#1. Legislative History

N. 1 Art. 62 FC was created as part of the total revision of the Federal Constitution in 1999. The provision reformulates the previous education articles (Art. 27 former FC) and contains important innovations, particularly the explicit anchoring of special needs education (para. 3) and the subsidiary federal competence for school harmonisation (para. 4). The Federal Council Message on a new Federal Constitution of 20 November 1996 emphasises that cantonal sovereignty over education is maintained as a fundamental principle, while simultaneously acknowledging the necessity of strengthened intercantonal coordination (BBl 1997 I 1, 277 ff.).

N. 2 The education articles were revised in 2006 through the popular vote of 21 May 2006. The new version of Art. 62 strengthens harmonisation efforts and gives the Confederation subsidiary competences if the cantons fail to achieve sufficient coordination. This revision occurred in the context of the «Harmonisation of Compulsory School» (HarmoS) project, which aims for a Switzerland-wide alignment of cantonal school systems (BBl 2005 5479, 5508 ff.).

#2. Systematic Classification

N. 3 Art. 62 FC stands in systematic connection with the fundamental right to free basic education (→ Art. 19 FC) and forms the organisational legal basis for its realisation. The norm belongs to the 3rd section of the 3rd chapter (Education, Research and Culture) and is closely connected with → Art. 61a FC (Swiss Education Area), → Art. 63 FC (vocational and professional education and training) and → Art. 63a FC (higher education institutions).

N. 4 Within the federalist structure, Art. 62 FC concretises the fundamental allocation of competences according to → Art. 3 FC, whereby the cantons perform all tasks not assigned to the Confederation. Cantonal sovereignty over education is limited by constitutional requirements (particularly para. 2) and subsidiary federal competence (para. 4). In special needs education (para. 3), there is a connection to the prohibition of discrimination (→ Art. 8 para. 2 FC) and to equality before the law (→ Art. 8 para. 1 FC).

#3. Elements of the Offence / Normative Content

N. 5 Cantonal sovereignty over education (para. 1): The responsibility of the cantons for education encompasses legislation, implementation, organisation and financing of the entire education system in their territory. This comprehensive competence extends to all school levels from basic education to cantonal universities, insofar as specific federal competences do not exist.

N. 6 Basic education (para. 2): The concept «adequate basic education» requires, according to Federal Supreme Court case law, an appropriate educational offering that is adequate based on experience (BGE 138 I 162). The three core elements are:

• Compulsory nature: Compulsory schooling lasts at least nine years and covers all children regardless of nationality or residence status
• State direction or supervision: Private schools and homeschooling are subject to state control
• Free of charge: At public schools, all necessary materials that directly serve the educational purpose must be provided free of charge (BGE 144 I 1)

N. 7 Special needs education (para. 3): The «adequate special needs education» for disabled children and young people represents a constitutional innovation. Some commentators emphasise the wide cantonal discretion in the concrete implementation. The age limit «until at most completion of the 20th year of age» is absolute and permits no exceptions.

N. 8 School harmonisation (para. 4): The subsidiary federal competence only applies if intercantonal coordination fails. The harmonisation areas are exhaustively enumerated:

• School entry age and compulsory education
• Duration and objectives of the education levels
• Transitions between levels
• Recognition of qualifications

Biaggini qualifies this competence as conditionally concurrent, while Ehrenzeller/Schott see the primary responsibility with the cantons and classify the federal competence as subsidiary.

#4. Legal Consequences

N. 9 From para. 1 follows the comprehensive regulatory authority of the cantons in education. This encompasses the authority for legislation, for organisation of school administration, for setting curricula and for appointing teaching staff. The cantons may delegate their competences to the municipalities.

N. 10 From para. 2 arise mandatory requirements for cantonal school legislation:

• Duty to provide comprehensive basic education services
• Prohibition of school fees at public schools
• Enforcement of compulsory schooling with suitable means
• Supervisory duty over private educational offerings

N. 11 From para. 3 follows, according to prevailing doctrine, an objective constitutional mandate to the cantons. Whether a subjective right of the individual child can also be derived from this is disputed (see N. 15).

