Regulation of Education in Belgium and Switzerland

8/12/2019 Regulation of Education in Belgium and Switzerland

1/22

REGULATION OF EDUCATION IN

BELGIUM AND

SWITZERLAND

Legal Memorandum

August 2013


2/22

Regulation of Education in Belgium and Switzerland, August 2013

REGULATION OF EDUCATION IN BELGIUM AND SWITZERLAND

Executive Summary

The purpose of this memorandum is to analyze the state and regionalregulation of education in Belgium and Switzerland.

The Belgian Constitution grants the Communities a significant degree of

autonomy with regard to the regulation of education. The Constitution provides

for a fundamental right to education, which the state guarantees by setting a

minimum number of years for compulsory education, establishing minimumstandards that all schools must meet, and granting status to minority language

schools. The details of regulation, however, are largely left to the

Communities. Thus, there are effectively three separate education systems inBelgium, belonging to the Flemish Community, the French Community, and the

German Community. Municipalities around the bilingual Brussels-Capital

Region and those located along the linguistic border are granted more flexibilityto accommodate linguistic minorities and, as such, are referred to as special

status municipalities. There is no overarching body charged with representing

the Communities before the state government in the area of education, or with

ensuring uniformity and consistency in the quality of education.

Similarly, in Switzerland, the State Constitution delegates almost all

regulation of education to the local level. The twenty-six cantons enjoy a highdegree of autonomy in administering the educational system. However, in

contrast to Belgium, there is a significant degree of coordination among

cantonal ministers in the interest of consistency and quality of education. TheSwiss Conference of Cantonal Ministers of Education seeks to harmonize

education among the cantons, and the 1970 Intercantonal Agreement on

Education Coordination provides the legal basis for collaboration between the

cantons.

Swiss cantons may also enter into legally binding intercantonalagreements. The Swiss Conference of Cantonal Ministers of Education

enforces these agreements and has the authority to issue decrees to implement

them. In 2006, the Swiss electorate and all of the cantons accepted

constitutional amendments on education. The amendments reinforce the

distribution of power between the state and cantonal governments, and requireharmonization of education between cantons.


3/22


TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Belgium 1State Level 2

Powers Over Education 2

Constitutional Protections 4Community Level 5

The Flemish Community 5

The French Community 7The German Community 7

Special Status Municipalities 9

Switzerland 10State Level 11

Powers Over Education 11

Constitutional Protection 12

Role of the Courts 13Cantonal Level 14

Powers Over Education 15Language 15

Intercantonal Cooperation 16

Swiss Conference of Cantonal Ministers of Education 17Harmonization Agreement 18

Conclusion 19


4/22


1

REGULATION OF EDUCATION IN BELGIUM AND SWITZERLAND

Statement of Purpose

The purpose of this memorandum is to analyze the state and regionalregulation of education in Belgium and Switzerland.

Introduction

In states with distinct linguistic and ethnic communities, education is often a

significant and potentially contentious issue. In recognition of the states diversity,the regulation of education is often devolved from the state to the local level.

Decentralization and local regulation allow for communities to tailor their

education needs according to their linguistic and ethnic differences. Both Belgiumand Switzerland decentralized education in order to accommodate diverse

linguistic and ethnic populations. In Belgium, this resulted in the formation of

three separate educational systems one for each Community with very littlestate-level regulation. In contrast, while Switzerland also decentralized education,

the Swiss cantons chose to coordinate their efforts to promote consistency and

quality in the educational system.

Belgium

The Constitution of Belgium confers responsibility for the regulation ofeducation to the Communities.

1 To maintain some level of consistency between

the systems, the Constitution stipulates that the government shall determine the

ages for compulsory school attendance and the minimum standards for grantingdiplomas.

2

A series of state reforms further decentralized the regulation of education,

and there are now three separate education systems with distinct characteristics in

Belgium Flemish (Dutch), French, and Germanreflecting the division between

the three linguistic Communities.3 Each of these Communities provides a limitedright to education in other languages (usually French or Dutch), with expanded

1BELGIUMCONST.art. 127 1(2) and 130 1(3) (January 2009), available athttp://www.const-

court.be/en/basic_text/basic_text_constitution.html.2BELGIUMCONST.art. 127 1(2) (January 2009).

3Florian Geyer, The Educational System in Belgium: CEPS Special Report, CENTRE FOR EUROPEAN POLICY

STUDIES,1(Sept. 2009), available at http://aei.pitt.edu/14575/.


5/22


2

rights to education in a non-majority language in the municipalities near the borderand the Brussels-Capital Region.

4

State Level

In decentralizing education to the Communities, the state government

minimized its role in education to protecting the rights to education enshrined in

the constitution. The Belgian Constitution guarantees the right to education and

protects the freedom of education.5 These constitutional protections have been

further supplemented by state legislation. The 1959 School Pact resolved a great

divide in Belgium between Catholics and non-Catholics, granting the parents ofschool-age children the legal right to choose between a confessional (Catholic)

education and a non-confessional or neutral education.6 By contrast, there is no

explicit right to education in a minority language. The Act Relating to theRegulation of Language in Education of 30 July 1963 (Linguistic Law) stipulates

that the language of education for each Community is that of the Community,7

although the law calls for accommodations for minority language speakers inspecial status municipalities along the language boundary and in the periphery of

the Brussels-Capital Region.8

Powers over Education

The devolution of education originated in 1988, following a vote inBelgiums parliament to amend the Belgian Constitution and transfer educational

