Parental Rights in Relation to Denominational Schooling under the European Convention on Human Rights

Whereas the bulk of Article 2 Protocol I cases concerns aspects of the public-school framework and curriculum, this article explores Convention rights in the realm of denominational schooling. It is outlined that the jurisprudence of the Strasbourg Court generally strongly supports the rights of parents not to send their child to state-organized schools and hence to establish or avail of private, denominational schooling instead. In this area of private schooling, the Strasbourg Court could build a stronger body of jurisprudence against discriminatory funding policies. The Court is right in seeing no state duty to fund denominational schools, but where intricate funding policies serve to privilege the state or dominant religion and their schools, at the disadvantage of minority religion schools, the Court should come into action.


Introduction
Article 2 of Protocol I (PI-2) to the European Convention on Human Rights (ECHR, the Convention) applies in nearly all Council of Europe member states, the two only exceptions being Monaco and Switzerland.2 The provision reads: No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions.
Generally speaking, the clause aims, in the words of the ECtHR expressed in an early landmark case, 'at safeguarding the possibility of pluralism in education which possibility is essential for the preservation of the "democratic society" as conceived by the Convention. In view of the power of the modern State, it is above all through State teaching that this aim must be realised' .3 More specifically, the European Court of Human Rights (ECtHR, the Strasbourg Court, the Court) has underscored that ' [t]he State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical convictions' .4 PI-2's baseline in that regard is that 'the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner' .5 Accordingly, the main rule that flows from PI-2 is that the state creates a public school framework-which is more than the mere content of the curriculum6-that is designedly "neutral" rather than denominational. That is, the state cannot use the educational framework to teach religion in ways that are not "objective, critical and pluralistic". The flipside, then, is that if teaching is in fact "objective, critical and pluralistic", then parents have no rights to assert in this area, not even if the topic of religion or belief is directly or indirectly touched upon during such teaching. In the words of the Strasbourg Court, PI-2 'does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum, for otherwise all institutionalised teaching would run the risk of proving impracticable' .7 In the light of these general contours of PI-2, it is not surprising perhaps that the bulk of the relevant case law concerns: (i) the question whether a certain part of the curriculum or another aspect of the public educational framework is sufficiently objective, critical and pluralistic; (ii) should teaching be found not to be pluralistic enough, the question arises if and to what extent exemptions-rules facilitating pupils being opted out from the impugned teaching-may function as a safety net. A somewhat dissimilar third strand of cases concerns the residual ways for the state to respect PI-2's parental liberties, notably by permitting/accommodating-though not necessarily funding, as we will see-educational initiatives outside the public school framework.
This short article will exclusively focus on the latter-possibly least explored-issue of denominational education, while an attempt at exhaustively analysing and appraising the case-law on questions (i) and (ii), pluralistic state school teaching and exemptions to confessional teaching (in public school settings) respectively, is reserved for a separate article.8

The Right to Establish/Opt for Denominational Schools
While most PI-2 cases concern parental conscientious issues in relation to (aspects of) the public school curriculum/framework, PI-2 rights in principle also apply in the context of private schooling.9 In this regard, the ECtHR has consistently held that '[i]t is on to the fundamental right to education that is 7 Kjeldsen, Busk Madsen and Pedersen v. Denmark, para. 53; Folgerø and Others v. Norway, para. 84(g). 8 The latter, comprehensive article on freedom of religion or belief and education under Protocol I is forthcoming in a book edited by Jeremy Gunn, Jeroen Temperman, and Sir Malcolm Evans (Brill, 2018, forthcoming). 9 It should be noted at the outset that not each and every of the below discussed cases was dealt with by the Strasbourg Court under PI-2, some were assessed in the light of the general grafted the right of parents to respect for their religious and philosophical convictions, and the first sentence [of PI-2] does not distinguish, any more than the second, between State and private teaching' .10 That said, the duties of the state are far more modest within the private educational realm. After all, PI-2 provides that rights must be respected by the state '[i]n the exercise of any functions which it assumes in relation to education and to teaching' and, naturally, typically the state assumes such functions chiefly within the framework of public schooling. In the words of the Strasbourg Court, '[i]n view of the power of the modern State, it is above all through State teaching that this aim must be realised' .11 Accordingly, one way to visualise the position of PI-2 with respect to private schooling is to conceive of such schooling as an important alternative outside the realm of the public sphere (the state and its public powers) -an option, hence, that in itself helps to safeguard 'pluralism in education' .12 In other words, one important residual way of guaranteeing religious and educational rights exists in the recognition and acceptance of the possibility of not opting for state education.
