Headnotes

to the Order of the First Senate of 8 October 1997

– 1 BvR 9/97 –

1. Concerning the ban on discrimination against the disabled (Art. 3 Sec. 3 Phrase 2 GC) in the context of the school system.

2. The referral of a disabled pupil to a special school against his will and the will of his parents does not constitute forbidden discrimination in the sense of Art. 3 Sec. 3 Phrase 2 GC per se. Such discrimination is found, though, when the referral is ordered although education at an ordinary school with special pedagogic support is possible, the necessary personnel and financial expenditure can be met with the existing personnel, staff and funds; and organisational difficulties and interests of third parties that are worthy of protection do not stand in the way.

FEDERAL CONSTITUTIONAL COURT

– 1 BvR 9/97 –

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaint

the Federal Constitutional Court – First Senate –

with the participation of Justices:

Vice-President Seidl,

Grimm,

Kühling,

Jaeger,

Haas,

Hömig,

Steiner,

held on 8 October 1997:

1. The constitutional complaint is rejected.

Reasons:

[By way of constitutional complaint the plaintiff appeals against her referral to a school for the physically handicapped.] […]

A.

[…]

I.

[…]

II.

1. The plaintiff was born in 1984 with a malformation of the spinal cord (spina bifida) She is partially paralysed and wheelchair bound. Additionally, she suffers from defective movement co-ordination (ataxia) with slowing down of her motor activity and speaking ability as well as a motor impairment of the hands which worsens in stressful situations.

[…]

In the school year of 1995/95 the plaintiff went to a so called ‘integrated comprehensive school’ where handicapped children are educated together with non-handicapped children. The school authority obtained a report by a teacher of a special school (a so called ‘consultation report’) which stated that the plaintiff needed a special pedagogic support. This would be achieved either by more intensive care in her current school, or, by education at a special school for the physically disabled. With regard to supportive measures at her current school the commission advised five hours of private education weekly as well as accompaniment by a pedagogic or therapeutically trained supply teacher as an integral aid throughout her lessons. As a result the regional administration ascertained that the plaintiff has a special pedagogic need and – against the will of the parents – ordered her referral to a school for the physically disabled, because the required supporting measures at the integrated comprehensive school could not be facilitated on pedagogic as well as personnel grounds. […]

2. a) […] The Higher Administrative Court has rejected the plaintiff’s application for temporary judicial relief in the second instance. […[

b) […]

c) […]

3. […]

III.

The plaintiff is appealing the second decision of the Higher Administrative Court by way of a complaint alleging constitutional infringement.

She is of the opinion the referral violates the ban of discrimination that is laid down in Art. 3 Sec.3 Phrase 2 of the German Constitution (GC). The plaintiff claimed that the referral to a special school was not necessary because the required support could also have been given at her recent school. The complaint was dismissed.

[…]

IV.

[…]

B

The constitutional complaint is admissible.

Considering the anticipated length of the action, it is unreasonable for the plaintiff to have to undergo the complete course of legal action before having a decision by the Federal Constitutional Court (see BVerfGE 86, 15 <22>).

[...]

C.

The complaint is unfounded: Ultimately, the appealed decision is constitutionally valid.

I.

1. According to Art. 3 Sec.3 Phrase 2 GC which has been altered in course of the alteration of the Constitution on October 27, 1994 (BGBl I p. 3146) a person must not be discriminated against on grounds of his disability.

a)What is meant by disability cannot directly be gathered from the legal materials (see BTDrucks 12/6000, p. 52 s.; 12/6323, p. 11 s.; 12/8165, p. 28 s.). It is discernible that the constitutional legislature has taken the common understanding of the term at the time of the constitutional alteration. This has been given particular expression in Art. 3 Sec. 3 Phrase 1 of the Disabled Persons’ Act. Following this act, a disability is the repercussion of a more than temporary impairment of functions that is based on a disordered physical, mental or spiritual state. The same understanding of the term of disability is used in the third Federal report concerning the state of the disabled and the development of rehabilitation, which for its part, corresponds with the internationally used terms (see BTDrucks 12/7148, p. 2). Nothing speaks against starting out from this definition when interpreting Art. 3 Sec. 3 Phrase 2 GC (see also Osterloh in: Sachs, Grundgesetz, Kommentar, 1996, Art. 3 Rn. 309 s.; Rüfner in: Bonner Kommentar, Art. 3 Rn. 870 < May 1996>). Whether these provide a final definition of the term does not have to be discussed at this point. The plaintiff’s case does not show any reason for this.

