Mask requirement: The court prohibits the exclusion of students in the event of refusal

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The schools are currently closed except for emergency care, but if the lockdown in this area is lifted or relaxed, the mask requirement for all students in Hamburg will apply again.

A high school student at a Hamburg district school had appealed against this regulation, in particular against the fact that he could be permanently excluded from classes in the event of an infringement.

The Hamburg administrative court had rejected the expressly formulated application.

The reason: The question of the legality of the ban on taking part in lessons without a mask is currently to be assessed as open, but when weighing the consequences, the protection of the life and health of the population through the mask requirement outweighs the interests and legal interests of the applicants.

The student and his parents then took action before the Higher Administrative Court, which had repeatedly corrected judgments of the lower court in the past.

So this time too, the urgent application was accepted.

There are no doubts about the legality of ordering a mask requirement in schools during school hours.

"In any case, the order of the mask requirement in the version of the Coronavirus Containment Ordinance that has been in force since January 8, 2021 (Section 23 Paragraph 1 Sentence 3) is a sufficient legal basis and represents a proportionate interference with the fundamental rights of the pupils affected by this" it says in the explanation.

But: At the moment there is no legal basis for the indefinite period of exclusion from classes of a student who refuses to comply with the mask requirement.

"Neither the Coronavirus Containment Ordinance nor the School Act contained a corresponding authority," said the court.

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This judgment is final.

If the Senate wants to continue to enforce the exclusion from teaching, it must create the necessary legal basis for this.

The continuation of the general school closure will be discussed in the coming week, then the Conference of Ministers of Education meets and the Prime Ministers of the federal states also consult with the Chancellery.