing interests of the common good.

It is not obvious in this case that extensive precautions could already have been taken throughout schools by April 2021 so as to avoid school closures wherever possible. Precautions to be considered, such as improved ventilation in the classroom or the option of using bigger rooms to ensure physical distancing, require coordination, planning and implementation efforts with varying degrees of complexity. The same applies to the obvious solution of strengthening the digitisation of teaching and learning and developing pedagogical concepts for such digital learning in order to offer better and more digital teaching, thereby avoiding, as far as possible, poorer educational outcomes resulting from the cancellation of classroom lessons. With regard to ventilation systems and air purifiers, it must be added that, according to the experts, there is still uncertainty regarding the effectiveness of the protection they provide at school. Moreover, even before the legislator adopted the “federal pandemic emergency brake”, the Federation had ensured that public resources are available for such precautions. The Federation provided a total of EUR 1.5 billion of financial assistance to the Länder in the framework of the “Digital Compact for Schools” for the purpose of improving the IT environment for distance learning. In addition, the Federation also established a support programme with resources of EUR 500 million overall to promote the installation of air purifiers, including in schools.

ee) The short duration of school closures was an essential element in ensuring that the serious interference with the right to school education brought about by such closures was still reasonable.

According to the legislator’s assessment, the measures restricting social contacts in order to protect life and health were especially urgent and significant for the common good. While this assessment was tenable in April 2021 when the “federal pandemic emergency brake” was adopted, it was, from the outset, subject to change pending further developments. It was unclear whether and when the “federal pandemic emergency brake” would succeed in interrupting the rise in case numbers and what role the spread of new virus variants would play in this regard. The constitutional assessment was only of a preliminary nature, in particular due to the vaccination programme that was being launched at that time. The legislator had to assume that in a balancing of interests the weight of the protective measures would be much lower once everyone who could get vaccinated had been offered the vaccine than it was when the Act was adopted. This holds true especially for the prohibition of classroom lessons. According to the current assessment delivered by the experts, unvaccinated children of school age – unlike unvaccinated adults – rarely display symptoms when they are infected and usually only become severely ill if they have underlying medical conditions. Therefore, the legislator had to expect that the prohibition of classroom lessons would gradually lose its justification once all eligible persons had been offered the vaccine. This applies to an even greater extent to the prohibition of classroom lessons at primary school, since primary school pupils were hit particularly hard by the prohibition.

The limitation of the measures to a short time period ensured that classroom lessons would no longer be prohibited once the serious interference with the right to school education was no longer justified.

B. The prohibition of classroom lessons also did not violate the right to family life following from Art. 6(1) GG.

II. The parents of school-age children could not invoke a defensive right against state interference derived from the right to family life under Art. 6(1) GG with regard to the burdens on their family life and their work-related activities, especially with regard to the additional child care that families had to provide due to the cancellation of classroom lessons. These burdens do not result from an indirect and factual interference with the right to family life. The prohibition of classroom lessons served the sole purpose of curbing the spread of the virus; its aim was not to change the family life of parents with school-age children or their working life. The adverse effects on family life were simply an unintended side effect of school closures and thus do not qualify as a fundamental rights interference.

III. The parents who lodged constitutional complaints also could not assert a violation of the requirement for the state to support and protect the family following from Art. 6(1) GG and Art. 3(2) second sentence GG.

Having said that, the prohibition of classroom lessons placed heavy burdens on parents of school-age children. The expert third parties highlighted that parents had to take on many additional tasks relating to the education of their children, which are usually performed by schools. According to the Federal Institute for Population Research, the additional time parents had to spend on these tasks amounted to 1.3 to 2.3 hours per day on average. A particular burden was placed on parents with children in need of child care, who, because of compulsory school attendance, had not developed a care system that could have replaced the child care usually provided at school. According to the experts, a heavy burden was also placed on single parents, because school closures led to especially big gaps in child care for them.

In light of these burdens placed on parents of school-age children and their lack of possibilities to prepare for school closures, the requirement for the state to support and protect the family following from Art. 6(1) GG and Art. 3(2) second sentence GG imposes a duty on the state to offset the adverse effects of school closures on families and on the working life of parents by taking measures to support families. The state satisfied this duty. It ensured that the Länder were authorised to put in place emergency child care in school that served to ease the burden on parents, and in particular the burden on working parents with school-age children in need of care. In order to protect parents from loss of income if they could not work on account of having to take care of their children, § 56(1a) first sentence no. 1 IfSG provided that parents could claim compensation from the state if they were affected by school closures brought about by the “federal pandemic emergency brake”. Moreover, sick pay (lost income due to care for sick children) for parents with statutory health insurance was extended to cases where parents had to care for children because schools were closed or compulsory school attendance was lifted (§ 45(2a) third sentence of the Fifth Book of the Code of Social Law, Fünftes Buch Sozialgesetzbuch – SGB V).