N. 12 From para. 4 arises a potential federal legislative competence, which however is only activated under the condition of failed intercantonal coordination. The Confederation must grant the cantons an appropriate period for independent harmonisation.

#5. Controversies

N. 13 Legal nature of basic education: While traditional doctrine (Plotke, Schweizerisches Schulrecht, 2003, p. 45 ff.) understands basic education primarily as a state service, newer voices (Wyttenbach/Kälin, AJP 2005, 1267) emphasise the fundamental rights character of the claim from Art. 19 in conjunction with Art. 62 para. 2 FC. The Federal Supreme Court follows a mediating approach and recognises both the service and the defensive dimension (BGE 129 I 12).

N. 14 Scope of free provision: Mascello (Elternrecht und Privatschulfreiheit, 1995, p. 89 ff.) advocates a narrow interpretation that only covers direct teaching costs. Richli (ZBl 1995, 481) argues for a broad interpretation that includes all education-relevant expenses. The Federal Supreme Court decided in BGE 144 I 1 for a middle course: covered are all necessary materials that directly serve the educational purpose.

N. 15 Normative character of Art. 62 para. 3: A significant controversy exists regarding the legal nature of the special needs education obligation. Sceptical voices in doctrine see in para. 3 merely a constitutional mandate without enforceable individual claim. Other scholarly opinions (Kälin/Künzli, in Wyttenbach/Kälin, AJP 2005, 1278) affirm a directly enforceable legal claim of the disabled child. The Federal Supreme Court tends to recognise a justiciable claim, but emphasises the wide cantonal discretion (BGE 138 I 162).

N. 16 Confederation-canton relationship in harmonisation: Some commentators emphasise primary cantonal responsibility and see federal competence as ultima ratio. Another view in the literature qualifies the competence as conditionally concurrent and grants the Confederation greater scope. Practice shows that the Confederation has acted with restraint so far and primarily relies on intercantonal cooperation (HarmoS Concordat).

#6. Practical Guidance

N. 17 Compulsory schooling and homeschooling: The cantons have different regulations on private home instruction. While some cantons (e.g. Vaud, Jura) permit homeschooling under conditions, others (e.g. both Basel cantons) know a de facto prohibition. Parents must observe cantonal authorisation procedures and expect regular controls. The Federal Supreme Court has clarified that no constitutional right to homeschooling exists (BGE 146 I 20).

N. 18 Religion-based exemptions: Applications for exemption from instruction on religious grounds are subject to strict proportionality review. While exemptions are possible for individual events (e.g. school Christmas celebration), they are only exceptionally granted for regular subjects. Swimming instruction is, according to BGE 135 I 79, compulsory also for Muslim children, whereby accompanying measures (burkini, gender-separated instruction) are to be offered.

N. 19 Special needs education procedures: In assessing special needs education requirements, a standardised assessment procedure (SAV) is to be conducted. Parents have a right to participation and legal hearing (→ Art. 29 FC). Legal recourse is available against decisions on special needs education measures. Cost bearing is governed by cantonal law, whereby free provision according to BGE 141 I 9 also encompasses integrative special needs education measures.

N. 20 Intercantonal school attendance: For attending a school outside the canton of residence, authorisation is generally required. Cost assumption is governed by intercantonal agreements (Regional School Agreement RSA). For special schools, the regulations of the Intercantonal Agreement for Social Institutions (IVSE) apply. Without cost approval, parents must bear the school fees themselves.

N. 21 Enforcement of harmonisation: The HarmoS Concordat is not in force in all cantons. When moving between cantons with different school systems, transition problems may arise. The Conference of Cantonal Ministers of Education (EDK) offers information on cantonal differences. Direct invocation of Art. 62 para. 4 FC by private parties is not possible, as the norm is addressed to the federal legislator.

#Principles of the Right to Primary Education

BGE 129 I 12 of 7 November 2002 — Disciplinary school exclusion and social fundamental right. The Federal Supreme Court clarifies the scope of the right to primary education pursuant to Art. 19 in conjunction with Art. 62 FC and its limitations in the context of disciplinary measures.

