The Plenum of the Constitutional Court, comprising the Senior Judges Manuel García-Pelayo y Alonso, Chairman, Jerónimo Arozamena Sierra, Angel Latorre Segura, Manuel Díez de Velasco Vallejo, Francisco Rubio Llorente, Gloria Begué Cantón, Luis Díez-Picazo y Ponce de León, Francisco Tomás y Valiente, Rafael Gómez-Ferrer Morant, Angel Escudero del Corral, Antonio Truyol Serra and Placido Fernández Viagas, has ruled
IN THE NAME OF THE KING
J U D G M E N T
In the unconstitutionality appeal against various precepts of the Organic Law 5/1980 of 19 June regulating the Schools Statute proposed by sixty four Senators and represented by the Commissioner T.Q.S.F.C., in which the State Attorney entered an appearance representing the government and with Francisco Tomás y Valiente acting as Rapporteur with the proviso indicated in paragraph 1.15.
Conclusions of Law
1. The State Attorney claims the inadmissibility of the appeal on the grounds that the Commissioner appointed by the Senators in this appeal assumes, in virtue of art. 82.1 of the OLCC, their representation, however he cannot also take on its legal direction on which the aforementioned precept is “silent”. In the light of this silence, the State Attorney considers that the norm contained in art. 81.1 of the same Law is applicable, according to which “ad litem representative” and legal director are two distinct persons”. Furthermore, the Government representative bases his argument on the text of art. 864 of the Organic Law of the Judiciary which, according to the State Attorney “prohibits … the simultaneous performance of the duties of legal counsel and the activities of court agent”. Finally, in the same brief of allegations “the lack of sufficient documented proof of the power" granted to their Commissioner by the Senators in this Appeal.
The State Attorney's argument cannot be accepted on the following grounds:
2. Art. 864 of the OLJ of 1870 is not applicable to the problem in question here. To invoke this precept, taking it out of its proper context and without quoting it accurately could be extremely misleading. It is nevertheless true that the article cited is part of a series of precepts (arts. 859 and 872 of the OLJ designed to regulate institutional and professional aspects of Legal Profession and Court Agent Services (Procuraduría in Spanish), however not its procedural aspects which are regulated previously (in articles 855 to 858 of the OLJ). In this context, the first paragraph of art. 864 literally states that “no one may simultaneously exercise the professions of lawyer and court agent (procurador).” It is clear that this prohibition is compatible with those norms, authorising a person such as the Commissioner of art. 82.2 of the OLCC to assume the duties of representation and defence in a particular type of proceeding.
3. A joint interpretation of arts. 81.1 and 82.1 of the OLCC leads to the same conclusion. The first of these, in establishing the general rule of the necessary intervention in the constitutional proceedings of a Court Agent known as a Procurador and a Lawyer who assume respectively the duties of representation and defence, is referring, as represented and defended parties, to the natural or legal persons with standing to appear in the constitutional proceedings in virtue of their interest therein. However, the case of art. 82.1 differs completely, as it takes into account the existence of those who have been invested by the Constitution (art. 162.1 a) of SC) and by the Law (arts. 32 and 82.1 of the OLCC) on legal standing, to pursue constitutional procedures which are not for their own interest, but in respect of the high political qualification inferred from their respective constitutional remit. Therefore, the general rule of art. 81.1 is not applicable by analogy with the very different case of art. 82.1, the scope of whose analogy is configured nevertheless in the same article. 82, paragraph two, and in particular where it states that the "the State Attorney shall act through the executive bodies of the State". It is he and not the Court Agent cited in art. 81.1 of the OLCC who constitutes the correlative and analogical figure of the Commissioner referred to in art. 82.1 of the same Organic Law. Both perform the duties of representation and defence, at least when, as occurs in this case, the Commissioner is a Lawyer.
4. Since the office of Commissioner in art. 821 of the OLCC differs completely from that of the “Procurador or Court Agent legally qualified to operate in the Court or Tribunal hearing the case" (art. 3 of the LEC) it is clear that the requirement of documented proof of the power should not be a requirement in the case of the Commissioner in the form established in art. 3 of the LEC, for cases of representation by a Court Agent. In the present case, given that the Commissioner is a practising lawyer and has considered the power of attorney sufficient as he is making use of it, it is clear that the requirement of the power should be deemed to be sufficient, and thus this Court has considered in its order of 22 October 1980 when deciding on the admission to proceedings of the appeal, since no grounds of inadmissibility were found therein, a decision which is reiterated here.
5. In the section termed Ground One by the appellants in their appeal, the constitutionality of arts. 5, 18 and 34 of the Organic Law 5/80 establishing the Schools Statute (O.L.E.S.S.) is questioned in that “on recognising the right of proprietors of schools to establish an ideology on which there are no restrictions in its scope, it may thus encroach on or restrict the ideological and religious freedoms of the teachers and their right to literary, artistic, scientific and technical production, creation and research and the communication of their results; it may also encroach on and restrict the rights of parents of the pupils as recognised in the Constitution and the ideological freedom of their pupils”. It is specifically indicated that the aforementioned articles of the O.L.E.S.S. infringe arts. 16.1 and 2, 20.1 b) and c)and 27.1 and 7 of the Constitution. In developing the grounds for this appeal the insistence is primarily on the contradiction between the right to establish an ideology and academic freedom (art. 20.1 c) of the Constitution) providing a much briefer summary of the other infringements mentioned compared to this particular point.
On the grounds indicated, a declaration of unconstitutionality is requested which would subsequently render the aforementioned articles null and void. The appellant also refers however, in an explicit manner, to the possibility of this Court delivering a Judgment of the type which he terms "interpretive"; ie that it establish the interpretation of the contested precepts which would be unconstitutional or, conversely, an interpretation in which such precepts would not be considered to be contrary to the Constitution.
6. The Constitutional Court by its very nature and by the rule of Law (arts. 372 of the LCP and 80 of the OLCC) is required to justify its decisions in response to the allegations of the parties by interpreting the constitutional and legal precepts the constitutionality of which have been refuted, however, it is not this indisputable interpretation which is referred to here.
Those Judgments termed as interpretive in case law, that is, those which reject a claim of unconstitutionality or, similarly, which declare the constitutionality of a contested precept insofar as that it is interpreted in the sense that the Constitutional Court considers it to be aligned with the Constitution, or it is not interpreted in the sense (or meanings) which are aligned to the Constitution, are effectively a means which the constitutional case law of other countries has used in order to avoid unnecessary gaps in the system, at the same time preventing the contested precept from damaging the basic principle of primacy of the Constitution. It is, in the hands of the Court, a legitimate means, although one which is extremely delicate and difficult to employ, however appellants cannot expect that a Judgment of this type be issued. The Constitutional Court is the most senior interpreter of the Constitution, it is not a legislator and all that can be asked of this Court is a declaration on whether or not the precepts can be deemed to comply with the Constitution.
The logical connection between the contested precepts requires, firstly, an examination of art. 34, in that it confirms the right of owners of private schools to establish their own educational ideology, and secondly, art. 15, in that it indicates that the observance of that ideology is the limit of freedom of teaching of the teachers, and finally, art. 18, in that it specifies that this ideology also serves as a limit to the activities of Parent Teacher Associations.
7. Freedom of education is explicitly recognised in our Constitution (art. 27.1) may be understood as a projection of ideological and religious freedom and of the right to freely express and disseminate thoughts, ideas or opinions which also guarantee and protect other constitutional precepts (especially arts. 16.1 and 20.1 a). This connection is furthermore explicitly established in art. 9 of the Convention for the protection of human rights and fundamental freedoms signed in Rome on 4 November 1950, in conformance with which the norms pertaining to public fundamental rights and freedoms incorporated in our Constitution, pursuant to article 10.2.
To the extent that education is an activity designed, in a systematic manner and with a minimum of continuity, to convey a specific body of knowledge and values, the freedom of education acknowledged in art. 27.1 of the Constitution implies, on one hand, the right to create educational institutions (Art. 27.6) and on the other, the right of those who personally perform the task of teaching to do so with freedom within the confines of the teaching post they hold (art. 20.1 c). The right of parents to choose the religious and moral training they wish for their children also derives from the principle of freedom of education(art. 27.3). In all cases these are rights which are of necessity limited by their very nature, irrespective of those produced through their instrumentation with other rights of the kind which, while always respecting their essential content, may be established by legislature.
Although the freedom to create schools (art. 27.6) includes the possibility of creating teaching or educational institutions which are outside the scope of regulated instruction, the continuity and systematicity of educational action justifies and explains that freedom to create schools, as a specific manifestation of freedom of education, should be motivated in all cases within stricter limits than those of pure freedom of expression. Thus, insofar as this (art. 20.4 of the Constitution) is essentially restricted by respect for other fundamental rights and by the need to protect youth and childhood, the exercise of freedom to create schools has an additional limitation imposed in the same precept containing that right, in that it requires respect for constitutional principles which, like those of the Preamble to the Constitution (freedom, equality, justice, pluralism, unity of Spain etc.) do not confirm fundamental rights, and the extremely important point deriving from art. 27.2 of the Constitution, that teaching should serve specific values (democratic principles of coexistence etc.) which do not fulfil a merely restrictive purpose but one of positive inspiration.
Finally, it is clear that when, in exercising this freedom, schools are created which are required to provide regulated teaching as part of the educational system, the centres which have been created, in addition to guiding their activity, as required in section two of art. 27 in an endeavour to fully develop the human personality in respect of the democratic principles of coexistence and fundamental rights and freedoms, with the precision and specificity defined in the International Covenant on Economic, Social and Cultural Rights (art. 13), should also adapt to the State requirements imposed on schools at every level.
8. The right acknowledged in art. 34 of the O.L.E.S.S. of owners of private schools to “establish their own educational ideology within the framework of the principles and declarations of the Constitution" is part of the freedom of creation of schools in that it is equal to the possibility of providing these with their own character or orientation. This specificity explains the constitutional guarantee of the creation of schools which is merely another version of the concrete expression of free enterprise, also enshrined in the Constitution 38).
Deriving from the freedom of creation of schools, the right of the owners of such centres to establish their own educational ideology operates within the confines of that freedom briefly referred to in the previous section. It is precisely the existence of these confines which makes it indispensable, as the State Attorney has mentioned in his brief, to ensure that a school’s own ideology should be subject to the regulation and authorisation that the Law (art. 33) requires in respect of creation and operation of private schools, since the establishment of an ideology, in that it determines the particular character of the school, is an integral part of its creation.
The right to establish a specific ideology as a facet of the right to create schools is governed by the necessary limitations of this right to freedom. These are not limitations deriving from its instrumental right of parents' right to choose the type of religious and moral training they wish for their children, as related instrumentality is not necessary, yet there is an inevitable interaction. The right of parents to decide on their children’s religious and moral training embodied in art. 27.3 of the Constitution differs from the right to choose a school as established in 13.3 of the International Covenant on Economic, Social and Cultural Rights, although it is also clear that the choice of school is to a certain extent a means of choosing a particular religious and moral training.
Since it is an autonomous right, the right to establish an ideology is not restricted to religious and moral aspects of the educational activity. Within the framework of constitutional principles, of respect for fundamental rights, in service of the truth, for the requirements of science and any other remaining and requisite purposes of education mentioned, among other regulations, in art. 27.2 of the Constitution and in art. 13.1 of the International Covenant on Economic, Social and Cultural Rights and in terms of schools which, of those referred to in the law analysed herein, regulated teaching is to be provided, adjusted to the minimum requirements of the public authorities in terms of different subjects, number of teaching contact hours etc. the educational ideology of each school may extend to these different aspects of its activity. It is not therefore, an unrestricted right, nor is it defined as such in art. 34 of the O.L.E.S.S. which explicitly situates its limits with regard to the principles and declarations of the Constitution. This precept would effectively be unconstitutional, as the appellant claims, if it did not define limitations to the scope of the ideology, however, through this reference to the principles and declarations of the Constitution they are generically and sufficiently established and cannot be accused of being unconstitutional.
9. The fact that art. 15 of the O.L.E.S.S. is not adapted to the Constitution is, according to the appellant, based on the argument which, by indicating “respect for the school’s own ideology” as restriction of teachers’ freedom of education, the freedom granted to them by the Constitution is subordinate to the right that owners of the centres are granted under law without procuring the necessary instrumentation between both parties. An analysis of this argument requires an examination of the academic freedom proclaimed by the Constitution in art. 20.1 c).
