Right to digital education

Bitkom e. V. presents legal opinion from Redeker Sellner Dahs

Berlin, 10 March 2022. Upon the commission of Bitkom e. V., Redeker Sellner Dahs has drafted a legal opinion regarding an enforceable right to digital education. Bitkom e. V., the largest digital association in Germany, represents more than 2,000 member companies, including almost half of the 40 DAX‑​listed companies, additional global players and 500 innovative tech start‑​ups. Already last year, Bitkom e. V. – together with the German Pupils' Conference and the Federal Parents' Council – advocated establishing a right to digital education. This right would constitute an enforceable claim to digital participation in school lessons and other government‑​funded and co‑​financed educational services in the future. According to Bitkom e. V., this demand meets with widespread support among the general population: in a representative Bitkom survey which was also recently presented to the public, 80% of all Germans are in favour of a legal right to digital education.

Achim Berg, President of the digital association Bitkom, commented as follows:
“We are committed to equal opportunity. But since the beginning of the pandemic, Germany has regressed considerably when it comes to equal access to school education. The German Federal Constitutional Court recently upheld a right to school education. This entitlement must now be placed on a legal footing and include digital services,” states Berg. “We can no longer accept it being left to chance whether digital education takes place and also functions properly or not,” says Berg. “A right to digital education makes participation not only in school lessons, but in services along the entire chain of education digitally possible for everyone – above and beyond the pandemic.”

A multi‑​location team (Berlin, Brussels, Bonn) from the law firm Redeker Sellner Dahs explored this issue from the perspective of constitutional law, (higher) education law and state aid law. Their expert opinion comes to the conclusion that neither the Basic Law (the German Constitution) nor the constitutions of the German Länder would have to be amended to establish a right to digital education. Rather, a right to digital education could be enshrined in individual Länder laws governing schools, higher education and further education.

Dr Cornelius Böllhoff, partner of the law firm Redeker Sellner Dahs at the Berlin and Munich offices, commented as follows:
“We are delighted to be working with Bitkom e. V., whose educational policy team reached out to our constitutional and digital law colleagues. Our legal opinion comes to the conclusion that principles going in the direction of a right to digital education are already to be found in current constitutional law – including in view of recent case law handed down by the Federal Constitutional Court – even if an enforceable claim has been lacking so far. As long as digital services are understood as an 'add‑​on' to predominantly physical education, a right to digital education can be readily implemented in law. There is no need for a constitutional amendment.”

Dr Cornelius Böllhoff was joined by Dr Matthias Kottmann, Maître en Droit (Berlin), Dr Clemens Holtmann (Brussels) and Dr Daniel Krebühl (Bonn) in preparing the opinion.

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