The right to an adequate and free basic education is guaranteed
Overview
Art. 19 Cst. guarantees all children in Switzerland the right to free schooling during compulsory education. This provision is the only social fundamental right in the Federal Constitution that parents and children can directly invoke before the courts.
#What is regulated?
The norm creates a constitutional entitlement to «adequate and free basic school instruction». The term «basic school instruction» encompasses the entire compulsory schooling period of at least nine years – not just primary school (BBl 1997 I 158). «Adequate» means that a minimum standard is guaranteed, but not optimal support. The Federal Supreme Court emphasises: «Only adequate, but not ideal or optimal instruction is owed» (BGE 138 I 162). «Free» means that all necessary school materials, compulsory excursions and camps must be provided at no cost.
#Who is affected?
All children of compulsory school age have this entitlement – regardless of their nationality or residence status. Refugee children and sans-papiers are also protected. The fundamental right is particularly important for children with disabilities: They are entitled to appropriate special education, with integration into regular classes taking priority.
#What legal consequences arise?
Unlike the social objectives in Art. 41 Cst., those affected can directly invoke Art. 19 Cst. Cantons and municipalities must provide and finance adequate schools. In cases of school exclusion, continued care must be organised. Parents can take legal action if school costs are unlawfully transferred to them.
#Concrete examples
A municipality demands 500 francs from parents for a compulsory skiing camp. This violates Art. 19 Cst., since all mandatory school activities must be free of charge (BGE 144 I 1). An autistic child requires individual support in regular instruction. The cantonal school must provide these assistance lessons free of charge, provided integration is possible (BGE 141 I 9).
#Disputed issues
It is controversially discussed whether the entitlement also includes lower secondary schools during compulsory education. The Federal Supreme Court denies this (BGE 133 I 156), but Wyttenbach sharply criticises this case law (Wyttenbach, BSK BV, Art. 19 N. 11). For religiously motivated dispensations, the Federal Supreme Court has abandoned its earlier, generous practice and now emphasises the priority of school integration. Regarding homeschooling, cantons grant very different possibilities – Art. 19 Cst. does not guarantee an entitlement to home-based private instruction (BGE 146 I 20).
Art. 19 FC — Basic School Education
#Doctrine
#1. Legislative History
N. 1 Art. 19 FC traces back to Art. 27(2) of the Federal Constitution of 1874, which guaranteed the free-of-charge nature of «primary instruction» at public schools. In the total revision of 1999, the provision was terminologically updated from «primary instruction» to «basic school education» — a conceptual change that, according to the legislative history, did not bring about any substantive expansion of the scope of protection (→ N. 9).
N. 2 The original preliminary draft of 1995 did not provide for the anchoring of basic school education in the catalogue of fundamental rights. Art. 78(2) of the draft message contained the guarantee merely as a competence norm within the education article and treated it as a «minor social right» without independent justiciable content in the fundamental rights section (BBl 1997 I 277 f.). The Message does not conclusively address whether the new term «basic school education» extends the scope of protection beyond prior law.
N. 3 During the parliamentary proceedings, Art. 19 FC was incorporated in its current form as an independent fundamental right within the catalogue of fundamental rights. National Councillor Hubmann emphasised that inclusion in the catalogue of fundamental rights was new and significant; National Councillor Widmer pointed out that the entrenchment was particularly important «at a time when the privatisation of all school levels is increasingly being discussed» (AB 1998 NR Separatdruck, p. 206 ff.). Federal Councillor Koller expressly characterised the right to basic school education as a «directly enforceable social right» (AB 1998 SR Separatdruck, p. 157).
N. 4 In the National Council, a minority motion by Gysin Remo — proposing the insertion of a paragraph 2 that would grant young people a right to vocational training commensurate with their abilities — was contested. This motion was rejected. Federal Councillor Koller justified the rejection by stating that the concern was «undisputed», but that it had been logically placed not among the fundamental rights but as a social goal under Art. 41 FC. National Councillor Pelli cited four grounds for rejection: exceeding the mandate of consolidation, encroachment on cantonal competences, unclear demarcation from higher levels of education, and the risk of a State obligation to create apprenticeship positions (AB 1998 NR Separatdruck, p. 207 f.). Koller also expressly emphasised that the right does not establish «a right to free attendance at a private school» (AB 1998 SR Separatdruck, p. 157).
