Remarks in Abitur certificates indicating an exemption from grading for certain proficiencies are required in principle

Press Release No. 107/2023 of 22 November 2023

Judgment of 22 November 2023
1 BvR 2577/15, 1 BvR 2579/15, 1 BvR 2578/15

In a judgment announced today, the First Senate of the Federal Constitutional Court held that remarks in the 2010 Abitur certificates received by the complainants in Bavaria that their spelling proficiency had not been assessed due to their dyslexia violated their fundamental rights under Art. 3(3) second sentence of the Basic Law, as these remarks were based on then-applicable administrative practices that were discriminatory.

Dyslexia is a disability within the meaning of Art. 3(3) of the Basic Law. The challenged remarks in the Abitur certificates place the complainants at a disadvantage.

A uniform inclusion of remarks in school-leaving certificates to indicate that, in deviation from examination standards, certain examination-relevant proficiencies were not graded due to disability-related limitations, serves to establish transparency with regard to students’ actual academic performance. It is justified in principle in the interest of providing all holders of an Abitur certificate with equal opportunities to access further education and employment based on their achievement. In certain cases, particularly with regard to the legislator’s design of the Abitur as a broad-based measure of achievement and proof of the general qualification for higher education, such remarks can even be required.

The constitutional objection to the remarks challenged in this case is therefore only due to the then-applicable and discriminatory administrative practices in Bavaria in 2010, pursuant to which remarks were only included on the Abitur certificates of students with dyslexia, but not in the certificates of students with other disabilities or cases in which teachers exercised their discretion not to grade spelling proficiency in particular subjects.

Facts of the case:

The complainants, who have a physician’s diagnosis of dyslexia, passed their Abitur in Bavaria in 2010. Upon their application, their proficiency in spelling – in accordance with the practice at the time – was not included in their overall examination grade or was only assigned a limited weight. This was noted in the complainants’ Abitur certificates. Pursuant to the applicable administrative practice in Bavaria in 2010, students for whom specific proficiencies were not graded for other reasons did not receive comparable remarks in their Abitur certificates.

The complainants contend that the remarks at issue in the Federal Administrative Court’s challenged judgments violate the prohibition against disadvantaging disabled persons in Art. 3(3) second sentence of the Basic Law as well as the principle of equal opportunity pursuant to Art. 3(1) in conjunction with Art. 12(1) of the Basic Law.

Key considerations of the Senate:

The constitutional complaints, which are admissible only in part, are well-founded as to their result.

I. The inclusion of remarks indicating exemption from grading for spelling proficiency violated the complainants’ rights under Art. 3(3) second sentence of the Basic Law.

1. The complainants’ reading and spelling difficulties (dyslexia), which have been confirmed by a physician, constitute 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 mental condition that affects their ability to lead an independent and self-determined life. This understanding does not include marginal impairments, only those of considerable significance.

b) These conditions have been met. The difficulties in reading and writing associated with dyslexia reach the level of scientifically measureable neurobiological disruptions in brain function that constitute an abnormal physical condition. The symptoms of such functional disorder, namely, significantly slower reading, writing and comprehension of texts, 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.

2. Students with dyslexia who receive remarks on their school certificates are disadvantaged in comparison with those who do not. Such disadvantage is observable in respect to three comparison groups:

First, the inclusion of a remark in the school-leaving certificate places students with dyslexia in a worse position than students whose spelling proficiency was included in the assessment (comparison group 1). It is obvious from the face of the school-leaving certificate that a remark is only included when spelling proficiency, in deviation from the standard requirements, was not assessed. Those reviewing the certificate will draw the conclusion that the certificate bearer has deficits in this regard. Furthermore, it is also likely to be assumed that the certificate bearer has dyslexia.

Second, the use in Bavaria of remarks in Abitur certificates in 2010 also resulted in unequal treatment in comparison with students with other disabilities, whose proficiency in spelling and other areas was not assessed (comparison group 2).

Finally, students with dyslexia were treated unequally in comparison with other students insofar as individual teachers’ decisions not to grade spelling proficiency was only remarked upon in the Abitur certificates of the students with dyslexia (comparison group 3).

3. These disadvantages are not justified in this case. Remarks in school-leaving certificates indicating an exemption from grading examination-relevant proficiencies are not only reasonable; they are also constitutionally required in principle. At the same time, in view of the discriminatory practice in place in 2010, the disadvantage to the complainants as a result of the remarks in their Abitur certificates in comparison to comparison groups 2 and 3 is unreasonable. By contrast, the unequal treatment in regard to comparison group 1 is justified.

a) There are legitimate purposes underlying the inclusion of remarks in school certificates.

aa) 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.

