The Role of the Federal Constitutional Court in the FRG

Institutional factors slowing down the expansion of

early childhood education in the FRG –

the assignment to the welfare sector, particularities of German federalism and

the political culture in the shadow of the Federal Constitutional Court

Kirsten Scheiwe, University of Hildesheim

I will take a somewhat broader approach and describe institutional factors in the FRG which may act as a barrier to a faster expansion of educational facilities and day-care for young children, and here the role of the Federal Constitutional Court is one among three or four main items I will touch upon. I hope you won’t be too disappointed that I will take a few turns before embarking on the subject of the role of the Federal Constitutional Court (Bundesverfassungsgericht) in shaping competences in education.

Just a few figures[1] should illustrate the actual provision of places in daycare institutions

Provision of places in daycare institutions on 31 December 2002

(as a percentage of all children of the age group)

Places for under-threes / Places for children aged 3 years up
to school-age
Länder (West) / 2.4 / 90.6
Länder (East) / 37.0 / 105.1

Stadtstaaten

/ 25.8 / 84.0

Available places in daycare institutions in the FRG– full-time or part-time?

(as a percentage of all available places, 31 December 2002)

Länder (West) / Länder (East)[2]
For under-threes / Children aged 3 to school-age / For under-threes / Children aged 3 to school-age
Full-day place with lunch / 72.4 / 23.6 / 97.8 / 98.1
Part-day place with lunch / 7.6 / 73.4 / 0.6 / 0.4
Part-day place without lunch / 20.0 / 2.9 / 0.0 / 1.4

1. In the FRG you find a rigid separation between institutions called schools and formal education on the one hand and day-care facilities for younger children below obligatory school-age on the other hand. Kindergarten and other institutions for young children are in practice still widely conceptualised as care, not as education or Bildung (despite the fact that daycare should follow an integrated pedagogical approach that encompasses Bildung, education and care, according to para. 22 sec. 3 Child and Youth Welfare Act). Child daycare is integrated into the into the social welfare sector and organised under the authority of the youth welfare office, not as part of the educational and school sector. Regulation of child daycare is integrated into the ‘Child and Youth Welfare Act’, it is therefore social welfare law, not school law. Administration and financing of child daycare falls into the competences of municipal authorities, not under the competences of school authorities.

1. Seen in international comparison, this is not only a German Sonderweg; you find quite a number of countries which developed the same distinctions and organisational principles. The Scandinavian countries or Austria and Switzerland are part of the group which followed a ‘welfare model’ or a ‘care model’ for young children and separated early childhood education from formal education in schools, while the countries of the ‘preschool model’ (France, Belgium, Luxembourg, Italy, nowadays also Spain) included these facilities for children aged above 2 or 2 ½ (in Spain from birth on) in the educational sector under the competences of school authorities. The trend goes towards stronger emphasis of the educational aspects of early childhood education, which is more than care and supervision for children.

1. What is particular from my point of view is the fact that this rigid institutional separation – which developed under particular historical conditions and power relations between different political and social actors, especially in the first decades of the 20th century – is reinforced and upheld by institutional constraints and strong interest groups nowadays in the FRG, which reinforces path dependencies and blocks a more dynamic expansion of early childhood education in the FRG. Although the international trend goes towards an integration or at least a better coordination of childcare and education, and various countries of the ‘welfare model’ take steps to link the administration and organisation of daycare more to the organisational hierachies and structures of education authorities or intensify cooperation of these formerly strictly separated organisational hierarchies, this development is rather slow in the FRG.

1. In the FRG the separation between formal education in schools and day-care for younger children as part of ‘social welfare’ is upheld also due to institutional framework that reinforces path dependency and works as a barrier to faster change and a more dynamic expansion of childcare and educational facilities for younger children. What are these institutional features which may act as a stumbling block to a faster expansion of elementary education?

• Federalism and the distribution of legislative, administrative and financing competences between the Federal State and the Länder based on the constitution, the German Basic Law which assigns the legislative competence to regulate the school and education sector exclusively to the Länder, while the Federal state has a prerogative to legislate ‘public welfare’ (which includes youth welfare measures) within its ‘concurring legislative competences’ prior to the Länder
• the complex system of split legislative competences, administrative and financing competences between the Federal state, the Länder and the municipalities leads to an underinvestment in early childhood education due to the so-called ‘federal financing trap’
• the prominent role of the Federal Constitutional Court (Bundesverfassungsgericht) with its far-reaching competences to overthrow and annulate statutory law in breach of constitutional law and to overrule parliamentary decisions, which works as an incentive to shift political struggles from the political arena of parliamentary decision-making towards the legal arena, especially for actors who were voted down when parliament enacted statutory law,
• Reforms of federalism in 1994 after German reunification and in 2006 under the great coalitition of Social-Democrats and Christian-Democrats have further restricted the leeway for the Federal state to regulate child daycare. Furtheron, the Federal Constitutional Court has interpreted the wording of the constitution after the reforms of federalism in 1994 in a very narrow fashion in its case-law, which sets further incentives for the Länder or groups of members of parliament to initiate proceedings before the Federal Constitutional Court.