N. 5 Council of States rapporteur Inderkum explained that «basic school education is equivalent to compulsory schooling, and what constitutes adequate compulsory school instruction is accordingly determined by the cantons» (AB 1998 SR Separatdruck, p. 157). The Federal Supreme Court has recognised this statement as an indication against a substantive expansion of the scope of protection (BGE 133 I 156 cons. 3.5.3).
#2. Systematic Classification
N. 6 Art. 19 FC is situated in the second chapter of the Federal Constitution (Fundamental Rights, Art. 7–36 FC). As a social fundamental right, it establishes — in contrast to the classical liberty rights — an entitlement to a State performance rather than a defensive position. It thus belongs to that group of directly justiciable social fundamental rights (alongside Art. 12 FC: right to assistance in situations of need) that are categorically distinct from the merely programmatic social goals under Art. 41 FC (BGE 129 I 12 cons. 4.3 f.).
N. 7 Art. 19 FC is closely linked with Art. 62 FC: whereas Art. 19 FC guarantees the subjective individual right, Art. 62 FC contains the institutional framework of cantonal school sovereignty and the objective-law competence norm (↔ Art. 62 FC). Both provisions are to be read together; from the perspective of those subject to compulsory schooling, they establish a «compulsory right» — the individual legal entitlement to instruction corresponds to the individual legal duty to attend school (BGE 144 I 1 cons. 2.1; BGE 149 I 282 cons. 3.3.1).
N. 8 The entitlement interacts with other fundamental rights: → Art. 11 FC (protection of children and young persons) supplements the right to education but does not establish any justiciable entitlements to State performance beyond Art. 19 FC (BGE 133 I 156 cons. 3.6.4). → Art. 8(2) FC (prohibition of discrimination) and → Art. 8(4) FC (equality for persons with disabilities) shape the scope of protection notably in the context of special needs education. The parental right of upbringing under → Art. 13(1) FC and Art. 8 ECHR is subject to cantonal school law in the field of education (BGE 146 I 20 cons. 5.2.2). The social goal in → Art. 41(1)(f) FC (education in accordance with individual abilities), by contrast, does not give rise to direct entitlements (→ Art. 41(4) FC).
#3. Elements of the Provision / Normative Content
3.1 Nature of the Norm: Social Fundamental Right
N. 9 Art. 19 FC is a social fundamental right with a directly justiciable entitlement to State performance. It «confers an individual subjective right to a State service, namely to a basic education» and serves «in particular to realise equality of opportunity» (BGE 129 I 12 cons. 4.1). The entitlement is enforceable within the meaning of Art. 189(1)(a) FC (constitutional right). Restrictions on the entitlement to performance are to be assessed against a modified principle of proportionality (analogous application of Art. 36 FC), whereby the core of the entitlement remains inviolable (BGE 129 I 12 cons. 6.4; BGE 144 I 1 cons. 2.3).
3.2 Personal Scope
N. 10 All children and young persons from compulsory kindergarten through to the completion of lower secondary education (compulsory school, 9th school year) are entitled under the provision, regardless of their nationality and residence status. The entitlement lasts in principle until the end of compulsory schooling (BGE 129 I 35 cons. 7; BGE 144 I 1 cons. 2.1). It covers both children without and children with disabilities, the latter having an entitlement to special needs education adapted to their disability (BGE 130 I 352 cons. 3.3; → N. 15 ff.).
