This is an unpublished draft, to cite the full book chapter, use:
Stożek, M. and Ponikowska, M. ( 2018) ‘Governance, constitutional rights and emerging issues in Polish Education Law’ I n: ‘ Handbook of Comparative Education Law’ Edited by C.
Russo (Rowman and Littlefield).
Governance, constitutional rights and emerging issues in Polish Education Law
1. Introduction with a basic overview of the Polish education system
This chapter outlines the legal status of the Polish education system with a special emphasis on the individual rights of teachers and students, and provides an overview of institutional issues. In the Polish legal system there is no specific branch of education law.1 The legal provisions that apply to the educational system are classified as a part of administrative law.2 Education law in Poland is however also covered partially by labor law, civil law and financial law provisions.3
Education in Poland starts in kindergarten (“przedszkole”), at the age of 5 when children are prepared to enter primary schools (“szkoła podstawowa”) at the age of 7 (or 6 upon parents’ request). Primary education is divided into two stages. The first stage in grades 1 to 3 is an integrated education for children ages 7-9, with no subject division. In the second stage (grades 4 to 6) classes are taught subject-based to children aged 10-13. All teachers are trained in the subjects they teach. In the 6th
grade children take a compulsory external examination organized by the Central Examination Board. The results of this examination do not have an influence on graduating from primary school or admission to the next school – lower secondary school (“gimnazjum”) within a district in which the family of the child resides.
However if a child applies to continue education at a lower secondary school in a different district, the results of the external examination can be taken into account in the recruitment process.
Lower secondary school is compulsory and children aged 13 -16 continue there their education for three years. In the last year the students take again a compulsory external examination organized by the Central Examination Board, that consists of three parts: humanistic, scientific and linguistic. Participation in the examination is a condition to graduate from the lower secondary school, but no minimum grade is specified in order to pass the examination. However, the results of this examination are taken into account in the recruitment process to upper secondary schools. These schools are not compulsory and the education may be continued there from 2-4 years depending of the type of the upper secondary school. General upper secondary schools (“liceum ogólnokształcące”) prepare students for the external examination “Matura”, which is necessary to continue education at the university level. Technical upper secondary schools (“technikum”) also prepare students for the
“Matura” exam, but additionally offer vocational diplomas after passing an examination. Vocational schools (“zasadnicza szkoła zawodowa”) may grant a vocational diploma upon an examination. Special schools (“szkoła specjalna”) are offered for students with learning disabilities who might be offered a certificate of vocational training after finishing the school.
2. Legal sources of education law in Poland
The primary legal source for the education law in Poland is the Constitution of the Republic of Poland of 1997.4 According to the Constitution the right to education is granted to everyone. 5 Public authorities in Poland ensure universal and equal access to education for all citizens. For this reason a support system for individual financial and organizational assistance to pupils and students has been established.6 Moreover, the Constitution ensures that there are no fees for education in public schools.7 However, parents have the right to choose schools other than public for their children, and citizens or institutions have the right to establish primary and secondary schools, institutions of higher education and educational development institutions.8
Aside from the Constitution the basic legal source of educational law in Poland is the Law on Education.9 This statute regulates the following: compulsory school attendance, management of schools, social institutions of education, care and educational organizations at schools, financing schools, issues connected with non- public schools, financial assistance for students. According to this statute, the education system guarantees to every Polish citizen the right to education appropriate to their educational needs and age.10 The education system is intended to support the educational role of the family.11 Students have the opportunity to make use of counselling and provision for special educational needs, while content, methods and organization of teaching are required to be adapted to students’ psychophysical abilities.12 The statute guarantees the universality of education and enables different entities to establish and run schools and educational institutions.13 The aim of the education system is to reduce the differences in the conditions of teaching, upbringing and care between different regions of the country, especially between urban and the
rural areas.14 Students who are in difficult life circumstances or in a poor financial situation are to be provided with special care, while the students with disabilities as well as particularly gifted students have the opportunity to follow the a curriculum adjusted to their individual needs.15
Moreover, the Law provides schools with rule-making competencies, i.e. the right to issue school regulations, including: a school statute,16 rules of procedure of the teachers’ boards,17 rules of procedure of the school boards,18 rules of procedure of the parents’ boards,19 rules of procedure of the students’ boards20 and decrees of the principal.21 These school regulations cannot be contradictory to the binding law and they have to be made in accordance to the legislative drafting principles.22
Another important legal document in education is the Teacher’s Charter.23 The Charter determines the unique social position of the teaching profession. The Charter covers, inter alia, the duties of teachers, the qualifications required to be a teacher, professional advancement paths, scope of social benefits, bonuses and honors, conditions for continued professional development, and disciplinary responsibility.