Since the exact language of PI-2 itself is rather silent-this in sharp contrast to the heated debates in the travaux prépraratoires on this matter13-on the topic of private education, some State parties wished to elaborate on this point through interpretative declarations at the time of signing the Convention. Accordingly, an interpretation deposited by Ireland reads: 'the Irish Delegate puts on record that, in the view of the Irish Government, Article 2 of the Protocol is not sufficiently explicit in ensuring to parents the right to provide education for their children in their homes or in schools of the parents' own choice, whether or not such schools are private schools or are schools recognised or established by the State' .14 Macedonia, interestingly, did the exact opposite and entered an express reservation with a view towards ruling out any right of parents under PI-2 to establish private primary schools.15 This remarkable exceptionalism had its basis in the Constitution of Macedonia freedom of religion clause (Article 9 ECHR), and if the rights of schools per se are at stake, typically an Article 11 assessment is made (freedom of association which contains the following clause: 'Citizens have a right to establish private schools at all levels of education, with the exception of primary education, under conditions determined by law' . 16 Notwithstanding such exceptions, parental rights to establish schools outside the public framework-precisely by way of residually protecting PI-2 rights-are fairly uncontested. Most outspokenly in that regard, was the former European Commission of Human Rights in an early decision, Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden, in which the Commission posits that 'Article 2 of Protocol No. 1 (P1-2) guarantees the right to start and run a private school' .17 But also in other cases the right to opt for private instead of public education and even indeed the right to 'establish' such alternative education has been affirmatively engaged with by the Strasbourg Court.18 Moreover, this right is firmly supported by other international human rights treaties. 19 The burden to actually organize and operate such alternative education lies on private individuals and not on the state. It was established early on in the jurisprudence of the Strasbourg Court, in the landmark Belgian Linguistics Case, that an individual cannot 'draw from [PI-2] the right to obtain from the public authorities the creation of a particular kind of educational establishment' . 20 In a case concerning the Church of Scientology, it was moreover held that the state is not even obliged, under PI-2, to formerly recognize any particular educational establishment.21 Also, significantly, the ECtHR has not been willing to distil from PI-2 a right to opt for home schooling. While some State parties to the Convention-sometimes even constitutionally-grant this possibility, the Strasbourg Court has deemed that there is no clear consensus among European states in this regard. In fact, many states provide for compulsory primary school education, be it public or private, but expressly excluding the possibility of home schooling, which arrangement has been sanctioned by the Court for instance in a case brought by Christian parents against Germany who wished to educate their children in accordance with the didactical and religious doctrines of the Philadelphia School (a small religious community which is, according to the complaint, strongly attached to the bible and firmly opposed to regular schools' use of, among other things, fairy-tales involving witches and dwarfs).22 In its reasoning, the Court falls back on the main rule of thumb, namely that PI-2 is dominated by the first sentence on the right to education per se. Since no person shall be denied the right to education, the German authorities' decision not to grant exemptions from compulsory schooling were justified, especially also since primary-school education is so much more than 'the acquisition of knowledge' seeing as 'integration into and first experiences of society' are among its important goals as well.23 In decisions concerning State parties to the Convention which do in principle permit home schooling, the Strasbourg Court has deemed it legitimate for the educational authorities to impose certain quality standards, to monitor those, and to take measures (including altogether overruling the entitlement to home schooling) in the face of proven quality concerns. 24 But also in many other ways it can be said that this right not to opt for state schooling and hence to have one's children schooled at a private, e.g. denominational school, is not an absolute entitlement. In Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden, the former Commission held that 'such a right cannot be a right without conditions. It must be subject to regulation by the State in order to ensure a proper educational system as a whole' .25 The European Commission of Human Rights decided that the Swedish educational authorities' refusal to grant a denominational school permission to teach the upper stage classes (while granting such permission to teach the lower stage classes) was objective and reasonable since that decision was purely based on such quality regulations which are legitimately monitored by the state even where and when they affect the private sector (in this particular case, some of the school's teachers lacked the formal competences to teach the upper classes). In a number of cases, compelling reasons were found by the Strasbourg Court that justified state interferes with parental choices made in this context. For instance, the applicant in Graeme v. United Kingdom complained that her son was not educated in a private, denominational school of her choice, claiming a PI-2 breach.26 Her son was mentally and physically handicapped and had, after disagreements between the applicant and the local educational authorities, been made ward of court. Having attended some state schools, the son became eventually enrolled, through interventions by the authorities, in a Steiner school. His mother claimed among other things that such a school 'discouraged … family and Christian life' .27 The European Commission of Human Rights' principal line of reasoning was a procedural one, concluding that the mother had 'forfeited much of her parental freedom of choice' once her son was made a ward of court.28 By way of extensive obiter dictum the Commission, however, also engaged with the merits of the complaint, reasoning that while the school in question was chiefly chosen for its good reputation for educating handicapped children, it in fact did follow Christian teachings, rendering the complaint manifestly ill-founded.29 Obviously, for a secular court to enter into such doctrinal religious matters has all the markings of skating on very thin ice.
