Lawyers are convinced that distance education is incompatible with the constitutional right to education. This intervention is justified by the protection of our health. However, to introduce distance education, legal provisions are needed. And they are still missing. The minister’s general mandate to issue regulations is not sufficient.
Even the head of the State Legislation Center, in his comments on the Education Bill Amendment Bill (called Lex Czarnik), called for e-learning to be regulated by law.
– The rules for suspension of courses in the different types of institutions should be determined and administered using the methods and methods of teaching law – wrote Krzysztof Schucki, president of RCL, in his opinion on the project.
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 feel like online learning is very popular now. Difficult learning is fragmented. The students go back to school a week later, and in a few days they have to learn at home again. In this way, the constitutional right to education is used in an unstable and unpredictable way – explains Miroslo Vrobloski, lawyer and director of the Constitutional Law Group, BRPO International and European.
Constitution in art. 70 paragraphs. 1 indicates that the manner of carrying out compulsory education is determined by law.
– The requirements relating to the conduct of courses using distance learning methods and techniques as well as the conditions, modalities and mode of organization of these courses are, in my opinion, a way of carrying out compulsory education . Therefore, these issues must be regulated by law – emphasizes Beata Batulita, a lawyer specializing in education law.
In his ordinances introducing changes in the work of the Minister, the Minister refers only to s. 30b and 30c of the Education Act.
The first of them, in cases justified by exceptional circumstances threatening the life or health of children and adolescents, gives them the right, by decree, to restrict or suspend the work of the units of the education system in the territory state or on its part. In this case, according to art. 30B may also exclude the application of certain provisions of the Law on Education, the Law on the Education System and the Law on the Financing of Educational Tasks, in particular in the implementation of recruitment procedures, assessment , the classification and promotion of pupils, the passing of examinations, the organization of the school year and the organization of the work of the units of the education system.
It may also adopt separate regulations to ensure the proper achievement of the objectives and the performance of the functions of these units.
Legal guidance needed
According to lawyers, the use of these provisions as authorization to enact a regulation on the transition to distance education or mixed education is far from being generalized.
– The Constitutional Court has repeatedly stated that art. 92 seconds 1 of the Constitution authorizes the adoption of regulations only on the basis of a detailed authorization contained in the law and for the purpose of its execution. Pyatta Patulita claims that the 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 the conduct of courses with the use of distance learning methods and techniques fundamentally change the provisions of educational procedures.
the teacher. Ryszard Piotrowski, Constitutionalist from the University of Warsaw
The Minister of Education and Science, when issuing regulations for online learning, refers to the provisions made available to him. The Education Act authorizes it, in cases justified by the circumstances, to restrict or suspend the operation of schools. On this basis, it can issue an order concerning the closure of the school during the flood. In distance learning, we approach the pursuit of learning, but differently. Of course, one could try to challenge ministerial regulations before the Constitutional Court. But you can also ask the ministry for a compensation claim. After all, the public authority acted illegally and the parents suffered a loss by paying, for example, for private lessons, so that their children were not left behind at school. The pandemic does not justify issuing regulations without legal authorization, as well as with its broad interpretation. This is a cross-cutting problem for the functioning of the current executive. Not afraid of the constitution.