Is it okay to go out with your teacher
The rise of right-wing populist and right-wing extremist forces, which could previously be observed in many neighboring European countries, has led to an intensification of social and political debates in Germany.  This development does not stop at schools either.  As places of socio-political education, upbringing and the conveyance of values, these are not apart from social controversy, but in the middle of it.
is Professor of Public Law with a focus on social and educational law at the University of Hildesheim Foundation and at the Berlin Science Center for Social Research (WZB). [email protected]
Controversies have also sparked the AfD's online reporting portals with the title "Neutral Schools" set up in various federal states. There, students and parents are supposed to report anti-AfD statements or actions by teachers or other "grievances" in schools.  The constitutional lawyer Christoph Degenhart spoke in this context of a "pillory" for teachers, the Baden-Württemberg Minister of Education Susanne Eisenmann (CDU) - similar to other ministers at federal and state level - of a "denunciation platform".  The AfD itself does not want to accept the charge of intimidation. Rather, she sees herself unjustly attacked unilaterally by many educators and violated her right to equal opportunities to participate in the political process. In Hamburg, the school authorities are said to have "intervened" in some schools on a tip from the AfD.  That creates uncertainty.
Against this background, it is all the more important that teachers and pedagogues do not behave politically indifferent, especially when it comes to the threat to democracy and human rights, but instead pay more attention to political and democratic education. In order to be protected against intimidation of any kind, they must be able to rely on a legal framework that offers them the clearest possible orientation. Political advertising or even indoctrination in school, especially with a view to populist and extremist positions, must be ruled out.  In political education, in particular, a wide scope is opened up to enable people to stand up for human rights education and against racist and (right-wing) populist tendencies in society and politics.  As will be shown, this is a central goal of school education specified by the state education and training mandate within the meaning of Article 7 Paragraph 1 of the Basic Law (GG). The question of how political teachers are allowed to be in school is discussed in this article on the basis of the applicable regulations and jurisprudence.
Political neutrality is imperativeThere is no requirement for teachers (or other educational staff) to be completely politically neutral in school. The legal scholar Joachim Wieland rightly speaks of a "myth".  Rather, the principle is anchored in civil service law that civil servants "have to maintain the moderation and restraint in political activity that result from their position vis-à-vis the general public and from consideration of the duties of their office" (§33 para. 2 Civil Service Status Act, BeamtStG). This requirement applies equally to salaried teachers. 
The duty of teachers to maintain political restraint is an important principle. It results legally from the educational mandate of the state, which is based on Article 7, Paragraph 1 of the Basic Law. If the state assumes responsibility for the education and upbringing of children and young people "on an equal footing" with the parents - as the case law puts it -  it must ensure that the different social, religious, ethical and political views in the school are equally respected and there is no one-sided influence on the students. Since teachers implement this educational mandate, they are obliged to exercise restraint and moderation in this sense. 
But what does that mean in concrete terms? In any case, the case law has repeatedly emphasized that at least Not This means that teachers are not allowed to express their own political convictions in the classroom or even have to hide them. Rather, they can also invoke their right to freedom of expression according to Article 5, Paragraph 1 of the Basic Law in school and in class.  In the political didactic discussion it is pointed out that the "strict neutrality" of a teacher in the sense of socio-political indifference could, on the contrary, send a fatal signal to the students in the form of "staying out of the way" and "not showing the flag" .  It is therefore not only permissible, but also sensible in the sense of the political education and training mandate, for educators to represent their own positions in discussions, as long as they do not unilaterally influence the students.  Against this background, the high demands that the jurisprudence has placed on the party-political neutrality obligations of officials in ministries and administrations  cannot be transferred to the moderation requirement for teachers in schools.
The principle of political neutrality is violated when teachers unilaterally or provocatively advertise a certain political opinion or party to the students.  Because then they use their position to actively enforce their own views. This also applies if they conduct anti-advertising against parties that belong to the democratic spectrum, or if they deliberately defame them. The prohibition of moderation from Section 33 (2) of the BeamtStG represents a general law as a limit to the exercise of opinion according to Article 5 (2) of the Basic Law, which is exceeded by such behavior.
In a much weaker form, the prohibition of moderation also applies outside of school.  It is violated when teachers take inhuman and anti-constitutional positions or denigrate democratic institutions. Such behavior, even if it takes place outside of the service, has disciplinary or labor law consequences and usually leads to termination or removal from service. 