3.3 The Concept of «Basic School Education»
N. 11 The concept of «basic school education» encompasses compulsory public school instruction (kindergarten, to the extent it is compulsory, primary level, and lower secondary level). It is not synonymous with «primary instruction» in the school-organisational sense — the term was chosen to avoid conceptual ambiguities, without altering the scope of protection compared with Art. 27(2) of the former FC (BGE 133 I 156 cons. 3.5.1 f.). Lower-secondary grammar schools (Untergymnasien) do not fall under the concept of «basic school education», even where the instruction still falls within the period of compulsory schooling; the guarantee of free-of-charge provision under Art. 19 FC does not in principle apply to them (BGE 133 I 156 cons. 3.5.3). Compulsory pre-school language promotion programmes may, by contrast, fall within the scope of application where they functionally extend compulsory schooling downwards (BGE 149 I 282 cons. 3.4.5; → N. 14).
3.4 «Adequate»: Qualitative Minimum Standard
N. 12 The requirement of «adequacy» obliges the State to provide instruction that «is appropriate and suitable for the individual and sufficient to properly prepare pupils for a self-responsible life in modern everyday society» (BGE 138 I 162 cons. 3.1; BGE 129 I 12 cons. 4.2). The entitlement is violated «if the child's education is restricted to such a degree that equality of opportunity is no longer preserved, or if teaching content that is considered indispensable in the prevailing value order is not imparted» (BGE 129 I 12 cons. 4.2; BGE 130 I 352 cons. 3.2). No entitlement exists to ideal or optimal instruction; the State's capacity sets an outer limit (BGE 138 I 162 cons. 4.6.2; BGE 129 I 12 cons. 6.4). Instruction must in principle be provided at the place of residence; excessive distance must not jeopardise the educational mandate (BGE 129 I 12 cons. 4.2). The school's integrative mandate — promoting the capacity for social coexistence — is also part of «adequate» instruction (BGE 146 I 20 cons. 5.2.2).
3.5 «Free of Charge»: Financial Dimension
N. 13 The free-of-charge guarantee first excludes the levying of school fees. According to the prevailing scholarly opinion and settled case law, it extends beyond this to cover «all necessary means that directly serve the purpose of instruction», in particular teaching materials and school supplies (BGE 144 I 1 cons. 2.2; Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 792). For compulsory excursions and school camps, parents may only be charged for those costs that they actually save through the absence of their children (board component) (BGE 144 I 1 cons. 3.1). If the school considers a language course necessary for adequate instruction, it must be offered free of charge (BGE 144 I 1 cons. 3.2; BGE 149 I 282 cons. 3.3.3). The free-of-charge requirement also applies mandatorily to special needs education services, even where the school provides a service not expressly prescribed by statute (BGE 141 I 9 cons. 4.1). As a «necessary counterpart to compulsory schooling», the free-of-charge guarantee also gives rise to an entitlement to reimbursement of transport costs where the journey to school is unreasonable due to excessive length or danger (BGE 149 I 282 cons. 3.5.3; judgment 2C_433/2011 of 1.6.2012 cons. 3.3).
N. 14 No free-of-charge entitlement under Art. 19 FC exists for: instruction at public lower-secondary grammar schools (Untergymnasien), even where it falls within the period of compulsory schooling (BGE 133 I 156 cons. 3.5.3); voluntary extracurricular offerings; and private schools that do not serve to fulfil the State compulsory schooling obligation. The free-of-charge entitlement also applies to compulsory kindergarten, once it has been declared compulsory (judgment 2C_433/2011 cons. 3.3).
#4. Legal Consequences
N. 15 Where the State infringes the entitlement under Art. 19 FC, the person concerned may bring a complaint claiming performance. The entitlement is directly enforceable before the Federal Supreme Court (Art. 189(1)(a) FC). In abstract norm review, the Federal Supreme Court reviews the constitutionality of cantonal enactments with full cognition; it annuls a norm if it is not amenable to any constitutionally conforming interpretation (BGE 129 I 12 cons. 3.2). Thus, in BGE 144 I 1, the Federal Supreme Court annulled cantonal school legislation from the Canton of Thurgau that provided for parental contributions for compulsory camps, excursions, and language courses.
N. 16 For children with disabilities, Art. 19 FC in conjunction with Art. 62(3) FC and Art. 20 DDA gives rise to an entitlement to special needs education adapted to the disability. The principle of inclusive education takes priority over segregated special needs education, provided that inclusion is «at least equivalent» (BGE 138 I 162 cons. 4.1 f.). The cantons' margin of appreciation covers the organisational design of special needs education, but not the core of the entitlement to adequate education (BGE 130 I 352 cons. 3.2 f.; BGE 141 I 9).