matters from the state government to the Communities.9 The Belgian stategovernment now has minimal power over education, as the Constitution confers

responsibility for the regulation of education to the Communities.10

However, in

order to maintain some level of consistency between the three systems, theConstitution stipulates that the state government determines the beginning and the

end of compulsory school attendance, in addition to the minimum standards for

granting diplomas.11

Accordingly, in 1983, the state government extended the

4Loi du 30 Juillet 1963 Concernant le Rgime Linguistique dans lEnseignement arts 4-8 (Belgium, 1963),

available in French at http://www.tlfq.ulaval.ca/axl/europe/belgiqueetat-loi63.htm.5BELGIUMCONST.art. 24 (January 2009).6Els Witte, Jan Craeybeckx, and Alain Meynen, POLITICAL HISTORY OF BELGIUM:FROM 1830ONWARDS,255

(2010).7World Data on Education,Belgium (Flemish Community) (August 2007) available at http://ddp-

ext.worldbank.org/EdStats/BELwde07a.pdf.8Loi du 30 Juillet 1963 Concernant le Rgime Linguistique dans lEnseignement art. 6 (Belgium, 1963), available

in French at http://www.tlfq.ulaval.ca/axl/europe/belgiqueetat-loi63.htm.9Jan Erk, EXPLAINING FEDERALISM:STATE,SOCIETY,AND CONGRUENCE IN AUSTRIA,BELGIUM,CANADA,

GERMANY,AND SWITZERLAND,36(2008).10

BELGIUMCONST.art. 127 1(2) (January 2009).11

BELGIUMCONST.art. 127 1(2) (January 2009).


6/22


3

compulsory attendance requirement to cover ages six to eighteen across allCommunities.

12 Compulsory education is free for all European nationals, and

Non-European Union nationals are required to pay a special registration fee.13

The state government also regulates the use of minority languages inpreschool and primary schools, and establishes the obligation of the Communities

to support those schools. Pursuant to Article 6 of the 1963 Linguistic Law14

and

Article 3 of the Royal Decree of 14 March 1960, preschools and primary schools in

a Community or special status municipality may be organized in a national

language that is a minority in that area under certain conditions.15

These

conditions include: (1) if at least sixteen heads of households residing in the samemunicipality make an official request for such a school; (2) if the language most

commonly used by the children to be provided with schooling is the considered

language; and (3) if there is no school providing education in that language withinfour kilometers.16

Two schools in Comines-Warenton and Mouscron special

status municipalities in the French Community teach in Flemish.17

Though the

Communities are responsible for financing such schools, the finances come from aspecial state fund, which is shared between Communities according to the number

of schools or students covered under the above legal arrangements.18

There are no

statutory provisions for secondary school education in a minority language.

Governance of minority-language schools is left in part to the Community inwhich the school is based. Dutch-speaking schools in the French Community are

inspected by Dutch language inspectors, and vice versa.19 The inspectors verifythat the schools are meeting the standards set by the respective parliaments.

20

12European Commission, Organisation of the Education System in the French Community of Belgium (2009/2010),

23, available at http://estudandoeducacao.files.wordpress.com/2011/05/bc3a9lgica-comunidade-francesa.pdf.13

European Commission, Organisation of the Education System in the French Community of Belgium (2009/2010),

29, available at http://estudandoeducacao.files.wordpress.com/2011/05/bc3a9lgica-comunidade-francesa.pdf.14Loi du 30 Juillet 1963 Concernant le Rgime Linguistique dans lEnseignementart. 6 (Belgium, 1963), available

in French at http://www.tlfq.ulaval.ca/axl/europe/belgiqueetat-loi63.htm.15

Arrt Royal Portant Application de l'Article 4 de la Loi du 29 Mai 1959 art. 3 (Belgium, 1959), available in

French at http://www.gallilex.cfwb.be/document/pdf/04892_000.pdf.16Loi du 30 Juillet 1963 Concernant le Rgime Linguistique dans lEnseignementart. 6 (Belgium, 1963), available

in French at http://www.tlfq.ulaval.ca/axl/europe/belgiqueetat-loi63.htm. See also Arrt Royal Portant Application

de l'Article 4 de la Loi du 29 Mai1959 art. 3 (Belgium, 1959), available in French at

http://www.gallilex.cfwb.be/document/pdf/04892_000.pdf.17

La Libre Belgique,La Wallonie aussi a ses coles facilities (Dec. 12, 2007), available in French at

http://www.lalibre.be/actu/belgique/la-wallonie-a-aussi-ses-ecoles-a-facilites-51b89748e4b0de6db9b12cfb.18

BELGIUMCONST.art. 127 1(2) (January 2009),19

Loi du 30 Juillet 1963 Concernant le Rgime Linguistique dans lEnseignementart. 5 (Belgium, 1963), available

in French at http://www.tlfq.ulaval.ca/axl/europe/belgiqueetat-loi63.htm.20

Loi du 30 Juillet 1963 Concernant le Rgime Linguistique dans lEnseignementart. 5 (Belgium, 1963), available

in French at http://www.tlfq.ulaval.ca/axl/europe/belgiqueetat-loi63.htm.


7/22


4

Though the Flemish government issued a decree in 2009 that French-speakingschools in Flanders should be inspected by Flemish inspectors, the Belgian

Constitutional Court invalidated provisions of the decree in 2010 applicable to the

municipalities with language facilities around Brussels.21

In 2011, the Court

extended its decision to all Flemish municipalities with language facilities forFrench-speakers.

