The court admits the appeal of the parents of a minor in a firm and novel ruling that rejects the exclusion of Spanish as a co-curricular language “or its reduction to a residual presence”.
María Jesús Cañizares, 27 December 2022
The Fifth Section of the Contentious-Administrative Chamber of the High Court of Justice of Catalonia (TSJC) recognises for the first time the right of a pupil to receive one or several main subjects in Spanish, without applying percentages and evoiding the blockage of the unconstitutionality question raised against the recent Catalan laws that regulate the use of languages in schools. The court gives priority to Spanish being a vehicular language and not being reduced to a residual presence.
The ruling, which is final, partially upholds the appeal lodged by the parents of a girl and orders her to receive effective instruction in Spanish, not only in the subject corresponding to the learning of this language, but also in one or more additional subjects or subjects “which, due to their importance in the curriculum as a whole and their teaching load, may be considered as main subjects”.
The Asamblea por una Escuela Bilingüe (AEB), which has advised the family, has taken a very positive view of the ruling.
The process began in July 2019, when the TSJC admitted the appeal of a family against the linguistic project of the public school Sagrada Familia Urgell in Barcelona. The appellants demanded schooling in Spanish and Catalan in an equivalent proportion, and alternatively, teaching in Spanish in a percentage of no less than 25% of subjects. The family invoked the doctrine of the Constitutional Court and the Supreme Court to demand, in addition, that internal communications within the centre should also be in both languages.
Autonomy of schools
The Regional Ministry of Education of the Generalitat opposed the change, considering that modifying the school’s linguistic project would limit its autonomy to decide on linguistic competences, and that it would affect all the pupils in the school.
The ruling recognises the autonomy of schools, but “this does not exclude the obligation to comply with the applicable legal rules, i.e. the obligation to respect the legal framework”.
Complying with the law
In short,” it adds, “if a service user makes a complaint about a school’s possible failure to comply with the law, the Department cannot shirk its obligation to channel, verify and resolve this complaint and, if necessary, to enforce compliance with the law in the school in question, without the autonomy of the school being an obstacle. A responsibility which, as is obvious, does not fall with regard to the legal framework regulating the teaching of languages”.
The court again recalls constitutional jurisprudence, as well as the fact that “the reference to linguistic immersion in article 15 of Law 12/09, on education in Catalonia, should not be understood as a mandate for monolingual teaching but as a tool for the linguistic normalisation of Catalan; that is, the position of this language as the centre of gravity of the system when its normalisation so requires”. And it specifies: “This does not mean the exclusion of Spanish as a co-curricular language or its reduction to a residual presence”.
“The jurisprudence of this Court and of the Supreme Court has established that, regardless of whether the model allows for flexibility depending on circumstances, there is a minimum below which the vehicular use of the language cannot be considered normal in the system. In this sense, a minimum vehicular use of 25% of teaching hours has been set. A percentage which, in addition to the teaching of the official language itself, must include in full at least that of another area, subject or non-linguistic curricular subject of a core or analogous nature”.
The TSJC refers to the law and decree approved by the Government regulating language use in the classroom, and to the question of unconstitutionality raised on the grounds that “they broke the qualitative parity between the two official languages, in the sense that only Catalan was recognised as a normal vehicular language in education, while Spanish was limited to curricular or educational use, the intensity of which is only guaranteed to the extent necessary to guarantee its knowledge at the end of compulsory education”. However, the judges chose to bypass the blockage that this question might raise.
“It is not the general situation of the education system in Catalonia that is at issue in this appeal, but the specific situation of the appellant’s daughter. What is relevant to a specific situation is not strictly speaking the formal characterisation of the two official languages, their qualitative parity or the general criteria for determining their educational use by the school. What is decisive is the possibility of jurisdictionally guaranteeing the pupil a minimum teaching use of Spanish which, in short, is what is sought here”.
And in this case “we must consider that the presence of Spanish is insufficient, taking into account both the nature of the subjects and the teaching hours taught in this language”.
Certainly, “Physical Education is one of the eight areas of primary education, according to Article 8 of Decree 175/2022, which are non-hierarchical areas in terms of their importance. It is also true that Physical Education has achieved a sufficiently relevant importance in education and significance for pupils, given its links with sport and also with physical and mental health, according to the contents attributed to this subject. However, it is no less true that the use of language does not have the relevance in this subject that it has in the other subjects, so that it could probably be considered that the use of Spanish is less important than that of English which, with the same number of teaching hours, includes two compulsory curricular subjects, in which the use of language is intensive and of great relevance”.
The judges conclude that “although a percentage parameter cannot be used as requested by the appellant, the precise knowledge of the specific situation of the pupil concerned makes it possible in this case to establish a guarantee of adequacy of the use of the official languages, in accordance with the system of linguistic conjunction in substantially the same terms as those requested, specifically, recognising the plaintiff’s right that, while his daughter remains at school in the Catalan education system, she should effectively receive in Spanish, apart from the subject or subjects corresponding to the learning of that language, one or more additional subjects or subjects which, due to their importance in the curriculum as a whole and their teaching load, may be considered to be principal”.