## Facts

- A minor student with spina bifida and related motor and speech impairments attended an integrated comprehensive public school where disabled and non-disabled students learned together.
- A special-education consultation report concluded she needed special pedagogic support and indicated this could be provided either through intensified support at the integrated school (including substantial one-on-one assistance and in-class accompaniment) or by attendance at a special school for physically disabled students.
- The regional school authority determined she had special educational needs and ordered her referral to a special school, over the parents’ objection, reasoning that the integrated school could not provide the necessary support for staffing and pedagogical reasons.
- The family sought interim relief to prevent the transfer; the administrative court denied relief, and the Lower Saxony Higher Administrative Court likewise denied interim relief.
- The student filed a constitutional complaint challenging the denial of interim relief and arguing that compulsory transfer to a special school violated the constitutional ban on disability-based disadvantage.

## Issues

1. Whether referring a disabled pupil to a special school against the pupil’s and parents’ will constitutes discrimination prohibited by the constitutional ban on disadvantaging persons because of disability.
2. Whether the authorities and courts violated constitutional rights by failing to enable continued attendance at the integrated school, given the claimed availability of special pedagogic support in the general school setting.
3. What limits resource and organizational constraints place on the state’s duties to provide integrative schooling and compensatory measures for disability in the public school system.

## Decision

- The constitutional complaint was rejected; the special-school referral and the denial of interim relief stood.
- Referral to a special school against the will of the child and parents is not, by itself, prohibited discrimination.
- Discrimination may exist if education at an ordinary school with special pedagogic support is actually possible, can be financed and staffed with existing resources, and no overriding organizational difficulties or protectable third-party interests oppose it.
- On the record, the competent bodies found the integrated school could not provide the required support within existing staffing and organizational capacities, and those findings were not constitutionally defective.

## Legal Principles

- The constitutional ban on disadvantaging persons because of disability prohibits state action that disadvantages a person due to disability and can require measures that offset disability-related disadvantages in order to secure equal educational opportunity.
- The disability equality guarantee does not create an unconditional individual right to a particular school form (such as integrative schooling) irrespective of the state’s organizational, staffing, and material capacities.
- Excluding a disabled pupil from general schooling can violate disability equality where integrative education with appropriate support is feasible using existing personnel and funds and is not blocked by legitimate organizational constraints or protectable third-party interests.
- Parental authority over upbringing does not grant an absolute right to demand integrative schooling; the state retains constitutional responsibility to organize the school system, subject to the non-discrimination requirement.

## Conclusion

The court held that compulsory referral of a disabled student to a special school is not inherently discriminatory, and found no constitutional violation where the state reasonably determined that integrative schooling with necessary support could not be implemented within existing resources and organizational conditions.


Integrated Education Case (Ger.), 96 BVerfGE 288 (BVerfG 1997)