Although traditionally academic freedom was understood to be a freedom only granted to those teaching in higher education, or perhaps more precisely those who hold the post of "professors", and even today in German theory, it is similarly considered that such freedom is the prerogative only of those teachers whose teaching is a projection of their own research work, it is clear from parliamentary debates on this issue, which comprise significant element of any interpretation, although they may not determine it, that the constitutional legislature of 1978 wished to attribute that freedom to all teachers, irrespective of the educational level at which they teach and the relation between their teaching activity and their research work.
It is a question however, as occurs in principle in respect of the other rights and freedoms guaranteed by the Constitution, of a freedom in respect of the State or more generally in respect of public authorities and the content of which is necessarily modulated by the actual characteristics of the teaching post or academic role. Such characteristics are basically determined by the combined action of two factors: firstly, the public or private nature of the school and secondly, the educational level or grade corresponding to that teaching post,
In public centres of any level or degree, academic freedom has a negative content insofar as teachers are allowed to resist any mandate to give their teaching a specific ideological orientation, that is, any orientation which implies a particular perspective of natural, historical or social reality, made possible within which the broad framework of constitutional principles. Academic freedom is, in this respect, an idea incompatible with the existence of an official science or doctrine.
Together with this purely negative content, academic freedom also has a broad positive content at a higher educational level which there is no need to analyse here. At lower academic levels, on the contrary, and in a somewhat gradual manner, this positive content of freedom of education tends to diminish, as on one hand these usually consist of syllabuses devised by the appropriate authority and not by the teachers themselves, and these determine the minimum content of the teaching, and it is also these authorities which establish the range of educational means available to the teacher (art. 27.5 and 8) and on the other and more importantly, this cannot ideologically guide their teaching with total freedom in a manner judged more appropriate to their convictions,
In a political legal system based on pluralism, ideological and religious freedom of individuals and the non-denominational nature of the State, all public institutions and in particular educational institutions should effectively be neutral. This neutrality, which does not prevent organisation in public educational institutions of free teaching in order to ensure the rights of parents to choose the religious and moral training in accordance with their personal convictions (Art. 27.3 of the Constitution), is a necessary characteristic of every teaching post in the school and not the hypothetical result of the casual coincidence in the same school, and with the same pupils, of teachers holding varying ideological opinions whose teachings would effectively be cancelled out each by the other. The ideological neutrality of teaching in public teaching institutions regulated in the O.L.E.S.S. imposes on teachers working in them a requirement to renounce any form of ideological indoctrination, which is the only possible attitude compatible with the freedom of families who, through a freely made decision, or one forced by circumstances, have not chosen schools for their children with a specific and explicit ideological orientation.
10. In private centres the teaching post is defined, in addition to the appropriate characteristics in terms of educational level, and for the purposes of interest in this case, by the ideology of the school which, in the exercise of academic freedom and within the limitations mentioned above, have been conferred on it by the director. Any intromission of public authorities in the academic freedom of teachers would thus at the same time also be a violation of the academic freedom of the school itself. Academic freedom of teaching staff in such schools is as extensive as that of teachers in public institutions and neither in art. 15 of the O.L.E.S.S. nor any other precept in this law is that principle violated by imposing as a restriction on the academic freedom of the teachers a respect for the ideology proper to the centre.
A completely different problem is that raised by a possible conflict between the exercise of academic freedom of the owner of a school by providing the centre with its own ideology and the freedom of instruction which, within the limitations of that ideology, and according to art. 27.1 of the Constitution, the Law grants to teachers of private schools. Education, and in particular, teaching at the levels regulated by the O.L.E.S.S., has its own requirements which are incompatible with an expansive tendency of either of these two freedoms, the reciprocal articulation of which shall be a lot easier the greater the awareness of these limitations deriving from their own concept.
The existence of an ideology, acknowledged by teachers when they freely enter the centre or freely accepted when the ideology is created subsequent to that incorporation, does not bind teachers, as is clear, nor does it cause them to act as apologists for such theories, or to convert their teaching into propaganda or indoctrination, nor to subordinate the requirements imposed by scientific rigour on their work to this ideology. The teacher is free as a teacher in the exercise of his/her specific activity. His/her freedom is, however, freedom within the teaching post occupied, that is, in a specific school and therefore it has to be compatible with the teaching at that centre, of which the ideology is a part. The teacher’s freedom does not, however, entitle him to openly attack or act in a way that encroaches on that ideology, it merely entitles him to perform his duties in the manner he deems most appropriate and which, according to a serious and objective criterion, does not contradict that ideology. The restrictive virtuality of the ideology shall indubitably be greater in respect of the educational or formative aspects of the teaching, and less in respect of the simple transference of knowledge, an area in which the actual requirements of teaching leave a very narrow margin for ideological differences.
The formula used by art. 15 of the O.L.E.S.S., the meaning of which coincides with that of formulas adopted by the Constitutional Courts of other European countries in resolving more or less similar situations, formulas to which the appellant refers to in his brief, is not therefore, contrary to the Constitution.
It is clear that the difference in criterion between the centre director and the teacher providing his services therein, may give rise to conflicts, the solution of which should be sought through the appropriate jurisdiction and, ultimately, and if there is any violation of fundamental rights or public freedoms, through this same Court through review channels and not by establishing an a priori general theory.
11. In similar vein it is also clear that the activities or legal conduct of teachers, apart from their teaching function in an institution with its own ideology, may possibly be considered by the director of such a centre as a violation of their obligation to respect that ideology, or in other words, as an action which exceeds the scope of academic freedom granted by the O.L.E.S.S. (art. 15) and as a result, as sufficient grounds to break the contractual relation between teacher and centre. Only competent jurisdiction and also, ultimately, this same Court through a review appeal will be able to resolve any conflicts thus arising, as although certainly the service relation between teacher and institution do not, in principle, extend to the activities carried out aside from this, the possible notoriety and nature of these activities and their intentional nature may make theme a significant and even decisive part of the education task attributed to the teacher.
12. The declaration of unconstitutionality of art. 18, which the appellant claims in this First Ground of the appeal rests on the limitation that the existence of a specific ideology imposes on the participation of parents and pupils in the control and management of the institution. As is obvious, this alleged unconstitutionality would only occur, should it exist, in private schools sustained by public funds, which are the only institutions, having their own ideology, in which parents of pupils also have a constitutionally guaranteed right to participate in their management and control “in the terms established under law”.
The extremely broad freedom granted by the Constitution to ordinary legislature on this point, which is restricted only by the need to respect the "essential content" of the guaranteed right (art. 5.3.1) would in itself make it impossible to consider this legal regulation as insufficiently adjusted to the Constitution. Furthermore, it is clear however, that having freely chosen a school with a specific ideology for their children, they are required not to claim that the school follows guidelines or carries out activities which are contradictory to that ideology, although they may legitimately claim that decisions should be taken which, as indicated previously with respect to academic freedom that the Law grants to teachers of this kind of school, cannot be judged in accordance with a serious and objective criterion, contrary to the ideology.
13. In Ground Two of the Appeal the Constitutionality of art. 34.2 and 3, sections b)and d), as they are deemed contrary to art. 27.7 of the Constitution.
The infringement of the aforementioned constitutional precept occurs in the appellant’s opinion because on one hand, the right granted by the Constitution to teachers, parents and pupils to participate in the control and management of schools maintained by public funds is restricted in art. 34.3 d) of the O.L.E.S.S. to participation on a Financial Board for the purpose of controlling and supervising financial management of the school and, on the other, because the specific activity of the aforementioned right to intervene in the control and management of the centre is deferred by law to the internal regime and regulations of each institution. In the appellant's opinion the literal sense of art. 34.3 d) of the O.L.E.S.S. (to “participate in the control and supervise financial management”) unfairly restricts the meaning of art. 27.7 of the Constitution (to “participate in the control and management”) and therefore this precept as well as, to an even greater degree, the contents of sections 2 and 3 b) of the same article, since by remitting the content of the right to participate to the internal regime and regulations, they infringe the legal reserve established in art. 53 of the Constitution.
14. Art. 34 of the O.L.E.S.S. which includes the contested precepts, establishes a single system of participation of parents, teachers, non teaching personnel, and if appropriate, pupils, in the control and management of private schools, irrespective of whether or not these are publicly funded, although in the latter case it also prescribes the existence (section 3 d) of a Finance Board designed to participate in the control and supervision of the financial management of the school Although section 4 of the article establishes some guidelines to which both the School Board (section 3 b) and the aforementioned Financial Board (section 3 d) are subject, the specific composition of those bodies and in particular, their attributes are left to what is known as "internal rules or statutes" which are devised by each school, however the manner of their precise drafting and approval is not mentioned art) 34.2).
This same treatment of two types of school, whose differences are relevant from a constitutional perspective, implies some difficulties in addressing and resolving the question proposed. As is clear, only in the case of publicly funded schools does the Constitution attribute a right to participate in the control and management and, therefore, only with respect to this type of centre is there any sense in questioning the constitutionality of these precepts. If the result of the analysis leads however, to denying the alignment of these precepts with the Constitution, the subsequent declaration of unconstitutionality and invalidity may only be made in respect of specific centres and not in general.
15. Art. 27.7 of the Constitution, which is the parameter to be used in order to resolve the constitutionality or unconstitutionality of the contested precepts, attributes to specific elements of the educational community a right to participate in the “control and management of all centres maintained by the Authorities with public funds in the terms established under law”. The formula is extremely wide in that it leaves it to legislature to freely determine not only what should be understood by “publicly funded centres”, but also the definition of terms, that is, the scope of the procedure and the consequences attributed to participation "in control and management". In the exercise of this freedom, legislature has no limits other than the generic restriction imposed by art. 53.1 of the Constitution of respecting the essential content of the guaranteed right and that which derives from the legal reservations contained both in that precept and in art. 81.1.
In using this freedom, legislature has established a basic organic structure of the public centres which may be completed through regulations, however, it describes in detail the composition of the main governing bodies and the essential content of its attributions. With respect to publicly funded private schools (a concept which it does not define and in which, as will be seen below, a rather equivocal element tends to be present) it confines itself to making a general definition of such bodies and their generic functions, leaving their regulation, as has been mentioned, to the “statute or regulation of the internal system”. This remission to what the State Attorney terms an "autonomic prescription” of the regulation required to ensure the exercise of a right guaranteed by the Constitution, is not, in principle, invalid, however, in order to be acceptable it requires that this "autonomic prescription" will effectively be as such, that is, a regulation which issues from the subjects themselves who are entitled to exercise the right in question and which refers only to detailed questions which do not affect the legal reserve (art. 53 and 81 of the Constitution). Therefore, by referring matters reserved for the law to the regulation of the internal regime, the precept is unconstitutional and invalid.
Given the absence of any specification regarding the nature of the procedure for creating and approving those “statutes or regulations of the internal regime” and the specific attributes of associated bodies in which teachers and parents participate, it is in all probability likely that in newly created schools such regulatory bodies will be established directly by the director of the centre, and the differences of perception, in short, that there may be between the director and other components of the educational community in respect of the scope which should be given to this right to participate in the control and management guaranteed under the Constitution, do not permit the exercise of the right to be sufficiently ensured by simply remitting their regulation to the norms of the internal regime.
16. Section 3 d) of art. 34 of the O.L.E.S.S., the only precept which specifically mentions publicly funded schools and which uses an extremely vague and imprecise form "participate in the control and supervise the financial management of the centre”) in order to define the specific content of the right, introduces an additional element of confusion in that, in addition to omitting any mention of what should be understood by “maintenance with public funds”, it refers not only to schools but also “schools or levels sustained with state funds or other public bodies”.
The expression “level” is used by the O.L.E.S.S. (art. 1) to designate each one of the major divisions or strata of our educational system (Pre-school, general primary education, secondary education) and in this respect it is clear that there are no levels “sustained with State funds or other public bodies” as in each level there will be some centres maintained in this way and others which will not.