3. Institutional Issues
a) history of compulsory attendance
In Poland compulsory school attendance was introduced for the first time in 1808 by the Chamber of Public Education of the Warsaw Duchy. However, the law has not been implemented due to the lack of school facilities and other necessary means. Next, the decree from 1919 introduced 7-year compulsory school attendance.24 However, it also did not come fully into force, mainly because of the shortage of the
teaching staff.25 After the Second World War in 1956 for youth up to the age of 16 the 7-year compulsory school attendance was introduced26, and in 196127 it was extended by one year and covered all students up to the age of 17.
In Poland nowadays, according to the Constitution, education to 18 years of age is compulsory.28 In accordance with the Law on Education, compulsory school attendance starts in the beginning of a school year in a given calendar year when a child turns 7, and it lasts until the age of 18.29 All lower secondary school graduates below the age of 18 perform the duty of compulsory education by attending a secondary school or a vocational training at an employer. Secondary school principals, employers organizing vocational training, and managers of entities offering training for vocational qualifications are obliged to inform a municipal executive how lower secondary school graduates continue their compulsory education.30
Non-observance of the compulsory school attendance is subject to enforcement by the means of administrative executive proceedings.31 The compulsory school attendance does not distinguish between public schools and non-public schools. According to the Law on Education all non-public primary schools and lower secondary schools are granted the status of a public school by the virtue of law.32 The duty can be also performed in foreign kindergartens, schools and facilities developed at foreign diplomatic representations in Poland.33
In light of the judgment of the Polish Supreme Court from 2001,34 if parents (guardians) of a child covered by the compulsory school attendance voluntarily choose to exercise this duty in a paid non-public primary school, and they do not fulfill the obligation of covering expenses of providing education for their child (tuition fee), the principal of a non-public school is not bound by the statutory
obligation, and can decide to expel a child from the school. However, the principal is obliged to inform the principal of a public school within a district a child resides about the expelling, to allow the parents to fulfill compulsory school attendance of their child.
In case of children with profound learning disabilities, compulsory education is observed by their participation in the revalidation and education program. With respect to the child’s psychophysical abilities and individual development needs, these activities support the child’s development, advance their interest in their surroundings, and teach them to be more independent in their daily lives.35
b) funding for public education, including religiously affiliated non-public schools
The Law on Education does not as a general rule govern financial matters in education and refers only to financing schools by their governing authorities. Other matters related to school financing are governed by the Law on Local Government Income36 and regulations issued every year by the governmental Minister of Education. These regulations determine how funds from the state budget are allocated for education. The central government subsidises local government spending on education. The subsidy is calculated in accordance with central education policy in relation to previous central government spending.37 This means that the decisions on the amount of the subsidy are not made on the basis of the “micro” costs i.e. costs of functioning of a school.38 According to the Educational Research Institute (“Instytut Badań Edukacyjnych”; IBE39) the subsidy from the state budget allows local governments to cover about 65% of the total education costs.40 Local authorities, apart
from the subsidies they receive from the state budget, also use their own incomes to finance schools they govern, and settle annual school budgets with respect to the amount of the subsidy and their own incomes.
Churches and religious organizations have the right to establish and run schools, kindergartens and other educational and child-care institutions.41 The Law on Education does not provide any specific forms of financing for religiously affiliated non-public schools. Such schools are financed by tuition fees and a state subsidy paid out from the budget of a given municipality or poviat42 depending on the type of a school.43 These provisions apply also to religiously affiliated non-public schools, because these schools, in the same way as other non-public schools, support the state in providing conditions for performing the compulsory school attendance of children.