N. 17 In the event of disciplinary exclusion from school, the public authority must ensure that the excluded pupil's right to education is not permanently frustrated during the period of compulsory schooling: it must «as a rule guarantee continued supervision of excluded pupils by suitable persons or public institutions» (BGE 129 I 12 cons. 9.5; BGE 129 I 35). Temporary exclusion from school as a last resort remains permissible, but is subject to the modified principle of proportionality (→ N. 9).
N. 18 Art. 19 FC does not give rise to an entitlement to private home instruction (homeschooling). The regulation of the permissibility of homeschooling falls within the cantons' discretion; even very restrictive prohibitions do not violate Art. 19 FC, provided the canton offers adequate and free-of-charge instruction in public schools (BGE 146 I 20 cons. 4.3 and 5.5).
#5. Disputed Questions
5.1 Scope of the Free-of-Charge Guarantee
N. 19 The extent of the free-of-charge guarantee was long disputed. Earlier scholarship and case law confined the free-of-charge requirement to actual school fees (instruction by teachers); costs for teaching materials and school supplies could be passed on to parents (see, e.g., Borghi, Kommentar BV 1874, Art. 27 N. 60). More recent scholarship has uniformly advocated a broader interpretation, holding that all means that directly serve the purpose of instruction are covered (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 792; Kägi-Diener/Bernet, St. Galler Kommentar BV, 4th ed. 2023, Art. 19 N. 59). The Federal Supreme Court adopted this extensive position in BGE 144 I 1 cons. 2.2, thereby rejecting an earlier minority view in legal scholarship (Rüssli, Kommentar KV/ZH, Art. 116 N. 16 ff.; Plotke, Schulrecht, 2nd ed. 2003, p. 182 f.); financial contributions for compulsory school camps and language courses are unconstitutional.
5.2 Extension to Lower-Secondary Grammar Schools
N. 20 The terminological change from «primary instruction» to «basic school education» raised the question whether instruction at public lower-secondary grammar schools (Untergymnasien) during the period of compulsory schooling is also covered by the free-of-charge guarantee. Plotke (Grundschulunterricht, ZBl 106/2005 p. 566) and in part Rhinow (Grundzüge des Schweizerischen Verfassungsrechts, Basel 2003, p. 545, para. 3103 ff.) affirmed an extension to that level, on the basis of a systematic interpretation. The majority opinion — notably Kägi-Diener, St. Galler Kommentar, Art. 19 N. 11; Mahon, Petit commentaire, Art. 19 N. 6 f.; Auer/Malinverni/Hottelier, Droit constitutionnel suisse, vol. II, 2nd ed. 2006, p. 685 ff. — denied this. The Federal Supreme Court followed the majority opinion: the term «basic school education» had not brought about a substantive expansion (BGE 133 I 156 cons. 3.5.3), since no such intention was discernible from the parliamentary debates and motions for a wider scope were expressly rejected.
5.3 Limitation by Art. 36 FC?
N. 21 Whether social fundamental rights are directly subject to the restriction regime of Art. 36 FC was dogmatically disputed. The Message of 1996 and some scholars (Meyer-Blaser/Gächter, Verfassungsrecht der Schweiz, § 34 N. 37; Weber-Dürler, Grundrechtseingriffe, p. 151 f.) denied direct applicability, since Art. 36 FC is tailored to liberty rights. The Federal Supreme Court confirmed this view in BGE 129 I 12 cons. 6.3 f. and developed a partial analogous application of Art. 36 FC: restrictive concretisations are permissible insofar as they serve overriding public or private interests and are proportionate, provided that the core of the entitlement is in any case preserved (BBl 1997 I 194 f.; BGE 144 I 1 cons. 2.3).