Education and training mandateA critical examination of political positions, on the other hand, is not only permissible, but is expressly required by the educational mandate of the school according to the state school laws. This undoubtedly also and especially applies to the preoccupation with right-wing populist, discriminatory and sometimes racist positions, some of which are based on simple but powerful slogans, such as warning against "foreign infiltration" of Germany, giving people of Turkish origin a lower "intelligence quotient" or "den." "Declare Islam across the board as incompatible with a" German culture ".
The state education and training mandate expressly demands an education in the sense of democratic principles and the values of the Basic Law.  For example, the Lower Saxony School Act (NSchG) states that students should, among other things, "be able to make the basic rights effective for themselves and for everyone else, to understand the resulting civic responsibility and to contribute to the democratic organization of society ( ...) to recognize and respect religious and cultural values, (...) to shape their relationships with other people according to the principles of justice, solidarity and tolerance as well as gender equality, to grasp and to understand the idea of international understanding (...) support and live together with people from other nations and cultures "as well as" to obtain comprehensive information and to use the information critically "(§2 NSchG). These legally binding educational goals can be found in a similar form in the school laws of all federal states.  They are the basis of the corresponding resolutions of the Standing Conference of the Ministers of Education and Cultural Affairs (KMK) on education for democracy and human rights education in schools. 
There can be no doubt that a clear commitment against right-wing extremism, racism and xenophobia in our society corresponds to such an education in the sense of the values of the Basic Law as well as the state constitutions and school laws.  If teachers were to behave indifferently towards hatred, marginalization, discrimination and agitation, this would give rise to considerable concern with regard to the constitutional values mentioned. Then the question should be asked whether the educational mandate is (still) sufficiently realized and lived. It is therefore advisable to address the dangers of populist and nationalist movements, of racism, group-related enmity and discrimination in the classroom.  In this respect, the political didactic specialist Bernd Overwien aptly formulates that political education in schools is not "neutral" - and it must not be. 
In this context, it should be pointed out that education in democracy and human rights should not be restricted to teaching social science subjects, but rather, as a "cross-sectional task", affect all school life.  In accordance with the KMK resolutions, it is the task of the school as a whole to "educate people to be sensitive to and supportive of human rights, to impart the necessary knowledge and appropriate judgment, action and design skills, and to encourage open and active engagement". [ 26] Political education, however, has a prominent task of "enabling students to reach political maturity". 
Addressing right-wing populism, racism and discriminationAgainst this background, a principle of neutrality in the sense of not addressing political positions by pedagogues is the model for educational work in schools - a secularity in educational questions, so to speak, which tries to exclude political questions from the school.  Rather, the most important test standard is the principle of equal treatment and equal opportunities for political parties and currents.  Teachers must deal with political issues in a balanced and objective manner. It has already been pointed out that, in doing so, they do not need - and should not - hide their own convictions. However, they are not allowed to impose this on the pupils, and they have to ensure that other views are sufficiently emphasized: "The classroom must not be converted into an arena for political disputes." 
A critical examination of political content and positions, as required by the educational mandate, can lead to determinations or assessments that are disadvantageous for certain political directions or parties. The requirement of (party) political restraint and equal opportunities does not mean that all views represented in the democratic spectrum of parties up to the limit of anti-constitutional within the meaning of Article 21.2 of the Basic Law are to be represented equally as legitimate. This is especially true when dealing with right-wing populist parties like the AfD.
While Eurosceptic positions were predominant in its program when the AfD was founded around 2013, critical positions on immigration, integration and diversity increasingly came to the fore. The party leadership, which was originally classified as rather "moderate", increasingly lost support from the majority of functionaries and members.  At the same time, currents "with extensions to right-wing extremism" in the AfD gained increasing influence.  Today, parts of the party are in the focus of the protection of the constitution due to anti-migration and anti-Muslim positions.  The AfD sub-organization "Der Flügel" is classified by it as "secured right-wing extremist tendencies".  According to an analysis by Hendrik Cremer from the German Institute for Human Rights, "racist positioning is part of your program, your strategy and positioning by leaders and mandate holders through to openly voiced threats in which you speak out against a violent seizure of power to achieve your political goals" . 
These positions within the AfD and other right-wing populist parties can and should be addressed by teachers and critically reflected on with the students. According to the jurisprudence, this does not constitute a violation of equal opportunities according to Article 21 of the Basic Law and thus of the civil service or labor law restraint.  However, the objectivity of the discussion must be preserved and no direct influence on the students must be avoided. Educators can make their stance clear by speaking out against racism and group-related enmity on a personal level and at the same time against certain parties or movements such as Pegida ("Patriotic Europeans against the Islamization of the West"), from or in which such parties Content is represented, expressed.  A sentence like: "From my point of view, right-wing populist parties like the AfD are racist and not eligible for election" would consequently not exceed the scope for permissible expressions of opinion by teachers and not violate the principle of party political equal opportunities, despite its strong judgmental character. 
