LEGAL SYSTEM
Legal basis
Constitution (BV)
The constitution (Bundervesfassung, BV), 2000, contains the following articles, which are of particular importance for special education.
Equality before the law:
“Nobody shall suffer discrimination, particularly on grounds of origin, race, sex, age, language, social position, lifestyle, religious, philosophical or political convictions, or because of a corporal or mental disability.” (BV, Art. 8.2).
“Legislation shall provide for measures to eliminate disadvantages affecting disabled people.” (BV, Art. 8.4). See below (1b): Law on Equal Rights for persons with Disabilities.
Right to Primary Education:
“The right to sufficient and free primary education is guaranteed.” (BV, Art. 19.)
Note: Article 8 and 19 belong to the “Fundamental Rights” (Chapter 1 of the Constitution).
Social Goals:
“The Confederation and the Cantons shall strive to ensure that, in addition to personal responsibility and private initiative, children and young people and people of working age shall benefit from initial and continuing education according to their abilities.” (BV, Art. 41.1.f).
“The Confederation and the Cantons shall strive to ensure that every person shall be insured against the economic consequences of old age, disability, illness, accidents, unemployment, maternity, orphanhood, and widowhood.» (BV, Art. 41.2).
“No direct subjective right to prestations by the state may be derived from the social goals.” (BV, Art. 41.4).
The decisive phrase in Art. 41.1.f is “according to their abilities” which means that the individual abilities are more important than other goals such as those of the economy.
In Art. 41.2 it is important to understand the character of social insurance: the individual has the right to get the necessary means of support in situations of social risk. In these kinds of situations, the individual has no obligation toward the state.
Article 41.4. is important in connection with the Federal Invalidity Insurance Law (see below: 1c).
Education:
“Education is a cantonal matter.” (BV, Art. 62.1).
“The Cantons shall ensure a sufficient primary education open to all children. This education shall be compulsory, and shall be placed under state direction or supervision.
It shall be free in public schools. (...).” (BV, Art. 62.2).
Due to the fact that obligatory education (9 years) is a cantonal matter, the Swiss educational system is very diversified, which means that there are 26 different educational legislations. According to the constitution, the cantons are sovereign insofar as their sovereignty is not limited by the constitution (BV, Art. 3). On one hand, the decentralised system has the advantage that the school structure can be adapted to cantonal, regional or local conditions. The disadvantage is that schooling provisions vary according to financial strength or political direction in the respective cantons. This leads to different opportunities within the educational sector. A harmonisation of the education system in Switzerland is aimed at, with the concordat concerning school co-ordination (29.10.1970). The 9 years of obligatory education are also defined in this concordat.
Professional Education:
“The Confederation shall legislate on professional education.” (BV, Art. 63).
In contrast to obligatory education, post-obligatory education is regulated by federal legislation.
See below (1d): Vocational Education Act
Social Security:
“The Confederation shall take measures for an adequate social security for the elderly, survivors, and disabled persons. These shall be based on three pillars, namely, federal old age, survivors’, and disability insurance, employee pension plans, and provision by individuals for their own future.” (BV, Art. 111.1)
“The Confederation shall encourage the integration of disabled persons, and support efforts to assist the elderly, survivors, and disabled persons. To this end, it may use the funds of the old age, survivors’, and disability insurance.” (BV, Art. 112. 6).
See below (1c): Federal Invalidity Insurance Law
Sources:
Constitution: www.admin.ch/ch/index.en.html
Concordat: www.edk.ch/d/EDK/rechtsgrundlagen/framesets/mainRechtKonk_d.html
Law on Equal Rights for persons with Disabilities (BehiG)
The Law on Equal Rights for persons with Disabilities (Bundesgesetz über die Beseitigung von Benachteiligungen behinderter Menschen, Behindertengleichstellungsgesetz, BehiG ), effective as of 2004, materialises article 8.4. of the constitution.
“The cantons ensure that children and young people receive obligatory education, which is adapted to their special needs.”(BehiG, Art. 20.1, own translation)
“The cantons promote the integration into mainstream school with appropriate measures, as far as this is possible and serves the well-being of the child or the young person with disabilities.” (BehiG, Art. 20.2, own translation).
This law certainly is an achievement by improving the social position of people with disabilities and by setting basic conditions for the removal of disadvantages. It is, however, relatively weak when it comes to the protection of rights of children with special education needs: the law creates no individual legally enforceable claims. Instead, it makes rather general recommendations to the cantons. Art. 62.1 of the constitution weakens the power of the law by declaring education as a cantonal matter.
Source: BehiG: www.ofj.admin.ch/themen/behinderte/bg-behig-d.pdf
Federal Invalidity Insurance Law (IVG)
The Federal Invalidity Insurance Law (Invalidenversicherungsgesetz, IVG), 1959, arises from article 111 of the constitution.
The Federal Invalidity Insurance Law constitutes the federal aspect of special needs education by regulating the identification and financing of special needs education for children and young people with more severe disabilities (see the sections on Financing and Identification). As a consequence, the national invalidity insurance influences special needs education to a large extent, although education in general is a cantonal matter (see above, 1a).
This law, however, will probably be changed. The responsibility for funding special schools will be transferred entirely to the cantons. Whereas a unique funding authority for educational matters is welcomed, there are fears whether the actual high level of funding can be maintained under the new system. This change will probably be effective as of 2007 (see Financing section).
Sources:
IVG: www.admin.ch/ch/d/sr/831_20/index.html
Ordinance re. Invalidity Insurance (IVV, 1960): www.admin.ch/ch/d/gg/cr/1961/19610003.htm).l
Vocational Education Act (nBBG)
The new Vocational Education Act (Bundesgesetz über die Berufsbildung, Berufsbildungsgesetz, nBBG) will be effective as of 2004. It materialises the constitutional article 63 and is a general revision of an older law.
“This law promotes and develops the equalisation of the education chances in social and regional regard, equal rights of woman and men as well as the removal of disadvantages of persons with handicaps” (nBBG Art. 3.c, own translation).
In contrast to obligatory education, post-obligatory education is substantially regulated on the national level. The new law creates a framework for a flexible organisation of educational forms and content. The most important change for people with special education needs – especially those with learning difficulties – is the new basic vocational training with federal certificate (“Berufliche Grundbildung mit eidgenössischem Berufsattest”).
Also, federal law will regulate health and social professions, which until now have been under cantonal law.
Sources:
Vocational Education Act (BBG, 1978): /www.admin.ch/ch/d/sr/c412_10.html
New Vocational Education Act (nBBG, 2004): www.bbt.admin.ch/dossiers/nbb/d/index.htm
Phases of education
Early Years Education
Early years education of children recognised by the Invalidity Insurance (see the section on Financing) falls under the Federal Invalidity Insurance Law (see 1c).
If children present special education needs which are not recognised by the Invalidity Insurance (see the Financing section), their early years education falls under cantonal legislation. Until the mid-1990s, several cantons did not have a legal basis. Today, most cantons have a legal basis for early intervention.
Compulsory Schooling
Compulsory Schooling of children recognised by the Invalidity Insurance in special schools or special needs kindergartens (see the Financing section) falls under the Federal Invalidity Insurance Law (see 1c).
If children present special education needs which are not recognised by the Invalidity Insurance (see the Financing section), their schooling falls under cantonal legislation. All cantons have a legal basis for special needs education.
Transition period
Post-obligatory education is regulated on the federal level. If young people with special education needs are recognised by the Invalidity Insurance, their post-obligatory education falls under the Federal Invalidity Insurance Law (see 1c). If not, their post-obligatory education is regulated by the Federal Vocational Education Act (1d).