22 As such, French-language inspectors must inspect French

schools in all relevant Flemish municipalities.

Constitutional Protections

The Belgian Constitution guarantees the freedom of education and the right

to education.23

All naturalized or legal persons are entitled to establish schools, aswell as organizing bodies orschool boards.

24These institutions may conform to

confessional (Catholic) or non-confessional (non-Catholic) ethics, or to specific

pedagogical or educational principles.

25

Following passage of the School Pact in1959,26

parents of school-age children are entitled under the constitution to pick a

school for their children that reflects their philosophical, ideological, or religious

values.27

Furthermore, schools run by public authorities are required to remainneutral on religion, that is, they are required to offer parents the choice between

religious and non-denominational teaching for their children until they fulfill the

compulsory education requirement.28

All students attending compulsory education

are thus entitled to moral or religious education funded by the Community.29

Children can choose from a nondenominational morals course, or a Catholic,Islamic, Jewish, Orthodox, or Protestant religion course.

30 These guidelines reflect

the Belgian states neutral position on religion and objectives of ensuring freedomof worship and the development of religion.

31

21Arrt n 124/2010 du 28 Octobre 2010B.31 (Belgian Constitutional Court, 2010), available at

http://www.const-court.be/public/f/2010/2010-124f.pdf.22

Arrt n 57/2011 du 28 Avril 2011B.5 (Belgian Constitutional Court, 2011), available at http://www.const-

court.be/public/f/2011/2011-057f.pdf.23

BELGIUM CONST. art. 24 (January 2009).24

Natalie Verstraete,National Synopsis of the Education Systems and Current Reforms in Europe: Belgium

Flemish Community 2010 , FLEMISH MINISTRY OF EDUCATION AND TRAINING,3(Mar. 2010), available at

http://www.ond.vlaanderen.be/eurydice/downloads/Summary-Sheets_BE_NL_2009-2010-%20ENG_DEP.pdf.25

Natalie Verstraete,National Synopsis of the Education Systems and Current Reforms in Europe: Belgium

Flemish Community 2010 , 3, FLEMISH MINISTRY OF EDUCATION AND TRAINING (Mar. 2010), available at

http://www.ond.vlaanderen.be/eurydice/downloads/Summary-Sheets_BE_NL_2009-2010-%20ENG_DEP.pdf.26

Els Witte, Jan Craeybeckx, and Alain Meynen, POLITICAL HISTORY OF BELGIUM:FROM 1830ONWARDS,255

(2010).27

BELGIUMCONST.art. 24 (January 2009).28


BELGIUM CONST. art. 24 (January 2009).30


14, available at http://estudandoeducacao.files.wordpress.com/2011/05/bc3a9lgica-comunidade-francesa.pdf.31

European Studies on Religion & State Interaction, State and Church in Belgium(2007), available at

http://www.euresisnet.eu/Pages/ReligionAndState/BELGIUM.aspx.


8/22


5

However, the constitution does not guarantee the right to education in ones

own language. Furthermore, in 1968 the European Court of Human Rights

confirmed that the right to education under Article 2 of Protocol 1 to the European

Convention on Human Rights (ECHR) does not require states to establisheducation of any particular type or level, and consequently that the ECHR does not

require states to hold instruction in a specific language.32

The case was initiated by

French-speaking residents of Dutch-speaking areas of Belgium who wanted their

children to be educated in French.33

As previously mentioned, under the 1963

Linguistic Law, the language of education in the Flemish Community is Dutch, in

the French Community is French, and in the Germany Community is German, withexceptions for minority language speakers in special status municipalities.

34 The

Courts decision confirmed that, under the ECHR, the Belgian Communities are

not required to provide instruction in minority languages, and particularly that theDutch-speaking areas in question were not required to provide instruction in

French. That being said, the Court did find that prohibiting French-speaking

residents of Dutch-speaking areas to attend French-speaking schools in aneighboring bilingual district constituted discrimination.

35

Community Level

Belgiums three linguistic Communities are primarily responsible for theregulation of education and have the freedom to tailor their curricula to their own

needs, in accordance with their linguistic and cultural differences.

The Flemish Community

In the Flemish Community, the official language of education is Dutch.36

Officially, there are no recognized minority languages in the Flemish

Community.37

However, schools provide opportunities for students to learn

French, particularly in schools in the Brussels-Capital Region, where French-

32

Belgian Linguistic Cases (1968) 1 EHRR 252-9, 269-285 (ECHR, 1968),summary available athttp://www.right-

to-education.org/node/650.33



Loi du 30 Juillet 1963 Concernant le Rgime Linguistique dans lEnseignement (Belgium, 1963), available in

French at http://www.tlfq.ulaval.ca/axl/europe/belgiqueetat-loi63.htm.35



European Commission, Organisation of the Education System in the Flemish Community of Belgium (2009/2010),

19, available at http://estudandoeducacao.files.wordpress.com/2011/05/bc3a9lgica-comunidade-flamenga.pdf.37


19, available at http://estudandoeducacao.files.wordpress.com/2011/05/bc3a9lgica-comunidade-flamenga.pdf.


9/22


6

speaking is prevalent.38

Primacy is given to French as a second language.39

Withregard to general curricula, schools are given discretion in much the same way that

the state gives Communities discretion. The Community sets minimum standards

for school curricula, and schools may devise the means to meet those standards.