Non-public schools with the status of public schools, which perform the compulsory school attendance and the compulsory education, are entitled to a state subsidy for every student. The amount of the subsidy for non-public schools cannot be lower than the amount per student determined for a given type of a school in the general education subsidy received by local authorities.44 If there are no corresponding types of public schools in a given municipality or poviat, the amount of subsidy is based on expenditures incurred by the nearest municipality or poviat for running of a public school of a given type.45
c) governing boards
Governing boards in the Polish education system (school boards, teachers’
boards, parents’ boards and students’ boards) are devoid of legal-financial personality.46 Furthermore, under Polish law they are nearly completely devoid of
supervisory functions, while in other countries the counterparts of these kind of boards usually supervise the work of the school.47 However, the education system in Poland is highly supervised and inspected by the government, which could be a reason why the social supervision was deemed by the legislator as unnecessary.48
A school board consists of an equal number of teachers, parents, and students (who are selected by their peer groups),49 of minimum 6 members.50 Children attending kindergartens, students of primary schools (with the exception of primary schools for adults), and students of special schools for children and youth with learning disabilities cannot be members of the school board.51 In lower secondary schools the appointment of students for the school board is not obligatory.52 The school’s statute determines how members of the school board are selected.53 The school board participates in managing a school’s internal affairs and consulting the school’s statute, financial plan, action plan, projects of innovation, pedagogical experiments, and other matters essential for the running of the school. The school board can also submit motions to examine and evaluate the school’s performance and can raise funds from voluntary donations and other sources in order to support the school’s statutory activities.54
The teacher’s board is composed of a principal and all the teachers from a given school.55 This board approves the school’s action plan and passes resolutions on the classification and promotion of students, pedagogical experiments and innovations, expulsions, and teachers’ professional development.56 The teacher’s board gives its opinions on the organization of school’s activities, financial plan drafts, and the principal’s motions concerning teachers.57
Parents’ boards are defined legally only to a limited extent and display more features of schools’ internal bodies rather than social organisations. For example,
according to the judicature of the Polish Supreme Administrative Court, parents’
boards cannot take a legal action on behalf of the parents of the students.58 However, the parents’ boards may file a motion or an opinion concerning all school matters to the principal and other internal school bodies, the external school supervisory body and the body responsible for pedagogical supervision.59 Election to the parents’
boards is conducted during the first meeting of parents and teachers held every school year.60 During the elections, one student is represented by one parent.61
Students’ boards are formed by all students of a given school or institution.62 The students’ board can submit motions and opinions to the principal and to the teachers’ board concerning any matter related to the school.63 The election to students’
board and its functioning are regulated by the students’ board rules, which are passed by the students of a given school in an equal, public and secret voting.64 The students’
board is the only official representative of the students’ opinions.65
d) differences between and among types of public and non-public schools (such as international, vocational, and on-line schools)
The Law on Education distinguishes public and non-public schools.66 The major difference between them is that the former provide universal and free of charge education and the latter do not. A non-public school, after fulfilling certain conditions, can be granted a status of a public school, including the right to issue state certificates confirming that a student completed a given level of education.67 Schools can be established and governed by local authorities, other legal entities or natural persons, and competent government ministers.68 Local authorities and government ministers can establish and run only public schools.
In addition to mainstream schools, there are also schools for given groups of students, such as: sports schools, art schools, special schools, and integrated education schools. Public and non-public schools can also open international departments having been granted the consent of the Minister of Education.69 Such schools have to provide students of the international department with an option to shift to the education provided in accordance to the Polish curriculum at every level of education.70
The Polish legislator provides also the option of distance learning for children of Polish citizens who are living abroad. Distance learning is carried out in accordance with the general education curriculum in primary schools, lower secondary schools, and secondary schools run at diplomatic missions, consulates, and military representations.71 The Center for Development of Polish Education Abroad (Ośrodek Rozwoju Polskiej Edukacji za Granicą; ORPEG) supports and promotes the learning of Polish among young Poles staying abroad.72 Students who cannot continue education in Polish schools due to their visit abroad can follow the supplementary or framework curricula in one of the schools run by ORPEG.73 However, the students are still obliged to perform the compulsory school attendance in accordance to the binding law of a given state.74 Students who cannot attend a local school abroad due to some justified circumstances (e.g. constant travel), have the possibility to follow the framework curriculum and in this way observe the compulsory school attendance in Poland.75 Classes are conducted via the e-learning platform, and students can take part in online consultations with teachers in Poland.76