b) The term discrimination as well as the meaning and scope of the ban of discrimination of Art. 3 Sec. 3 Phrase 2 GC can, also, only be incompletely deduced by the legal history. They can, nevertheless, be inferred from the overall content of Art. 3 Sec.3 Phrase 2 GC:

aa) Art. 3 Sec. 3 Phrase 2 GC deliberately follows the former Art. 3 Sec. 3 and today’s Art. 3 Sec. 3 Phrase 1 GC’s ban against discrimination. This expresses that phrase 2 as well as phrase 1 seeks to strengthen the universal principal of equality in Art. 3 Sec. 1 GC for special groups of persons and thus set narrower limits for the states’ power, as disability must not be the starting point for discriminatory unequal treatment (see BVerfGE 85, 191 <206> and in consequence particularly BTDrucks 12/6323, p. 12). The legislature has even deliberately refrained from simple enlargement of the characteristics of the former Art. 3 Sec. 3 GC by expressly adding the characteristic of disability. This shows that Art. 3 Sec. 3 Phrase 2 GC also has an autonomous meaning. This is obviously connected with the particular characteristic of disability.

Like the other characteristics that are already mentioned in Art. 3 Sec. 3 Phrase 1 GC like gender, origin, race or language, disability is a personal characteristic on whose existence or non-existence the individual only has a restricted influence. Disability though does not just mean being different, which often has a negative effect on the individual only in the social context of opinions and prejudices in the social surroundings, which can, in turn, lose this negative effect again with a change in people’s attitude. But disability is even more a characteristic that impairs the course of life for the affected person in relation to non-disabled persons. This is not contingent upon a change in people’s attitude. According to the will of the legislature this particular situation should not lead to either social or legal discrimination. On the contrary, those discriminations shall be prevented or overcome. (See BTDrucks 12/8165, p. 28). This explains why Phrase 2 of Art.3 Sec. 3 GC does not simply proscribe distinctions. According to the new rule only disadvantages that are connected to the disability are proscribed. Preferential treatment with the aim of alignment of the circumstances of the disabled and non-disabled are allowed, though not necessarily constitutionally imperative.

bb) With respect to this background, a disadvantage is not only present when rules and measures worsen the situation of the disabled person on grounds of his disability, as for example when he is denied access to public institutions or services that are principally open to the public. Rather, a disadvantage is also perceived in the exclusion by public power of possibilities to develop one’s abilities to the full if this exclusion is not compensated for by specified disability supporting measures. The point at which such an exclusion is compensated by a supporting measure to the extent that it does not have disadvantaging effects, cannot be said generally or be set down in the abstract. If denial of a compensating measure that is demanded by the disabled by reference to another alternative of developing one’s abilities is to be judged as disadvantaging, will regularly be contingent upon evaluation, scientific acknowledgement and prognostic assessments. Only on the grounds of the overall result of this appreciation can a decision be reached as to whether a particular measure is disadvantaging.

2. For the area of the school system the same principles apply:

a) aa) By means of the rule concerning state supervision of schools which is set down in Art.7 Sec.1 GC, the state has the authority to plan and organise the school system with the aim of providing a system that gives young people the educational possibilities according to their individual abilities and today’s social needs. For this reason, the organisational structure of schools, the structural arrangement of the education system and the setting of the training and teaching objectives are subjects of the state (see BVerfGE 34, 165 <182>; 45, 400 <415>; 53, 185 <196>). Within this scope the states which are in charge of the school system, have a wide discretion of decision making (see BVerfGE 59, 360 <377> with further substantiation). This discretion is restricted though by the limits of the higher norms of the Constitution (see BVerfGE 6, 309 <354>; 34, 165 <181>; 59, 360 <377>). This does not only occur by means of the – also restrictable - right of the pupil to unhindered development of his personality, abilities and talents as laid down in Art. 2 Sec. 1 GC (see BVerfGE 45, 400 <417> with further substantiation) and the parental right of education and upbringing which is laid down in Art. 6 Sec. 2 Phrase 1 GC, which is on the same constitutional level with the educational task of the state (see BVerfGE 52, 223 <236>; stRspr). Limits are set through the newly made ban on discrimination in Art. 3 Sec. 3 Phrase 2 GC.

