The conservative bloc of the TC warns that the 'Celaá law' leaves in "nothing" essential content of the right to education

He reproaches the "imposition" of an educational model on another also constitutional but not to the "liking" of the legislator

MADRID, 26 Abr. (EUROPA PRESS) -

The four magistrates that make up the conservative minority of the Constitutional Court (TC) have warned that the so-called 'Celaá law reduces "to nothing" what they consider "essential content" of the right to education by prohibiting it from being financed with public money to the centers that segregate students by sex, in a private vote where they distance themselves from the endorsement given by the progressive majority to this norm.

The magistrates Ricardo Enríquez, Enrique Arnaldo, César Tolosa and Concepción Espejel sign a vote, to which Europa Press has had access, where they defend that the Education Law endorsed on April 18 by the Plenary of the Constitutional Court should have been declared unconstitutional for three precepts Specifically, those referring to public aid to subsidized centers, the schooling of students with special needs and religion as a subject.

The signatories focus on "the legislator's decision not to 'help' perfectly constitutional educational models or systems, such as single-sex education, (...) but that are simply not to their liking".

They agree with their colleagues that article 27.9 of the Constitution, according to which "the public powers will help educational centers that meet the requirements established by law", "does not derive a subjective right to public provision", reasoning that, "If that were the case, the result would be that the system of the so-called 'school check' would have been constitutionalized in 1978."

For the four magistrates, the sentence approved redirects said precept of the Magna Carta "to the will of the legislator with no more limit than the reasonableness of the unequal treatment", which in their opinion is "an interpretation of the Constitution that ends up reducing one of his articles to nothing".

In his opinion, it is an interpretation "especially forbidden when it is also a precept, article 27, which was the result of a delicate agreement that almost derailed the constituent process in 1978 and which was included among the 'fundamental rights and public liberties ' ultra-reinforced protection ".

"One can agree or disagree with this article 27.9, or think that Spanish society has evolved and is very different from then, so that that precept no longer makes sense. But that assessment does not correspond to the Constitutional Court" , they underline.

Thus, they believe that in said interpretation "the limit of the 'essential content' of article 27.9 was applicable" in order to "prevent that the freedom held by the social majority to configure the educational system (...) does not become the faculty of undermining educational pluralism by imposing the model that is preferable to them by the simple expedient of suppressing all 'support' to alternative models that are not to their liking".

"Only in this way educational pluralism, whose practical expression is the freedom to choose an educational model different from the one preferred by the majority, can it be 'real and effective'", they defend.

Otherwise, and taking into account that this public aid "especially concerns families with less economic capacity", they ask "how is educational pluralism protected if the right of the majority to deprive the models of all aid is admitted?" that, even constitutional, do you consider bad or inconvenient?

"The interpretation of article 27.9 that we propose is simply that of the neutrality of the 'aid' provided for in it, precisely for the sake of the 'educational and political pluralism' that justify this precept and give it life, as 'essential content'", they settle .

They also criticize that the sentence supports the article of the 'Celaá law' that imposes as criteria to decide how the schooling of students with special needs is to be carried out, the best interest of the minor but also "the will of the families that show their preference by the most inclusive regime", that is, in ordinary educational centers.

The dissenting magistrates warn that "the simple incorporation of students who present special educational needs to ordinary educational centers, as stated in the sentence, cannot be considered inclusion", since this "requires the realization in the centers of the necessary adjustments that guarantee these students an environment in which it is ensured that the relationship with others will be positive and contributes to their integration into society".

They understand that by prioritizing the will of these families, the others are ignored, which --they indicate-- "may end up causing significant disturbances in the practical application of the precept by devaluing the only criterion to be taken into account in these cases, which is the to detect and impose the defense of the best interests of the minor concerned, regardless of the will of their parents, their sense, or the need for 'very specialized' care or of another type".

The third fault that they make to the 'Celaá law' is the absence of mention of religion as a subject in the educational curriculum, considering that it leaves "in question" the possibility that churches, denominations, and religious communities "can react against to possible acts of the educational public administrations contrary to the right of those to define the religious creed object of constitutionally recognized teaching".

They also criticize that, in this regard, the Constitutional Court carries out "a covert change of doctrine", recalling that "our doctrine unequivocally inferred, at least until now, the constitutional right of churches, denominations and religious communities to define and disseminate the religious creed that is the object of teaching".