1. The necessary change and expansion of daycare facilities for young children in Germany is very slow and hindered due to these particular institutional configurations. The development will be very uneven between the 16? Länder also due to the limited competences of the national legislator, restricted further by constitutional reforms and the case-law of the Federal Supreme Court regarding the legislative competences of the Federal state. Up to now, the Federal Supreme Court has upheld the argument that regulation of daycare institutions for children falls under competence title of ‘public welfare’ for which the national legislator has the concurring legislative competence, although pedagogues or social scientists may find the logic of the argument not too convincing. In my view, the ongoing change and development of pedagogical concepts of early childhood education might perfectly lead to a change with the consequence that early childhood education could be subsumed under the competence title of education. It was probably wise and reasonable self-restraint of the Federal Supreme Court to develop somewhat plausible arguments why daycare regulation can still be considered to be part of social welfare regulation (explained in more detail above). The court might not be the first instance to be called upon to decide what is school and what is not school. The political actors should decide on change, not the Federal Constitutional Court. One can imagine that one of the Länder decides to shift the competences for regulating and organising child daycare from welfare to education for well-founded reason (as Bavaria did already in the 1970ies) – the Court did not yet have to decide on the constitutionality of such a decision. However, this is also a matter of power relations and political fights between the Federal State and one or more of the Länder. Since education and schooling is a matter of the Länder, assigning the legislative competence for early childhood education to them could lead to a further driving apart of the level of provision and quality of child daycare in the different parts of Germany.

I will now consider more in depth some of the institutional configurations mentioned which influence path dependency in the FRG.

The impact of split legislative competences between the Federal state and the Länder – the regulation of school and education falls within the exclusive competence of the Länder, while the Federal state has a prerogative to regulate social welfare

The basic distribution of legislative power between the Federal state and the Länder in the FRG is as follows:

Exclusive legislative power of the Federation (art. 73 Basic Law)

• in the fields of foreign affairs and defense, citizenship, passports, migration,unity of customs and trading area etc.

Concurrent legislative power of the Federation (art. 72, 74 Basic Law)

• Federation has a prior right to legislate if necessary in the national interest (subject to further specification that has undergone change in 1994 and 2006)
• Länder have power to legislate so long as and to the extent that the Federation has not exercised its legislative power
• Subjects of concurrent legislation: among others public welfare (art. 74 sec. 1 no.7)

Exclusive legislative power of the Länder (art. 70 sec. 1 Basic Law)

• subject matters where the Federation has no explicit competences, among them education, schooling and culture

Education and schooling falls within the exclusive legislative, administrative and financial competence of the Länder (art. 70 Basic Law), not of the Federal State. This is different in the area of public welfare (öffentliche Fürsorge). The Federal State has a concurring competence to enact national statutory law (art. 74 Nr. 7 Basic Law). If the national State regulates day-care institutions as part of social welfare – which happened first in 1922 in the Imperial Youth Welfare Act -, this is binding for the Länder (federal law break Land law), although they still have space to enact implementing legislation or to extend rights beyond minimum standards set by national law. But the municipalities are reponsible to provide, to administer and to finance these youth welfare measures, thus the main financial burden of daycare lays upon the local municipalities. This causes continuous struggles between the different actors: the Federal State and national parliament, the Länder, the local municipalities and their interest organisation. Sometimes interest lines cross-cut political alliances and Weltanschauung.

The political culture of ‘constitutionalism’ in the FRG and the Federal Constitutional Court as a political actor

The competences of the Federal Constitutional Court to overrule parliamentary majory-voting if statutory law is considered to be in breach of the constitution are far-reaching. Federal law that is in breach of human rights enshrined in the German Basic Law can be declared null and void, but this may also be the result of statutory provision that inflict norms concerning the organisation of Federal state and the Länder and their respective competences. The Court has the power to resolve differences of opinion or doubts on the formal and material compatibility of federal law or land law with the Basic Law.[3] This procedure, the so-called abstract judicial review proceeding (abstrakte Normenkontrolle) can be initiated by the Federal Government, the state government of one of the Länder, or one third of the members of the Bundestag. No concrete litigation involving adverse parties in a judicial procedure before a regular court is required; a complaint of one of the 16 Länder is enough to start this review procedure before the Federal Constitutional Court. Since the Federal Constitutional Court can overrule Parliament, political opponents who could not find a majority for their position often use the legal forum and court procedure to challenge a statute voted upon by parliament on constitutional grounds before the Federal constitutional court. The political culture in the FRG is therefore very much shaped by ‘constitutionalism’ and continuous arguments about draft law being or not being in breach of the Basic Law, with different actors threatening that they will initiate review procedures before the Federal Constitutional Court. This was the case with regard to draft law on youth welfare and childcare, since many conflicting and strategic interests were at stake between the Federal state, the Länder and local municipalities - while school education is a clear-cut domain of the Länder without competences of the Federal state.