As of September 1, 2010, first grade students in the Flemish Community

may begin primary education only if during the previous school year they

completed 220 half-days of instruction in the Dutch language or passed a language

proficiency test.40

Since 2004, French as a second language is taught as a

compulsory subject starting in the fifth grade, but in most schools there are no

classes taught in French for native speakers.41

Introductory classes in French maybe offered from the beginning of primary education (including preschool). This

applies to all of the Flemish Community, including the municipalities on the

language border and the ones in the Brussels-Capital Region.

42

In addition,introductory classes may be offered in another language, but language awareness

in French is the top priority.43

In the Brussels-Capital Region of Belgium, French instruction may be

provided from the first grade, and the individual schools are charged with

determining the number of classes in which French is the language of instruction.44

However, schools may grant priority in registration to native Dutch-speaking

students if the parents verify that Dutch is the language spoken at home with atleast one parent.

45

There are also language requirements for teachers in the Flemish

Community. As of September 1, 2009, in compliance with the Common European

Framework of Reference for Languages, prospective language teachers must reach

38European Commission, Organisation of the Education System in the Flemish Community of Belgium (2009/2010),















45, available at http://estudandoeducacao.files.wordpress.com/2011/05/bc3a9lgica-comunidade-flamenga.pdf.


10/22


7

a certain level of linguistic proficiency before they can be appointed.46

Teacherswho are required to teach compulsory French as a second language (both in the

Flemish and Brussels-Capital Regions) must have reached a certain level of

proficiency; otherwise, they do not qualify for permanent positions. However,

schools may apply a temporary derogation from the proficiency requirements forup to three years for these teachers.

47 These rules also apply in the French-

speaking schools within the Flemish Region. The language requirements here not

only concern the knowledge of French, but also the knowledge of Dutch as a

second language.48

The French CommunityFrench is the language of education in the French Community. However,

similar to the Flemish Community, schools are given some flexibility in the way

they adopt and teach second languages, with primacy given to Dutch, especially inthe more mixed municipalities near the language border and the Brussels-Capital

Region. Though the predominant language of instruction is French, the

Government of the French Community may authorize the schools governing bodyto operate scheduled courses or activities in sign language or a modern language

other than French.49

Pursuant to the 1963 Linguistic Law, instruction in a second language is

mandatory beginning in the third grade in both the Brussels-Capital Region and inspecial status municipalities.

50 In both the Brussels-Capital Region and

municipalities on the language border, the second language is Dutch, whereas inthe other municipalities in the French Community, the second language may be

either Dutch or German.51

The German Community

Comprising only .7-percent of the Belgian population and 2.15-percent of

the population of the Walloon Region, the German Community, unlike the Flemish

46European Commission, Organisation of the Education System in the Flemish Community of Belgium (2009/2010),






Christiane Blondin, Structures of Education and Training Systems in Europe, 6, EUROPEAN COMMISSION (2009),

available at http://eacea.ec.europa.eu/education/eurydice/documents/eurybase/structures/041_BF_EN.pdf.50

Loi Concernant le Rgime Linguistique dans l'Enseignement(Belgium, 1963), available in French at

http://www.tlfq.ulaval.ca/axl/europe/belgiqueetat-loi63.htm.51


125, available at http://estudandoeducacao.files.wordpress.com/2011/05/bc3a9lgica-comunidade-francesa.pdf.


11/22


8

and French Communities, is unable to regulate in areas such as administration andeconomics.

52 It does, however, develop its own education policy and has its own

Ministry of Education, just as the other Communities do.53

As with the Flemish

and French Communities, the German Community has adopted its own educational

language guidelines, but these guidelines reflect the German Communitys statusas a minority language group relative to the other two.

German has been the official language in the German-speaking Community

since 1963.54

However, because Belgiums other two official languages, Dutch

and French, are more widely utilized, both languages, but especially French, have

an important role in education in the German-speaking Community.55

Instruction in French is permitted in a few French primary schools and

certain courses within German-speaking schools.

56

The 1969 National LawRegarding the Use of Languages in Education permitted schools in the German

Community to teach some subjects in French, which was reinforced by the Decree

of 19 April 2004 Concerning the Teaching and Use of Languages in Education.57

However, there are restrictions on how much time can be spent in such classes.

58

A 2008 decree on the evaluation of the teaching profession established the

first foreign language teacher post in primary schools, tasked with appointing

52Such matters are controlled by the Walloon Region, of which the German Community is a part. European

Commission, Organisation of the Education System in the German-speaking Community of Belgium (2009/2010),

16, 23, available at http://estudandoeducacao.files.wordpress.com/2011/05/bc3a9lgica-comunidade-alemc3a3.pdf.53

European Commission, Organisation of the Education System in the German-speaking Community of Belgium

(2009/2010), 23, available at http://estudandoeducacao.files.wordpress.com/2011/05/bc3a9lgica-comunidade-

alemc3a3.pdf; Angloinfo, The School System, available athttp://belgium.angloinfo.com/family/schooling-

education/school-system/.54



alemc3a3.pdf.55



alemc3a3.pdf.56



alemc3a3.pdf.57



alemc3a3.pdf.58



alemc3a3.pdf.


12/22


9

qualified teachers for foreign languages.59

Learning a foreign language iscompulsory for all students. In the German Community, the first foreign language

is generally French.60

In the six school sections where French-speaking students

study, the first foreign language is German.61

In secondary school, it is mandatory

to take on a second foreign language in ninth grade.62

The second language isoften English, though it may also be Dutch.

