Freedom of education

Central to the Belgian education legislation is the Belgian Constitution which guarantees 'freedom of education' (art. 24). This is a two-sided freedom:

• The active freedom for every natural person or legal person to organise education and to set up institutions to that end;
• The freedom of choice of school for pupils and their parents.

The right of establishment, i.e. the freedom of private persons, as well as authorities, to found schools and provide education, both in form and in content. The autonomy derived from this principle also includes the right, within the prevailing rules, to confer legally valid proofs of study and to issue study certificates ratifying those studies;

the right of orientation, which implies that schools can be founded on the basis of either certain denominational (Catholic, Jewish, Protestant and Islamic schools) or non-denominational philosophies, or certain pedagogical or educational ideologies (the so-called small education providers such as Steiner, Freinet or experience-based education);

the right of organisation, or the organising bodies' and school boards' right to decide on the organisation and running of schools without interference from the government; this implies a.o. laying down the registration policy and applying disciplinary rules, the choice of staff in view of achieving their own educational objectives, the promulgation of school regulations. In other words, the decisive power of the school boards (organising body) and school management may not be curtailed in a clearly unreasonable or unequal manner. The Constitution prohibits all preventive measures. However, these may not be confused with regulatory measures. For instance, the government is allowed to lay down rules in a decree about admission policies and the right to refusal;

• set conditions in relation to people' qualifications;
• developmental objectives and final objectives imposition insofar as this leaves enough room to realize the pedagogical or ideological project;
• introduce participation structures,...
• (The right to subsidies and the conditions in this regard can also lead to a restriction of the active freedom of education.) (Seneca, Forum for education law, glossary, http://www.seneca.be ).

Teaching methods and 'pedagogical project'

The school boards/organising bodies are largely autonomous in terms of teaching methods, curricula, pupil assessment and schools' pedagogical project. Each organising body (school boards in elementary education) defines its pedagogical project or mission statement independently. Therefore, government control is out of the question as long as the projects do not contravene the democratic principles upon which the Belgian State is based and the legal and statutory provisions. This is why several educational umbrella organisations and school boards have developed, written and published their pedagogical projects in great detail. In this respect we refer to the so-called educational umbrella organisations (see 2.7.1.3) and to some of the larger cities, Antwerp and Ghent (see 2.7.1.9).

The 'school development plan' is a plan drawn up by the school which at least contains the following elements: - a description of the pedagogical project, namely the fundamental principles laid down by the school board on behalf of the school; - the organisation of the school and particularly the division into pupil groups; - the way in which the pupils' learning process is assessed and the way in which this is reported; - the provisions in mainstream education for pupils with a handicap or who are educationally challenged, including the forms of cooperation with other schools of mainstream and/or special education.

Freedom of choice of school and right of registration 

Alongside 'pedagogical freedom' for schools, the parents are free to choose the school. Both freedoms are guaranteed by the Constitution. Parents and their children should have access to a school of their choice within a reasonable distance from their home. A school can autonomously decide on its maximum capacity, but if this is used as a pretext to refuse pupils, the consistency of the refusals will be checked.

The right to registration

The GOK-Decree on equal educational opportunities I of 28 June 2002 (see 12.3.1.1) laid down the fundamental right of each pupil to registration in the school of their choice and in the location of their choice. It also anchored down the registration procedure and priority ruling. This right should enable pupils and parents to freely choose education from a whole range of pedagogical projects. Refusals on grounds of skin colour, national or ethnic origin, background, religion or sex are strictly forbidden.

Foreign-national children, too, who immigrate without any legal-residency status together with people who exercise parental authority or have factual custody of them, are entitled to education as soon as they reside in the country, irrespective of whether or not their parents are included in a waiting list or aliens register. (Circular letter GD/2003/03)

Grounds for refusal

A school can only invoke 4 grounds for refusal.

• When an additional registration, due to material circumstances, results in the prescribed maximum capacity being exceeded.
• If the pupil in question was expelled from the school during the previous school year or the year before.
• Some mainstream secondary schools may, during the school year, refuse the registration of pupils who change schools after they were expelled. This refusal is only possible in accordance with criteria previously agreed within the local consultation platform.
• A final ground for refusal is related to special needs pupils in terms of education, therapy and care who wish to enrol in mainstream education schools. The organising body will then need to demonstrate that the school's resources cannot meet the pupils' specific needs in terms of education, therapy or care.

