Entitlement to attend school away from home free of charge

by Dr. David Hofstetter

1. initial situation

Disputes between parents and school authorities about the place where compulsory schooling is to take place and about the payment of school fees for children attending school away from home are on the rise. The background to these disputes are difficulties experienced by the school-age child in his or her traditional school. The problems vary in nature and take the form of a disturbed relationship between the teacher and the school-age child, bullying, learning difficulties or a tense situation between parents and teachers.

The above-mentioned problems sometimes lead to parents no longer sending their school-age child to the original school (usually the one in the place of residence), but instead pushing for a solution that is supposedly more advantageous for the child in the form of attending a school away from home. In the aftermath of the change of school, disputes arise about the payment of school fees for the out-of-town schooling. This article is devoted to this topic.


2. free public primary education / costs for school attendance outside the country

The starting point are two appeal decisions issued by the Department of Education, Culture and Sports of the Canton of Aargau (BKS) (decision BKSREC 21.162 of September 23, 2021 [intended for publication in the AGVE] and decision BKSREC 21.20 of April 22, 2021). Both decisions deal with the question of whether a school-age child attending a school outside of the canton is entitled to have the school fees paid by the municipality of residence. In the canton of Aargau, the BKS was authorized until December 31, 2021, on the basis of Section 6 (2) of the Ordinance on School Fees, to issue a decision on the payment of school fees or their amount in the first instance if the parties involved were unable to reach an agreement on this (for the legal situation as of January 1, 2022, see "3. Conclusion" below).

The fact that primary education is compulsory and must be offered free of charge by the cantons in the public schools results from Art. 62 para. 2 of the Federal Constitution (BV). Accordingly, the Canton of Aargau grants in § 34 para. 1 of the Cantonal Constitution (KV) and in § 3 para. 3 of the School Act (SchulG) the free attendance of public schools to children and adolescents residing in the Canton. According to § 6 para. 1 SchulG, compulsory school attendance is generally required in the public schools of the municipality of residence or the school district to which the municipality of residence belongs. If the child attends the elementary school of another municipality without good reason (so-called "external school attendance"), the school attendance is not free of charge (§ 6 para. 2 SchulG).

It follows that parents are denied the right to freely choose the location of their children's school, in particular for the reason that otherwise school planning would be seriously called into question and the sponsorship of the elementary school by the municipalities, as provided for in the School Act, would no longer be enforceable. In this sense, the general interest in a regulated school organization takes precedence over the private interest in a special permit.

An entitlement to free school attendance outside the municipality of residence exists on the one hand if a certain school level or type of school is not offered in the municipality of residence (section 52(1) SchulG), and on the other hand in cases where, for important reasons, the rule of school attendance in the municipality of residence has to be deviated from (section 6(2) SchulG). The prerequisite is that there is a special situation in which the application of the regular school location would not be appropriate and would lead to hardship and inequity, so that the child concerned cannot be expected to attend school in the municipality of residence or stay (on the whole BKSREC 21.162 of 23 September 2021, E. 2.4.2).

Jurisprudence has elaborated various situations in which school attendance in the municipality of residence or stay may be unreasonable. For example, a disturbed relationship between the teacher and the schoolchild may justify out-of-town school attendance. An unpaid out-of-town school attendance may also be justified if, due to the previous behavior of a teacher, a serious conflict situation or personal incompatibilities in the relationship between teacher and schoolchild are to be expected, due to which a school attendance in the community of residence would not be reasonable. Furthermore, a massively disturbed parent-teacher relationship can lead to a school-age child being entitled to transfer to another class. This is the case if such disturbances also affect the teacher-schoolchild relationship and thus jeopardize the educational success and healthy personality development of the child, whereby such a disturbance must be objectified. If such a situation exists, it is further required that the reasons for the differences do not lie solely within the parents' sphere of responsibility, for example, that they have deliberately provoked and fomented the conflict, otherwise a claim to the assumption of the school fees is not applicable (see AGVE 2003, p. 523 ff., E. 1b).

If it is unreasonable to expect the child to attend school in the municipality of residence, the parents have the right to demand that the child attend school away from home free of charge. In this case, the costs for the out-of-town school attendance are to be borne by the municipality of residence.