63 By the tenth grade, students may opt

to study a third foreign language, which is often Dutch.64

Special Status Municipalities

Municipalities that are on the linguistic boundary are given special status

and provide language facilities for linguistic minorities.65

The 1963 LinguisticLaw provides for equal public funding for primary schools for the linguistic

minority.66

This law makes special status municipalities legally different than the

area around the Brussels-Capital Region, where some accommodations are madefor French speakers, but French-speaking primary schools are not equal to Dutch-

speaking schools. A revision to the constitution in 1990 makes it more difficult to

change the language status of a municipality.67

Previously, an overall majority inthe state parliament was enough. Now, it requires a majority in both language

groups in the House of Representatives and the Senate.68

As demonstrated above, the Communities enjoy significant autonomy in the

area of education. The most significant difference between Community

59European Commission, Organisation of the Education System in the German-speaking Community of Belgium


alemc3a3.pdf.60



alemc3a3.pdf61



alemc3a3.pdf.62



alemc3a3.pdf.63



alemc3a3.pdf.64



alemc3a3.pdf.65

Loi du 30 Juillet 1963 Concernant le Rgime Linguistique dans lEnseignement(Belgium, 1963), available in


Loi du 30 Juillet 1963 Concernant le Rgime Linguistique dans lEnseignement(Belgium, 1963), available in



BELGIUMCONST.art. 129 (January 2009).


13/22


10

educational systems in Belgium is with regard to the primary language of teaching,and opportunities to learn second and third languages. The Belgian Constitution

provides a guaranteed right to education, but it does not provide for a right to

education in any specific language, or any set curriculum. There is much

flexibility in the system, as the state grants minority status to certain schools andcertain special status municipalities in areas along the language border.

Provided that the Communities provide equal quality of education, the state grants

Communities the right to regulate the details of education.

The gradual Communitarization of education has resulted in educational

systems with the distinct linguistic and cultural characteristics of the Communities.This has permitted the Communities to develop specific, individually-tailored

solutions in the management and supervision of education. Parents of school-age

children likewise have the flexibility under the constitution to pick a school fortheir children that reflects their philosophical, ideological, or religious values.

However, there is no overarching mechanism through which the Communities can

coordinate and ensure consistency and uniformity.

Switzerland

The Swiss Constitution delegates almost all regulation of education to the

cantons.69

The twenty-six cantons enjoy almost complete autonomy in thisregard.

70 However, in the interest of consistency and the quality of education, the

cantonal ministers coordinate their work at the state level. The Swiss Conferenceof Cantonal Ministers of Education (EDK) is the political body responsible for

intercantonal coordination.71

The 1970 Intercantonal Agreement on Education

Coordination provides the legal basis for collaboration between the cantons.72

Inaddition to this Agreement, cantons enter into intercantonal agreements, which are

legally binding. The EDK enforces these agreements and has the authority to issue

decrees to implement them.73

In 2006, the Swiss electorate and all of the cantons

adopted constitutional amendments on education.74

The amendments reinforce the

69SWITZERLAND CONST.art. 61a (19 April 1999), available at http://www.admin.ch/ch/e/rs/1/101.en.pdf.

70SWITZERLAND CONST.art. 61a (19 April 1999).

71The Swiss Conference of Cantonal Ministers of Education,Portrait, available at

http://www.edudoc.ch/static/web/edk/port_edk_e.pdf (last visited Feb. 12, 2012).72

Concordat sur la Coordination Scolaire(Switzerland, 1970),available in French at

http://edudoc.ch/record/1548/files/1.pdf.73

The Swiss Conference of Cantonal Ministers of Education,Portrait, available at

http://www.edudoc.ch/static/web/edk/port_edk_e.pdf (last visited Feb. 12, 2012).74

Swissinfo, Swiss Vote Emphatically for Education Reform(May 21, 2006), available at

http://www.swissinfo.ch/eng/Home/Archive/Swiss_vote_emphatically_for_education_reform.html?cid=5207102.


14/22


11

distribution of power between the state and cantonal governments and includeintercantonal cooperation.

75

The State Level

The Swiss Constitution delegates most responsibility for education to the

cantons.76

However, the Constitution allows the state government to make certainregulations aimed at ensuring harmonization of education across cantons,

particularly in the areas of standards for different levels of education, and the

recognition of qualification between cantons. The constitution also protects the

right to education and other related rights, and the Federal Court has the power to

resolve disagreements between cantons related to education and to rule on theapplication of constitutional rights in education.

Powers Over Education

Operating schools is primarily the responsibility of the cantons,77

which

means that school systems in one canton can vary greatly from those of another

canton.78

However, both the 1970 Intercantonal Agreement on EducationCoordination and the 2007 Agreement on Intercantonal Harmonization of

Mandatory Education (now codified in the constitution) provide that where

harmonization of education is not achieved in key areas (school entry age,

transition from one level to another, recognition of qualification), the state

government can issue regulations to achieve such harmonization.79

In addition, the

state may require cantons to enter legally binding intercantonal agreements relatedto the education matters specified in Article 62(4) of the Swiss Constitution such as

school entry age and compulsory school attendance, the duration and objectives of

levels of education, and the transition from one level to another, as well as the

recognition of qualifications.80

In addition, the constitution provides that the cantons can participate in the

drafting of federal legislation in the areas of education that affect cantonal

75SWITZERLAND CONST. art. 62 (1999).

76SWITZERLAND CONST. art. 61a (1999).