Registration procedure

Pupils can register at the earliest on 1 September of the previous school year. Schools shall keep a register in this respect, whereby the chronological order of registration is decisive, taking into consideration the priority rules laid down by the GOK decree that now apply to the entire compulsory education. This registration will, in principle (except in cases of pupils having been expelled) apply for the entire school career of this pupil.

Parents and pupils are informed about the pedagogical project and the school regulations (which respect the international and constitutional principles on human rights and the rights of the child). If the parents do not agree with this project or the school regulations their child's registration will not be processed.

Priority rules in the Flemish language area

These priority rules deviate from the general principle of 'first come, first serve'.

• Siblings (or other children of the same living unit who live under the same roof) of an existing pupil take priority over all other new pupils in the school in question. The school must determine a priority period or date for their registration with this in mind.
• School boards can in the framework of an active admission policy grant the right of priority to GOK pupils who meet at least one of the equal opportunities indicators:
  • the parents are members of the migratory population (bargees, fairground or circus operators and artists, members of the travelling community);
  • the mother does not have a diploma secundair onderwijs (diploma of secondary education), a studiegetuigschrift van het 2^e leerjaar van de 3^e graad beroepssecundair onderwijs (certificate of the 2^nd grade of the 3^rd stage of vocational secondary education) or equivalent proof of study;
  • the (homeless) pupil is, either temporarily or permanently, cared for outside his/her own family environment;
  • during the school year which precedes the school year of the pupil's registration, the family received at least one school allowance from the Flemish Community;
  • the language the pupils speaks at home, i.e. the language he speaks with his father, mother, brothers or sisters is not Dutch. The language spoken at home is not considered to be Dutch if the pupil does not speak Dutch to anyone in a family of three (the pupil excluded) or speaks Dutch with maximum one family member. Several brothers and sisters are always counted as one family member.

• The right of priority may not be granted selectively on the basis of one particular indicator precluding others.
• In order to achieve a better social mix, a school board may grant priority to non-GOK pupils. This is only on the condition that at the school, the percentage of GOK pupils is 10% higher than the percentage of GOK pupils in the working area of the local consultation platform (LCP), the area demarcated by the LCP or in the municipality in the absence of a local consultation platform.
• The school board that opts to grant a right of priority (to GOK pupils or non-GOK pupils) determines the percentage to which priority is granted. This percentage will be expressed in an absolute number which indicates the number of priority places. The school board will also determine the period during which the right applies and the level within the school to which priority applies. When pupils from a priority category apply for a place during the period of priority, they are enrolled chronologically until such time as the reserved places have been filled. (See also 12.3.1.1).

Priority rules in the bilingual Brussels Capital Region

• Siblings (see priority ruling in the Flemish language area)
• Schools can grant right of priority to pupils who speak Dutch at home (irrespective of whether or not they meet one or more GOK indicators), provided that the pupil converses in Dutch with at least one parent, and the language spoken at home can be demonstrated by an affirmation in lieu signed by the parents. The Brussels LCP Elementary education is authorised to determine the percentage of pupils who speak Dutch at home to whom priority can be granted, provided that they respect a lower limit of 20%. If the LCP fails to reach consensus, a 25% will apply. The school board determines the level within the school to which, and the period in which, this priority ruling applies.
• School boards can grant a right of priority to GOK pupils who meet at least one of the first four above-mentioned equal opportunities indicators that are used in the Flemish language area. Pupils who do not solely speak Dutch at home do not form part of the priority category in Brussels. School boards who decide to grant right of priority to GOK pupils do so to all pupils who meet at least one of the above-mentioned indicators and not, for example, only to children who are members of the migratory population.

Local consultation platforms, (LCPs) and the Committee on Pupils' Rights

The LCPs, local consultation platforms for equal opportunities in education, were set up to help implement the equal educational opportunities policy at local level (42 Elementary education, 30 secondary education). When parents fail to accept the reason to refuse the child, they can lodge a complaint with the Committee on Pupils' Rights (for LCPs and committee, please refer to 12.3.2.1).