Independent of the question if original claims can be made on grounds of this civil right (unilaterally against this opinion the judicial literature; see Osterloh as previously cited, Art. 3 Rn. 305; Scholz in: Maunz/Dürig, Grundgesetz, Kommentar, Art. 3 Sec. 3 Rn. 174 <October 1996>), from this, especially in connection with the freedom rights of Art. 2 Sec. 1 and Art. 6 Sec. 2 Phrase 1 GC, it follows that the state and the Länders’ school legislatures bear a particular responsibility for disabled pupils. Also for their upbringing and education in the area of schools the state has at least a de facto monopoly, the disabled as well as the non-disabled have the duty to attend a public school. Taking this into consideration following Art. 2 Sec. 1, Art. 6 Sec. 2 Phrase 1 in connection with Art. 3 Sec. 3 Phrase 2 GC, the state has the duty to principally provide schools for disabled children and juveniles that guarantee a proper school upbringing and education. The kind and intensity of the disability as well as the provisions of the school and the level of the class have to be taken into consideration under the premises of the state of the art of pedagogic and scientific knowledge.

bb) According to current pedagogic knowledge, a general exclusion of the possibility of integrated education of disabled and non-disabled pupils can not be constitutionally vindicated. Despite critical voices, integrated schooling is by the pedagogic scientists as well as by the authoritative political committees predominantly positively assessed, as it is also laid down in the statements under A I 1 and 2, and seen as a desirable alternative to education in special and supportive schools. Lower Saxony’s legislature has taken this into consideration when providing for pupils in need of supportive education the possibilities of integrated education with non-disabled pupils “at all schools” (Art. 4 NSchG), and in integrated classes with different teaching aims (Art. 23 Sec.4 NSchG) next to the possibility of attending a special school. According to § 4 in connection to § 68 Sec.1 NSchG the education shall be integrated with equal aims when this contributes to the individual requirements of support of the pupils in need, under the provision of specific pedagogic help if necessary (see Art. 14 sec. 4 phrase 2 NSchG), and as long as this is possible under the organisational, personnel and financial means. This regulation enables children and juveniles that are dependent on special pedagogic support as well as their parental guardians to choose from one of the forms of integrated schooling, or for schooling in a special school whose continued existence as an autonomous form of education of the structured school system of the Land is not put into question.

This concept, which provides for an integrated education with same teaching objectives as well as an integrated education with different teaching objects for disabled and non-disabled pupils under the provision that the organisational, personnel and financial means are provided for, is not against the constitution (see Artt. 4, 23 Sec 4 i.V.m. Sec. 5 NSchG). This provision is an expression of the fact that the state can only grant a school system according to the talents of the pupils in the boarders of its financial and organisational possibilities (see BVerfGE 34, 165 <183 s.>). The reason for this is that when making these decisions the state also has to take into account other public interests and needs to keep the ability to use the restricted existing funds for those other public needs when it deems this appropriate (see BVerfGE 40, 121 <133>; 75, 40 <68>; 82, 60 <80>; 90, 107 <116>).

If the legislature thus decides to offer integrated education with equal teaching objects as well as one with different teaching objects he is not constitutionally prevented from making the realisation of these forms of integration contingent upon the restricted provisions mentioned above. This discretion, as well as the provision of the actually feasible and the financially justifiable, also exists when fulfilling the framework concept of the legislature. Art. 2 Sec.1, Art. 6 Sec.2 Phrase 1 and Art. 3 Sec. 3 Phrase 2 GC does not imply a duty of the respective Land to offer all forms of integrated schooling. Within the boarders of its discretion it can also refrain from the introduction of such forms of integration, where realisation may not be justifiable in terms of organisational, personnel or financial aspects. This is under the condition though, that the remaining possibilities for integrated education take the interests of disabled children and juveniles into account.

b) The interpretation and application of the law governing schools is equally affected by the ban of discrimination of Art. 3 Sec. 3 Phrase 2 GC.

aa) When the school authority is deciding in which school to educate disabled children and juveniles and to prepare them for life in conjunction with the non-disabled, it must not only take into consideration the right of the disabled to be granted an education which provides for development of his talents and abilities to the greatest possible extent (Art. 2 Sec 1 GC) and the right of the parents to generally chose the kind of education in the scope of his talent (Art. 6 Sec. 2 Phrase 1 GC, see BVerfGE 34, 165 <184>). Rather, one also has to take into account the additional duties of the school authority resulting from Art. 3 Sec. 3 Phrase 2 GC.