Beutelsbach consensus from a legal perspectiveBut where exactly is the line between a necessary critical confrontation with xenophobic, discriminatory or racist positions, which are represented in the democratic spectrum, and inadmissible (party) political influence?
In the "Beutelsbach Consensus", which goes back to a conference of political didactics in 1976 in the town of Beutelsbach, the political scientist Hans-Georg Wehling formulated three principles that are now largely established as didactic guiding principles of political education and have also been adopted by the KMK: [ 39] That Overcoming prohibition, which does not allow students to "take students by surprise in the sense of desired opinions and thus prevent them from 'gaining an independent judgment'" Controversy requirement, according to which what "is controversial in science and politics" must also appear controversial in class, and the Learner orientation, according to which students should be able to "analyze a political situation and [their] own interests, as well as to look for ways and means to influence the existing political situation in the sense of [their] interests". [40 ]
Admittedly, the case law has not yet referred directly to the three principles of the Beutelsbach Consensus mentioned. However, the following rule can be drawn up on the basis of the decisions made: The less the principles mentioned are observed, the more certain it is that one-sided influence and thus a violation of the rule of political moderation and restraint in the legal sense can be assumed.
This is plausible, for example, for the prohibition of overpowering. For example, it was judged to be a violation of the principle of restraint when teachers wear badges in class with clear political statements on socially controversial topics. The fundamental decision of the Federal Labor Court dates back to 1982 and concerned the badge "Atomkraft: no thanks!".  The peaceful use of atomic energy was a politically highly controversial issue at the time, and the plaque was rated by the court as a unilateral "political propaganda tool".  This seems plausible with a view to the prohibition of overpowering, even if the political mainstream on this topic has fundamentally changed and today - after the decision to phase out nuclear power - it can hardly be assumed that it will be a highly controversial issue of daily politics. What is convincing, however, is the judgment of the court, according to which the plaque represents "an emphatic and constant exposure of one's own political opinion" to which the students are inevitably exposed. 
Logically, the case would have to be assessed differently if the teacher had only used the badge temporarily to initiate a discussion with the students. It would also be permissible if a badge reflected the commitment to opinions and evaluations that correspond to the (constitutionally) legally anchored education and training goals and in this respect are not to be regarded as "controversial". This can be assumed when educators wear plaques or stickers that speak out in general against racism, discrimination and xenophobia. Here, too, it is clear: Educators do not have to hold back with their own views, provided they do not one-sidedly overwhelm the students and (want to) encourage a controversial discussion of a topic.
On the other hand, it must be just as clear that pupils * may not suffer any disadvantages - for example in performance evaluation - by expressing certain political opinions, as long as they are within the framework of the constitutional order. This already results from Article 3, Paragraph 3 of the Basic Law, which prohibits discrimination or preferential treatment based on political views.  Right-wing populist, xenophobic or otherwise discriminatory views do not have to be tolerated in the classroom, but should be discussed critically by teachers - if necessary with reference to democratic values and human rights. Unmistakable intervention is required on the part of the educators if legal interests and fundamental values are violated, for example discriminatory or racist statements are made. 
The requirement of controversy must not be misunderstood in terms of an opinion-based laissez-fair attitude. In the meantime there are a number of representatives in the democratic spectrum whose statements can or even have to be assessed as racist or xenophobic, even while observing the objectivity and rationality requirements. Analyzing the writings of the former Berlin Senator for Finance, Thilo Sarrazin, based on different definitions of racism represented in academia, one arrives at the conclusion that some of the theses he advocates can be classified as racist.  A fact that, among others, the UN Committee for the Monitoring of the Anti-Racism Convention has pointed out.  The fact that Sarrazin's theses were controversially discussed in the public debate and in some cases also received a lot of support does not change anything in such a scientifically based classification.
Of course, the adequate definition of racism needs to be discussed. But that is exactly why schools are needed as open and diverse places for opinion-forming and discussion - and not as places of "neutrality" in which there is no place for critical discussion of issues that are important to our society. Pupils should not be confronted one-sided with predetermined attitudes, but should be enabled for critical reflection and discussion. The primary goal must be to ensure that young people are armed against the influence of anti-democratic and populist movements through good education, the promotion of differentiated judgment and the conveyance of basic values such as tolerance and mutual respect. That will not be achievable on a cognitive level alone. Just as important remains the example and the common realization of democratic and human rights values in the entire everyday school life.
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