Registration and application methods in cities with regional facilities

Recent demographic trends and the GOK decree, which guarantees all pupils the right to register in a school of their own choice, have highlighted the capacity problems some schools are facing (more specifically those located in cities with regional facilities). Due to the fact that schools were no longer allowed to pursue their own selective registration policy, some schools were literally faced with queues and even parents camping in front of their gates, in the hope of getting their child registered. To resolve that situation and avoid further queuing and camping scenarios, schools in Flanders and Brussels have been allowed to experiment with application methods subject to the approval from the local consultation platform (LCP), since 2009. By law, there are two groups of children who take priority during registration: 1) children whose sibling is attending the same school, 2) GOK-pupils or non-GOK-pupils if the school opts for this. In addition, priority criteria and application and registration procedures apply that vary from region to region. Here are a few examples.

In Ghent, a central online registration system is used for the registration of pupils for the school year 2010-2011, the home-school distance criterion is used throughout the Ghent elementary schools to determine the order of registration. In the initial registration period, children can only register in schools which apply a priority period for either GOK pupils or non-GOK pupils. There is also an online application system for 3 secondary alternative schools. These schools apply the rule of the number of full school years the candidate pupils have attended alternative schools before. (https://meldjeaan.gent.be).

In Antwerp, a central online application system is used throughout all Antwerp elementary schools, here the home-school distance criterion (30% to 100% to be determined by the school) is taken into consideration, as well as the date of registration. The local consultation platform has recommended in this respect (without obligations) that schools, when they determine their ranking, let the home-school distance count for at least 70%.

Brussels also works with a central online application system for Dutch-speaking elementary and secondary education. It applies multiple criteria in Elementary education and schools can choose the priority they grant to certain criteria. For secondary education, the following criteria apply: 1) children whose siblings attend the same school, 2) the number of months in an elementary school linked to the secondary school, 3) date of application. (http://www.inschrijveninbrussel.be). Since the problem of capacity is more pronounced in Brussels, structural consultation will be launched that will involve all partners (including the French-speaking ones) involved in education in Brussels.

The Educational Services Agency (AgODi) has an extensive FAQ section regarding enrolment policy in elementary education for pupils in Brussels with Dutch as their home language.

Legal provisions for funding or subsidising schools

The funding and subsidisation provisions for elementary education are set out in the elementary education decree, Articles 62 and 68, and for secondary education in the secondary education code.

"A school or part of an educational institution for nursery, primary, secondary and higher education is subsidised when the legal statutory provisions with regard to the organisation of education and the application of language legislation have been met". Under those terms, schools must meet the following criteria:

• adopt a structure laid down by or pursuant to a law or decree. A structure is understood to be the major classifications within a level of education and the duration of these classifications;
• respect a curriculum, which meets the legal requirements or which has been approved by the Minister for Education and Training;
• submit itself to supervision and inspection by the authorities. This inspection refers in particular to the subjects taught, the quality of the studies and the application of the language laws, excluding the pedagogical methods;
• organised by a natural or legal person who assumes full responsibility;
• meet pupil-number requirements per class, department, stage or other sub-division, as specified in a Royal Decision discussed by the Cabinet Ministers, except in case an exemption was granted by the Minister for Education in view of special or exceptional circumstances;
• be located in premises that meet hygiene and habitation standards;
• possess teaching aids andschool equipment which meet educational requirements;
• employ staff whose medical condition will in no way constitute a health hazard to the pupils and who are subject to inspections;
• accept the school-holiday system as laid down by law;
• participate in and cooperate within a local consultation platform set up in accordance with article IV.2, § 2, first section, of the Decree of 28 June 2002 concerning equal educational opportunities;
• for subsidised education: not prejudice the decision-making procedures as referred to in articles 19 through 22 of the Decree of 2 April 2004 concerning participation at school and the Flemish Education Council. This condition also implies that the School Head with regard to the powers vested in him/her by the organising body which form the subject of advice or consultation, is sufficiently authorised to act autonomously in relation to the school council;
• for GO!: respect the authorities of the school council.