The possibility (art. 11 of the O.L.E.S.S.) of integrated centres existing where teaching is provided at two or more levels leads to the consideration that the text of art. 34.3 d) (“centres or levels sustained with State funds etc.") intends to individualise within those centres, the levels sustained with those funds, with the right to participate in control and management referring to those levels alone. This possibility cannot be considered a priori as constitutionally unacceptable, however, in order to make any declaration in this respect, a degree of definition is required, the absence of which in this precept is an additional factor for deciding against its adequacy in terms of constitutional requirements.
17. The lack of differentiation in the same article of the Law of two different types of schools gives rise, as indicated in section fourteen, to a special difficulty in declaring the clear and unequivocal constitutionality of the contested precepts. Sections 2 and 3 b) of art. 34 are constitutionally unobjectionable with respect to private schools which are not publicly funded, however, in contrast, they do not have the minimum requirements indispensable to consider them adapted to the Constitution when they have to be used as a regulation of the law which that law accords to the various components of the educational community in order to participate in the control and management of centres maintained with public funds, a concept which, furthermore, has not been sufficiently specified by legislation to be useable in legal terms.
In this situation, the unconstitutionality of the precepts analysed only occurs in respect of certain schools of the type which only section 3 d) mentions specifically. It is therefore appropriate to declare this precept unconstitutional, purely and simply, and only the unconstitutionality in terms of publicly funded private schools of the remaining precepts of the same art. 34, sections 2 and 3 b) contested in this appeal.
18. In what they term the Ground Three, the appellants request that art. 18.1 of the O.L.E.S.S. be declared unconstitutional on the grounds of infringement of art. 22.1 of the Constitution. The text of the appeal states on folio 32 that art. 22.1 is infringed as it necessary for parents to belong to an association in order to be able to exercise the right to participation established in arts. 27.5 and 27.7 of the Constitution, however, neither the contested article nor the remaining article of the O.L.E.S.S. make any reference to general teaching syllabus nor to means of organising the participation of parents and pupils, among other affected sectors, therefore any allusion to art. 27.5 of the Constitution should be dispensed with.
Furthermore, it should be pointed out that art. 18 of the O.L.E.S.S. is placed in Title I of the Law and thus refers both to public and private schools, so that the requirement of a parents association in order to enable them to participate in the associated bodies pertains to all types of school. Nevertheless, the fundamental right to participation recognised for parents of pupils in art. 27.7 affects only those centres “maintained by the Authorities with public funds”, which are those which are publicly created, and part of those privately created, and thus the conflict alleged by the appellants must be deemed to refer to them.
The right to participate in the control and management of publicly funded schools should be carried out as indicated in art. 27.7 of the SC “in the terms established by law” a reference which is correctly specified in art. 18.1 of the O.L.E.S.S. which points out that said participation shall take place “in associated school bodies". This institutional source seems reasonable since the most important decisions for the school community should be taken in this type of governing body, however, obviously this does not preclude every holder of fundamental right established in art. 27.7 carrying out individual actions (such as parents' conversations with teachers or complaints lodged by any parent to the owner or director of the school etc) with a view to resolving problems which are not attributable to the authority of any associated body.
19. However, Art. 18.1 is not restricted to indicating that the participation established in art. 27.7 of the Constitution should be carried out by associated school governing bodies but, rather unnecessarily, it adds a further requirement. The aforementioned precept of the Organic Law 5/1980 establishes the imperative need ("shall exist") for each school to have a parents association "through which they shall exercise their participation in the associated bodies”. It is true that the law does not expressly impose on parents the duty to associate, however it is the law which conditions the fundamental right of art. 27.7 of the Constitution to membership of such an association (“ .. through which they shall exercise…… ").
To what point is it constitutional to require the associative source? As the appellants state, and as legal theory and numerous Judgments of Constitutional Courts maintain, such as the German court (Judgment of 18 December 1974) and the Italian (Judgment no. 69/1962 of 7 June), the right of association, acknowledged by our Constitution in art. 22.1 includes, not only in its positive form the right to associate, but also in its negative facet the right not to associate.
Furthermore, it is true that the right to participation recognised by the Constitution in art. 27.7 is formulated without restrictions or conditions, and the reference to the law which has created it (the present Organic Law) cannot in any way be considered as an authorisation enabling it to restrict or limit it unnecessarily, and this is what art. 18.1 of the LOESS unduly does, by requiring the associative source, it should be declared that said precept is unconstitutional and that parents shall be able to choose their representatives, and should themselves be chosen in associated governing bodies of the school, by means of direct elections, without that choice being made through the associative source and should be interpreted in this respect in arts. 26.1 A.d), 26.1 B.d), 28.1 in fine and 18.2 b), all in the contested Law.
20. This ground alleges that additional provision number 3 of the O.L.E.S.S. is unconstitutional as a result of infringement of art. 81 of the Constitution. The appellants allege that art. 81 of the SC is violated as said provision three establishes a system of repeal or amendment of an organic law, contrary to constitutional provisions, since by admitting the contested precept, “a law of a legislative assembly of the Autonomous Community" could repeal or amend an organic law of the Parliament. However, while arguing in the claim against the constitutionality of the aforementioned additional provision, it also raises a possible criterion for defending the thesis that it is constitutional by stating in folio 33 of the claim that "if it was considered that in the text of the law (organic) there were non organic parts, they should have been defined and separated”. Is this not, as the government representative implies, precisely the meaning and function of the contested provision?
The possible conflicts between the organic law and the ordinary law should be resolved by firstly, distinguishing whether the ordinary law proceeds -like the organic law- from the Parliament, or whether, conversely, it issues from the legislative body of an Autonomous Community.
In the first case, given the existence of the different scope reserved for each type of law, the conflict will only arise if both laws affect the same issue, in which case the organic law should prevail over the ordinary law as it cannot be amended by the latter (art. 81.2 of the Constitution).
In the second case, the conflict should be resolved in respect of which body has the authority to determine which matters have remained constitutional and statutorily conferred on legislative bodies of the Autonomous Communities, and which correspond to the State Parliament.
Based on these principles, and with the specifications indicated below, it will be possible to resolve the question raised in this appeal.
21. The specifications are as follows:
A) When the Constitution contains a legal reserve it should be understood that said reserve is in favour of the organic law and not an ordinary legal reserve- only in the cases which are expressly contained in the fundamental norm (art. 81.1 and related articles). The reserve of the organic law cannot be interpreted in a way such that any issue removed from that reserve, due to the fact that it is included in an organic law, should definitively benefit from the effect of the blocking of rank and the need for a qualified majority for its ultimate amendment (art. 81.2 of the SC), since that effect may and even should, be excluded by the same Organic Law or by a Judgment of the Constitutional Court which declares which of the precepts of that law are not of that nature. Carried to an extreme, the formal conception of the organic law could cause an abusive petrifaction in the legal system to the benefit of those who, at a given moment, enjoy sufficient parliamentary majority and to the detriment of the democratic nature of the State, as our Constitution has established a democracy based on the play of majorities, providing only in specially considered and exceptional cases a democracy based on qualified or reinforced majorities.
Therefore it must be stated that, although it is true that there are some matters reserved for Organic Laws (art. 81.1 of the SC), it is also true that the Organic Laws are reserved to these matters and that therefore, an organic law which encroached on matters reserved for Ordinary law would be contrary to the Constitution.
B) What does not exist in the Constitution is that which we could term regulatory reserve, that is, the imposition that specific questions should be regulated by regulatory law and not by others with the rank of Law. As this reserve does not exist in favour of the Regulation, legislature, by creating an organic law, may be inclined to include in that law the treatment of questions which could also be regulated by regulatory means, however, for reasons of related issues or systematicity or due to good legislative policy it is deemed appropriate to include it alongside matter which are strictly the preserve of an organic law.
C) Therefore, in the event of a case such as that indicated, and therefore in the same organic law, strict issues and related issues coincide, it should be stated that in principle these should also be subject to the blocking of rank indicated in art. 81.2 of the Constitution, as is duly appropriate for the defence of legal security (art. 9.3 of the Constitution). However, this system may be excluded from the Organic Law in respect of some of its precepts, indicating which of these contain only related material and which may be altered by an ordinary law passed by the Parliament or, if appropriate, by laws of the Autonomous Communities. If such a declaration is not included in the organic law, or if its content is not adapted to law in the opinion of the Constitutional Court, it shall be this court's judgment which, within the scope of each unconstitutionality appeal, should indicate which precepts of an Organic law may be amended by ordinary state or Autonomous Community laws, thus streamlining the system and contributing to legal security, which may be seriously affected by the non existence or deficiencies in the aforementioned norms of instrumentation.
22. In matters of fundamental rights, the Constitution has not been restricted to reserving their regulatory development to organic laws, however, it has stipulated that all Spaniards have the same rights and obligations in any part of the State territory (art. 139 of the SC), and in order to ensure that this will be so, it has reserved as the exclusive prerogative of the state “the regulation of the basic conditions which guarantee the equality of all Spaniards in the exercise of their rights and fulfilment of their constitutional duties” art. 149.1.1.° of the SC), as well as, more specifically, in respect of art. 27 of the Constitution, the regulation of the matters to which art. 149.130 refers in respect of our supreme regulation. This means that the aforementioned precepts of the Constitution (arts. 139, 149.1.1.° and 149.1.30.° of the SC) exclude the legislative bodies of the Autonomous Communities from legislating on the matters defined therein.
23. Given this situation, additional provision three of the O.L.E.S.S. should be interpreted as a regulation for instrumentation which considers the precepts cited therein as relative to issues pertaining to the normative development of fundamental rights addressed in the O.L.E.S.S., and not concerning the “basic conditions" referred to in art. 149.1.1 nor the “basic norms for implementing art. 27 of the Constitution mentioned in art. 149.1.30.° of the same. And as arts. 15 and 16 of the Catalan and Basque Statutes respectively, attribute authority in teaching matters to either of the Autonomous Communities, it is correct that the aforementioned additional provision attempts to articulate the O.L.E.S.S. with future laws of the communities in teaching matters, permitting them to amend or replace articles of the O.L.E.S.S. referred to therein, precepts whichM even when they are amended or replaced, would have to continue in force in the Communities as a supplementary law according to art. 149.3 of the Constitution.. It is understood that in the context of the aforementioned additional provision (and in the body of this Judgment) the participles “amended” or “replaced” are not equivalent to “repealed” , since, if Autonomous Communities were to legislate on such related matters, having the authority to do so, their respective precepts would not repeal those corresponding to the O.L.E.S.S., but would be applied in every Community with preference to these, and only in this respect could it be said that they would be amended or replaced as preferential applicable law.
Within this interpretive framework, the problem of whether the contested provision is constitutional or unconstitutional consists of determining whether the articles it declares to be amendable by Community Laws regulate questions strictly concerning the normative development of any fundamental right, or the basic conditions for their exercise, or the "basic norms for the implementation of art. 27 of the Constitution”, or if, conversely, such articles only concern matters relating to those proper to an organic law which are not reserved for the exclusive competence of the State. Firstly, the declaration of their amendable nature will be unconstitutional, and secondly it shall conform to the Constitution. This requires an analysis of arts. 21, 24.2 and 3, 25.3 and 4, 26, 27, 28.1 and 2, 29, 30, 31 and 37 of the Schools Statute.
24. For greater clarity we shall explain separately the group of articles addressing related materials and that of the precepts which, since the former refers to the terms of the alternative indicated in the previous paragraph, they cannot be amended by Autonomous Community laws.
a) Art. 21. The creation, classification and operation of educational research and experimental centres referred to in this article do not strictly affect the development or basic conditions of the exercise of any fundamental right but are simply a matter relating to the central theme of this organic law. Therefore, it is not unconstitutional to declare that art. 21 may be amended by Autonomous Community laws.
b) Art. 25.4. In public centres governed by a single person, (art. 24.1 of the O.L.E.S.S.) obviously the principal is the director. Art. 25 in points one two and three, regulates the content of their authority and the basic requisites of the selection and appointment procedure of the director as well as his/her competence and authority. All these matters regulate one of the central figures of the educational system whose approval is required according to art. 27.8 of the Constitution. Therefore, the aforementioned precepts cannot be amended by the Laws of the Autonomous Communities, contrary to the terms of the contested additional provision in respect of article 25.3. Nevertheless, the “authority of the other solely managed governing bodies" referred to in art. 25.4 of the O.L.E.S.S. constitutes a typical related issue and there is no disadvantage in permitting their amendment (in the sense that we always employ for this term in this Judgment) by Autonomous Community Laws.
c) Art. 29. The secondary organic nature of the councils mentioned therein and their optional nature ("they may exist") and of the seminars or departments to which it alludes are evidence of their merely related content in respect of any fundamental right. Therefore, the declaration of the possibility of amending this article is constitutional.
d) Art. 37. It does not mention rights but rather duties of the pupils. Its connection with matters of fundamental rights is very tenuous. There is no disadvantage to permitting its amendment by Community Laws provided that the alteration introduced is of a similar nature to the duties, which are very generic and of a non political nature, contained herein.