The goal of school education includes the development of students’ personalities, allowing their individual abilities to unfold independent of their social background and, after the conclusion of their schooling, permitting them to freely choose their further education and employment based on their achievements and interests, which can form the basis for an independent and self-determined life. The Abitur certificate, as proof of the completion of general education in preparation for higher education, serves a goal of constitutional status under Art. 7(1) in conjunction with Art. 12(1) and Art. 3(1) of the Basic Law by offering all students the same chance to find further education or employment that corresponds with their academic achievement and personal 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 different levels of proficiency demonstrated are clearly set out in differentiated grading that is reliably documented in a uniform manner that permits comparison.

The grading of spelling proficiency that is the subject of this case also serves a constitutional goal of facilitating equal opportunities to access further education and employment based on students’ academic achievement. It is justified to include spelling proficiency as part of the Abitur examination, even when considering the interests of students with dyslexia. There are a number of occupations in which orthographic competency is necessary.

bb) In light of the foregoing, remarks in a school-leaving certificate indicating that there has been an exemption from grading an examination-relevant proficiency in deviation from the examination standards also serve a legitimate goal of constitutional status, namely, ensuring equal opportunities to access further education and employment based on achievement. 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 the standard examination requirements, then the certificate would indicate proficiencies that were not in fact attained; to the extent that is the case, it is inaccurate. As a result, the equality of opportunity to access further education and employment of those students who must demonstrate such competences is adversely affected.

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

aa) A legal disadvantaging on the basis of disability is only justified when it is not possible or reasonable to overcome the disadvantaging through support measures and aid systems that can facilitate the same possibilities of development and participation as for persons without disabilities. This obligation of inclusivity must also be observed in the context of school-leaving examinations.

bb) As a possible alternative to an exemption from grading with a remark, the spelling proficiency of the complainants could not have been improved through educational support measures to the point that the complainants would have had the same chances of success on the examination as their fellow students.

c) Remarks in a school-leaving certificate as to an exemption from grading of an examination-relevant proficiency are suitable and necessary to promote the constitutional goal of equal opportunities to access further education and employment based on achievement. They are also appropriate in principle.

On the one hand, having a disability-related learning difficulty disclosed by the inclusion of a remark does impair an individual’s right to determine the portrayal of their person in all respects and can worsen their chances of success in applications for further education or employment. On the other hand, a person would generally only apply for an exemption from grading if, in view of their desired higher education programme or employment, they expected the advantage of a better overall result on the examination to outweigh the disadvantage of a remark.

This can be compared with a scenario in which the public interest required that all school leavers of a Land be offered the same opportunities to access further education and employment based on academic achievement, without the school-leaving certificates including any remarks as to an exemption from grading that would otherwise not be ascertainable. In this case, it would be incorrectly assumed that, for all examinees, 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. The Abitur certificate then loses its reliability and usefulness as a basis of comparison and can only fulfil the constitutional goal of ensuring equal opportunities to access further education and employment based on achievement in a limited capacity.

For this reason, the public interest in establishing transparency with regard to the actual performance outweighs the countervailing interest of those who would be disadvantaged by the disclosure of an exemption from grading of certain proficiencies due to disability-related limitations. Remarks in school-leaving certificates are therefore appropriate in principle, subject to the condition that they are applied uniformly and that the decision to seek an exemption from grading of certain proficiencies due to a disability remains with the student and their parents.

d) In balancing the relevant interests, it must also be taken into account that the disclosure of an exemption from grading examination-relevant proficiencies in the Abitur certificate due to disability-related limitations can be required in principle; the Abitur in particular is designed in such a way that the legislator ascribes to it the general qualification for higher education and intends it to be a standardised proof of qualification. 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 to design school-leaving examinations in such a way that all school leavers have an equal opportunity – in line with their academic achievement and individual abilities – to find further education or employment 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 performance on school-leaving examinations do not have disadvantaging effects, while considering the fact that those affected generally retain an overall advantage.

e) At the same time, the remarks challenged by the complainants in this case are not reasonable in comparison with comparison groups 2 and 3.

The then-applicable administrative practice of only including remarks for students with dyslexia did not fulfil the constitutional requirements.

Such discrimination against students with dyslexia vis-à-vis students with other disabilities, or other students whose spelling proficiency was not graded at the individual teacher’s discretion, is not justified.

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.

II. A violation of the principle of equal opportunity under Art. 3(1) in conjunction with Art. 12(1) of the Basic Law cannot be ascertained. The exemption from grading for spelling proficiency was not required on account of, for example, the need to establish equal opportunities among the examinees; on the contrary, it could in fact impair equal access to further education and employment based on students’ individual achievement.

III. The judgments of the Federal Administrative Court are overturned. Accordingly, the judgments of the Bavarian Higher Administrative Court, pursuant to which the complainants are to receive Abitur certificates without remarks, become final and binding.