Subsidised official schools shall also:

• have an open character by welcoming all pupils regardless of the ideological, philosophical or religious opinions of the parents and pupils;
• use official curricula, developed by one of the umbrella organisations of official education, or their own compatible curricula;
• use a school development plan, school regulations and school books in accordance with the open nature;
• receive assistance from a official-education guidance service;
• provide religious education or education in non-confessional ethics by a leermeester (teacher).

Moreover, the following subvention or financing conditions apply for structural aspects (see 6.1.1) in mainstream or special secondary education (art. 24bis §1):

• as regards full-time secondary education: compliance with the decretal and statutory provisions on final objectives, developmental objectives, specific final objectives, curricula and individual educational plans; (in respect of part-time vocational secondary education if the end-of-study proofs are identical to those conferred by mainstream secondary education;
• having a policy contract or policy plan in place with a pupil guidance centre;
• observing the international and constitutional principles on human rights and the rights of the child, in particular, throughout every aspect of the school;
• pursuing an effective policy to publish and uphold the smoking ban, checking compliance with the ban and imposing sanctions on offenders, in accordance with the sanction policy included in the school regulations or the terms and conditions of employment;
• solely in respect of part-time vocational secondary education: making an utmost effort to achieve the full-time commitment in every youngster.

The decree of 6 June 2008 introduced a blanket smoking ban for all compulsory-education institutions, nursery education and CPGs, both in open and enclosed settings and during extra-curricular activities.

Curricula and individual education plans

The final objectives and developmental objectives must be patently obvious in the curricula. Every organising body/school board is free to choose its pedagogical methods and its curricula. The Flemish Government ratifies the curricula in accordance with the criteria it has established.

In special education, an individual educational plan is drawn up for one or more pupils together on the basis of (their) upbringing and educational needs (see 12.2.5).

School regulations

When a pupil is first enrolled at a school, the parents are required to declare their agreement with the school's pedagogical project and the school regulations, which should among other things include an undertaking. Each school draws up its own school regulations, but here too the government defines a number of minimum core characteristics. (For nursery education see 4.4.2, for primary education 5.1.2, for secondary education 6.1.3, and for the undertaking 5.1.2).

Compulsory education

The start and end of compulsory education are still set by the Federal Government (see 1.2.1.). In function of the decree of the Flemish Community of 10 July 2008 concerning the system of alternance training, a full-time commitment to part-time compulsory education is inscribed in the (federal) Compulsory Education Act (see 6.4).

The act of 29 June 1983 on compulsory education specifies that minors, Belgians and foreigners alike, are subject to compulsory education for a period of 12 years. It starts in the school year during which the child turns 6 and ends when the child becomes 18 years of age. The circular letter SO 68 of 1/3/2000 clarifies that the period of compulsory education comes to an end at the pupil' 18th birthday, i.e. when the person becomes of age and can no longer be compelled to attend school until the end of the school year. However, the circular letter asks schools to do their utmost to convince pupils to finish the year in progress. For pupils who turn 18 years of age after 30 June and who have already attended 12 years of primary and secondary education during the calendar year in which they turn 18, compulsory education comes to an end on 30 June, i.e., at the end of the school year. Minors who have successfully completed full-time secondary education are no longer compelled to attend compulsory education.

For the regulations, see WeTwijs compulsory education and the web pages on compulsory education of the Department of Education and Training. See also circulars BaO/98/03, SO 68, SO 70, SO/2002/05/BuSO, SO/2005/04.

Part-time compulsory education a full-time commitment

Compulsory education is full-time or part-time. There is a transition from a full-time to a part-time compulsory education requirement:

• either when the age of 16 years is reached;
• or when the age of 15 is reached provided the pupil has already completed - whether succesfully or not - the first two grades of full-time secondary education - (1st grade A and 1st grade B are regarded in this context as a single grade; the reception year is disregarded):
  • further full-time education;
  • part-time vocational secondary education at a Centre for Part-time Vocational Education (CPE);.
  • the apprenticeship as mentioned in the decree of 10 July 2008 concerning the alternance training system ( stelsel van leren en werken) within the Flemish Community.
  • a training programme recognised as qualifying as compulsory education.
  • home education.

