Term and Legal Background of School Closures
Definition of School Closures
In legal terms, school closures refer to the complete or partial suspension of in-person teaching at public or private schools by official order. They constitute a significant intervention in the regular school operation and, in Germany, are subject to specific legal requirements. School closures may be limited in time, affect individual classes, or extend to the entire school building.
Legal Bases for School Closures
The implementation of school closures in Germany is based on various legal foundations regulated at the federal, state, and partly municipal levels. Particularly relevant are the Basic Law (Grundgesetz, GG), state education laws, and the Infection Protection Act (IfSG).
Basic Law (GG)
Article 7(1) of the Basic Law secures the state school system and describes state supervision. The right to education is also a fundamental right derived by the Federal Constitutional Court. Thus, school closures must always be consistent with these constitutional guarantees. Important fundamental rights to be considered in the context of school closures include:
- Art. 2 (1) GG – General freedom of action
- Art. 6 (2) GG – Parental right of upbringing
- Art. 7 GG – Educational sovereignty
- Art. 12 GG – Freedom to choose one’s occupation (e.g., for teaching staff)
- Art. 3 GG – Principle of equal treatment
State Law Regulations
According to Articles 30 and 70 of the Basic Law, the legislation on education lies within the competence of the federal states. Therefore, the details regarding school closures are regulated in the specific education laws and decrees of the sixteen federal states. These include provisions on ordering closures, procedures, and possible alternatives (e.g., distance learning).
Infection Protection Act (IfSG)
The most common reason for officially ordered school closures is communicable diseases, particularly pandemics. The IfSG explicitly regulates the possibility of temporary school closures to protect the population (e.g., § 28a IfSG during the Corona pandemic), and specific measures are imposed by state authorities depending on the current risk situation.
Official Responsibilities and Procedures
Responsibility for ordering school closures typically lies with the relevant public health offices or school authorities at municipal or state level. A decisive factor is generally an assessment under infection protection law or an immediate danger to life and limb.
Procedure for Ordering
Orders are generally issued by administrative act or as a general order in accordance with the Administrative Procedure Act (VwVfG). The order may affect specific schools, school communities, classes, or the entire school operation in a district or state.
Duration and Scope of the Measure
School closures are generally limited in time and must be reviewed regularly. Authorities must conduct a proportionality assessment and always choose the least invasive means to achieve the purpose—such as health protection. Online teaching, as a less intrusive alternative, must be given priority consideration.
Legal Effects and Challenges
Interference with Fundamental Rights
School closures affect a number of fundamental rights, in particular the right of children to education and the parental right to upbringing. Therefore, each order must withstand a strict proportionality assessment to balance out the legal interests of all parties involved.
Legal Remedies against School Closures
Those affected (students, parents, private school sponsors) have various options to contest a school closure:
- Objection Procedure: Administrative objection against the measure
- Application for Interim Legal Protection (Summary Proceedings): Particularly relevant when there is an immediate grievance (e.g., access to exams, school graduation)
- Action before the Administrative Court
Courts regularly review school closures for their substantive and formal legality, especially whether there is a legal basis and whether the measure is proportionate.
Substitute Measures and Alternatives
To mitigate the interference with the right to education, authorities are obliged to provide substitute measures such as online teaching or teaching in small groups. During the pandemic, corresponding regulations were put in place to ensure educational success even when schools were closed.
Special Legal Issues with School Closures
Compensation Claims
Parents whose employment is interrupted due to an official school closure may be entitled to compensation under § 56 IfSG. Payment is made by the state and is subject to strict conditions (e.g., no alternative childcare options, no entitlement to continued remuneration).
Examinations and Qualifications during School Closures
State laws provide transitional regulations for final exams and grading if school events are cancelled due to a pandemic. Exams can be postponed, and alternatively, online exam formats may be used.
Liability in the Context of School Closures
Teachers and authorities are generally not liable for school closures due to a pandemic or illness, as these constitute sovereign action. Exceptionally, liability may arise in cases of gross negligence or intentional violation of duties.
School Closures in Practice and Recent Developments
School Closures during the Corona Pandemic
The COVID-19 pandemic represented the most far-reaching instance to date for nationwide school closures in Germany. These measures led to a multitude of court proceedings and an amended legal situation, both in the IfSG and in state laws.
Assessment and Future Regulations
School closures are generally considered a last resort. Legislators strive to uphold the right to education even under challenging circumstances. To this end, ongoing regulations regarding digital instruction, hygiene measures, and flexible examination options are being implemented.
