It frames in the freedom of the legislator the prohibition of concerting the centers that separate the students by sex
The Constitutional Court (TC) has rejected the appeal presented by Vox against the Education Law or ‘Celáa law’, as stated in a new paper that understands that the norm respects the right to use Spanish and the co-official status of the autonomous languages , pointing out that in the educational system there must be “a pattern of balance or equality between languages”.
As reported by the court of guarantees, the Plenary has supported Ricardo Enríquez’s presentation, although both this magistrate and his other three colleagues from the conservative minority have announced a dissenting vote, considering that there are certain precepts of the ‘Celáa law’ that should have been declared unconstitutional.
Enríquez proposed in a first draft to support the ‘Celáa law’, except for the articles that include that “the centers supported partially or totally with public funds will develop the principle of coeducation in all educational stages” and “they will not separate the students by their gender”. ; and that the administrations will have the necessary measures “to avoid the segregation of students” with a specific need for educational support.
However, the progressive majority of the TC – from 6 to 4 in this case, because the former Minister of Justice Juan Carlos Campo has abstained from this deliberation – rejected the first presentation in the plenary session on March 23, seeking a seamless endorsement of the legal norm. Enríquez agreed to write a second draft that included the majority sentiment, which was accepted on Tuesday.
Starting from the wide freedom of configuration of the legislator in the development of the rights to education and freedom of teaching, the Constitutional has dismissed the reproaches of the party of Santiago Abascal against the regulation of the schooling of students with special educational needs in accordance with the principle of inclusion.
However, it emphasizes the new article 74.2 of the Education Law, which orders attention to “the will of families who show their preference for the most inclusive regime”, specifying that “it does not exclude (…) in case of discrepancies (…) the hearing of families who show their preference for special education, nor does it attribute greater value to the opinion of certain families over others”.
The initial reproach to the prohibition of arranging differentiated education by sex has also disappeared. In this sense, it states that “a pluralistic educational model” derives from the Constitution, but not that “all educational models must receive aid”, nor “a subjective right to public provision”.
Specifically, it has examined whether the prohibition of publicly financing single-sex education “is contrary to equality or some of the educational rights enshrined in article 27” of the Magna Carta, concluding that it is not.
“The difference in treatment established in the first section of additional provision 25 of the Education Law between educational centers that separate students based on their gender, for the purpose of being able to be fully or partially financed by public funds, responds to a conception ideology of the educational system that not only cannot be branded as arbitrary, but is also inspired by constitutional values”.
NO OBLIGATION TO SET FEES
Regarding the right to receive education in Spanish, the sentence explains that the new regulation is in accordance with article 3 of the Constitution, which guarantees the right to use Spanish and the co-official status of the autonomous languages, as well as with the responsibility of the State to ensure respect for the linguistic rights of students.
The TC considers, in particular, that the necessary setting by the State of a proportion of use of Spanish in the educational system does not derive from the Constitution, but rather, according to the previous doctrine of the court, “a pattern of balance or equality between languages” and an effective right to use them, which is not denied by the appealed law.
The court also sees the absence of mention of religion as a subject in the educational curriculum in accordance with the Constitution, as well as the reference made by the ‘Celáa law’ to the provisions of the Agreement on Education and Cultural Affairs signed between the Holy See and the Spanish State of 1979.
Regarding Vox’s complaint that the norm incorporates “gender ideology” as “state ideology in which it necessarily intends to indoctrinate students”, the TC recalls that according to article 27.2 of the Constitution, education “is not a mere transmission of knowledge, is also human formation”.
In this regard, it adds that, according to the jurisprudence of the European Court of Human Rights (ECtHR), “respect for religious or moral beliefs” does not prevent any transmission of values, but that this is carried out “in an objective, critical and pluralistic manner “, without there being anything in Organic Law 3/2020 that suggests that “health education, including affective-sexual education”, can be provided in a different sense.
Finally, it clarifies that the “gender perspective” to which those of Santiago Abascal refer is mentioned in the ‘Celáa law’ as a pedagogical principle aimed at administrations and educational centers, “not at students to whom the legislator does not impose Therefore, no perspective or ideological adherence”.
It has also rejected Vox’s challenge to the modification of the programming of centers that only refers to “public” squares and suppresses the criterion of “social demand” contained in the previous wording.
SUPPORT LEGAL CHANGE WITH THE STATE OF ALARM
On the other hand, the guarantee court has responded to the general reproaches made by Vox. Thus, it rejects the alleged violation of the guarantees of legislative procedure and of article 169 of the Constitution, which prohibits constitutional reforms during the validity of a state of alarm, also emphasizing that, “however relevant it may be or may seem to the appellants Organic Law 3/2020, it is not a constitutional reform”.
Vox had also raised “for the first time” to the TC the possibility of declaring the unconstitutionality of a law “by default of the basics”, asking the court to set for itself the “minimum content” of the state regulations on education, to which the magistrates have replied that it does not correspond to them but to the Cortes Generales.
Enríquez and the other dissenting magistrates with this sentence –Concepción Espejel, Enrique Arnaldo and César Tolosa– understand that it should have been declared unconstitutional or, failing that, an interpretation be made in accordance with article 74.2 of the Education Law, which obliges to take into account In the resolution of discrepancies regarding the schooling of students with special needs, only “the will of the families that show their preference for the most inclusive regime” is taken into account, tacitly excluding the others.
They also warn that the “educational pluralism” enshrined in the Constitution is undermined when the legislator totally excludes educational models that fit within the Magna Carta from public aid, as the TC already ruled in 2018.
They also warn that, with this sentence, the possibility that religious communities can react to eventual acts of the public educational administrations contrary to the right of those to define the constitutionally recognized religious creed that is the object of teaching is called into question.