25. It is not possible to resolve the same in respect of the block of remaining articles that is, arts. 24.2 and 3, 25.3, 26, 27, 28.1 and 2, 30 and 31 of the O.L.E.S.S.. All the foregoing articles are contained in Title II referring to public centres, and all also refer to the governing bodies of such centres and their respective authority. They regulate the institutional framework of the public school, a key component of the educational system which is standardised according to art. 27.8 of the Constitution and whose “general organisation” corresponds to the state “in any case” according to additional provision number two of the O.L.E.S.S.. All these contain “basic norms for the implementation of art. 27 of the Constitution" (art. 149.1.30 of the same), establishing “basic conditions” for exercising the fundamental rights of parents, teachers and pupils, without any need to make an individualised analysis of each of the precepts mentioned herein, as together they form an indissoluble group. The possibility of their amendment by Laws of the Autonomous Communities would permit the creation of public schools organised in a way which differs radically from the content of the Organic Law 6/1980, as a result of which both art. 81 of the Constitution” and its art. 149.1.1.° and 30 would be violated°.
Therefore, additional provision number three of the O.L.E.S.S. should be declared unconstitutional insofar as it permits the amendment or replacement with Autonomous Community laws articles. 24.2 and 3, 25.3, 26, 27, 28.1 and 2, 30 and 31 of the same organic law.
26. The final ground of the appeal requests that arts. 6, 11, 12, 20, 22, 24.1, 25.1 and 2, 28.3, 38 and 39 be declared unconstitutional, in addition to arts. 8, 9, 13 and 14, all of the O.L.E.S.S. due to infringement of art. 81 of the Constitution in respect of art. 149.1.1 and 30 also of the Constitution, and with arts. 15 and 16 of the Autonomous Statutes of Catalonia and the Basque Country.
The appellants therefore petition this court to declare all the precepts mentioned on folio 3 of the claim to be unconstitutional, and it is this request that is addressed in this Judgment. However, as the Commissioner considers that arts. 15 and 16 of the Autonomous Statutes of the Catalan and Basque Communities have been violated, since they consider that at least some of the contested precepts “compete with the reserved matters" of those Communities in their statutes, it is necessary to analyse whether or not the articles opposed for this reason contain matters concerning the implementation of any fundamental right in the educational field or if they refer to the “Basic conditions” mentioned in art. 149.1.1 or if they are “basic norms” as referred to in article 149.1.30 of the Constitution, as if this were the case, the Autonomous Communities would not be able to legislate in the matter. Finally, the appellants maintain that some of the O.L.E.S.S. precepts are unconstitutional because in their opinion, they regulate matters which are wrongly included in an organic law, which brings us once again to the distinction between strict matters and related matters.
We are therefore involved in the same constellation of problems addressed in the previous ground. Thus, a considerable number of the arguments expressed in that section are valid for resolving the present problem, without any need to reiterate them here. It is however, appropriate to draw attention to the fact that none of the O.L.E.S.S. precepts contested in Ground Five of the Claim are considered to be amendable by Additional Provision number three, which does not mention them. As, despite this lacuna, some of these refer to related matters which are not the exclusive jurisdiction of the state, it would be appropriate, given the reasons indicated in paragraph 21 c) with respect to ground four, to consider them amendable by the Laws of the Autonomous Communities, always considering the amendment in the sense of paragraph 23.
27. The appellants consider that some of the articles contested are unconstitutional because they regulate matters attributed to the “full authority of the Generalitat” (art. 15 of the Statute of Catalonia) or the authority of the Autonomous Community of the Basque Country (art. 16 of its Statute). According to them, arts. 11, 12, 24.1, 25.1 and 2 and 28.3 of the O.L.E.S.S. are included in this case.
a) Art. 11. Art. 9 of the O.L.E.S.S. to which art. 11.1 expressly refers, contains the institutional framework of our educational system, that is, it establishes the different types of teaching centres in accordance with the education levels taught. That framework should be the same throughout Spain (art. 27.8 of the SC) and its general organisation is the task of the State (Additional Provision two of the O.L.E.S.S.) given that it constitutes the regulation of some of the “Basic conditions" mentioned in art. 149.1. of the Constitution.
Art. 11.1 refers the regulation of its structure and operation to future provisions to be developed by the LOESS. With respect to the norms of implementation, it is clear that they shall not be able to contradict general concepts contained in the LOESS, in which the schools “general organisation" is contained, and therefore, it is true, as the appellants maintain, that the Basque and Catalan Autonomous Communities shall be able to legislate on such matters. The same may be said of art. 11.2.
b) Art. 12. This affects directly and principally the fundamental right of “all … to education “(art. 27.1 of the SC), a right which, in order not to be devoid of content, should comply with minimum quality guarantees to which art. 12, addressed herein, refers. Its inclusion in the O.L.E.S.S., far from being unconstitutional, is an essential implementation of the right to education. As, on the other hand, those requirements which ensure a minimum quality of teaching should be equal for all Spaniards (art. 149.1.1 of the SC), they may not be amended by the Autonomous Communities.
c) Art. 24.1 lacks sufficient entity to be restricted to establishing a classification of the governing bodies of public centres, developed subsequently in points 2 and 3 of the same article. The alleged (and silenced) wherefore of its unconstitutionality is incomprehensible Since it forms a logical unit with the other two sections it should be understood that, like them, (see paragraph 25) it is not unconstitutional, nor may it be amended by laws of the Basque and Catalan Autonomous Communities.
d) With respect to sections 1 and 2 of art. 25, as we stated previously, due to logical requirements of the arguments, when addressing the alleged amendable nature of sections 3 and 4 of Ground Four (paragraph 24 b). Thus art. 25.1 and 2 regulates a principal element of the educational system, the standardisation of which is stated in art. 27.8 of the Constitution and the general organisation of which is the State’s task according to Additional Provision two of the O.L.E.S.S. (which, furthermore and as the Government representative points out, has neither been contested nor mentioned by the appellants) and, therefore, nor is it unconstitutional or amendable by the Community laws.
e) Art. 28.3 addresses simple issues which only have a slight connection with fundamental rights in the educational field. Their inclusion in the Organic Law 5/1980 is not unconstitutional, for the reasons given in generic terms in paragraph 21 B. The Autonomous Communities shall thus be entitled to legislate on this precept, duly amending it.
To summarise the terms of this section in respect of the precepts contested by the appellant, due to an alleged encroachment on the authority of the Catalan and Basque Communities in educational matters, it should be concluded that arts. 12, 24.1, 25.1 and 2 are not unconstitutional, and regulate questions on which the Autonomous Communities may not legislate, whereas, arts. 11 and 28.3 address matters on which the corresponding bodies of the aforementioned Communities may certainly legislate.
However, this affirmation in respect of arts. 11 and 28.3 of the O.L.E.S.S. (or with regard to another to which we shall refer later) does not mean that they are unconstitutional. Firstly, it is clear that the alleged conflict with arts. 15 and 16 of the aforementioned Autonomous Statutes would not in any way affect their validity in the rest of Spanish territory. And with respect to Autonomous Communities, all that occurs is that these are authorised to legislate on matters included in the aforementioned precepts, which shall be affected (that is "amended" or "replaced" in the sense already explained before in paragraph 23) by possible Laws of Communities, becoming in these (art. 149.3 of the Constitution) supplementary law and not applicable law in the first term, as they are now, and shall continue to be while the specific legislation of one or other Community on these issues does not materialise. As a result of which it should be concluded that arts. 11 and 28.3 are not unconstitutional and could have been, and should be. included in Additional Provision number three of the O.L.E.S.S., within which they should be considered to included from this moment.
28. It still remains to resolve the issue of the remaining precepts contested in Ground Five, that is, arts. 6, 8, 9, 13, 14, 20, 22, 38 and 39 of the Schools Statute which, according to the appellants, are unconstitutional, because they regulate matters which do not come within the scope of an Organic Law (see folio 34 of the claim, in fine), thus it violates arts. 81, 149.1.1 and 30 of the Constitution.
It is true, however, that none of them refer to matters unconnected with implementation of art. 27 of the Constitution and the rights recognised therein, thus none is unconstitutional, although the degree of connection of each one with the implementation of fundamental rights in educational matters is more or less intense.
As has been reiterated throughout this Judgment, the educational system of the country should be standardised (art. 27.8 of the Constitution) throughout State territory; therefore, and due to the equal rights which art. 139 of the Constitution recognises for all Spaniards, it is logical that "the regulation of basic conditions" should be the exclusive competence of the State which guarantees all Spaniards equality in exercising their constitutional rights, as well as, in the educational field, the regulation of the “basic norms for the implementation of art. 27 of the Constitution" (art. 149.1.30 the Constitution). The result of all the foregoing is the declaration in Additional Provision number two of the O.L.E.S.S. which states that “in any case and due to its actual nature it corresponds to the State: a) the general organisation of the educational system” etc.
Therefore, within this constitutional normative framework and in enforcement of the terms of additional provision number two, the O.L.E.S.S. has established the educational system within which every Spanish citizen would have to exercise their rights recognised by the Constitution in the field of education and teaching. Arts. 6, 8, 9, 13, 14 and 22 of the OLESS contain the main organisational stipulations of the educational system and strictly develop the constitutional precepts which have been so frequently cited, and therefore, their inclusion in this organic law is not unconstitutional but necessary.
In effect, a) The public authorities shall not be able to carry out inspection and standardisation functions of the educational system (arts. 27.8 and 149.1.30 of the Constitution) if there is no public register of duly identified centres in the corresponding administrative body (art. 6 of the LOESS); b) the general organisation of schools in the system requires their classification both in relation to the director (art. 8, which defines who is director and which are the public and private centres), as, based on the level of teaching provided (art. 9), as well as a generic denomination of public centres in respect of said levels (art. 22); c) Along these same lines, art. 13 guarantees in specific conditions “full academic faculties” to the centres and art. 14 establishes without discrimination the limitations of a certain autonomy of schools beyond the requirements defined by the laws.
Art. 39 affects in an essential manner the fundamental right of all citizens to education (art. 27.1 of the Constitution). There would be no point in recognising this right in the constitutional context if it were subsequently possible to arbitrarily penalise the pupils at the schools for alleged faults of discipline, the ultimate consequence of which could be expulsion from the centre; this would to a lesser or greater degree hinder the genuine exercise of this fundamental right. This is what it is attempted to avoid in article 39 of the O.L.E.S.S., and therefore its inclusion in the organic law is extremely appropriate, as it grants a guarantee to the aforementioned fundamental right without which the normative development of the same would be ineffective.
Since the participation of some pupils (“if appropriate”, states article 27.7 of the Constitution) in the control and management of publicly funded centres, it is a fundamental right which should be implemented by the LOESS, since it is a question of the same participation, also constitutionally recognised for teachers and parents (vide supra, paragraphs II, 14 and subsequent paragraphs), it is clear that the participation of pupils referred to in art. 38 of the O.L.E.S.S. cannot be that participation in “the control and management” of the centres referred to in art. 27.7 of the SC, and which, as a result, is a matter addressed here which is related by extension to art. 27.7 of the Constitution. The presence of this art. 38 of the Organic Law on Schools is not unconstitutional, however, as it regulates a related matter which is not strictly linked to the implementation of a fundamental right, the Catalan and Basque Autonomous Communities shall be able to legislate on it (or any others which in future may have the same authorities in educational matters), with their laws being applicable in that matter with preference over those of the State.
Finally it remains to analyse art. 20 of the O.L.E.S.S., whose connection with art. 27 of the Constitution in any of its aspects is, in fact, weak, but whose content, since it is a simple norm of referral, is not unconstitutional, nor is its inclusion in the Organic Law 5/1980 .