Since the discriminating character of a measure cannot be assessed without respect to the specific support with which it comes, as it has been explained above in C I 1 b bb, the ban of discrimination laid down in this norm does not necessarily mean that the referral of a disabled pupil produces forbidden discrimination per se. This is also true when the decision of the school authority is against the will of the disabled or his parental guardian. Only the referral order that obviously does not do justice to the condition and situation of the specific case is proscribed by Art. 3 Sec. 3 Phrase 2 GC. Such a decision is not only seen in the referral of a disabled child or juvenile to a special school for its disability although the education in a ordinary school would correspond to his talents and be possible without great expenditure or extravagance. Discrimination in the sense of Art. 3 Sec. 3 Phrase 2 GC must, rather, also be considered when the referral happens although attendance at an ordinary school could be made possible by introducing special pedagogic support in this school.

If this is the case, i.e. if an integrated education can be reached by providing an additional special pedagogic teacher, or (if provided for by legislation), by the establishment of an integrated class, which the disabled child could undergo with prospect of success, it is the result of an overall review of the very case in which the kind and extent of the disability have to be taken into account as well as the advantages and disadvantages of the integrated education in an ordinary school on the one hand and the education in a special school on the other hand. When assessing the integrated education, not only the possibilities for the disabled child or juvenile concerning his education and later adult life have to be taken into account, but also the possible nuisances that may go with it. The latter is particularly true for the disabled child himself, which, especially when it comes to education with equal teaching objects, is faced with rising demands on his performance, yet is not to be limited to the disabled child. The possible nuisance of other co-pupils and teaching staff as well as the typical joint education of classes and courses have also to be taken into account of the overall assessment. One must finally give respect to the fact that public measures to compensate a disability can only be demanded and granted according to the financial, personnel, and organisational possibilities (see BVerfGE 40, 121 <133>). The expenditure which goes along with integrated education in ordinary schools must thus not become a burden on those disabled children that cannot participate in such an integrated education on grounds of the severity of their disability or for other pedagogic reasons and that therefore are dependent on a special pedagogic education and financially adequate equipped special schools.

The respective advantages and disadvantages that integrated or separate school education must not be assessed solely from the prospect of the disabled children and their parents nor solely from the school authority’s view. The ideas of the parents and children and juveniles about the shape of their education and the question at which school the education should be commenced or continued are of great value though in respect of the constitutionally guaranteed rights of Art. 6 Sec. 2 Phrase 1 and of Art. 2 Sec. 1 GC. When the parents decide in favour of integrated education with respect to the interest of the disabled child, the school authority must not disregard this with the simple allegation that referral to a special school would better suit the interests of the child. Rather, a thorough scrutiny of the wishes of the parents and their educational plan is necessary.

In Lower Saxony’s special pedagogic support regulations of November 16^th 1994 (GVBl p. 502), it is stated that the school authority should instruct a teacher that does, or will probably, teach the child and a special pedagogic teacher to draw up a report before deciding on the application of special pedagogic support (Art. 2 of the regulation). The establishment of a supporting commission, in which the parental guardians are a member and which – based on the two reports of the teachers – gives recommendations for the decision concerning whether special pedagogic support is necessary or not and on the future course of education of the disabled and which informs the school authority about the different opinions when no unilateral decision can be reached, is also provided for in the regulations (Art. 3). The two reports and the different opinions, that is the recommendation of the supporting commission, are to be taken into account when the school authority decides about special pedagogic support (Art. 4 of the regulation).

This procedure, which aims at objectivity in the authority’s decision-making on the one hand, and involves the parental guardians in the process of the decision-making, the latter obviously with the object of reaching a decision which is also accepted by the parents, reasonably takes into account the possible conflict between parents and their children on the one hand and the school authority on the other. It not only provides the outer framework in which the constitutional positions of the disabled pupil and his parents laid down in Art. 2 Sec. 1 and Art. 6 Sec. 2 Phrase 1 GC are adequately shown to advantage, it rather seems generally to be suitable in the schooling context to provide a procedural and organisational safeguard of the ban of discrimination of Art. 3 Sec. 3 Phrase 2 GC in favour of the disabled (concerning the constitutional protection by procedural means see BVerfGE 53, 30 <65>; 84, 34 <45 f.>).