78The Swiss Conference of Cantonal Ministers of Education, The Swiss Education System, available at

http://www.edk.ch/dyn/16342.php (last visited Feb. 12, 2012).79


http://edudoc.ch/record/1548/files/1.pdf; Accord Intercantonal sur lHarmonisation de la Scolarite Obligatoire

(Switzerland, 2007),available in French at http://edudoc.ch/record/24710/files/HarmoS_f.pdf; SWITZERLAND

CONST. art. 48a and 62(4) (1999) (amendments adopted by the popular vote of 21 May 2006).80

SWITZERLAND CONST. 62(6) (1999) (amendments adopted by the popular vote of 21 May 2006).


15/22


12

responsibility, and that their opinions will be given special account.81

However,the constitution does not stipulate what mechanisms are in place to facilitate such

participation. The EDK coordinates policy at the state level, and represents the

cantons before the state in the areas of education.82

The state government regulates the start of the school year and the required

age for compulsory schooling.83

The 1970 Intercantonal Agreement on Education

Coordination sets the minimum age for starting compulsory education at six

years.84

The state may also issue regulations on vocational and professional

education.85

In addition, the Swiss Constitution provides that the state may

supplement cantonal measures by supporting extracurricular work with childrenand young people in the interest of encouraging and protecting them.

86

Constitutional ProtectionsThe constitution guarantees the right to primary school education and the

right to academic freedom, including freedom of research and teaching.87

It further

provides that the cantons shall ensure adequate primary school education.88

Primary school education is mandatory, generally for a term of eleven years, and

public primary schools must be free of charge.89

The constitution also guarantees the freedom to use any language,90

though

this protection exists in a general sense and is not explicitly applied in theconstitution to the area of education. The official languages of Switzerland are

German, French, and Italian.91 Romansh is also an official language when directlycommunicating with people who speak Romansh.

92 The cantons have the freedom

to decide their own official language while respecting the traditional territorial

81SWITZERLAND CONST. art. 62(6) (1999).


http://www.edudoc.ch/static/web/edk/port_edk_e.pdf.83

SWITZERLAND CONST. art. 62(5) (1999).84Concordat sur la Coordination Scolaire(Switzerland, 1970),available in French at


SWITZERLAND CONST. art. 63(1)(1999).86

SWITZERLAND CONST. art. 67(2) (1999).87

SWITZERLAND CONST. art. 19 and 20 (1999).88



SWITZERLAND CONST. art. 18 (1999).91


SWITZERLAND CONST. art. 70(1) (1999).


16/22


13

distribution of languages and taking into account indigenous linguistic minorities.93

As a result, instruction in a second language is traditionally a high priority.

94

The constitution also guarantees the freedom of religion and conscience,

though again in a general sense as one of the protected fundamental rights inSwitzerland.

95 The regulation of the relationship between the church and the state

is the responsibility of the cantons.96

Role of the Courts

The 1970 Intercantonal Agreement on Education Coordination provides that

any disagreement among the cantons in relation to the implementation of the termsof the Agreement may be decided by the Federal Tribunal.

97 The Federal Tribunal

plays an important part in interpreting and ensuring compliance with cantonal and

federal language law, as well as other constitutional protections related toeducation.98

In 1990, the Federal Tribunal ruled on a case involving the State

Council of the canton of Fribourg, which attempted to limit enrollment at the free

German-speaking state school in Fribourg to Protestant children.99

The Courtfound that limiting free education in German to a certain religious denomination

was impermissible discrimination, and stepped outside the bounds of the discretion

allotted to the cantons.100

In 1996, the Court accepted an appeal of parents who

lived in a German-speaking commune, but had enrolled their daughter in a French

speaking school in a different commune and bore the financial consequencesthemselves. The Court held that enrollment in the German-speaking school, which

is what the commune had demanded, was a disproportionate restriction of the

93SWITZERLAND CONST. art. 70(2) (1999).

94The Swiss Conference of Cantonal Ministers of Education, The Swiss Education System, available at

http://www.edk.ch/dyn/16342.php.95



Concordat Sur la Coordination Scolaire, art.7 (Switzerland, 1970),available in French at


Council of Europe, EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES,Second Periodical Report

Presented to the Secretary General of the Council of Europe in Accordance with Article 15 of the Charter:

Switzerland(2003), 23-24, available at

http://www.coe.int/t/dg4/education/minlang/report/PeriodicalReports/SwitzerlandPR2_en.pdf.99



Switzerland(2003), 24, available at

http://www.coe.int/t/dg4/education/minlang/report/PeriodicalReports/SwitzerlandPR2_en.pdf100



Switzerland(2003), 24, available at

http://www.coe.int/t/dg4/education/minlang/report/PeriodicalReports/SwitzerlandPR2_en.pdf


17/22


14

familys linguistic freedoms.101

In 2001, the Court reaffirmed that parents have theright to send their children to a school whose primary instruction is in the childs

mother tongue.102

In Switzerland, the constitution delegates almost all regulation of educationto the cantons. The state only regulates limited matters such as the start of the

school year and the required age for compulsory education. The constitution also

guarantees the right to a primary school education, the right to academic freedom,

and the freedom to use any language. This right has been upheld by the Federal

Court in relation to education, holding that cantons cannot implement restrictions

on where children can go to school based on linguistic preferences. However,there is no general obligation for cantons to accommodate children who want to

study in a language other than the official language of the canton.