In function of the decree of the Flemish Community of 10 July 2008 concerning the system of alternance training, a full-time commitment to part-time compulsory education is inscribed in the (federal) Compulsory Education Act of 29 June 1983 (art. 1 § 1 and § 2bis). Part-time education, apprenticeship or a recognised training programme must be combined with on-the-job learning. This combination comprises at least 28 hours per week. On-the-job learning is understood to mean any form of activity, alongside the learning component, which in conjunction with the learning component constitutes the full-time commitment. The Flemish Government sets those forms of activities.

See 6.4 for the alternance training system within the Flemish Community.

Monitoring compulsory education

Parents are responsible for the registration of their children. If it comes to the attention of the administration that a child has not been registered, the parents have to explain themselves and are reminded of their responsibility. Legal action can be taken if they do not assume their responsibility (Decree of 25 February 1997).

The Royal Decision of 7 July 2002 allows the Department of Education and Training to use the het national identification number to monitor registrations and regular school attendance, rationalise existing data requests and follow up the educational and school careers of pupils (Belgian State Gazette 17/09/2002). This is now done systematically.

At the same time, the inspection system was drastically reformed and made watertight. Even so-called home education is also being monitored more closely.

As a matter of fact the minister wants to develop a database which keeps track of every registered pupil and which deregisters pupils from other schools if necessary.

In the Brussels-Capital Region no one had any overview to what extent compulsory education was actually adhered to due to the division of responsibilities between the Flemish and French-speaking Communities. For that reason, the Flemish Minister for Education and Training and his French-speaking counterpart concluded an agreement in 2007 on the joint monitoring of compulsory education. An initial comparison between databases brought to light that in 2008 some 140 000 pupils of school age were living within the Brussels-Capital Region though for 6 000 of them it could not offhand be established whether they were actually complying with compulsory education. This is why a number of undertakings and arrangements have come into place to guarantee effective monitoring and a common approach in a cooperation protocol to which the Minister-President of the Brussels-Capital Region and the 19 mayors of the Brussels' municipalities had signed up.

Monitoring absences

Schools (or SYNTRA Flanders) log pupils' regular school attendance. During school year 2006-2007, schools reported 5 478 cases of problematic absenteeism. These would be secondary-education pupils who were absent for more than 30 half school days (full-time education) or for more than 20 half days (part-time education) without a valid reason. The number of pupils who fail to find a school after they have been expelled several times from one school or other, is on the increase. Relative absenteeism is tackled by the school and the CPG at local level as much as possible (see 12.4). From the moment a pupil has skipped 10 half days, schools are obliged to call in the CPG, though they can call on their services before that time. The truant is given intensive guidance throughout the entire school year and, at times, the help of external organisations might be called in. At the same time, clearer arrangements were made regarding the checking and follow-up of truants. Sice the school year 2009-2010, each management team or Syntra Flanders has also provided all the necessary data for AgODi for the inspection of on-the-job learning.

AgODi publishes an anual report on its supervision of compulsory education and problematic absences: 'Leerplicht. Wie is er niet als de schoolbel rinkelt? Evaluatie 2009-2010'. The 2009-2010 report showed that 99,9% of pupils comply with the compulsory schooling requirement. In elementary education the rate of problematic absence is 0,25% of pupils, while in secondary education it is 1,4% of school-age young people.

On 22 March 2007, a protocol agreement was concluded with GPs and pediatricians with agreements about the use of medical certificates to justify school absences and tackling the problem of dubious medical certificates. In future, a medical certificate will also be required following an absence of 3 calendar days (no longer school days) across the board in compulsory education and schools will no longer accept so-called dixit and retroactive certificates to justify school absences.

Along with criminologists working for the Public Prosecution and Youth and Family, a cooperation protocol has been concluded to follow up the Public Prosecution files.

The problem files give a clear profile of the unregistered youngsters. In the main, they are non-nationals, youngsters from urban areas and 17-year olds. Youngsters with a very irregular secondary-education school career (registrations and deregistrations) show a similar profile. When in full-time education they often attend the B-stream, they commonly sign up for part-time education and have in many cases fallen behind in school.

