School and Education Law

The Swiss Education Area: Who Decides What?

The Confederation and the cantons jointly ensure the quality and permeability of the Swiss education area (Art. 61a Federal Constitution). Compulsory schooling, however, is a matter for the cantons and municipalities: they determine the curriculum, timetable, promotion and transfer. The result is a diversity of rules — what applies in St. Gallen need not apply in Appenzell Ausserrhoden, Thurgau or Zurich. Every assessment therefore begins with the question of which cantonal and municipal law applies at all.

Federal law sets the frame: Art. 19 of the Constitution gives every child a right to adequate, free primary education; Art. 62 obliges the cantons to provide it. This guarantee can be enforced and is the yardstick against which school organisation, support measures and transport questions must be measured.

Discretion — and Where It Ends

In school law, authorities and teachers have wide discretion. That makes sense, since they know the child and the teaching. But discretion is not a blank cheque: an assessment of the individual case is required, taking account of all material circumstances and excluding extraneous criteria. Exceeding discretion, failing to exercise it — for example by applying a rule schematically without examining the case — and abusing it are violations of law. The principle of proportionality (Art. 5(2) Federal Constitution) applies alongside and is often decisive for disciplinary measures.

Examination Appeals

Anyone who has failed an examination may challenge the decision on appeal. The appeal body can reassess the result and amend it by formal decision. In practice the route is worthwhile above all where procedural errors exist: no or inadequate reasons, refused access to the files, unequal examination conditions, bias, or an adjustment that was not granted. We first obtain access to the files, assess the prospects and advise against an appeal where they are lacking.

Exclusion and Discipline

Disciplinary measures range from a reprimand through reassignment to temporary exclusion from lessons. Because they interfere with the right to primary education, they require a legal basis, the right of the parents and the child to be heard, and a less intrusive measure wherever one suffices. We review the order, lodge an objection and, where possible, first seek a conversation with the school management — in the interest of the child, who will return to the same class after the proceedings.

School and Education Law in Eastern Switzerland

We advise parents, adult learners, teachers and school authorities at our offices in Wil SG, Teufen AR and Zurich and at our correspondence office in Gossau SG.