If the assignment to an external school is made by the municipal council of the municipality of residence, this decision also binds the municipality financially, which means that it must also bear the corresponding school fees in the case of an external assignment. If the municipal council assigns a schoolchild to an external school, the important reason that entails the obligation to pay school fees is irrefutably affirmed (AGVE 2017, p. 369 ff., E. 5.3.1).

The situation is different if the parents act on their own initiative without an allocation decision by the municipality and send their child to an external school. If the important reason for the out-of-town school attendance is denied, the parents bear the cost risk and must pay the school fees themselves. The assignment by the municipal council should therefore be preferred if possible, as it is not associated with any financial uncertainties for the parents and is less prone to conflict as a result (AGVE 2018, p. 469 ff., E. 1.3).

If the parents of a child of school age claim that attendance at the school in the municipality of residence or domicile is unreasonable for the child and that a transfer to a school outside the municipality should be considered, the municipal council will advantageously initiate an educational psychological assessment (see BKSREC 21.20 of 22 April 2021, E. 4.3.2). With the report of the school psychological service, which expresses itself on the necessity of a transfer to another school, a specialist report is available. In accordance with case law, a presumption of correctness is established for the facts and conclusions recorded therein. Weighty reasons are required to deviate from a specialist report of the school psychological service (AGVE 2017, p. 369 ff., E. 5.2.3). It is true that the registration with the school psychological service requires the consent of the parents (§ 6 para. 2 Ordinance on School Services) and thus cannot be forced by the municipal council against the will of the parents. However, since the parents are applying for an exemption in the matter, they are obliged as applicants to cooperate in establishing the facts of the case and to give their consent to the school psychological clarification (§ 23 VRPG).

For the sake of completeness, it should be clarified that a municipality, instead of assigning a schoolchild to an external school with the consequence that it has to pay the school fees for the external school attendance, can also arrange for a transfer of the child concerned to another school within the municipality in order to defuse conflicts and to make the school attendance reasonable again. This option is particularly suitable for larger communities with several school buildings.


3. conclusion

If a child of school age is to attend an external school at the expense of the municipality of residence, the hurdles are high. In principle, the educational and personal development of the child concerned must be at risk if he or she remains in the same class. Strict requirements for the assumption of school fees apply in particular in the case of conflicts between parents and teachers that have an impact on the relationship between teacher and child. It is not impossible that a conflict between parents and teachers leads to the child being sent away from home. With regard to the question of costs, however, a kind of fault on the part of the parents is then examined. Thus, in a recent decision concerning the canton of Zurich, the Federal Supreme Court ruled that in a constellation in which the parents are responsible for the unreasonableness of school attendance at the traditional school due to their behavior, they may be charged with the costs of out-of-town school attendance (BGer judgment 2C_982/2019, E. 6 ["Verursacherprinzip"]). This case law is also likely to apply to the legal situation in the canton of Aargau (see the already cited AGVE 2003, p. 523 ff., E. 1b).

Finally, the legal situation with regard to the possibilities of appeal in the event of disputes about the costs of attending school away from home, as it has been presented in the Canton of Aargau since January 1, 2022, should be briefly described. § Section 6 (2) SchulG as well as Section 6 (2) of the Ordinance on School Fees have both been amended. In connection with out-of-town school attendance for important reasons, it is now regulated that the municipal council of the municipality of residence decides on the payment of a school fee by the parents that covers the costs at most (§ 6 para. 2 SchulG). According to the message of the government council of April 10, 2019 regarding the reorganization of the management structures of the Aargauer Volksschule (19.78; p. 24), now that the municipal council has replaced the school board, the chain of authorities is to be standardized. Accordingly, in the future, following the decision of the municipal council, or after corresponding delegation to a member of the municipal council or to the school management, it will no longer be the BKS that decides, but the school council in its capacity as the first appeal authority, as in the case of other school decisions.

This means that since January 1, 2022, the municipal council has to issue an appealable decision upon request of the parents concerned, in which it has to comment on the existence of important reasons for the out-of-school attendance.