Homeschooling in Poland is rare, but it is legally regulated. The right to homeschool derives from the parental constitutional right to bring up their children in accordance with their convictions.77 Such an upbringing must respect the degree of
maturity of a child as well as their freedom of conscience, belief and their convictions.78 Upon a parents’ request a principal of a public or non-public kindergarten, primary school, lower secondary school, or upper secondary school a child attends can issue a decision allowing the child to fulfill compulsory education outside of school.79 The child completing compulsory education outside of school is granted a school certificate and promoted after passing classification exams covering the curriculum valid for this stage of education, determined by a principal for a given school year.80 The classification exam for homeschooled children is carried out according to the regulations issued by a given school.81 The child’s behavior is not graded.82
e) liability and negligence issues
The principal is responsible for ensuring that all students and teachers are safe during classes organized by the school, including those outside school facilities.83 If a room or other place where classes are to be conducted, or the condition of the equipment, poses a threat to safety, holding classes there is unacceptable.84 If an emergency situation arises or becomes apparent during a class, that class should be finished immediately and the people that are entrusted to the school or the institution’s care should be evacuated.85 All school facilities should be equipped with first-aid kits with first aid instructions,86 and all teachers should undergo first aid training.87 Furthermore, the school should ensure Internet safety by restricting access to online content that could pose a threat to students’ development.88
Teachers are responsible for actions or negligence, that pose a threat to safety at school under the Labor Code89 and the Criminal Code.90 Under the Labor Code, an
employer can punish employees with a warning or a reprimand in case of disobeying workplace rules, occupational health and safety regulations or fire safety regulations.91 A fine can be imposed on an employee for disobeying occupational health and safety regulations, fire safety regulations, leaving their workplace without justification, coming to work intoxicated or consuming alcohol during work.92 Revenue incurred from these fines is allotted to improve occupational health and safety.93 Under the Teacher’s Charter, disciplinary action may be taken against teachers who offend the dignity of the teaching profession or neglect their responsibilities. These disciplinary actions are reprimand with a warning, dismissal, dismissal with a prohibition to exercise the profession for a period of 3 years, or expulsion from the profession.94
4. Faculty Rights
a) due process rights involving hiring, promotion and tenure, and dismissal
One can establish employment relationship with a teacher on the basis of an employment contract (for a definite or indefinite period of time) or nomination.95 Contrary to an employment contract, a nomination guarantees an increased employment protection for teachers. The following requirements have to be met to work as a teacher: a university graduate with an adequate pedagogical training or a graduate of a degree-awarding teacher training center (if such qualifications are enough to take a given position), observing elementary moral principles, and being in a sufficient condition of general health to take a given position.96 Requirements for religious education teachers are determined on the basis of agreements concluded
between the Minister of Education and authorities of given churches and religious associations.
In the Polish educational system one distinguishes four degrees of professional advancement of teachers: 1) trainee teacher, 2) contract teacher, 3) nominated teacher, and 4) chartered teacher.97 A person without any professional advancement degree at the day of their employment relationship at a school is established a trainee teacher,98 with the exception of academic teachers who are granted a degree of a contract teacher.99 In order to be awarded subsequent professional advancement degree, teachers have to meet all requirements to take a post as a teacher and to undergo training in schools with a positive feedback of their work.100 Given degrees of advancement have their additional requirements: to be promoted as a trainee teacher one has to be approved by the qualification board, a contract teacher has to pass an exam before the examination board, and a nominated teacher has to be approved by the qualification board based on an evaluation of their work and an interview.101
In case of dismissal, the basic principle is to terminate an employment relationship with a teacher at the end of a school year with a 3-month notice,102 with an exception of unusual circumstances provided in the law, which allow terminating an employment contract at a different time. According to the ruling of the Polish Supreme Court, if an employment contract for an indefinite period of time with a teacher is terminated due to the negative assessment of their work, the Labor Court shall control accuracy and diligence of how the negative assessment of work has been conducted.103