Summary
School closures are a measure that deeply intervenes in the constitutional framework, necessitating substantial consideration between health protection and the right to education. They are subject to strict statutory requirements, must always be proportionate, and are regularly reviewed by courts. Legal remedies and comprehensive substitute measures serve to protect fundamental rights. Legislation is continually evolving, not least as a result of experiences during the Corona pandemic, to ensure a fair balance of all interests.
Frequently Asked Questions
Who is legally authorized to order a school closure?
The ordering of a school closure generally falls within the competence of school supervisory authorities, which are organized at the state level. In special situations, such as danger to public safety and order (for example in the case of pandemics or natural disasters), public health offices or other competent administrative authorities may also temporarily close schools. The legal basis for this can be found, depending on the federal state, in the respective education laws, the federal Infection Protection Act, and in specific legal ordinances or directives. Schools themselves may not close on their own initiative unless they have been expressly authorized within the scope of their house rules, for instance in the event of acute, unavoidable hazards. In any case, each measure for a school closure must be implemented by a legally effective written order or general order specifying reasons, duration, and any conditions.
What legal remedies are available to those affected by a school closure?
Affected parents, students, and teaching staff may take legal action against a school closure order. Administrative law is decisive here, particularly the objection and litigation process under the Administrative Court Procedure Act (VwGO). An objection can first be lodged against the order; if this is denied or not possible in the case of a general order, it is possible to bring a claim before the competent administrative court. Since school closures are often implemented immediately, interim legal protection (§ 80 VwGO; interim injunction under § 123 VwGO) is of special importance. These proceedings examine whether the measure results in unreasonable disadvantages and whether the legal requirements for the closure are met.
Is alternative teaching required in the event of a legally ordered school closure?
By law, compulsory schooling continues to apply despite a closure, unless overriding reasons prevent this. The federal states are required to organize substitute forms such as distance learning or online teaching in order to maintain learning and teaching objectives. The exact requirements are determined by state education laws and other regulations or directives issued by ministries of education. These include requirements for accessibility, provision of learning materials, teacher participation, and, where applicable, the assessment of performance achieved in remote learning. If there are special support needs (for example, for students with disabilities), the respective statutory provisions and guidelines of the states must also be observed.
Is there a legal obligation to provide emergency childcare during a school closure?
Many state regulations require school sponsors to provide emergency childcare when face-to-face schools are closed for health or safety reasons. The details—such as which age groups or parents in essential occupations are eligible—are regulated by special directives depending on the situation and state. The legal obligation arises from the child’s welfare and the state’s duty of care, as well as specific requirements under education law and implementing provisions of infection protection. The organization, implementation, and scope of emergency childcare are defined in detail and are monitored by the relevant authorities.
Who is liable for damages incurred as a result of an ordered school closure?
Liability depends on whether there was a breach of school obligations or unlawful official conduct. If the closure is ordered lawfully and based on statutory authority, usually there is no entitlement to compensation, for instance for loss of earnings or missed teaching. However, in case of unlawful or disproportionate measures, a claim based on official liability under § 839 BGB in conjunction with Art. 34 GG may arise. Affected parties would have to prove that the official action caused them a specific, unlawful loss. There are also separate compensation schemes, e.g., under § 56 Infection Protection Act for loss of earnings due to official quarantine orders, but not always directly for mere school closures.
Are parents required to involve their children in instructional content despite school closures?
Yes, compulsory schooling generally continues to apply even if there is no in-person teaching. Parents’ legal obligations include supporting their children in participating in distance or online learning. Federal and state laws on compulsory education require parents to ensure that children and adolescents participate in the learning opportunities assigned to them. In some states, sanctions such as fines or administrative offenses can be imposed if participation in alternative instruction is omitted without a sufficient excuse. Additionally, schools have extensive information duties regarding the provision of learning content and assignments, as well as transparency in performance assessments and promotion rules.
Under what conditions can a school closure be reversed?
The resumption of regular school operations requires a new official order or notification. This is contingent on the original grounds for closure no longer applying—such as when the risk to life and limb is averted or infection control requirements no longer exist. The decision is again up to the responsible authorities, who must base it on the current situation and provide appropriate legal reasoning. The formal lifting may take place by individual order to the school, by general order, or by notification to the public. Parents, pupils, teachers, and other parties involved must be informed in good time and comprehensively about the reopening conditions, including any differing hygiene concepts or organizational guidelines.