Incentives

To boost infant participation, Child and Family (see 4.1) has also been called on. The Data Protection Authority gave permission to pass on the list of infants who have not been registered in education to Child and Family so that the parents can be contacted. During house calls the district nurse will try and find out why the child has not been registered and will point out the importance of infant participation to the parents. It was discovered in September 2008 that 1 100 children and youngsters of school age were indeed registered in one school or other but simply failed to attend for no legitimate reason.

An extensive truancy action plan was set up between 2006 and 2009. In 2011 a new action plan would be proposed.

As of school year 2007-2008, school allowances have been linked to regular school attendance (see 3.1.4). So, pupils who have not been registered for two consecutive school years or who persistently engage in truancy can lose their school allowance during the second year. After the first year, this will be pointed out to them by the authorities and during the second school year the pupil will be made aware of this via the CPG.

Short and long-term projects were launched for the benefit of demotivated pupils, and liaison officers have been deployed in the Community Institutions for Special Youth Care or the federal centre in Everberg.

Complementary Local Education Policy has helped local administrations play an active role in the area of monitoring compulsory education and infant participation.

General regulation techniques

Educational legislation at all levels and circulars can be easily found and consulted online via Edulex. 

Educational topics examined from the point of view of school administration are dealt with very clearly in WeTwijs.

Collective decrees concerning education

The so-called 'principle of legality' applies in education: every measure which seriously affects the organisation of education has to be regulated by the decretal legislator. However, preparing and amending decrees is much more time-consuming than making decisions. That is how the tradition of compiling all the amendments to decrees required to prepare for the new school year into one collective decree came about. These decrees are all identified by Roman numbers. Once such a decree has been ratified, most amendments are transferred to the existing 'level and theme decrees'. It relates both to the legal translation of new measures and to rectifications and corrections.

Simplification of the regulations

During 1999 the Flemish Community launched a project on the simplification of regulations and procedures. And the department of education is also tackling this in various ways:

• Quality assessment and evaluation of the law texts; legal-technical simplification; the use of covenants and temporary educational projects and the coordination of the education legislation;
• Streamlining of administrative processes, plan-load lowering (and compensating new plan loads by removing others), simplified forms and E-government;
• An impact analysis of specific, scheduled rules by means of 'Regulatory Impact Assessment' reports.

In 2011, a secondary education code was drawn up. This is clearly organised comprehensive decree in which some twenty laws and decrees on secondary education have been brought together.

Work is currently in progress on the codification of the 11 decrees on higher education currently in force (apart from the special decrees and the decrees on specific institutions) in a single text.

Test beds

Test beds are educational experiments that are limited in time and scale. They are set up by the Flemish Government to try out educational innovations on a smaller scale before introducing them structurally. Since 9/12/2005 the Decree concerning temporary projects in education has been a legal ground for project-related initiatives (the former "test beds"). This applies to elementary and secondary education, part-time training in the context of part-time compulsory education, Adult Education, Part-time Arts Education and the pupil guidance centres.

This allows the Flemish Government to set up temporary projects or give schools and centres the opportunity to organise temporary projects. The government must specify the contents and objectives, determine the projects' duration and lay down the conditions for a one-off extension.

To realise the projects, some deviations from the legal and decretal provisos are permitted. However, they have to be specified on a project-by-project basis, motivated in a Decision and subsequently ratified with a Decree. However, the deviations cannot relate to the final objectives and developmental objectives and the provisions regarding:

• The right of registration in elementary and secondary schools;
• the minimum timetable in secondary education and Adult Education and in part-time training within the context of part-time compulsory education;
• the minimum of weekly teaching periods in elementary and secondary education and Adult Education;
• The participation arrangement;
• Recognition of schools and centres, save for the educational structure and curriculum;
• The registration fees in Adult Education;
• Careful management.

The decree gives legal security to pupils and teachers involved in the projects.

The temporary projects will be evaluated during their lifetime and the results will be formulated in an advice to the Flemish Government which will be presented to Parliament. If they are subsequently organically implemented, structural financing or subsidies will be provided if necessary. An overview of these policy and regulation techniques and their use may be found on: http://www.ond.vlaanderen.be/vereenvoudiging/juridisch.htm

Between 2005 and 2011 some 80 test beds were developed on choice of course and on-the-job learning. Within the framework of funding cuts, extra staff are no longer available.