The Cantonal Level

The Swiss Constitution stipulates that the cantons are responsible foreducation, which includes supervision and management as well as financial

costs.103

The language of instruction is German, French, Italian, or Romansh,

depending on the language area, and official languages are often set forth in

cantonal constitutions.104

Following an agreement on the coordination of

education between the cantons, the Swiss Conference of Cantonal Ministers ofEducation (EDK) was created to ensure consistency and uniformity.

105 The

cantons may also enter into intercantonal agreements, which are legally binding.106The constitution likewise requires that the cantons achieve harmony in certain

101Council of Europe, EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES,Second Periodical Report



http://www.coe.int/t/dg4/education/minlang/report/PeriodicalReports/SwitzerlandPR2_en.pdf (citingJorane Althaus

Versus the Residents of Mrigen and the Public Education Department of the Canton of Bern, Decision of 15 July

1996 (122 I 236))102




http://www.coe.int/t/dg4/education/minlang/report/PeriodicalReports/SwitzerlandPR2_en.pdf (citing Decision

Against the Administrative Court of the Canton of Fribourg of 2 November 2001(2P.112/2001).103


The Swiss Conference of Cantonal Ministers of Education, The Swiss Education System, available at





http://www.edudoc.ch/static/web/edk/port_edk_e.pdf.


18/22


15

areas of education policy.107

However, as decentralization is considered animportant characteristic of education in Switzerland, the cantons retain significant

autonomy.

Powers Over EducationThe primary authority of the cantons in the area of education and the

decentralized organization of schools are important features of federally organized,

multilingual Switzerland. The Swiss Constitution stipulates that the cantons are

responsible for education.108

This includes the supervision and management of

schools and their staff, as well as most of the financial costs incurred during the

course of operation.109

Municipalities share the managerial and financialresponsibility, and together the cantons and municipalities finance an estimated

eighty-seven percent of public-sector spending in the area of education.110

All cantons provide one to two years of free pre-school education, and the

canton of Ticino (Italian-speaking) offers three years. Compulsory schooling

begins at age six and continues for nine school years.111

Most primary schoolstoday span grades one through six. This is followed by the lower secondary level

(grades seven-nine) where pupils receive instruction in performance-based groups,

either in all subjects or in some subjects.112

LanguageTraditionally, language learning has an important role in Switzerland. All

students learn at least two other languages during their compulsory schooling. Thelanguages learned are generally one of the other languages spoken in Switzerland,

and English.113

The language of instruction is German, French, Italian, or

Romansh, depending on the language area, though Romansh-languagecommunities are a special case.

114







Concordat sur la CoordinationScolaire, art. 2(a) and (b) (Switzerland, 1970),available in French at







http://www.edk.ch/dyn/16342.php.


19/22


16

Romansh is taught primarily in the areas in which it has been the traditionallanguage.

115 Romansh has been gradually replaced by German as the primary

language of instruction, which has been troubling to advocates for Romansh

instruction, who believe education is essential to the preservation of the language

and overarching culture.116

In addition, while some schools have retainedinstruction in Romansh out of recognition that many students speak the language at

home and in their communities, there has been controversy over whether local

dialects or a standard version of the language should be taught, and at what point

German should be introduced.117

Intercantonal Cooperation

The 1970 Intercantonal Agreement on Education Coordination provides the

legal basis for collaboration between the cantons in the field of education.

118

TheEDK was created by the cantons to coordinate education systems between the

twenty-six cantons. The EDK is comprised of the twenty-six cantonal ministers of

education, who are members of the cantonal governments and preside over thecantonal departments of education.

119 The work of the EDK is based on the 1970

Agreement and on other intercantonal agreements.120

The intercantonal

agreements are legally binding, and the EDK has authority to enforce them, and to

enact decrees to implement them.121

On May 21, 2006, the Swiss electorate and all of the cantons voted to adopt

educational amendments to the constitution.122 The vote confirmed the distribution

115Swissinfo,Little Islands of Romansh(Aug. 8, 2006), available at

http://www.swissinfo.ch/eng/specials/romansh/Education,_Romansh_style.html?cid=41078.116

Swissinfo,Little Islands of Romansh(Aug. 8, 2006), available at

http://www.swissinfo.ch/eng/specials/romansh/Education,_Romansh_style.html?cid=41078.117

Swissinfo,Little Islands of Romansh(Aug. 8, 2006), available at

http://www.swissinfo.ch/eng/specials/romansh/Education,_Romansh_style.html?cid=41078. In 2003, the parliament

in canton Graubnden voted to publish books and other instructional materials in a standardized version of the

language (Romansh Grischun). This legislation was overturned in 2011, however, when the parliament decided that

books can again be issued in local Romansh dialects. Swissinfo,Romansh dialects carry the day in Graubnden

(Dec. 9, 2011), available at

http://www.swissinfo.ch/eng/swiss_news/Romansh_dialects_carry_the_day_in_Graubuenden.html?cid=31726828.118





Laws Utilized by the Swiss Conference of Cantonal Ministers of Education, available in French,




Swissinfo, Swiss Vote Emphatically for Education Reform(May 21, 2006), available at

http://www.swissinfo.ch/eng/Home/Archive/Swiss_vote_emphatically_for_education_reform.html?cid=5207102.


20/22


17

of powers that already existed between the state and the cantons regardingeducation. However, the amendments also clarify the areas in which cooperation

between the state and the cantons, and cooperation among the cantons, is

required.123

These include working together to define key objectives, regulations,

qualifications, and the process by which students transition from one level to thenext.