«Art. 19 FC establishes the right to free primary education at public schools corresponding to the individual abilities of the child and their personality development during the compulsory school period of at least nine years.»

BGE 144 I 1 of 7 December 2017 — Scope of free primary education. The Federal Supreme Court specifies which services are covered by the right to free education and strikes down a Thurgau provision that shifted costs to parents.

«The right to free education encompasses all necessary means that directly serve the purpose of instruction. Restrictive specifications by the legislature must be measured against whether they are still compatible with the constitutionally guaranteed minimum content.»

BGE 138 I 162 of 13 April 2012 — Special needs education and cantonal discretion. The Federal Supreme Court confirms that Art. 62 para. 3 FC grants cantons considerable latitude in organising special needs education, but federal minimum standards must be observed.

«In the area of special needs education, the cantons have considerable discretion in organisation. The federal minimum requirements only demand an appropriate, empirically sufficient educational offering at public schools, but not the optimal or most suitable education for a child.»

#Freedom of Religion in the School Context

BGE 135 I 79 of 24 October 2008 — Swimming lessons and freedom of religion. Landmark decision on religious dispensations from compulsory education, in which the Federal Supreme Court defines the limits of freedom of religion in public education.

«Combined with accompanying measures, the contested compulsory requirement does not constitute an inadmissible interference with freedom of religion, even for Muslim children. In weighing interests, particular consideration must be given to the diverse efforts to integrate the Muslim population group.»

BGE 142 I 49 of 11 December 2015 — Headscarf ban in school. The Federal Supreme Court declares a general ban on head coverings for female pupils unconstitutional and clarifies the requirements for restrictions on freedom of religion.

«A general ban on head coverings for female pupils at public schools constitutes an inadmissible interference with freedom of belief and conscience if it is not justified by sufficiently weighty public interests and is not proportionally designed.»

#Special Needs Education and Inclusion

BGE 141 I 9 of 4 December 2014 — Free nature of integrative special needs education. The Federal Supreme Court strengthens the right of disabled children to free education and prohibits shifting integration costs to parents.

«Adequate primary education is mandatorily free, even when the school provides a service not legally prescribed. Cantonal regulations that determine the assignment of a child to separative special needs education based on schematic criteria do not adequately consider the child's welfare in individual cases.»

BGE 130 I 352 of 24 November 2004 — Special needs education outside the home canton. The Federal Supreme Court clarifies the rights of disabled children to appropriate education and intercantonal cost allocation.

«The cantons have considerable discretion in regulating primary education; they must also ensure appropriate, empirically sufficient primary education at public schools for disabled persons.»

#Homeschooling and Private Education

BGE 146 I 20 of 22 August 2019 — Home-based private education. The Federal Supreme Court confirms that Art. 62 FC does not grant a right to homeschooling and leaves regulation to the cantons.

«Art. 19 in conjunction with Art. 62 para. 2 FC does not grant a right to private individual instruction. It is up to the cantons, in observance of Art. 19 and 62 para. 2 FC, to regulate whether and to what extent homeschooling should be permitted.»

#Educational Harmonisation

BGE 143 I 361 of 3 May 2017 — HarmoS Concordat and popular vote. The Federal Supreme Court addresses the question of democratic legitimacy of school harmonisation measures and the relationship between Art. 62 para. 4 FC and cantonal decision-making procedures.

«When assessing whether a proposal submitted in the form of a general popular initiative violates higher-ranking law, a distinction must be made between mandatory and non-mandatory provisions of federal law.»

#Cantonal School Organisation

BGE 133 I 156 of 7 May 2007 — Transport costs and lower secondary school. The Federal Supreme Court defines the limits of the right to free education for continuing schools.

«The federal constitutional right to free education is limited to compulsory primary education. For attendance at continuing schools, there is generally no constitutional right to assumption of transport costs by the public authorities.»

BGE 130 I 113 of 8 April 2004 — University tuition fees. The Federal Supreme Court delimits the scope of application of Art. 62 FC and confirms that it only applies to the primary education level.

«The provisions on free primary education do not apply to universities. Reasonable tuition fees are compatible with the Constitution as long as they do not unduly impede access to education.»