R U L I N G
In the light of the foregoing, the Constitutional Court WITH THE AUTHORITY CONFERRED BY THE CONSTITUTION OF THE SPANISH NATION
1.- Not to accept the exceptions of inadmissiblity of the appeal alleged by the Government representative.
2. To partially accept the appeal and in this respect:
A) It declares the unconstitutionality, and consequently the invalidity of art. 34.3 d) of the Organic Law 5/1980 of 19 June.
B) It declares the unconstitutionality and consequently the invalidity of articles 34.3 b) and 34.2 of the same Organic Law insofar as it refers to publicly funded schools, however, the Constitution is not opposed in the case of private schools which are not maintained by public funding.
C) It declares the unconstitutionality and subsequently the invalidity of art. 18.1 of the aforementioned Organic Law 5/1980.
D) It declares the unconstitutionality and subsequently the invalidity of additional provision number three of the Organic Law 5/1980 in respect of arts. 24.2 and 3, 25.3, 26, 27, 28.1 and 2, 30 and 31 of the same Organic Law.
3.- It dismisses the appeal in all its other aspects.
This judgment shall be published in the "Boletín Oficial del Estado" (Official State Gazette)
Given in Madrid on the thirteenth of February nineteen hundred and eighty one.
That Additional Provision Three is not unconstitutional on the grounds and for the reasons given in the Legal Conclusions.
Given in Madrid on the thirteenth of February nineteen hundred and eighty one.
Dissenting vote on Ground One of the Judgment registered by Senior Judge Francisco Tomás y Valiente, seconded by the Senior Judges Angel Latorre Segura, Manuel Díez de Velasco and Plácido Fernández Viagas
1. I consider it my duty to dissent from the ruling in this Judgment in respect of the claims of the appellants in Ground One of their claim, as well as the corresponding legal conclusions contained in paragraphs II.5 to II12 of the Judgment.
Due to the intrinsically delicate nature of the matter addressed, this dissenting vote is formulated in a more extensive manner than would normally be the case, and which in respect of any other matter would be considered excessive. In addressing this issue I shall endeavour to argue with due legal rigour, and of course with the utmost respect for my colleagues’ opinions.
2. Ground One of the appeal requests a declaration that arts. 15, 18 and 34 of the O.L.E.S.S. be deemed unconstitutional due to infringement of arts. 16.1 and 2, 20.1 b) and c)and 27.1 and 7 of the Constitution. Nevertheless, the appealing Senators in numerous parts of their claim, and in relation to the problematic term “ideology” allude to a subsidiary petition, according to which the “concept of ideology could be maintained, provided that its scope and position are delimited by the context of other freedoms”. At other times within the same Ground One and in respect of the various constitutional freedoms in conflict, an effort to “articulate them in order to define the scope of each one”; or it alludes, for dialectic purposes and in the event that the claim of unconstitutionality is unsuccessful, to a possible Judgment “dismissing, yet interpretive and establishing the correct meaning of the contested precept”.(folio 24); or it may even propose an interpretation of the expression “educational ideology”, giving it to be understood that, if such an interpretation were to prosper, the same appellants could admit the constitutionality of the right to establish their own ideology in schools (“therefore, the ideology, constrained exclusively to the moral and religious option, may be admitted if stands up alongside academic freedom and both freedoms conditioned by protection of youth and teaching”: folio 28).
Thus, behind the claim of unconstitutionality there is a line of argument underlying the text of the appeal which objectively tends to seek a balance between the rights and freedoms in conflict and to propose interpretations of the main terms in conflict, which could make them, in the opinion of the appellants, compatible with the Constitution.
The Government spokesperson is of a very different opinion, which not only opposes the claim of unconstitutionality of the aforementioned articles of the O.L.E.S.S., but which furthermore attempts to convince this Court that it would not be necessary or appropriate to establish in a possible Judgment of dismissal “a definition of the limitations of the contested norm”. In his view, this interpretive endeavour would not be appropriate in an appeal of unconstitutionality, as this would have to be through review when according to every specific case, this Court may profile "the construction or configuration of the limits of rights".
3. The State Attorney is right to deny that in unconstitutionality proceedings possible and future singular cases can be resolved in advance. However, this is not the problem at issue. It is true that by making the logical judgment of conformance or non conformance with the contested articles of the O.L.E.S.S. and those others in the Constitution which the appellants consider to have been infringed, it is unavoidable to define in the present appeal certain terms and on occasion, specify the scope of certain rights or expressions contained in the contested law, so that in this way its constitutionality could be safeguarded. The Law on Schools uses terms in the contested articles which need to be defined before pronouncing on their constitutionality. The law has its own constellation of concepts and it is the interpreter's duty to define the legal meaning of each linguistic significant term, which is even more important when the disputed term is neither singular nor offers an easily understandable framework, as occurs, for example, with the word "ideology”. Furthermore, there is a key expression in the problem raised, namely “academic freedom” which has no identical meaning in art. 27.1 of the Constitution and in art. 15 of the O.L.E.S.S. and it is, therefore, inexcusable to establish what should be understood by these words in one or other of the contexts, prior to declaring the constitutionality or unconstitutionality of the contested articles.
In these and in the precepts of the Constitution with which they are objectively related, various fundamental rights and public freedoms which are systematically linked are regulated and this is not always expressed either by the Constitution or the Law on Schools in an unequivocal and clear manner. On the contrary, in art. 27 of the SC and in arts. 15, 18 and 34 of the O.L.E.S.S. there are a number of ambiguities. And it should be this Court when controlling the aforementioned norms in an abstract manner which should, as the most senior interpreter of the Constitution (Art. 1.1 of the O.L.E.S.S.) reduce ambiguities and promote legal security (art. 9.3 of the Constitution).
On the understanding that if, in this dissenting vote, what legal theory terms an interpretive judgment is proposed, it is not because the appellants’ Commissioner has so requested, but rather due to logical imperative of the judgment of conformity between the contested law and the presumably violated constitutional precepts.
Furthermore, it is appropriate to take into account, contrary to the opinion of the Government spokesperson on the work of this Court, in respect of future review appeals lodged with regard to the application of the O.L.E.S.S., that in my view the admissibility of such appeals could raise serious doubts, without this presupposing any attempt to prejudge future Court doctrine and theory in this respect.
On occasion, the member of the school community who considers any of his fundamental rights or public freedoms to have been violated in terms of educational matters in the case of private schools, could encounter considerable difficulties in ensuring that the alleged violation arising, for example, from an action of the owner or director of the centre, who are obviously not public authorities, would take the form of an act of public authorities, against which it would have already lodged, having exhausted the preceding judicial channels, that of review appeal. Given this problem, the majority of members of the Court have not pronounced in substantive body of this Judgment in unequivocally affirmative terms on the admissibility of such review appeals and has not expressed its interpretation with regard to article 44.1 of our Organic Law.
Therefore, the simple statement that the Court should await the proposal of specific review cases in order to profile the limitations of public freedoms and fundamental rights contained in article 27 of the SC alongside some of the rights recognised by the O.L.E.S.S. is not addressed, nor can it be considered convincing as a basis for excluding an interpretive Judgment in Ground One of the claim, nor does it offer citizens due assurances in this respect, as it could be that these appeals were not admissible, while in the meantime the norms whose abstract controls are now requested would remain submerged in margins of ambiguity which are unquestionably inconvenient, and the citizens affected by them would lack the legal security that the Constitution (Art. 9.3 postulates.
The interpretive function of the Constitutional Court acquires particular relevance, as has been indicated in recent theory laid down by our constitutional interpreters, when, applying the principle of conservation of the norm provided that it admits an interpretation consistent with the Constitution, the Court establishes the true and binding interpretation of the contested norm and which is the only meaning with which the terms thereof should be understood so that it conforms to the Constitution.
When resolving problems of this Ground One, the Court should have clarified in its legal findings the meaning of ambiguous terms and the limits of specific concurrent rights, and in some measure it should have brought to the ruling the interpretation of the contested regulation which should be admitted in order to declare its constitutionality. This is the basic thesis developed in this dissenting vote.
4. Prior to analysing the contested articles of the O.L.E.S.S., it is necessary to define a frame of reference within which they can be placed.
By stating in paragraph two of art. 27.1 which “recognises academic freedom”, the Constitution is affirming that the right of education for all should be implemented within a pluralistic education system governed by freedom. It is therefore the case of an organisational norm which serves as cover for various specific freedoms, from a principle which constitutes the planning in educational matters of two of the "higher values" of our legal system: freedom and pluralism (art. 1.1 of the Constitution).
Constitutional recognition of the principle of academic freedom has its most significant concretion in the following precepts:
a Art. 27.6 of the SC in which “The freedom of natural and legal persons to create educational centres is recognised”. This is the primary manifestation of academic freedom. Its recognition implies the non existence of a state teaching monopoly and, in the positive sense, the existence of an institutionalised educational pluralism. As has been written recently in France in this respect, “academic freedom” is a formula for balance. It means that neither the State nor any other collective, such as a religious group for example, may dominate youth in an overbearing manner. It also means that a parent is not deprived of his rights due to the very nature of things on the formation of his children's character".
b) Art. 20.1 c) of the Constitution, establishing academic freedom mistakenly termed by ordinary legislature as “freedom of education" in art. 15 of the O.L.E.S.S.. Since it is the principle of freedom of education placed as the frontispiece to art. 27, an invocation to the organisation of the educational system under the aegis of freedom and pluralism, imposes the need to be interpreted within the general framework of art. 27 those constitutional precepts which include rights, like this one, whose natural framework is the teaching institution.
c) Art. 23 of the O.L.E.S.S. which guarantees internal ideological pluralism of public educational centres.
Through this triple means the objective of educational pluralism is pursued, which has been defined by the European Court of Human Rights (hereinafter ECHR) in its Judgment of 7 December 1976, as “essential for the preservation of democratic society”.
5. Therefore, with both art. 27.1 and 27.6 of the Constitution and with art. 23 of the O.L.E.S.S. an attempt is made to render feasible another fundamental right enshrined in our Constitution, namely, that of parents to ensure a religious and moral training which is in accordance with their own convictions (art. 27.3).
Thanks to the play between the aforementioned precepts, parents may satisfy their right recognised in art. 27.3 both through public schools as their teaching is not ideologically influenced by the State, and through private schools, each informed by a specific ideology from which every citizen may, in principle, choose. Precisely based on this fundamental right of art. 27.3 of the SC, the right to establish an educational ideology may be justified in private teaching centres, an important point to which we shall return later.
Pursuant to various treaties, agreements and international declarations which, according to arts. 10.2 and 96.1 of the Constitution, should be used to interpret the fundamental right of art. 27.3 of our Constitution, to which they also refer, this right of parents is directly and preferentially projected on the sector of education more than on teaching, when this latter is understood to be the transfer of scientific knowledge and the former as a set of moral philosophical and religious conventions pursuant to a specific ideology. Therefore, our Constitution speaks (art. 27.3 of “religious and moral preparation”; art. 26.3 of the Universal Declaration of 1948 refers to the choice of "type of education” the international Covenants of 1966 on civil and political rights (art. 18.4 ) and financial, social and cultural rights (Art. 13.3 ) speak of religious and/or moral education” an expression which also appears in art. 5.1 b) of the Convention against discrimination in education 1960.
No one would deny the difficulty in distinguishing between what constitutes teaching and what is education; however, while being aware of such obstacles, it is important to point out this connection between parents’ rights and the field of education, according to international texts, since it has to serve as a basis for later interpretive comments based on the “educational ideology” with which the contested articles of the LOESS are concerned.
6. The concurrence of schools created by public authorities (art. 27.5 of the SC and Title II of the O.L.E.S.S. ) and private schools (art. 27.6 of the SC and Title III of the O.L.E.S.S. ) means that our education system (art. 27.8 of the SC) comprises schools of one or other of these types, but tending to satisfy the fundamental rights and educational purposes indicated in the Constitution. Both types of school converge and complement each other, as the ECHR has frequently reiterated.
Therefore, private schools cannot be perceived as an area of freedom of private individuals as opposed to the State, it is not a "free school opposed to the state” (Judgment of the Bundesverfassungsgericht of 14 November 1969A); between this type of school and the public school there is much terrain in common as the Constitution indicates in paragraphs 2,5, 8, 7 and 9 of art. 27 with these last two sections relating to financial aid or assistance granted to private schools by the public authorities.
