Ángel Rodríguez (Málaga, 60 years old), Professor of Constitutional Law at the University of Malaga, values the Government’s announcement to resort to the Murcia parental veto.
Question. Is the parental veto constitutional?
Reply. Like most times in law, it depends. It depends on what we understand by parental pin and what it applies to. Are curricular, extracurricular, complementary activities, a field trip? All these are important nuances. If what is intended is that parents can exempt their children so that they do not receive certain knowledge or do not participate in activities that are in the curriculum, established in the law, evaluable, punishable, as a kind of conscientious objection, that I Yes I think it would be unconstitutional. It’s as if I don’t believe in math or vaccines and I don’t want my son to go to a health habits talk.
P. How does the Constitution protect the right to education of the child?
R. It is in article 27, which was the most complex to write and approve, which endangered the constitutional consensus. We are touching a very sensitive issue and, precisely because of that, try to reach a consensus. For this issue, on the one hand there is a principle of the right to education with universal, compulsory and free character in basic education, which allows a great intervention of the State. But at the same time freedom of education is guaranteed and parents and teachers are empowered to intervene. There is an intermediate situation and that is why after 40 years there is a certain school war, educational laws are changed, etc.
P. And in the case of the parental veto, how is the Constitution applied?
R. The Constitution guarantees the right for parents to religious and moral education to agree with their convictions. Therefore, there is room for them to influence the education of their children, but certainly not for curricular or citizen content.
P. Would the limits of “the moral” include for example a sexual or equal education?
R. No, that is not moral. This is not within the parents’ ability to say: “I don’t want my son to tell that.” That is contrary to the right of children’s education. The Constitution itself says that education aims at the full development of personality in respect for democratic principles in fundamental rights and freedoms. That is not opinable. There can not say parents: “This no.” Now, religious and moral formation, there yes. Being clear that we could talk about unconstitutional regulation, I think the controversy is premature, because we still don’t have a regulation that we can say: you have passed on these points. It is a fundamentally political controversy.
P. The Government has announced that it will appeal. What court should I go to?
R. It depends. It could come by substantive aspects, that the regulation excludes substantial contents, or by competency issue, because education is transferred to the communities, but the State has powers of basic legislation, which limits the capacity of autonomy. If we are talking about a norm with the character of autonomous law, the only possible way is the Constitutional Court. If it is of a regulatory nature, the contentious administrative route would also be open. In any case, if there is an appeal by the State, the autonomous norm is automatically suspended. The suspicion of unconstitutionality is strong, but we will have to wait to examine the specific rule.