b) freedom of speech (including academic freedom and intellectual property rights)
Freedom of speech is guaranteed in the Constitution: “[t]he freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.”104 When following a curriculum the teacher has the right to apply such teaching and pedagogical methods as they find fit among all the methods found in modern education sciences.105 A teacher is entitled to select textbooks and other teaching materials from all those approved for being applied in schools.106 The teachers can decide if they carry out a curriculum using a textbook, teaching or learning materials, or none of these.107
Concerning intellectual property rights, educational facilities can use works available in the public domain in original or translated, or can copy some fragments of these works for didactic purposes.108 Schools, within fulfillment of their tasks, can provide free of charge copies of works available in the public domain and create or order to create copies of works available in the public domain in order to complete, preserve, or protect their own resources, and can provide access to their collections for research and cognitive purposes by means of terminals located within their area.109 This regulation, however, excludes software, audio-visual works, collective works, and databases. As far as teachers can present and describe a book, they are not entitled to start a computer program and ask students to perform certain tasks in this program without a license.110 During school or academic events one is entitled to perform works available in the public domain if it is not directly or indirectly connected with financial gains, and performers are not remunerated for it.111
c) freedom of religion
According to the Constitution, freedom of faith and religion is ensured to everyone.112 Freedom of religion includes the freedom to profess or to accept a religion by personal choice as well as to manifest such religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in ceremonies, performing of rites or teaching.113 The freedom to publicly express religion may be limited only by means of statute and only where this is necessary for the defence of state security, public order, health, morals or the freedoms and rights of others114. The Constitution guarantees that public authorities are impartial in matters of personal conviction, whether religious or philosophical, or in relation to outlooks on life.115 No one may be compelled to participate or not participate in religious practices116 or be compelled by organs of public authority to disclose their philosophy of life, religious convictions or beliefs.117 According to the Law on Guarantees of the Freedom of Conscience and Religion, every citizen is guaranteed freedom of conscience and religion.118 Freedom of conscience and religion include freedom to choose one's religion or beliefs and freedom to manifest one's religion or beliefs, either alone or in community with others, in private and in public.119 Freedom of conscience and religion is also protected by the Civil Code120 and the Criminal Code.121
The Supreme Court found in its judgement that the freedom of conscience of an individual practising a given religion consists in the freedom to express one’s religious beliefs and to engage in religious practices.122 According to the Court, while a person declaring to be a non-believer cannot expect not to have contact with believers, as well as their practices and religious symbols, since it would restrict the freedom of conscience of believers, such a person can expect not to be subjected to religious practices against his or her will, or to be forced into participating in them or
using religious symbols.123 In this context, it is worth to note practices of the Polish government regarding teachers’ freedom of religion. For instance, according to “The Rules for the Organization of Retreats for Public School Students”, in cases when teachers of religious education cannot take care of students in connection with the retreat, the school principal can turn to other teachers for help. However, as the Ministry of Education stresses, “in that case the principal should respect the right of teachers to the freedom of conscience and religion”.124 Moreover, a teacher who is a member of a church or other religious association whose holidays are not public holidays, can make a request to the employer for an exemption from work on the day of the holiday.125 In cases when an employee celebrates religious holidays on a given day each week, in order to make it possible, the employer should arrange an individual work schedule for them.126
Religious education teachers in Poland are members of the Pedagogical Council; however, they cannot assume the responsibility of homeroom teachers.127 Similar to other teachers, they are obliged to keep a class register.128 Religious education teachers can also run social, religious and ecumenical organizations on the school premises, but have no entitlement to additional compensation on this account.129
Both the Law on Education and the Teacher’s Charter do not contain provisions restricting the religious freedom of a person working as a teacher. Teachers have the freedom to express their religious convictions, but this freedom is subjected to certain limitations. There is a need for a balance between consideration of the right to religious belief and the imposition of that on the students. Excess expression of religious beliefs by teachers can affect not only students’ religious freedom, but also parents’ right to raise their children in conformity with their own beliefs. According to