Therefore, in respect of this last aspect, it may be stated that in principle the greater the amount of public funding of private schools the greater the intervention of the State will be or of those chiefly involved in the school community (teachers, parents and if appropriate, pupils) in the control and management thereof. This principle which the Law Debré of 31 December of 1959 indubitably states, and which is also reflected, for example, in the famous Judgment of the ECHR on the Belgian language case of 23 July of 1968 as the private grant aided school approximated more to the public school than the private non grant assisted school, is reinforced in paragraph 7 of art. 27 of our Constitution in the form of intervention, not of the State but rather of the aforementioned central characters in the school community in its control and management.
7. Arts. 15, 18 and 34 of the O.L.E.S.S. impose respect for the ideology proper to a centre or recognise the right to establish it, however, they do not state what should be understood by “educational ideology”. Furthermore, this expression is not found in our pre-constitutional educational legislation, nor does it appear in the laws or constitutional case law of countries with a similar cultural sphere to Spain, and thus it is not possible to share the opinion expressed by the majority of the Court in paragraph 10 of the legal conclusions, that the formula used by art. 15 of the O.L.E.S.S. coincides in its meaning with that of the formulas adopted by the Constitutional Courts of other European countries. Prior to declaring the aforementioned contested articles as constitutional or unconstitutional, it is essential to understand and define what the educational ideology of a school means.
In Germany expressions such as “types” of school are used (art. in singular, art. 7.5 of the Grundgesetz), or Schulformen, or they speak of Charakter or "peculiarity" (Eigenart), or del "mark" (Ausprägung) or configuration (Gestaltung) of such and such schools. In France, since the Law Debré of 31 December 1959, taking its cue from art. 1, the expression “caractêre proper” is used. It should be mentioned that all these terms are used to refer to centres or establishments (not to their directors or founders) and almost always as an expression of their ideological or religious nature, a detail which we appear to have underlined with the expression “ideology”.
The “ideology" of a centre refers to its particular character, not to any one of its characteristics, such as those of an educational, linguistic, sporting nature or other similar qualities, but very specifically, the ideology is the expression of the ideological nature proper to a school. As parents have the fundamental right contained in art. 27.3 of the Constitution, the ideology of each private school is instrumental in respect of that right having a function consisting of informing parents of the type of moral and religious education given to children of the centre, in order that they may choose it for their children with their fully informed consent. For this reason, arts. 15 and 34 of the O.L.E.S.S. qualify the ideology as “educational”, which means that, as occurs with the parent’s right regulated by art. 27.3 of the SC, and by the aforementioned international treaties, the ideology affects the educational sphere, both positively and directly, in that it indicates that a specific moral and religious training shall be given in a school to the exclusion of any other, however, this only affects the sphere of teaching in a negative and restrictive mode, constraining the academic freedom of teachers in a way that we shall illustrate later.
In this way, teaching, in that on one hand, it is programmed by public authorities (Art. 27.5 of the SC and on the other, is taught with respect for the right of academic freedom of teachers (art. 20.1 c) of the SC and art. 15 of the O.L.E.S.S. ) interpreted in the terms contained in the following pages) constitutes a sector less influenced by education creeds of the various centres than the specifically educational and formative field. In this respect it has recently been written in France that even in schools associated with the State and provided with a “caractêre proper” “neutrality continues to be the rule of education considered in itself. It is therefore in educational activities unconnected (étrangères) with compulsory schooling and also in the general atmosphere of the school where the real character (of the school) may be manifested”.
8. Formulation of the ideology should be public, synthesised and unequivocal, so that it may be known and understood by parents of pupils and by any other person who may possibly be involved. Although the establishment is a right recognised by art. 34 of the O.L.E.S.S. of the directors of private schools, they may not alter it at will, as once it has been established the ideology becomes an objective element proper to the educational institution, and its arbitrary modification or replacement by the director would entail fraudulent conduct in relation to the parents, who, having chosen such a school for their children’s education, based on, or at least with knowledge of a specific ideology, would then see the pupils subjected to an ideologically different education and with teachers who agreed to work in a school with an ideological orientation which did not pose any impediment to their working there, however, they may not have felt the same if a new philosophy and beliefs were introduced into the school.
Understood as such, the educational ideology of a school should be permeable to ideological convictions of all those involved, together with the director, in the school community, namely. teachers, parents and, possibly pupils, who, always together therewith, should participate in decision making which implies the application of the ideology to specific situations or which express the interpretation, perhaps evolutionary, thereof.
9. Art. 34.1 of the O.L.E.S.S. states that “the right is recognised of directors of private schools to establish an educational ideology of their own, within the confines of respect for the principles and declarations of the Constitution”. The meaning of the adjective “own” is ambiguous in this phrase as it could be interpreted as referring to the centre or its director, however unequivocal expressions in arts. 15 (educational ideology proper to the centre”) and 18 (“the centre’s ideology”) of the same O.L.E.S.S. enable this ambiguity in article 34 to be corrected. Thus, taking the ideology to be that of the school, and having interpreted this expression in the terms indicated in the above paragraphs, and taking into account the explicit mention made in art. 34.1 with respect to the principles and declarations of the Constitution as insurmountable limitations to any educational ideology, it is necessary to conclude that the right to establish educational ideologies is constitutional, and therefore so is the term transcribed above from art. 34.1 of the O.L.E.S.S..
It would be appropriate however, to indicate that this right, the limitations of which need to be established, may not be exercised by its holder and that as a result there may be private centres without an educational ideology, as the establishment thereof is a right (art. 34.1 of the O.L.E.S.S..), however, under no circumstances is it a duty.
Aside from this it is necessary to state that those ideologies which violate any principle or declaration of our highest regulation shall be contrary to the Constitution and therefore null and void. The Government spokesperson is right in affirming that it would seem hard to conceive of an interpretive Judgment being delivered by this Court which "specifies the scope of the limitations of the right to establish an ideology, because these being general to the Constitution, to interpret the same would lead to the interminable doctrinal task of interpreting the whole Constitution in its integrity”.
However, there are some constitutional principles or declarations which, as they consist of the basis of the constitutional regulation of our educational system, directly and specifically link the directors of private centres when establishing, if they wish to make use of the power conferred on them by art. 34.1 of the O.L.E.S.S. , the ideology of the centre. It is therefore pertinent to mention them briefly at this point.
10. Art. 27.2 of the Constitution contains the definition of the objective which should be pursued by education, irrespective of whether it is of the public or private type, in every school, a precept which constitutes what could be called without metaphor the “educational ideology of the Constitution”. Perhaps as ordinary legislature acknowledges it as such, it has reproduced it, although not literally, in art. 21 of the O.L.E.S.S..
Therefore, the first purpose that this constitutional precept accords to education is “the full development of the human personality” of the pupil. This is impossible to develop without freedom, and therefore the terms of art. 27.2 are complementary to those others in art. 10.1 of the SC in which it is stated that the “free development of the personality “is one of the bases of the political order and social peace. Thus any educational ideology which restricts or endangers the full and free development of the personality of pupils shall be void, as it is contrary to the Constitution.
According to the requirements of the same precept (art. 27.2 of the SC) the pupil should be educated with respect for democratic principles of coexistence and fundamental rights and freedoms. If, as Kelsen wrote, “education for democracy is one of the main requirements of democracy itself”, it is clear that the State could not permit, in the interests of a misunderstood educational pluralism, the existence of private schools inspired by totalitarian or undemocratic educational ideologies. Aforementioned Art. 27.2 is a guarantee that this could not occur in our system.
One of the fundamental principles of democracy is tolerance. Indubitably, the O.L.E.S.S. considers this to be so in art. 36. c) as it includes among the rights of pupils, that of being “educated in a spirit of comprehension, tolerance and democratic coexistence”. It is appropriate however, to bear in mind that it will not be possible to implement this right of pupils if the same principle of tolerance does not inform all the relations between the different components of the school community, as the consistency of the educational task lies in conveying, through education, what the educators themselves practise. Therefore, the Constitution requires respect for those same constitutional principles – indeed all of them - in relation to the creation and subsequent organisation of private schools (art. 27.6 of the SC).
11. Academic freedom is one of the manifestations of the freedom of teaching which is deemed to be an organisational principle of our educational system. Art. 20.1 c) of the SC recognises and protects the right to “academic freedom” taking up this expression which had already been used in previous constitutional texts such as art. 48 of the Constitution of 1931 where, with reference to all “primary school teachers, teachers and professors of official education” it recognised and guaranteed “academic freedom”. And it is very clearly referred to in art. 15 of the O.L.E.S.S. when, within the confines established therein, it declares the "guaranteed academic freedom" of "teachers". It would have been preferable for the expression “academic freedom” to have been used only in the broad sense it is used in art. 27.1 of the SC; however it is true that within our legislative tradition regarding educational themes and public teaching, this phrase has been used with various meanings in one of which it was equivalent to the freedom of teachers to “explain and discuss what they think” and this in respect of the fact that science “should be free in its manifestations, irrespective of the person responsible for teaching it” (Decree of the Minister of Development Manuel Ruiz Zorrilla of 21 October 1868, Legislation collection Volume C, pages 416-424).
I believe that it is necessary to examine at least the statement made in paragraph II) of the Judgment that “traditionally academic freedom was considered to be a freedom proper only to the teachers of higher education, or perhaps more specifically those holding teaching posts known as professorships.” Without entering into the merits of whether or not this was the case in German tradition, as the German theory refers directly to the text in question, it is important to clarify that the Spanish tradition is extremely different. The expression “academic freedom” appears only in one of our constitutional texts, that of 1931, art. 48 of which refers, as I have mentioned, to the “primary teachers, teachers and professors of official education” In previous legal texts such as the Decree of 21 October 1868, the Royal Decree of 26 February of 1868, the Royal Order circular of the same date, and the Royal Order of 3 March 1875 there is no mention of "academic freedom” but freedom of education, a phrase which is clearly polysemic, however, equivalent in one of its meanings, as I have mentioned, to the freedom of any teacher or primary teacher as mentioned, the freedom of any teacher or schoolmaster, irrespective of whether they work in the official public or the private system. Spanish tradition (obviously far more important to us than any other) begins in those texts, continues in art 48 of the Constitution of the II Republic and links (although not without interruptions) to art. 20.1 of the present Constitution.
12. Some of the texts already cited indicate the dual pronged nature of academic freedom, that is, its aspect of personal freedom and its facet of institutional guarantee.
As a “fundamentally personal expression of freedom” it means that the teacher may express his thoughts without constraint in the school insofar as he is complying from the perspective of academe, understood in its broadest sense as teaching post , his teaching activity or possibly through research as a form of teaching. Academic freedom is in this sense individual freedom exercised in or from academe. Current Spanish theory is unanimous in attributing this freedom to all teachers, although it is clear that the extent of this liberty shall depend, apart from many other circumstances which it is not pertinent to consider here, on the teaching grade held and the post awarded.
However, in addition, and even before, according to some authors, academic freedom is an institutional guarantee in the sense that Carl Schmitt gave this concept, that is, a markedly public right, the content of which is directly oriented towards benefiting society and in this case, in specific defence of freedom of science. With this the State, as a “State of Culture” attempts to ensure the free cultivation of science and its free conveyance through teaching at all levels and in all institutions in the education system, even when in respect of these different specifications and conditions should be taken into account. It is this institutional aspect of academic freedom which configures it not only as an individual right of freedom to be wielded against public authorities, but rather as a legal right whose protection shall be required from public authorities even when the education is provided in private centres.
13. No freedom is unlimited. The inclusion of academic freedom in the framework of art. 27 should at the same time respect the legality of its limitations and guarantees contained in paragraphs 2 and 4 of art. 20 of the Constitution.