What is school, what is not school? Are daycare institutions for young children education? Is early childhood education social welfare? – How the courts interprete these concepts in case-law

The state has the right and the duty to provide school education and to supervise the school system and to oblige children to frequent school if they reach obligatory school age. The State has the mission to provide education (Bildungsauftrag) in its own right[4], which limits parental rights. Since the provision of education falls in the German federal system under the competences of the Länder (art. 70 Basic Law). Basic legal guidance is enclosed in art. 7 German Basic law, but more detailed regulation is to be found in the constitutions and in the statutory school law of the Länder. So what is school? Definitions in case-law and in legal literature are somewhat tautological: schools are all institutions which are busy to provide knowledge through lessons and which are organised as schools, where teaching takes place through specialized staff according to methodological standards and curricula. Kindergarten is non-school, since no teaching takes place[5]. It is a bit crude: school is what is organised as school. But if neither the existence or non-existence of the duty to visit school is a decisive criterion, as the Federal Constitutional Court says[6], nor the age of pupils, why should a kindergarten not be a school? It is more convincing that a kindergarten or after-school care (Hort) could be school, and that it depends on the organisation and activities of these institutions[7]. This is a political decision to be taken by the legislator – and international comparison shows that there are two groups of countries, those which follow the ‘preschool model’ in early childhood education, and those who follow the ‘welfare model’. To understand how early childhood education became integrated into youth welfare structures in Germany (and in some other countries), some historical explanation may help.

Some historical remarks: how daycare for younger children became part of social welfare provision in Germany

The development of public institutions for small children in Germany since the 19th century had different roots; it was partly a reaction upon industrialization and pauperism that institutions to keep unsupervised children were built up (Kleinkindbewahranstalt), but there was also a pedagogical impetus and movement, based on the ideas of Pestalozzi and Fröbel that pursued educational goals. It was institutionalized according to class lines at the beginning with Bürgerkindergarten for middle class children, and Volkskindergarten for lower classes - two separated fields of socialization (Reyer 1981[8]). These institutions were considered to be part of education and they were supervised and controlled by school authorities in the 19th century; for example, a Prussian decree of 1839 defined ‘waiting-schools’ (Warteschulen’) as educational institutions under the control of school authorities. This changed at the beginning of the 20th century, when the privatization of the family, the idealization of the patriarchal bourgeois family, of the mother as housewife and the intimate mother-child-relationship had become very influential. At this stage, public education and care for young children was considered to be only a ‘Nothbehelf’, a makeshift in an emergency situation of a lower socialization quality than maternal love and care in the private home. Daycare was conceptualised as part of youth welfare for the first time in a Prussian Statute on Youth Welfare Education of 2 July 1890. Local municipalities developed services for children and families in need in the following decades. In 1922 the Imperial Youth Welfare Statute was enacted which defined the provision of daycare as part of the responsibilities of local municipalities and as a task of youth welfare authorities. This is the state of affairs up to now in the FRG (it was different in the Ex-GDR where daycare and afterschool care were integrated it into the educational system, but after reunification it was shifted back into the competences of youth welfare authorities).

Integrating elementary education into the welfare sector has particular structural effects

The assignment of early childhood education to social welfare provision, not to the educational sector has definite consequences due to the logics of the system:

-in the field of early childhood education, the state has no educational competences in its own right (for example, to formulate curricula or pedagogical principles or to introduce the duty for children to frequent kindergarten at a certain age), but parental rights are primary; therefore parents have a right to chose the daycare institution according to their pedagogical, religious or other preferences; youth welfare supports and supplements only parental education;

-Churches, NGOs and private associations have a prerogative to provide daycare institutions (for which they receive public subsidies); provision through local municipalities is subsidiary (this so-called subsidiarity principle was first implemented in the Imperial Youth Welfare Act of 1922 under the influence of the Catholic Zentrum-Party)

-Daycare provision is very decentralised, since local municipalities are in charge to provide, to administer and to finance daycare institutions (with only some help by the Länder, subject to different legislation in the 16 Länder of the FRG), while no financial support by the Federal State is even permitted, due to constraints resulting from constitutional rules on principles of financing. Caused by the serious financial crisis of the municipalities early childhood education is notoriously underfinanced; municipalities are overburdened by these expenses, put different priorities and hesitate widely to expand the childcare sector.