the Teacher’s Charter, teachers are obliged to take care of developing moral and civic attitudes in their students in accordance with the principles of democracy, peace and friendship among people of different nations, races and beliefs.130
d) freedom of association (unions)
Teachers, as well as representatives of other professions, have the freedom of association and have the right to create and join unions. According to the Constitution everyone is guaranteed the freedom of association.131 Only those associations whose purposes or activities are contrary to the Constitution or statutes are prohibited.132 The freedom of association in trade unions is ensured in the Constitution.133 Trade unions have the right to bargain, particularly for the purpose of resolving collective disputes, and to conclude collective labour agreements and other arrangements.134 Trade unions have the right to organise strikes or other forms of protest.135
A trade union is defined in Polish law as a “free and self-governing organization of working people’”, established in order to represent and defend their rights and interests, both in terms of their professional work and social benefits.136 The main trade union for teachers and educators in Poland is the Polish Teachers’ Union (Związek Nauczycielstwa Polskiego; ZNP).137 According to its statute, the ZNP is a uniform, voluntary, independent and self-governing trade union for workers in education, care and academia.138 The purpose of the union is, inter alia to defend the dignity, rights and interests of its members, to participate actively in moulding a democratic image of the Polish education, to teach children tolerance, respect for the laws, freedom and human dignity; to strive to achieve universal access to the basic and higher education on its all stages and degrees; to defend the public character of
the education; and to create the financial and social bases for performing its tasks in helping and participating in the intellectual and cultural life of local communities and on the national level.139
Moreover, the statutory objectives of the ZNP include influencing legislation concerning the legal status of education staff, improving living and working conditions of its members, providing the members and their families with financial and legal aid, tackling unemployment among the ZNP members and broadening their knowledge.140 The executive of the union is the Main Board, whose activities span the whole country. District Boards are responsible for operating in provinces, and the lowest level of the ZNP is a center (“ognisko”). Individual organizational levels do not have legal personality141. Teachers can also join together in associations. Usually, a given association is made up of teachers of the same subject.142
e) other constitutional issues such as discrimination based on race, gender (including sexual harassment), disability, or religion
According to the Constitution all persons are equal before the law and all persons shall have the right to equal treatment by public authorities.143 No one shall be discriminated against in political, social or economic life for any reason whatsoever.144 The Constitution in a special way addresses the issue of gender equality providing that Polish men and women shall have equal rights in family, political, social and economic life.145 In particular equal rights for men and women are granted in the areas of education, employment and promotion.146 The right to equal compensation for work of similar value, to social security, to hold offices, and to receive public honours and decorations is guaranteed.147
In 2011, legislation popularly known as the “Antidiscrimination Law”148 was introduced in Poland, implementing EU directives on equal treatment in terms of gender, race, ethnicity, nationality, religion, beliefs, disability, age or sexual orientation. The statute also specifies authorities responsible for the prevention of discrimination.149 The statute defines indirect and direct discrimination. Indirect discrimination is a situation in which a person is treated less favourably than another person under the same circumstances because of their gender, race, ethnicity, nationality, religion, beliefs, disability, age or sexual orientation.150 Indirect discrimination, under this Law, takes place when, because of a person’s gender, race, ethnicity, nationality, religion, beliefs, worldview, disability, age or sexual orientation, as a result of a seemingly neutral decision, action or applied criterion, unfavourable disproportions or a situation unfavourable to the person have occurred or might have occurred, unless that decision, criterion or action is objectively justified due to a legitimate aim that is to be achieved, and the means of achieving that aim are appropriate and essential.151
Regulations prohibiting discrimination can also be found in the Labor Code. Any kind of employment discrimination, direct or indirect, especially on grounds of gender, age, disability, race, religion, nationality, political views, union membership, ethnicity, beliefs, sexual orientation, as well as on the grounds of employment for definite/indefinite period or full-time/part-time work is unacceptable.152 According to the Labor Code, employees should be treated equally in terms of commencement and termination of employment, conditions of employment, promotion, and access to training in order to improve professional qualifications, especially when it comes to gender, age, disability, race, religion, nationality, political views, union membership, ethnicity, beliefs, sexual
orientation, as well as regardless of definite/indefinite period or full-time/part-time employment.153 Furthermore, employees are protected against discrimination based on the provisions of the Criminal Code, and the right to lodge claims against discrimination in the Civil Code.