This implies, among other restrictive aspects which it would not be appropriate to analyse here, that academic freedom is restricted by the observance of the rights contained in Title I of the Constitution and by the precepts of the Laws implementing them, which requires, to the extent that the right to establish an educational ideology (art. 34.1 of the O.L.E.S.S.) complements the right of parents indicated in the Constitution (art. 27.3), to connect academic freedom and educational ideology and to interpret in this sense the terms of art. 15 of the O.L.E.S.S.. It also implies the recognition, as a specific limitation of that freedom, of the “protection of youth and childhood”; the degree of personal maturity of those for whom the education is designed ,and the scientific level of the knowledge to be conveyed to them which should condition the extent of the freedom that each teacher may exercise. an extent which is extremely variable in relation to those who teach in schools regulated by the Organic Law 5/1980, as these include from the most elemental levels of teaching up to the secondary level and university entrance qualifications, which come closer to university teaching both because in part (COU) they serve as preparation for entrance and also because pupils studying BUP and COU have exceeded the constitutional limits of their legal majority (art. 12 of the Constitution).
However, if art. 20.4 requires that the previous considerations restricting academic freedom be taken into account, it is also necessary to note that art. 20.2 establishes that the exercise of academic freedom “cannot be restricted by means of any kind of previous censure”. It is true that this guarantee should be understood to be aimed in principle at public authorities. Nevertheless, it is equally true that constitutional legislation has established here a marked and generic favor libertatis. Therefore, when academic freedom has to be exercised in a private school with an educational ideology, the precept of art. 20.2 should be understood in the sense that, although the ideology should be respected by the teacher, its existence cannot permit specific acts of prior censure by the directors or owners of the centre with respect to the teachers' educational activity.
14. Having established the foregoing interpretive considerations, is art. 15 of the O.L.E.S.S. when it establishes that teachers' freedom of education is guaranteed “within respect for the Constitution, the laws, the internal system and, if appropriate, the educational ideology proper to the school?” That the Constitution must be respected is obvious. That "the laws" must be respected should be understood in the sense given in the previous paragraph in the comments on art. 20.4 of the Constitution. More problems are raised by the requirement to respect, with regard to academic freedom, the regulation on the internal regime and, if it exists, the school’s ideology.
Art. 53.1 of the SC established the legal reserve in respect of fundamental rights and freedoms by stating that “only by law which in every case must respect their essential content, should the exercise of such rights and liberties be regulated”. Therefore, a simple internal regulation can in no way contain norms which could affect academic freedom which is one of the public freedoms referred to in art. 53.1 and if it were to contain them they would be contrary to the Constitution and thus invalid. An internal Regulation may only contain norms of internal organisation such as those indicated in art. 34.3 of the O.L.E.S.S. or operating norms (schedules, distribution of teaching hours among the various subjects programmed, setting up of meetings for assessments etc.) however, never norms regulating the exercise of a public freedom. Thus, in order to safeguard the constitutionality of the phrase in art. 15 of the O.L.E.S.S. alluding to “ the internal regulation” there is only one possible interpretation, that of considering that respect therefor means compliance on the part of the teachers with the organisation and operation of the regulations which affect them, as it is unquestionable that they should be abided by in order to comply with their work obligations, however without the regulation being allowed to have any relation to the exercise of academic freedom subject to its being deemed unconstitutional.
15. It remains to analyse art. 15 of the O.L.E.S.S. with respect to teachers and ideology. This point concurs and possibly conflicts with various rights; on one hand, the right of pupils to be educated in freedom and that of teachers to academic freedom; and on the other hand, the right of parents contained in art. 27.3 of the Constitution, the right in art. 27.6 of the SC and, ultimately the right to establish the ideology (art. 34.1 of the O.L.E.S.S.) which is not, as in previous cases, a right constitutionalised as fundamental, but rather it is simply established in an Organic Law.
In the event of this concurrence, the thesis which hierarchically subordinates one such fundamental right, ie academic freedom, to others, is not constitutional, such as arts. 27.3 and 27.6 which are equal in rank and nature, or to the right of art. 34.1 of the O.L.E.S.S. which is of a lower rank. This thesis is, in essence, that of the State Attorney in his brief of allegations, where it acknowledges for academic freedom only “a minimum content" in schools provided with an ideology. It is admissible, and therefore an interpretation which seeks and establishes balance rather than a hierarchy of concurrent laws is constitutionally preferable, as all of these are rights in the system which it is important to conserve and harmonise in the greatest measure possible.
There is no radical and rigorous incompatibility between freedom of education (understood as freedom to create private centres art. 27.6 of the SC) and academic freedom, nor is it certain that this should always give way to it, as it has the first institutional character and academic freedom is individualistic, since, as has been indicated, academic freedom is also imbued with the nature of institutional guarantee.
The judgment of the French Conseit Constitucionnel of 23-XI-1877, in that it declares the duty of discretion (devoir de réserve) on the part of teachers in respect of the particular character of the centre should not be interpreted in the sense of permitting an attack against their freedom of conscience, rather it shows an effort at reconciling the rights of teachers and those of directors of schools. This same spirit of harmonisation based on equality of rank between the various constitutional freedoms covered by the organisational principle of freedom of education, leads us to state that they are all reconcilable and that they need to be interpreted in a restrictive manner in terms of the limitations which ultimately have to be admitted to the detriment of academic freedom in deference to art. 20.4 of the SC and article 15 of the O.L.E.S.S..
16. Therefore, what does the respect for ideology consist of according to art. 15 of the O.L.E.S.S.? In this context “respect” should not be deemed to be equivalent to “veneration” or to “deference” but rather to an equally correct interpretation of the term such as "consideration” or "awareness". Similarly, the French term “devoir de réserve” used in the aforementioned Judgment should be understood as duty of discretion, of consideration and reserve which should guide the professional conduct of teachers in a private school who do not identify with the ideology of the centre.
This due respect should not be deemed to be established for the direct benefit of the freedom to create schools, but rather in favour of the fundamental right of parents contained in art. 27.3 of the Constitution. Only when a teacher endangered, by making use of his academic freedom, the nature of the school's ideology through teachings hostile to its axiological content could he be said to have violated the due respect for the ideology by influencing the religious and moral teaching of his pupils in the sense contrary to that which the parents had chosen for their children when selecting that particular school.
They cannot however, consider as violations of the due respect contained in art. 15 of the O.L.E.S.S. simple and isolated discrepancies with regard to some aspect of the school ideology made by the teacher during the course of his normal school activities, provided that they are reasonably stated, in an appropriate way and in a manner befitting the age and level of knowledge and maturity of the pupils. The full and free development of the personality of these students (arts. 10.1 and 27.2 of the SC .) is obtained by encouraging a critical spirit which it is only possible to imbue in them if the teachers also make use of that spirit in their explanations and teaching.
17. The appellants are concerned that a broad application of the due respect included in art. 15 of the O.L.E.S.S. could infringe art. 16.1 and 2 of the Constitution). To this effect it should be understood that teachers would not fail to comply with their due respect if, by using their ideological and religious freedom (art. 16.1 of the SC), they were to inhibit or refuse to collaborate in religious practices or in ideological activities with which they did not feel they could identify, despite their being particular to the school; with their discreet inhibition or their denial they do not endanger the ideological nature of the centre, as such activities could continue to be taught to pupils by other persons who did assume their axiological content.
Another possible constitutional violation feared by the appellants could consist, in respect of art. 16.2 of the Constitution, if it were considered that in order to ensure respect for the ideology pursuant to art. 15 of the O.L.E.S.S. the owners or directors of the centre are qualified to request from the teachers, prior to and in order to be contracted, explicit adherence to the ideology of the school. However, I believe that this extremely wide interpretation of art. 15 of the O.L.E.S.S. should be rejected. The necessarily ideological content of any educational ideology entails a simple invitation to adhere thereto implies a violation of art. 16.2 of the Constitution, as it is in effect an indirect form, however coercive for its foreseeable employment consequences, of interrogation on the ideology, religion or beliefs of the teacher in question.
The appellants also express their concern with regard to an extensive interpretation of art. 15 of the O.L.E.S.S. which could permit certain legal actions of the extracurricular lives of teachers to be considered by the owner or directors of a school to be grounds for cancellation of their employment contracts, deeming them to be contrary to the educational ideology of the centre. However, such an extensive interpretation of art. 15 of the O.L.E.S.S. would not, in my opinion, be constitutional. Respect for the centre’s ideology may only prevent teachers from those types of teaching conduct, already analysed herein, which endangered the ideological nature of the teaching activities of the school. Nonetheless, the exercise of fundamental right or public freedoms or the conduct carried out outside the teaching institution cannot be considered as contrary to the school’s ideology, nor could it be fair grounds for cancellation of any teacher's contract.
19. Similarly, I believe that it should be stated that art. 15 of the O.L.E.S.S. in some way could serve as legal cover for the owners or directors of any private school so that the teachers invited, through their contracts, to waive, in the interests of respect for the ideology, specific rights or fundamental freedoms or to undertake to exercise some of these (for example those of association or syndication) in favour of a specific option or to the detriment of others. I consider that an interpretation of art. 15 of the O.L.E.S.S. which protects such conduct would evidently be contrary to the Constitution.
Fundamental rights and freedoms are elements of the system, and are contained in objective legal norms which form part of an axiological system positivised by the Constitution and which make up the material bases of the entire legal system (see arts. 1.1, 9.2 , 10.1 and 53 of the Constitution). Therefore I believe that it would be automatically invalid, not only on the basis of art. 6.3 and 1255 of the Civil Code but also in virtue of the aforementioned constitutional precepts, any clause of an employment contract in which the teacher undertook to waive previously the specific exercise of any fundamental right or freedom in respect of the ideology of the centre.
20. Many of the statements made in the previous paragraphs may serve, without any need to reiterate them here, to interpret art. 18.2 of the O.L.E.S.S. insofar as it imposes on parents respect for the school's ideology. It may be assumed, although the Spanish reality does not permit such an affirmation in absolute terms, that parents who send their children to a school with a particular ideology will be intimately in agreement with its theories. Irrespective of whether this is so in every case, it is reasonable to require respect for the ideological nature of the school in terms similar to those mentioned previously. This due respect should not be considered unfulfilled because the parents make within the channels and bodies established for the purpose, criticisms, objections or discrepancies with regard to the teaching or educational activities of the centre, and even in relation to the interpretation of its ideology, as the objective nature of these beliefs and in the cases considered in art. 27.7 of the Constitution, the right of parents to actively participate in the School should enable them to express criticism, even when it is against the ideology, provided that they are expressed in a reasonable and discreet manner and with the intention, as indicated in art. 18.2 c) of the O.L.E.S.S., of collaborating in the educational tasks of the school or to correct what in their view are errors in the way it is run. With regard to the regulation of the internal system of the school in respect of parents the comments in paragraph 14 of this dissenting Vote should be taken as reproduced here, insofar as they are pertinent.
21. The right to establish an ideology for a private school is not absolute either, but should give way in some cases to fundamental rights which rank higher than the right contained in art. 34.1 of the O.L.E.S.S. with which it conflicts.
The right guaranteed by the Constitution to parents (art. 27.3), may be satisfied within our educational system through two channels which correspond to the two types of institution (public school, and private school) which it comprises. In public schools this right is exercised in the terms of art. 23 of the O.L.E.S.S. which constitutes the normative concretion of the non confessionalism of the State (art. 16.3 of the SC) of the freedom of education (Art. 27.3 of the SC) of educational pluralism (art. 1.1. and 27.2) and the right of 27.3 again of the Constitution. Public centres permit, therefore, all parents to exercise this right although some of them may consider that they do so in an imperfect manner or in a way that is less satisfactory than in private school in which a more ideologically homogenous education is provided. Conversely, private schools with an educational ideology will fully comply with the right of 27.3 of those parents who identify with those theories, however obviously they will not in the case of those parents who reject it also on ideological grounds. If within a same framework or habitat public and private centres coexist having different ideologies, it is clear that they provide optimum conditions for all to satisfy the right contained in the Constitution in art. 27.3. Then it may indeed be confirmed that every private centre offers its ideology so that it may or may not be chosen by parents in a situation of concurrence.
Therefore, if in a specific framework of coexistence or “habitat” (rural enclave, village, urban neighbourhood etc.) there were only private centres all of which had the same ideology, and there were no public centres, it is clear that those parents who did not share this educational ideology (as it would not be an offer concurring with others, but an imposition without alternatives) could not exercise in a "real and effective" manner (art. 9.2 of the Constitution) the right accorded to them by the Constitution in art. 27.3.
