Germany - Legal System
The development of the education system of the Federal Republic of Germany differs from other European countries, due to the unification of East and West Germany.
In order to bring about German unity in the area of culture, education and science, the Unification Treaty (Einigungsvertrag) concluded between the Federal Republic of Germany and the German Democratic Republic on 31 August 1990 contains fundamental provisions which aim to establish a common comparable basic structure in education – particularly in the school system. In relation to special education, this has presented a huge challenge as two diverse systems have had to be merged together.
The unification of the two German states in October 1990 brought changes to the party political scene. According to the constitution of the Federal Republic of Germany, known as the ‘Basic Law’ (Grundgesetz), the text of the constitution now reflects the fact that, with the accession of the German Democratic Republic, Germans have regained their unity: ‘to achieve in free self-determination the unity and freedom of Germany’, Grundgesetz für die Bundesrepublik Deutschland vom 23.05.49 (BGBl. 1949,1,S. 1), zul. geänd. durch Gesetz vom 27.10.1994 (BGBl.I 1994,75,S. 3146).
As of 3 October 1990 the Basic Law is binding upon the whole German nation.
Germany is a Federal Republic of 16 Länder. Development in the different Länder of Germany is diverse. Each Land has its own responsibility, including individual legislation according to the guidelines of the Basic Law, which is the framework for the education system. Responsibilities are determined by the federal structure of government. The Standing Conference of the Ministers of Education and Culture Affairs of the Länder in the Federal Republic of Germany (KMK) has produced a framework of agreement to preserve the independence of each Land (cultural sovereignty – Kulturhoheit).
Educational legislation and administration of the education system are primarily the responsibility of the Länder. This particularly applies to the school system, higher education and the continuing education sector. Under the Basic Law and the constitutions of the Länder, the entire school system is under the supervision of the state. Schools are, as a rule, institutions of the local authorities or the Länder, and higher education institutions are institutions of the Länder. In addition, there are church-run or privately-run schools and higher education institutions.
The 16 Ministries of Education, Cultural Affairs and Science develop policy guidelines in the fields of education, science and the arts, adopt legal provisions and administrative regulations, co-operate with the highest authorities at national and Land level and supervise the work of authorities under their responsibility and of subordinated bodies, institutions and foundations. To assist the ministries in their work, the Länder have established their own research institutes for school, higher and continuous education. The Ministries are headed by a Minister (a Senator in Berlin, Bremen and Hamburg) who is answerable to Parliament. The Minister is usually represented by a State Secretary (Staatssekretär/-sekretärin) or Director-General. In 10 of the 16 Länder, separate Ministries responsible for science and research have been established.
The KMK website contains more information on the education system in the Federal Republic of Germany and the basic structure of the education system in the Federal Republic of Germany.
The right of children with disabilities to education and training appropriate to their needs is stated in the Basic Law (Grundgesetz, Art. 3 – R1), in Book Twelve of the Social Code (Sozialgesetzbuch XII – Sozialhilfe) and in the Länder constitutions (R14-29). More detailed provisions are set out in the school legislation of the Länder (R70, R72, R74, R76, R78, R81, R83, R85, R87-88, R90, R92, R98, R100-102). The introduction to Article 3, paragraph 3, clause 2 states: ‘No one shall be discriminated against because of their disability’.
Based on this Article in the Basic Law, in April 2001 the new Social Welfare Code IX (SGBIX) came into force. It summarises the legal bases of medical and vocational rehabilitation. It should reflect the present change of the self-image of people with disabilities and the basis of the policy of disabilities. The main focus is not only the welfare and care of people with disabilities, but autonomous participation at the social level as well as the elimination of obstacles and the establishment of equal opportunities. The SGBIX law focuses on rehabilitation and access and has two parts:
- Regulations for people with disabilities and people at risk of exclusion.
- Special regulations to enable the participation of people with severe disabilities.
General educational development and the diversity of experiences in practice with regard to inclusion or non-segregation have led to a visible change, especially during recent years. In Germany, the period of models and experiments is slowly progressing to the next stage. The diversity in the results of these inclusion experiments has led to the development of the basis for legislative issues. All Länder have changed their school laws in adapting them to the KMK’s recommendations of May 1994. The development and organisation of special education in the Länder was harmonised by several resolutions adopted by the KMK and especially by the Recommendations on the Organisation of Special Schools (Empfehlung zur Ordnung des Sonderschulwesens, Resolution of March 1972) and recommendations for the individual types of special education. The current situation is documented in The Education System in the Federal Republic of Germany 2011/2012 – Educational Support and Guidance.
The KMK’s recommendations apply to pupils with special educational needs, regardless of whether support takes place in a mainstream school or a special school (Förderschule). In addition to these general recommendations, further recommendations for the individual types of special education were developed which focus on:
- emotional and social development
- mental development
- physical and motor development
- instruction for ill pupils.
For the statistical distribution of pupils with special educational needs according to the individual types of special education, please refer to the report The Education System in the Federal Republic of Germany 2011/2012.
The KMK has also made recommendations on the Education and Teaching of Children and Young People with Autistic Behaviour (Erziehung und Unterricht von Kindern und Jugendlichen mit autistischem Verhalten).
More detailed information regarding the KMK recommendation is available in the report The Education System in the Federal Republic of Germany 2011/2012 and from the German Education Server website.
Responsibility for early years education resides mainly with the Ministry for Social Affairs. Under the Basic Law it is the prerogative of the Federation to enact legislation on child and youth welfare within the framework of public welfare. This also applies to provision for children in kindergarten. The phase of early intervention is not part of the public school system. Children with disabilities should, as far as possible, attend kindergarten and school together with non-disabled peers.
The Vocational Training Act (Berufsbildungsgesetz) contains legal provisions for vocational training. The Vocational Training Promotion Act (Berufsbildungsförderungsgesetz) of 1981 governs vocational training planning and statistics, as well as the terms of reference and organisation of the Federal Institute for Vocational Training (Bundesinstitut für Berufsbildung). According to the Third Volume of the German Social Welfare Code (SGB III), the Office of Employment (Arbeitsamt) is responsible for providing career orientation. Further information is available in the report The Education System in the Federal Republic of Germany 2011/2012 – Adult Education and Training.