This issue of discrimination against teachers on grounds of not being members of trade unions was the subject of an interpellation submitted to the Minister of Education in 2013.154 It described cases when principals, while arranging the working schedules, were biased in favour of the teachers who were members of trade unions. The interpellation pointed out concerns of those teachers who were not members of trade unions that a smaller number of working hours could be a determining factor in the case of downsizing.155 To address the question,156 a representative of the Minister of Education cited the justifications for two sentences of the Supreme Court. In the first judgement, the Court stated that the choice of a teacher to be made redundant in case of a partial liquidation of a school, or in the case of reorganization leading to a decrease in the number of classes at school, or changes in the curriculum that could prevent a teacher from being employed full-time, cannot be discretionary and should not violate the principle of equal treatment of employees (teachers) or the prohibition of discrimination.157 According to the second judgement, the lack of a trade union’s consent on the termination of employment does not give an absolute protection of employment of an employee who is a member of the union. Being a member of a union, therefore, cannot be a pretext for unjustified preferential treatment of an employee.158
A criterion of discrimination that has been pointed out by the ZNP is sexual orientation. The Labor Code states that it is not a violation of the principle of equal
treatment when churches, religious organizations or other organizations whose ethics are based on religion, beliefs or the worldview, restrict the access to employment because the kind or character of the activities of those churches, religious organizations or other organizations create a situation in which the religion, beliefs or worldview are a real and decisive professional requirement that an employee must satisfy, proportional to achieving the differentiation of the situation of this person in accordance to the law.159 It also applies to requiring from the employees to act in good faith, and loyalty to the ethics of the church, religious organization or other organizations whose ethics are based on religion, beliefs or worldview.160 In 2010, the ZNP issued an open letter concerning a statement made by the Plenipotentiary of the Polish Government for Equal Treatment.161 The Plenipotentiary in her press interviews said Catholic schools are allowed to not employ people who declare being gay, and justified this position by comparing it to a Jewish community refusing to employ anti-Semites.162 The ZNP found that these statements violated human rights and objected to “discriminating against teachers when it comes to their employment and evaluating their competencies and skills because of their sexual orientation”.163
5. Student Rights
a) the admissions process and freedom from discrimination based on race, gender, disability (including sexual harassment), or religion
Admission to the first grades of public primary and lower secondary schools are conducted through a recruitment procedure based on applications submitted by the parents of students living in a given district. 164 The candidates living outside the
district of a primary or a lower secondary school may be admitted to the first grade after the recruitment procedure has been performed, if the school still has vacancies.
165 In the recruitment procedure, the criteria established by the school are taken into account, ensuring that the child’s and parents’ needs, as well as local social needs, are fulfilled.166 Also, an income per capita in the candidate’s family may be taken into account.167 During the school year, the admissions to a public kindergarten, and to all types of public schools are decided by the principal in the case applicants live outside the school district, but students living in the district area of a public primary school and a lower secondary school are admitted automatically.168
In Poland equal access to education is a constitutional principle,169 and education to 18 years of age is compulsory.170 Public authorities ensure universal and equal access to education for citizens.171 In the process of admitting to schools, also other constitutional principles should be respected, such as special help for people with disabilities172 and for families in difficult financial or social situations, especially for large and single-parent families.173
b) due process rights when subjected to dismissal for academic and/ or disciplinary infractions
Expulsion of a student from a school is the most severe sanction that can be imposed on a student. This sanction can be applied by the principal in a form of an administrative decision.174 Situations in which such decisions can be made are defined in the school statute.175 The governing bodies of schools who decide on the content of school statutes have freedom of choice in determining those situations. Often the circumstances that lead to imposing this sanction are the following: intentionally
committed crime, possession and selling of narcotic drugs or alcohol, or persistently failing to comply with the obligation to study. The expulsion is carried out based on a resolution of the teachers’ board after a prior consultation with the students’ board.176 The decision on expulsion is issued by the principal, based on collected evidence.
Neither the teachers’ board resolution nor the students’ board opinion are binding for the principal. Students who have not completed compulsory education cannot be expelled.177 In justified cases, at the request of the principal, the superintendent of education can transfer such student to a different school.178
Proceedings concerning the expulsion of students are carried out according to the Code of Administrative Proceedings, which means that a party enjoys all rights guaranteed under this code, such as the right to active involvement in proceedings, i.e.