Be that as it may, while in the latter case it was, to a significant extent, health reasons that trumped parental religious rights, in Eriksson v. Sweden the lack of guardianship per se made this PI-2 complaint baseless.30 The first applicant is the biological mother of the second applicant, who has been placed in a foster home. through a religious conversion' and became a member of the Philadelphia congregation (a Pentecostal movement).31 It is in that light that she claims that the foster parents' practice of religion-Church of Sweden members, who in the mother's view are not practising Christianity zealously enough32-interferes with her right to ensure for her daughter an education in conformity with her own religions convictions. Based among other reasons on the mother's loss of custody rights, a failure to exhaust the local remedies on this point, and a sneer at the abrupt parental concerns with the daughter's salvation (the daughter 'has been living in the foster home during practically all of her life'), the European Commission of Human Rights deemed the complaint 'wholly unsubstantiated' .33 By contrast, the Strasbourg Court did pronounce a breach of religious rights in for instance the case of Biblical Centre of the Chuvash Republic v. Russia.34 This organisation of Evangelical Christians had founded a Biblical College as well as a Sunday School.35 While the organisation was in existence for more than 15 years, and while these schools had been operating without interruption for more than 11 years, the umbrella organisation of the Biblical Centre was forcefully dissolved following certain health and safety inspections at the schools. The Strasbourg Court finds fault with virtually every aspect of this 'harsh measure' .36 First and foremost, the measure was neither necessary nor proportionate: the Russian Government admitted that the health and safety violations detected were technical and minor and could easily have been remedied if the Centre would have been given time. However, such time was not granted since the Biblical Centre was dissolved almost immediately. The ECtHR furthermore detects much uncertainty in the domestic Russian jurisprudence on this type of church-run schools, which occasionally must be state-licensed under the Russian education laws and occasionally not. While in the present case apparently a license was required even for the Sunday School, the Strasbourg Court tracked down a case before the Russian Supreme Court, sitting in a formation which included two out of the three judges who approved in the present case the dissolution of the Biblical Centre, in which it held that teaching religion in this type of Sunday school-construction fell outside the scope of the Russian Education Act and was hence not subject to state-licensing.37 From other aspects of the domestic prosecutorial and judicial proceedings, too, the Strasbourg Court goes as far as stating that the 'domestic authorities revealed their determination in seeking to put an end to the applicant organisation's existence' .38 The Strasbourg Court determined, accordingly, a violation of Article 9 interpreted in the light of Article 11 (freedom of association).
In addition to judgements on the precise scope of rights to establish private educational facilities, another bone of contention has proven to be state funding of such facilities and especially the lack thereof. While PI-2 has been declared to be applicable to both the contexts of public and private schooling, the fact remains that this provision does not indicate whether the state should bear the costs of non-public teaching. At the time of ratification, therefore, some states wished to be certain on this point and deposited reservations to the effect that PI-2 shall be interpreted by them as not imposing an obligation upon states to publicly fund private denominational schooling.39 Interestingly, The Netherlands declared the exact opposite: 'In the opinion of the Netherlands Government, the State should not only respect the rights of parents in the matter of education but, if need be, ensure the possibility of exercising those rights by appropriate financial measures' .40 This generous declaration could straightforwardly be made insofar as it reflects Dutch constitutional principles,41 but the statement rather camouflages the fact that this position was the result of intense political debates for many decades (dramatically referred to as the "School Struggles" in Dutch political history).
In Similarly, when a private school based on a non-religious yet special didactical concept (Schülerschule) challenged before the European Commission of Human Rights Austria's state funding system, with which Austria funds "church schools" (which in practise means that more than 90% of the state-funded denominational schools are run by the Roman Catholic Church), its complaint was deemed ill-founded.48 More particularly, the Commission found it objective and reasonable that under its Private School Act of 1964 the state grants subsidies to private schools if such a school 'corresponds to a need of the community' .49 While on its face this seems an objective enough criterion, the manner in which it is interpreted by the Commission in this case illustrates perfectly how such an open-ended caveat may foster arbitrary distinctions made between different conceptions of the good: 'The Commission draws … the conclusion that to treat church schools … differently from the applicant association's school … is a matter which can be justified in terms of Article 14 (Art. 14) of the Convention because the church schools are so widespread that if the educational services which they provide fell to be met by the State, there would be a considerable burden on the State as it would have to make up the shortfall in schools' .50 This strikes as a weak reasoning. As long as the state funds one religious denomination at the exclusion of others to run schools, it is the state which makes itself dependable upon that church (here the Roman Catholic Church), but such a pact between the state and the predominant church hardly makes it justified to structurally reject the entry into the private educational sector by other potential players.

Conclusion
The jurisprudence of the Strasbourg Court has generally strongly supported parental rights not to send their child to state-organized schools and to establish or avail of private, denominational schooling instead. In this area of private schooling, the Strasbourg Court could build a stronger body of jurisprudence against discriminatory funding policies. The Court is right in seeing no state duty to fund denominational schools, but where intricate funding policies serve to privilege the state or dominant religion and their schools, at the disadvantage of minority religion schools, the Court should come into action.