The responsibility of the school authority for the decision about the need of a special pedagogic support and about the form of education for children and juveniles in need of support is not touched by this procedure though. The school authority is neither bound to the content and result of the reports about the respective pupils nor to the recommendations of the supporting commission. It is thus entitled to order a referral to a special school even if the establishments to help it with this decision exclusively or alternatively favour an education in the integrated form. In the light of Art. 3 Sec. 3 Phrase 2 GC in this case the authority has an enhanced duty to justify its decision though.

The ban on discrimination in respect to the disabled's demands in procedural matters, that decisions taken in respect of the disability and that can constitute discrimination against the disabled are to be substantially justified thereby revealing the respective reasons for the referral to a special school to the child who is interested in an integrated schooling. In this process the points which are touched by Art. 3 Sec. 3 Phrase 2 GC have to be made clear. The kind and extent of the disability have to be mentioned as well as the reasons for which the authority – as applicable – came to the decision that education would best be provided when referring the pupil to a special school. When applicable the organisational, personnel or financial difficulties have to be disclosed as well as why these difficulties could not have been surmounted in the case in hand. In any case sufficient reasoning of the referral to a special school is only given when it goes into the controversial wishes of the disabled and its parental guardians. They have to be put on a scale with the considerations of the school authority and weighed up in a way that the public measure is comprehensible and thus will be inspected by the courts.

bb) The decision of the administrative courts, that a referral order of the school authority meets these provisions falls only partly under the legal supervision of the Constitutional Court. The finding and assessment of the facts of the case as well as the interpretation and application of the relevant norms of the legislature of the Land concerning the school system is the duty of the lower courts (administrative courts) and is generally not subject to supervision by the Constitutional Court (see BVerfGE 18, 85 <92 f.>; 86, 122 <128 f.>). Neither is it the task of the Constitutional Court to control if the lower courts have respected the protection of civil rights, in this case apart from Art. 2 Sec. 1 and Art. 6 Sec. 2 Phrase 1 GC particularly Art. 3 Sec. 3 Phrase 2 GC, by putting them in concrete terms and if in every case the greatest possible protection is achieved (see BVerfGE 89, 276 <286>; 92, 140 <153>). The Constitutional Court, rather, only concerns itself with concurrent findings of the courts below when the appealed decision violates the general principal of equality of Art. 3 Sec.1 GC in its meaning as a ban on despotism (see BVerfGE 89, 1 <13 f.>) or if mistakes become visible that are based on a principal misunderstanding of the meaning and scope of a civil right, particularly in the scope of its protection and that are in its substantive meaning of considerable value for the actual case (see BVerfGE 89, 1 <9 f.> with further substantiation).

II.

Bearing this in mind, the outcome of the appealed decision is not to be queried. It is true that it does not meet all the constitutional requirements that have been laid down in C I (1). Nevertheless this does not touch the decision of the Higher Administrative Court that stated, with respect to the actual circumstances of the case, the appealed referral is legally correct (2).

1. The content and meaning of the ban against discrimination in Art. 3 Sec. 3 Phrase 2 GC is not always correctly understood.

a)The Higher Administrative Court is right, though, in stating that Art. 3 Sec.3 Phrase 2 GC neither makes the special schools that have been established in Lower Saxony unlawful, nor that the decisions of the school authority about the referral to such a school following Art. 68 Sec. 2 Phrase 1 NSchG are now unfounded (see C I 2 a bb). It is also true that the referral of a disabled child to a special school against his and his parent’s will does not constitute forbidden discrimination following Art. 3 Sec. 3 Phrase 2 GC. In this regard a violation of Art. 3 Sec. 3 Phrase 2 GC is not only existent when a pupil is transferred to a special school on grounds of his disability and against his will, although he is suitable for an ordinary school. The referral to a special school also constitutes discrimination against the pupil that is interested in an integrated education, when an overall review reveals that his education in an ordinary school would be possible with special pedagogic support, when the needed personnel and financial extravagances could be met and when no organisational difficulties or interests of thirds persons that are worthy of protection stand in the way. In this case the special schooling would violate Art. 3 Sec. 3 Phrase 1 in connection with Art. 2 Sec. 1 and as applicable Art. 6 Sec. 2 Phrase 1 GC.