If such schools taught the General Basic Education and were financed by the public authorities (art. 27.4 and 7 of the SC.), as this level of teaching is obligatory (art. 27.4 of the SC), the parents in question could not only exercise their right to choose a specific moral and religious training for their children (art. 27.3 of the SC), but they would also be obliged to send them to a publicly funded centre (and therefore in some measure with their personal contribution) the ideology of which they did not share.
This is not an imaginary case. The unequal distribution, at least within certain urban enclaves, of public centres and the major link of private centres to a specific religious orientation are two notorious facts of experience, the quantification and sociological analysis of which would not be pertinent here but whose existence would obviously give rise to the problem raised.
22. The public authorities, in virtue of art. 9.2 of the SC, are obliged to "promote conditions" to ensure that individual freedoms and those of the groups are "real and effective". The most accepted theory has pointed out that, in virtue of art. 9.1 all the constitutional norms bind all the Courts and public and private subjects, as although it is true that not all articles of the Constitution have the same scope and normative meaning, all, definitively, describe effective legal norms. The precept of art. 9.2 is specified within the theme in question in art. 27.5 where it is specified that in order to comply with the right of all to education and, although it does not say, the right of all parents indicated in paragraph 3 of the same article, the public authorities are obliged to create schools. It is appropriate to add as proof in this respect the words of the ECHR in its Judgment of 7 December 1976: “given the weight of the modern State, this proposal (that of educational pluralism) should be made above all through public education”.
However, compliance with this obligation of the public authorities cannot be instantaneous and therefore it is presently unavoidable that in some cases and for some time the situation described in the previous paragraph could exist.
However, in the event of a monopoly of education by private schools which are ideologically homogenous and publicly funded, it is necessary to interpret that in defence of the fundamental right of parents, the directors of private centres shall be unable to establish in their schools an educational ideology, as to do so the right of dissenting parents who disagreed with the hypothetical ideology would have no social virtuality, and would be without any “effective reality" . On the contrary, the non existence of this will provide wider scope to academic freedom of teachers and will permit an extensive application of art. 23 of the O.L.E.S.S. to these publicly funded private schools.
Ruling corresponding to the Dissenting Vote on Ground One of the claim.
1. That arts. 15, 18.2 are not unconstitutional (“parents associations, respecting the internal regulations and where it exists, the centre's ideology...") and 34.1 (The right is recognised of private centres to establish their own educational ideology within respect for principles and declarations of the Constitution”) of the O.L.E.S.S., insofar as it is interpreted that the educational ideology is the public, synthetic and unequivocal expression of the ideological nature proper to a centre likely to facilitate to parents the right they are accorded in art. 27.3 of the Constitution, and that the regulation of the internal regime cannot affect, due to its content, the implementation or exercise of any fundamental right or public freedom.
Given in Madrid on the thirteenth of February nineteen hundred and eighty one.
Dissenting vote on Ground Four jointly lodged by the Senior Judges Jerónimo Arozamena Sierra y don Francisco Rubio Llorente.
The reasons for our discrepancy, expressed with the profoundest respect for our colleagues who make up the majority which sustains this decision, are as follows:
1. The appellant supports his claim that Additional Provision Three of the Law should be declared unconstitutional with the argument that this provision, since it authorises the Autonomous Communities to “replace or amend” specific articles of the O.L.E.S.S. violates art. 81 of the Constitution which imposes a special procedure and a majority in order to repeal or amend organic laws, which furthermore, only the Parliament and not the Legislative Assemblies of the Autonomous Communities may promulgate.
The Judgment approved by the majority of our colleagues dispenses with any analysis of this argument and implicitly and correctly considers that with the use of that expression to “replace or amend”, what the contested Additional Provision endeavours to do is state the possibility that the matters regulated in these articles are also the subject of autonomous regional legislation.
The fundamental reason for our discrepancy thus rests on the interpretation that the decision we oppose makes Additional Provision Three a norm of articulation accorded sufficient efficacy to attribute authority to legislation of the Autonomous Communities. This interpretation which coincides with that proposed by the appellant as desirable, has led to a ruling which, by excluding specific articles from those enumerated by the provision, it also leads to the conclusion that it is not possible legislate in the autonomous Communities on matters regulated in those which are not listed in Additional Provision Three having made this exclusion. This conclusion is however, contradictory to some of the considerations which with respect to the amendable nature of certain articles are made as a basis for the decision taken in ground five of the appeal, with which , clearly , we also disagree. It should be understood therefore, that in the interpretation of our colleagues, the aforementioned Additional Provision has effectiveness attributable to authority which is not restrictive. It is however necessary to concede, and paradoxically so, restrictive effectiveness to the ruling itself, which basing its interpretation on the scope of exclusive authority of the State, a view which we do not share either, for reasons which will be detailed in the next section, establishes the impossibility of legislating on matters regulated in the excluded articles.
The interpretation of additional Provision Three of the O.L.E.S.S. as an effective norm for attributing to specific Autonomous Communities authority in educational matters, is not in our opinion in accordance with the Constitution as it does not correspond to the division of authority defined in that text. Within the framework outlined by art. 149, the authority proper to the Autonomous Communities is determined by their respective Statutes, which may only be amended by the procedures established therein (arts. 147.3 and 152.2 of the Constitution). Possibly this statutory authority may be extended by ad hoc laws issued pursuant to the terms of sections 1 and 2 of art. 150, and its exercise by the various Communities, harmonised by means of one of the laws established in section 2 of this same article. No general law, or organic or ordinary law (and a fortiori, no private law) may amend however, the authority and competence established therein. Therefore, and in respect of the authority of the State and the Autonomous Communities, the attributive or restrictive laws lack any effectiveness which the organic laws themselves incorporate in their text, either directly, or by means of the procedure for establishing a distinction between those of their precepts which are properly organic and those others which, although forming part of the same Law, are not. A norm of this kind is only effective to the extent that provisions coincide with what has already been established and in this same measure their provisions are superfluous. The question is therefore, one of a mere interpretive declaration which is not binding on the various authorities implemented nor, obviously, on this Court. The appropriateness of introducing into a legal body statements of this kind may be questioned, and it may also be explained that the intention of declaring its unconstitutionality is maintained in the interests of legal security and clarity. The fact that the appellants claim is only partially accepted, supported moreover by the interpretation that it sustains on the nature of the contested norm, leads to a paradoxical result that an adequate comprehension of this norm as a mere interpretive declaration would have avoided.
2. The restrictive effect of the ruling sustained by the majority of our colleagues is the result of the fact that, having accepted the binding force of the contested provision, in order to resolve its validity, a parameter is used which we cannot consider to be constitutional either.
The premise which serves as a basis for all the arguments is that in the educational field these matters are connected and do not belong therefore, to the scope reserved for the organic law, only those which do not refer to the development of any fundamental right, or to the basic conditions for their exercise, or to the basic norms issued for the implementation of art 27 of the Constitution.
Even without entering into an analysis of the distinction between matters proper to the organic law and related matters, the validity of which is not in itself evident, it is clear that by defining thus, by means of simple accumulation of formulas employed in different articles of the Constitution (specifically in arts. 81 and 149.1.1 and 30) the actual scope of the Organic Law makes a logical error (manifestly the norms referring to the implementation of a right comprise a genre which “those which establish basic conditions for their exercise" are a part as well as the "basic norms for their implementation") which inevitably leads to an extension of this scope far beyond what is desired by the Constitution and, subsequently insofar as the organic law is an exclusive jurisdiction of the State, to a constitutionally unsustainable reduction of’ the field within which the Autonomous Communities may acquire their own authority and jurisdiction, either through Statutes or through delegation or transfer. In our view, the aforementioned constitutional norms cannot be simply juxtaposed; their interpretation requires that they be interrelated and from this relation it is clear that in the case of the Autonomous Communities the scope reserved for the organic law in educational matters does not necessarily extend to all the implementation of the right to education and the other rights fundamentally enumerated in art. 27 of the Constitution, but to the regulation of the basic conditions for guaranteeing the equality of all Spaniards in the exercise of the rights and in compliance with constitutional duties (Art. 149.1.1.°), to the establishment of the conditions for obtaining, issuing and approving academic and professional qualifications (art. . 149.1.30 ) and the basic norms for implementing art. 27 in an effort to ensure compliance with the obligations of public authorities in this matter (ibid).
At least in educational matters, the jurisdictional delimitation between general or central State powers and the Autonomous Communities cannot use as a guiding criterion the distinction between implementation norms and related norms, the use of which would lead purely and simply to preventing autonomous regional legislation in this matter, but rather the distinction between principles or basic norms and detailed and implementing norms.
In the exercise of this jurisdiction the general or central State powers may be restricted to establishing such principles or basic norms, or on the contrary, issuing norms which in implementing them make them immediately applicable. The first of these two solutions which no doubt has in its favour, that of giving clear expression to the two phases or levels (general and particular, of the State and the Autonomous Community) which may be distinguished in all the cases of concurring shared authority, has in contrast, in addition to its intrinsic difficulty, the notorious disadvantage that it makes the effective exercise of those fundamental rights depend on the legislative norms which, in the use of their own authority and for their own scope, are issued by the existing Autonomous Communities and the Parliament for the rest of national territory.
It is therefore easily comprehensible that the legislature, particularly in our present state of constitutional development, should have opted for the second of the solutions mentioned. The appeal to this technique should not lead, however, to error. The Autonomous Communities which, like the Catalan or the Basque regions, have statutory full jurisdiction over education are not barred from the channels for legislating on matters regulated by the O.L.E.S.S., yet nor can they legislate on any of these issues with total freedom.
They are, in all cases, linked by the principles and basic norms which the O.L.E.S.S. establishes or which derive from it. It is clear that it contains precepts which are restricted to the establishment of a general principle, while in others it appears solely to orient a detailed regulation and in which as a result the margin of freedom available to the Autonomous Region for its own legislation is very different, however, the determination of what this margin should be may only be made in the specific case through a case law of principles. This system of articulation of powers may only operate with effectiveness, unquestionably, if these act with extraordinary restraint and with the greatest respect and consideration for the Constitution, however, this is what it has adopted and it cannot be sidestepped by any type of a priori definitions.
3. The Judgment we oppose herein rules that arts. 24.2 and 3, 25.3, 26, 27, 28.1 and 2, 30 and 31 of the O.L.E.S.S. regulate matters reserved for the Organic Law and for this reason, it excludes them from Additional Provision Three which reduces it to articles 21, 25.4, 29 and 37. In an analysis of those precepts the conclusion is reached that they regulate matters which belong to the implementation of a fundamental right, which is in the main, that recognised in art. 27.7 of the Constitution, that is, they are norms for developing this constitutional precept. Therefore, with respect to the aforementioned precepts excluded from Additional Provision Three, due to the effect inherent in the Judgment, the appellants have not sustained in the claim that they contain material unrelated to the jurisdiction and authority of the Autonomous Communities.
They have questioned the validity of the legal formula, however, not the scope of jurisdiction of the Autonomous Communities, thus they lack here the principles of congruence and contradiction. The solution given to ground four of the appeal could appear to be congruent, from the argument, which in our opinion is erroneous, that since we are asked to provide a declaration of unconstitutionality and subsequently of invalidity, of Additional Provision Three, we declare that invalidity in respect to part of its content. However, this is not the case, as the judgment is not ruling only on the validity or invalidity of the aforementioned Provision. What is ruled, without having been proposed as theme of appeal, belongs to the scope of jurisdiction of the Autonomous Communities, restricting what is declared in the O.L.E.S.S.. Properly, and this is the most significant, it is affecting the jurisdiction and authority assumed by the Autonomous Communities. The appellants have not shown, at any time during the proceedings, their non conformance with the O.L.E.S.S. granting the Autonomous Communities a bonus of authorities in respect of those recognised in the Autonomous Statutes. On the contrary, if they have sustained anything in this point it is completely the contrary, that is, that the O.L.E.S.S. regulates matters of the Autonomous Communities, as may be seen in ground five of the appeal. Therefore, we consider that in the Judgment an assessment is made and a solution is adopted, ex officio, contrary to the principles of congruence and contradiction.
For the reasons explained we consider that the following would have been appropriate:
That Additional Provision Three is not unconstitutional on the grounds and for the reasons given in the Legal Conclusions.
Given in Madrid on the thirteenth of February nineteen hundred and eighty one.