Demos against the AfD: Are ministers allowed to encourage teachers to protest?

Enlarge image

Large demonstration against the AfD and right-wing extremism on February 25th in Hamburg: “Going to a demonstration is not an official task”

Photo:

Markus Matzel / IMAGO

The President of the Conference of Ministers of Education and Cultural Affairs (KMK), Christine Streichert-Clivot (SPD), has encouraged teachers to take part in protests against right-wing extremism.

»Children and young people need role models.

“So I can only support it if teachers also set an example and take part in protests against right-wing extremism,” said the Saarland Education Minister to the dpa news agency last week.

Previously, North Rhine-Westphalia's School Minister Dorothee Feller (CDU) had "explicitly encouraged" teachers to take part in demonstrations "for our living democracy" in an interview with the "Neue Westfälische".

“Going to a demonstration is not an official task,” says Diana zu Hohenlohe, German professor of public law at the Sigmund Freud Private University in Vienna.

“When I go to demonstrate, I appear as a private person who has basic rights vis-à-vis the state.” So why are two ministers encouraging teachers to make use of their right to demonstrate?

And are they even allowed to do that?

The AfD in North Rhine-Westphalia has already announced to the “Neue Westfälische” that it is considering legal action against Feller.

Obligation of neutrality on the part of sovereigns

State officials, such as ministers, are not allowed to use their position at will to express themselves politically.

This is shown by a 2018 ruling by the Federal Constitutional Court against the then Federal Minister of Education.

Johanna Wanka had verbally shown the AfD the red card in a press release - and in doing so "relied on the authority of her office" because she used the ministry's website including the official coat of arms, explains the Bundestag's Research Service.

According to the court, this violates the AfD's right to equal opportunities.

Could the state ministers also have exceeded their authority?

There is no clear yes or no, says zu Hohenlohe.

So let's break the case down.

Teachers are allowed to demonstrate

“In any case, the two ministers are not allowed to announce or recommend anything that the civil servants or the collective bargaining employees at the schools are not allowed to do,” says the legal scholar.

But of course teachers are allowed to demonstrate privately, as was the case in Hohenlohe.

However, as the civil service status law states, they must “throughout their entire behavior” commit to the “free democratic basic order within the meaning of the Basic Law” and maintain “moderation and restraint” in their political activities.

“But there is no obligation to be neutral,” says zu Hohenlohe.

The Basic Law is also not neutral towards right-wing extremism, but rather "an answer to the terrible conditions of the Nazi era," says the expert on constitutional and administrative law.

Ministers are allowed to provide information

Teachers have recently been unsure whether they are allowed to demonstrate;

was also fueled by a letter from the district governments in North Rhine-Westphalia, which reminded teachers of “civil servants’ duty of neutrality, moderation and restraint during election campaigns,” which was routinely sent on the occasion of the European elections in June.

The ministerial encouragement should also be seen in this context.

Streichert-Clivot also wanted to make it clear that demonstrating was permitted, says the spokesman for the Saarland minister.

One of the tasks of ministers is to provide factual information about their tasks and areas of responsibility.

The Federal Constitutional Court has repeatedly stated this in the past, as the Bundestag Research Service also reports.

But there are also limits.

And they begin when officials make statements to the detriment of another party or citizens are deterred from taking part in a meeting by a government official's call, the research service continues.

Decision-making from bottom to top

This has to do with the fact that sovereigns should not influence the formation of political will from above, but rather it should take place from the people to the state organs, i.e. from bottom to top.

If a minister uses the authority of her office and the resources to discredit the AfD, as Johanna Wanka did, there is a risk that this decision-making process will be influenced from above.

A neutrality requirement therefore applies to government officials - but only if they also act in this capacity.

Party politician versus office holder

If, on the other hand, a minister speaks as a party politician or as a citizen, she can also express her political opinion in a combative manner, the Scientific Service continues, taking into account case law.

The neutrality requirement does not exclude members of the state government from political discussions, Feller also argued in the NRW state parliament session on Wednesday evening when asked by the AfD.

Her statements in the interview represented “a contribution to the party-political social debate,” she says.

However, she gave the interview in her role as school minister.

The Saarland Ministry of Education also makes it clear that Streichert-Clivot did not speak as a party politician, but as KMK president.

The Scientific Service also explains that the demarcation of the speaker roles is not that easy.

Case law has developed a number of criteria for this.

Encouraged and supported, but not called upon

If Feller's statement actually ends up in court, the minister's exact wording will also play a role.

Contrary to the headline in the “Neue Westfälische” and also the SPIEGEL report based on it, Feller did not

call

for people to take part in demonstrations.

Feller told the newspaper, "I would like to expressly encourage teachers to take part in these demonstrations for our living democracy in order to set an example - also with their students." When the newspaper asked whether this was "a signal for democracy and against it AfD," she referred to a statement from her superior Hendrik Wüst: "Our Prime Minister recently described the AfD as a danger to democracy.

In this sense, I welcome every commitment to democracy and against all enemies of the rule of law.

Streichert-Clivot also did not call on teachers to demonstrate, but said that she could “only support it if teachers also set an example and take part in protests against right-wing extremism.”

Teachers and students at a demonstration

The remaining point is whether students and teachers should be able to demonstrate together, as suggested by Feller.

According to lawyer zu Hohenlohe, it is important for an assessment whether this happens in class or outside of school hours.

»A chance encounter is of course okay.

At a school event, the teacher has a duty of moderation and restraint towards the students." This is also regulated by the Beutelsbach Consensus, according to which teachers must treat political issues in a balanced and objective manner and ensure that different views are discussed in class.

School Minister Feller explained in the state parliament on Wednesday, in response to questions from the AfD, that the North Rhine-Westphalian school law expressly calls on schools to educate young people in the spirit of humanity, democracy and freedom.

Since democracy thrives on participation and participation, school communities could also take part in demonstrations that promote the values ​​of democracy as part of “lessons at an extracurricular learning location.”

The events must be prepared and followed up educationally; the Beutelsbach Consensus and the principle of voluntariness apply.