b) Contrary to the opinion of the Higher Administrative Court this can not be questioned by stating that the term of disability in Art. 3 Sec. 3 Phrase 2 GC and the term of the need of special pedagogic support as in Art. 14 Sec. 2 Phrase 1 NSchG are not identical. It is true that not every disabled child is in need of special support; and vice versa, non-disabled children may also be in need of special pedagogic support. Referral to a special school does touch the protection of Art. 3 Sec.3 Phrase 2 GC though, when the need of such a support is triggered by the results of a bodily, mental or spiritual hindrance.

c) Neither can the decision of the Higher Administrative Court be fully approved in terms of assessing the relation of Art. 3 Sec.3 Phrase 2 GC and the public school supervision of Art. 7 Sec. 1 GC. As stated above (see C I 2 a) the States do have a wide freedom of structuring and decision-making concerning the school system. This discretion generally includes the decision of the Land legislature how, and in which form the specific educational needs of disabled pupils can be met. Public freedom of structuring and decision-making is restricted though by Art. 3 Sec. 2 Phrase 2 GC. As a civil right this norm is, as is every other civil right, binding on the entire public power (see Art. 1 Sec. 3 GC). Therefore the public power cannot restrict the validity of a civil right as the Higher Administrative Court has stated for the public school supervision in its relation to Art. 3 Sec.3 Phrase 2 GC.

d) Even when having the above statements in mind, there is no reason for the Constitutional Court to examine whether the interpretation of the Higher Administrative Court of Art. 4 and 8 NSchG in particular, is simply legally legitimate. The constitutional provisions for the school authority in Art. 3 Sec. 3 Phrase 2 in connection with Art. 2 Sec. 1 and Art. 6 Sec. 2 Phrase 1 GC can be met by the framework of the school regulation of Lower Saxony, even if this regulation does not provide for a right of action for integrated schooling, as the Higher Administrative Court has rightly assessed. According to the decision of the Higher Administrative Court Art. 68 Sec. 2 Phrase 1 NSchG, following which the school authority decides about referral to a special school, gives the parents of a child with special pedagogic needs the right to a decision that does not result from an incorrect use of discretion; the referral to a special school is illegitimate, when the requirements of the necessary support can also be met at an ordinary school and the parents favour such a school for their child. Nothing else is applicable when, like in this case, the disabled child itself is asking for an education at such a school. In this case as well the school authority may, and indeed must within its discretion of decision-making respect the requirements of Art. 3 Sec. 3 Phrase 2 GC concerning a decision that suits the disabled.

2. Despite the partly wrong opinion of the Higher Administrative Court about the content and the meaning of Art. 3 Sec. 3 Phrase 2 GC the appealed decision is constitutionally legitimate.

a) The Higher Administrative Court did not doubt the fact that the plaintiff is, by reason of impairs of functions that result in severe bodily damage, disabled. It has also ascertained that the school authority has acknowledged by the referral order in the form of a dissenting ruling following an objection a need for special pedagogic support for the plaintiff on grounds of the report of the special pedagogic teacher and the recommendation of the supporting commission. In this case the plaintiff needed five hours of extended special pedagogic support every week in the subject of mathematics and in additional subjects, in particular in scientific subjects, where education with same aim is not possible, it needed additional support in the form of a pedagogically, or therapeutically trained aid that accompanies the class. This special form of support could not be provided for in the integrated comprehensive school which the plaintiff attended where a class consists of 27 pupils, because the special school teachers were not available for so many hours. For the same reasons, but also with respect to the necessary relation of pupils in need of support and those without such need, even the acceptance in one of the schools’ integrated classes was not possible. The establishment of further integrated classes, in which the plaintiff could have been transferred, failed because of the paucity of the necessary personnel resources and because the already existing integrated classes had to be maintained with respect to the right of continuity of the pupils therein.

b) The aspects that the plaintiff raises against this are not verified in detail and do not lead to the conclusion that the facts have been assessed wrongly or incompletely by the Higher Court of Justice. Therefore the Constitutional Court takes these facts as given. The assessment that the school authority was, in view of the severe special support of the plaintiff and the organisational and personnel difficulties and shortages, entitled to refer the plaintiff to a special school is not to be complained about, especially after dealing with the advantages and disadvantages of an integrated schooling in the ruling and taking into account the ideas and wishes of the parents. All of the plaintiffs’ main points have, therefore, reasonably been taken into account. The legal assessment of the Higher Administrative Court that the appealed referral is legitimate and thus in conformity with Art. 3 Sec. 3 Phrase 2 GC is, therefore, not based upon an incorrect interpretation of this civil right.