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Decision 9/2019. on learning and behaviour difficulties
Posterior norm control against the text "of special education need" in Section 56 (1) and against Section 97 (1a) of the Act CXC of 2011 on National Public Education (exemption of pupils with integration, learning and behaviour difficulties)
The procedure of the Constitutional Court had been started on the basis of a petition submitted by 53 Members of Parliament. The petitioners challenged the amendment of the Act on national public education that narrowed down to the pupils with special needs education the option of exemption applicable to all pupils earlier. According to the previous regulations, an exemption from evaluation with marks or from certain subjects, parts of subjects had been possible for all pupils provided that an expert opinion had justified it. The petitioners hold that the pupils deprived of the possibility of the exemption suffer from negative discrimination partly because they have to meet requirements they are unable to perform. The petitioners also consider that the challenged provisions violate the pupils’ right to education, too.
The minister of human capacities stated pointed out upon the call made by the Constitutional Court: unlike special needs education, integration, learning and behaviour difficulties can be improved substantially as they are not defects that would hinder activities in the society. If, due to the exemption, the pupil fails to learn basic elements of knowledge, he or she may become disadvantaged compared to the other pupils and later on the labour market, too.
The Constitutional Court found that although the two groups of pupils may be compared on the basis of the special training needs, the distinction made between them is not arbitrary as the levels of their learning difficulties are different. It can only be verified after the examination of individual aspects whether the introduction of the evaluation is disadvantageous or useful for the pupil concerned. It is not possible to name a single group that would be negatively affected by the regulation. As held by the Constitutional Court, neither does the challenged provision pose a restriction on the pupils’ right to education as no subjective right to be exempted from any subject may be deducted from the Fundamental Law. On the basis of the above, the Constitutional Court rejected the petition.
However, the Constitutional Court underlined in its decision: the Fundamental Law guarantees for every child as a subjective right the protection necessary for proper physical, intellectual and moral development. In order to allow children with learning difficulties to become active members of the future generations, it is necessary to maintain a set of public education regulations capable of meeting their special needs as well. The Constitutional Court stated: the regulations in force fail to guarantee appropriately the pupils’ development in line with their individual abilities. When the State carries out reforms of public education, it should not eliminate professionally justified benefits without providing, at the same time, for other easements equivalent to the benefits terminated, therefoe the Constitutional Court – acting ex officio – established the legislator’s omission. The Constitutional Court emphasized that the evaluation of the suitability or effectiveness of various professional methodological standpoints falls beyond the Constitutional Court’s competence, as it is a professional question rather than a constitutional one.