5.4 Homeschooling and the Parental Right of Upbringing
N. 22 The compatibility of very restrictive homeschooling prohibitions with the parental right of upbringing (Art. 13(1) FC, Art. 8 ECHR) has been discussed in legal scholarship. Reich («Homeschooling» zwischen elterlichem Erziehungsrecht, staatlicher Schulpflicht und Kindeswohl, ZBl 113/2012 p. 567 ff., p. 598 f.) argues that a cantonal compulsory schooling obligation interferes with the parental right of upbringing where home instruction meets the requirements of Art. 62(2) FC and safeguards the child's best interests. Kägi-Diener (St. Galler Kommentar, Art. 19 N. 23) and Wyttenbach (Basler Kommentar BV, Art. 19 N. 28), by contrast, emphasise the wide margin of appreciation of the cantons and the integrative mandate of the school. The Federal Supreme Court declared even very restrictive cantonal regulations to be constitutionally compatible in BGE 146 I 20 cons. 5.5; the question of homeschooling lies «within the discretion of the cantons». An entitlement based on an «isolated scholarly opinion» was expressly rejected.
#6. Practical Notes
N. 23 For parents and pupils: every child is entitled to adequate and free-of-charge basic school education for at least nine school years (compulsory kindergarten + primary level + lower secondary level), regardless of nationality, disability, or language proficiency. Cantonal school laws providing for financial contributions for compulsory school events are to be assessed against BGE 144 I 1: only saved board costs may be charged.
N. 24 The cantons have considerable latitude in shaping basic school education (curriculum, school organisation, teaching materials, language of instruction). The Federal Supreme Court intervenes where the constitutionally guaranteed minimum standard — equality of opportunity and preparation for a self-responsible life — is no longer preserved. With regard to special needs education decisions: cantons are not obliged to provide the optimal solution, but must ensure appropriate education adapted to the disability; inclusive special needs education takes priority in principle (BGE 138 I 162 cons. 4.2).
N. 25 Disciplinary school exclusions during the period of compulsory schooling are permissible as a last resort, require a sufficient statutory basis and an overriding public or private interest, and are only permissible for a limited period of time. The public authority must ensure substitute supervision for excluded pupils (BGE 129 I 12 cons. 9.4 f.; BGE 129 I 35).
N. 26 With regard to pre-school language promotion programmes, a distinction must be drawn: voluntary programmes do not fall under Art. 19 FC. Once a canton makes a programme compulsory, it thereby extends the compulsory schooling obligation, and the free-of-charge principle applies mandatorily; parental financial contributions are then unconstitutional (BGE 149 I 282 cons. 3.4.5, 3.5.1 f.).
N. 27 Private schools: Art. 19 FC does not give rise to an entitlement to free-of-charge attendance at a private school (AB 1998 SR Separatdruck, p. 157, vote of Koller; BGE 146 I 20 cons. 4.2). Cantons may voluntarily extend the free-of-charge guarantee to private schools but are not obliged to do so under federal law. However, the public school must always provide adequate and free-of-charge instruction so that parents are not factually compelled to resort to private schooling.
N. 28 International law: Art. 13(2)(a) ICESCR (SR 0.103.1) and Art. 28(1)(a) CRC (SR 0.107) guarantee comparable entitlements to free primary instruction. The Federal Supreme Court has however made clear that these provisions do not give rise to entitlements going beyond those under Art. 19 FC (BGE 133 I 156 cons. 3.6.4; BGE 144 I 1 cons. 2.1). Art. 2 of Protocol No. 1 to the ECHR (P1-ECHR) has not been ratified by Switzerland but is invoked as an interpretive aid for the parental right of upbringing (Art. 13(1) FC, Art. 8 ECHR) (BGE 146 I 20 cons. 5.3).
Art. 19 — Elementary Education
#Caselaw
#I. Content and Scope of the Fundamental Right
BGE 129 I 12 of 7 November 2002 — Legal nature and minimum content
The Federal Supreme Court defined Art. 19 Cst. as a social fundamental right that establishes an individual subjective entitlement to a state service.
«Article 19 Cst. establishes the right to free elementary education at public schools during the compulsory school period of at least nine years, corresponding to the child's individual abilities and personality development.»