124

Swiss Conference of Cantonal Ministers of Education

The EDK is not a state education ministry, but a coordination body through

which the twenty-six cantonal education ministers find state-wide solutions in key

areas of education.125

Typical issues that the EDK deals with include thedetermination of key statewide parameters for the education system (for instance,

structure and goals), statewide mobility in education, and statewide recognition of

diplomas.

126

Where necessary, the EDK coordinates with the state government.

127

The EDK implements clearly defined legal instruments.128

Intercantonal

cooperation agreements made pursuant to Article 48 of the constitution are legallybinding and enforceable by the EDK.

129 For instance, the EDK enforced several

intercantonal agreements related to financing and mobility, thus making it easier

for students to choose their course of study.130

The EDK may also issue

recommendations to the cantons, which are not legally binding.131

Despite not

being enforceable, such recommendations have brought about a high degree ofharmonization.

132

In addition, the EDK represents the cantons before the state government in

matters relating to education, reviews courses of study and diplomas, and grants









Laws Utilized by the Swiss Conference of Cantonal Ministers of Education, available in French,


SWITZERLAND CONST. art. 48 (1999); The Swiss Conference of Cantonal Ministers of Education,Portrait,

available at http://www.edudoc.ch/static/web/edk/port_edk_e.pdf.130






http://www.edudoc.ch/static/web/edk/port_edk_e.pdf.


21/22


18

recognition of diplomas at a state level to ensure smooth transitions to higher levelsof education in all cantons.

133 The EDK also ensures that the cost of education is

split equally between the cantons.134

At the primary and secondary levels of education, the EDK is currentlyendeavoring to implement harmonization plans in the twenty-six cantons regarding

the following key development areas: (1) harmonization of compulsory schooling;

(2) development, definition, and review of binding educational standards; (3)

coordination of language instruction; (4) supporting projects for integrating

education for sustainable development in instruction/schools and teacher training;

and (5) introduction of joint tools for special needs education, such as standardizedterminology, quality standards, assessment processes.

135

Harmonization AgreementThe basic principles of the 2007 Agreement on Intercantonal Harmonization

of Mandatory Education (Harmonization Agreement) is to respect the diversity of

cultures in multilingual Switzerland and to attempt to eliminate all obstacles to thenational and international mobility of the population.

136 The Harmonization

Agreement requires all cantons within a given linguistic area of Switzerland to

adopt the same curricula, to coordinate their teaching of foreign languages, and to

provide for quality assurance through educational standards and regular

monitoring.137

Within the different linguistic areas of Switzerland, the priority iscurrently to ensure the introduction or drafting of uniform curricula that are

compatible with the provisions of the Harmonization Agreement.138

As a result of the requirements imposed by the Harmonization Agreement,

some of the cantons have had to implement reforms. A number of cantons haveseized this opportunity to cooperate more closely with one another. For instance,

the French-speaking cantons have entered into an agreement with regard to the







Accord Intercantonal sur lHarmonisation de la Scolarite Obligatoire, art. 2 (Switzerland, 2007),available in

French at http://edudoc.ch/record/24710/files/HarmoS_f.pdf.137

Swiss Coordination Centre for Research in Education, Swiss Education Report (2010), 55,available at

http://www.skbf-csre.ch/fileadmin/files/pdf/bildungsmonitoring/Education_Report_2010.pdf.138


http://www.skbf-csre.ch/fileadmin/files/pdf/bildungsmonitoring/Education_Report_2010.pdf.


22/22


19

implementation of the Harmonization Agreement.139

Furthermore, the fourCantons of Aargau, Basel-Stadt, Basel-Landschaft, and Solothurn have formed the

North-West Switzerland Education Area in order to further develop their education

systems.140

Finally, several cantons (Bern, Basel-Stadt, Basel-Landschaft,

Solothurn, the German-speaking area of the Canton of Fribourg, and Upper Valais)have entered into an agreement to coordinate foreign language teaching.

141

In Switzerland, the twenty-six cantons enjoy near-complete autonomy in the

area of education. While this allows for flexibility and uniquely tailored solutions

for the management and supervision of education, the system also recognizes the

need for consistency and uniformity in the quality of education. Following a seriesof reforms in 2006, harmonization is now a requirement of the Swiss Constitution,

and the cantonal ministers coordinate their work though the EDK and intercantonal

agreements.

Conclusion

The constitutions of both Belgium and Switzerland provide for decentralized

systems of education. In both states, the regional units are granted significant

autonomy in the formulation of policy, and in the supervision and management of

school systems. However, there are significant differences between Belgium and

Switzerland in the level of coordination and cooperation between the regionalunits. In Belgium, the educational systems have adopted the unique linguistic and

cultural characteristics of the Communities, and there is no overarching bodycharged with representing the Communities before the state or ensuring

consistency and uniformity in the quality of education. By contrast, in

Switzerland, the cantons coordinate their work through the Swiss Conference ofCantonal Ministers of Education, which places an emphasis on intercantonal

cooperation and represents cantonal interests before the state government. The

cantons nonetheless retain significant autonomy, as the decentralized organization

of schools remains an important characteristic of a multilingual and multicultural

Switzerland.

139Swiss Coordination Centre for Research in Education, Swiss Education Report (2010), 58,available at





http://www.skbf-csre.ch/fileadmin/files/pdf/bildungsmonitoring/Education_Report_2010.pdf.

Regulation of Education in Belgium and Switzerland

Documents

Transcript of Regulation of Education in Belgium and Switzerland