Education in a Pandemic: Faraway Lessons Against the Constitution

Lawyers have no doubt that distance learning is incompatible with the constitutional right to education. This intervention is justified by the protection of our health. However, in order to introduce distance learning, legal provisions are needed. And they are still missing. The general mandate of the Minister to issue regulations is not sufficient.

Even the head of the State Legislation Center, in his comments on the draft amendment to the Education Act (the so-called Lex Czarnik), called for the regulation of online learning by law.

– The rules for suspending classes in individual types of institutions should be determined and administered using the methods and methods of teaching in law – wrote Krzysztof Schucki, President of RCL in his opinion of the project.

fragmentary science

A minister cannot be completely free to restrict full-time education. The law should clearly regulate when it is possible to switch to remote mode and when to switch to mixed mode. I get the impression that online learning is very popular now. Hard learning is fragmented. Students go back to school a week later, and in a couple of days they have to learn from home again. In this way, the constitutional right to education is used in an unstable and unpredictable way – says Miroslo Vrobloski, lawyer and director of the Constitutional Law Group, BRPO International and European.

questionable ground

Constitution in Art. 70 paragraphs. 1 indicates that the manner of performing compulsory education is determined by law.

– The requirements for conducting classes using distance learning methods and techniques as well as the conditions, manner and method of organizing these classes are, in my opinion, a way to perform compulsory education. Therefore, these issues must be regulated in law – emphasizes Beata Batulita, a lawyer specializing in educational law.

In his ordinances introducing changes in the work of the Minister, the Minister refers only to Art. 30b and 30c of the Education Act.

The first of them, in cases justified by exceptional circumstances that threaten the life or health of children and adolescents, gives them the right, by decree, to restrict or suspend the work of units of the education system in the territory of the state or on its part. In this case, according to Art. 30B may also exclude the application of certain provisions of the Education Act, the Law relating to the Education System and the Law relating to the financing of educational tasks, in particular in the implementation of recruitment procedures, the evaluation, classification and promotion of students, the taking of examinations, the organization of the school year and the organization of the work of units of the educational system.

It may also enter separate regulations to ensure proper achievement of objectives and performance of the functions of these units.

Necessary legal guidelines

According to lawyers, using these provisions as permission to issue a regulation on the transition to distance learning or blended learning is far from expanding.

– The Constitutional Court has repeatedly stated that Art. 92 sec. 1 of the Constitution permits the enactment of regulations only on the basis of a detailed authorization contained in the law and for the purpose of its implementation. Pyatta Patulita asserts that statutory mandate, in which it is impossible to indicate which content plays the role of guiding principles regarding the content of the act, is contrary to the Constitution.

He adds that the current regulations for conducting classes with the use of distance learning methods and techniques fundamentally modify the provisions of educational procedures.

the professor. Ryszard Piotrowski, Constitutionalist of the University of Warsaw

The Minister of Education and Science, when issuing regulations for online learning, refers to the provisions placed at his disposal. The Education Act authorizes him, in cases justified by the circumstances, to restrict or suspend the operation of schools. On this basis, it can issue an order regarding the closure of the school during the flood. In distance learning, we approach the continuation of learning, but differently. Of course, one could try to challenge ministerial regulations before the Constitutional Court. But you can also apply to the ministry with a claim for compensation. After all, the public authority acted illegally, and the parents incurred a loss by paying, for example, for private lessons, so that their children would not be left behind in school. The pandemic does not justify issuing regulations without legal permission, as well as with its broad interpretation. This is a transverse problem for the functioning of the current executive branch. Not afraid of the constitution.