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On the other hand, in consultation with the Ministry of Education, the Ministry of Education stated that the measures were “set out in a detailed statement.” One takes note of the judgment and looks at the statements carefully. The safety of students and teachers in the school was always the focus of the measures. And: “With the development of the Crown Commission, it has become easier to provide a basis for regulations.”
In May, the Ministry of Education ordered for the remainder of the 2019/20 school year that school classes be divided into two groups and taught alternately in shifts. Also, with a few exceptions, all people in the school building had to wear mouth and nose protection outside of class.
Two school-age children called the VfGH about these requirements in the Covid-19 School Ordinance (C-SChVO). They saw the regulation as a violation of the principle of equality, the right to privacy and the right to education. The Constitutional Court did not rule on these substantive issues in its decision. However, it has outlawed the regulation, which has now expired, and also referred to its key decision from the summer, which retroactively repealed provisions as part of the Covid-19 measures.
The reason for this is the so-called principle of legality in the constitution: generally speaking, administrative actions such as the issuance of an ordinance can only be carried out on the basis of the laws. This law can be quite broad and leave the legislator some room for maneuver; however, you must also explain exactly on what basis you took the actions you took.
Education department minister Heinz Faßmann (ÖVP) did not submit any dossier on how the C-SChVO arose despite a request from the Constitutional Court. Therefore, it is not clear to the Constitutional Court which decision-making bases guided the ordinance in its decision to impose on students the obligation to wear oral and nasal protection in the areas specified by the ordinance and to divide school classes into two groups and alternate to teach in face-to-face classes at the school, ”according to the VfGH. In this regard, the Court did not even have time to address the substantive concerns raised by the applicants.
The FPÖ was confirmed in a reaction to the VfGH’s decision in its demand to end the requirement of masks in schools. This is just a big burden for the students, who play only a small role in the infection process anyway. Instead, Hermann Brückl advocates the use of Plexiglas walls. It also assumes that distance education, which is “even worse” than shift work, would also be canceled in the event of a lawsuit by the Constitutional Court.
For NEOS, the VfGH motto “the rule of law dilettantism” of the government makes this clear. “If the population does not trust the federal government, the understanding of adhering to meaningful rules will remain low,” said education spokeswoman Martina Künsberg Sarre. It calls for Faßmann security concepts that make classroom teaching possible for everyone as of January 18, as well as a strategy to fill the learning deficits that have arisen in distance education.
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