Fundamental judgment on the doctrine of social fundamental rights and their distinction from civil liberties, with definition of minimum requirements.
BGE 144 I 1 of 7 December 2017 — Scope of free provision
The Federal Supreme Court specified the scope of constitutionally guaranteed free provision.
«The right to free education encompasses all necessary means that directly serve the educational purpose.»
The Court struck down Thurgau school legislation that imposed costs for camps, excursions and language courses on parents. Leading decision on determining the limits of free provision.
BGE 133 I 156 of 7 May 2007 — Distinction between elementary and secondary education
The Federal Supreme Court clarified that the guarantee of free provision does not extend to secondary school levels despite the terminological change from «primary education» to «elementary education».
«The constitutional right to free elementary education does not, in principle, extend to instruction at (state) lower secondary schools, even though this still falls within the compulsory school period.»
Important distinction for the interpretation of the concept «elementary education».
#II. Special Education and Disability
BGE 141 I 9 of 4 December 2014 — Free provision in special education
The Federal Supreme Court emphasised the mandatory free provision also in integrative special education.
«Adequate elementary education must be free of charge, even when the school provides a service not prescribed by law.»
Decisive for the equal treatment of disabled children in the education system.
BGE 138 I 162 of 13 April 2012 — Scope of discretion and minimum standards
The Federal Supreme Court defined the limits of cantonal freedom in organising special education.
«The federal minimum requirements only demand an appropriate, experientially adequate educational offering at public schools, not the optimal or most suitable education for a child.»
Fundamental decision on the relationship between entitlement and state capacity.
BGE 130 I 352 of 24 November 2004 — Special education outside the home canton
The Federal Supreme Court recognised the right to appropriate special education even with inter-cantonal cost sharing.
«The cantons have considerable discretion in regulating elementary education; they must also ensure free elementary education for disabled children that corresponds to the child's individual abilities and personality development.»
Relevant caselaw for federalist cost distribution.
#III. Disciplinary Law and School Exclusion
BGE 129 I 35 of 7 November 2002 — Limits of disciplinary school exclusion
The Federal Supreme Court specified the constitutional limits for school exclusions during compulsory schooling.
«The community must as a rule ensure continued care of excluded elementary school pupils by suitable persons or public institutions.»
Complementary decision to BGE 129 I 12 on the limits of disciplinary measures.
#IV. Private Education and Parental Educational Rights
BGE 146 I 20 of 22 August 2019 — Homeschooling
The Federal Supreme Court denied a right to home-based private education.
«Art. 19 in conjunction with Art. 62 para. 2 Cst. grants no entitlement to private individual instruction.»
The Court confirmed cantonal regulatory authority over the admission of homeschooling. Decisive judgment on the relationship between parental educational rights and state compulsory schooling.
#V. Transport Costs and School Organisation
BGE 140 I 153 of 5 October 2014 — Transport costs in special education
The Federal Supreme Court dealt with the legal nature of transport cost coverage.
«The legal right to adequate and free elementary education corresponds in principle also to a right to coverage of necessary transport costs for school attendance.»
Important specification for children with special needs.
#VI. COVID-19 Measures and School Operations
BGE 148 I 89 of 4 November 2020 — Mask wearing requirement in schools
The Federal Supreme Court examined COVID-19 protective measures for their proportionality.
«According to the current state of knowledge, it can be assumed that even at schools there is a certain risk of coronavirus transmission and that the use of face masks contributes to reducing this risk.»
The decision shows the limits of the fundamental right entitlement regarding pandemic protective measures. The Federal Supreme Court confirmed the mask wearing requirement from the 5th school year as proportionate.
#VII. Language Instruction and Integration
BGE 139 I 229 of 5 December 2011 — School language in Grisons
The Federal Supreme Court dealt with changes in school language in the context of language freedom.
«The decision of the Grisons government that a change of school language from Rumantsch Grischun to the idiom or vice versa can in principle only take place at the beginning of the 1st primary school class does not affect the protective scope of language freedom.»
Relevant for the relationship between Art. 19 Cst. and Art. 18 Cst. (language freedom).