submitting statements about the evidence and filing own motions with regards to evidence (e.g. a motion to hear a witness on a specific matter).179 An appeal against expulsion can be lodged to a superintendent through the principal within 14 days.180 The decision of expelling a student, as every other administrative decision, should contain name of the body issuing the decision, date of the decision, name of the party involved, legal basis, findings, factual and legal justification, information on how to appeal it, a signature including the first name, last name and the professional position of a person authorised to issue the decision or a verified electronic signature of this person.181 The factual justification of the decision should include facts which the body found proven, the evidence based on which the decision has been made, as well as reasons why other evidence have been found lacking credibility or evidential value.182 The legal justification should clarify the legal basis and quote appropriate provisions of law.183
In the case of non-public schools a civil law obligation needs to be taken into account, so the principal might expel a child from school if the parents do not pay tuition.184 However, as mentioned before, the principal is obliged to inform a principal of a non-public school within the district the child resides about the expelling, to allow parents to fulfill the further compulsory school attendance of their child.185
b) search and seizure
Under the Law on Juvenile Delinquency Proceedings, everyone who finds out that a juvenile has been using substances in order to become intoxicated has a social responsibility to counteract this activity, and – above all – inform parents or legal guardian of the juvenile, school, juvenile court, the police or other appropriate institution.186 Everyone who finds out that a juvenile has committed a criminal act has a social responsibility to inform the juvenile court or the police.187 Preventing drug addiction, under the Law on Prevention of Drug Abuse,188 is also the responsibility of schools.189 Schools, similarly to other state-run institutions and social organizations, which in the course of their activity have learnt about an illegal punishable act committed by a juvenile that could be brought to prosecution ex officio, are obliged to inform the juvenile court or the police immediately and to take urgent steps in order to prevent the evidence from being covered up.190
Only the police have a right to search the school premises in order to locate objects, which might serve as evidence in criminal proceedings, if there is good reason to suppose that the objects sought are to be located there.191 Searching a person, such as clothing and objects at hand, may also be carried out in order to find these objects, under the same conditions.192
According to the regulation of the Minister of Education, schools are obliged to prepare a detailed procedure in case of emergencies connected with narcotics or psychotropic substances, including action to be taken by those who intervene in such situations.193 However, the regulation in question does not indicate the procedure that should be implemented in a situation when a teacher notices that a student is in possession of narcotic drugs. Similarly, there is no such procedure in the Law on prevention of drug abuse, which contains only vague norms concerning the criminal liability of those who are in possession of narcotic substances. Therefore it can be assumed that there is no general regulation of how to react in such situations.
Teachers have no right to search a student’s clothes or schoolbag on their own, and under the circumstances described above, the school should call the police.
In situations when a teacher suspects that a student is in possession of narcotic substances, the police recommend that, in the presence of another person (e.g.
homeroom teacher, principal), he or she demands that the student hand in the substance, show the content of his or her schoolbag and pockets, and possibly other objects giving rise to suspicion as to their relationship with the substance in question.194 The teacher should try to determine how and from whom the student has acquired the drugs and hand over the substance voluntarily handed in by the student to the police after properly securing it.195 The teacher should document such an event by preparing a report.196 If the student refuses to hand in the substance, the school should notify the police.197 Testing for drugs at schools is possible with the parents' consent.
d) freedom of religion
The Constitution specifies that parents have the right to ensure their children have a moral and religious upbringing and receive teaching in accordance with their convictions.198 Parents have also a constitutional right to educate their children according to their beliefs.199 The child's upbringing shall respect the degree of maturity of a child as well as child’s freedom of conscience and belief and also his/her convictions.200 Limitation or deprivation of parental rights may be affected only in the instances specified by statute and only on the basis of a final court judgement.201 Moreover, according to the Law on Guarantees of the Freedom of Conscience and Religion202 to exercise their freedom of conscience and religion, citizens may raise their children in conformity with their religious convictions.203 Therefore, students cannot be compelled by the school to participate in religious ceremonies that are contrary to their beliefs or their parents’ beliefs.
Religious education and ethics are optional classes in the Polish educational system. As the majority of Polish population is Catholic, religious education class in Poland is in fact a religious instruction according to Catholic Church. In the school year 2014/2015 about 92% of student population attended the class.204 Students who do not share Catholic beliefs can opt out from religious education class and attend ethics education or opt out from both religious education and ethics.205 The Constitutional Court found that the religious freedom of those students who do not share Catholic beliefs could not be extended so far as to infringe the rights of others and ban others from expressing their religious views through participation at the religious education class.206 The Constitutional Court also found that the inclusion of the assessed grade in religious education or ethics education in the grade average is consistent with the Constitution.207
Students attending religious education classes are allowed three consecutive days off from school in order to take part in a Lenten retreat, if their religion or denomination imposes on its members this kind of duty.208 During the retreat care of the students is provided by the religious education teachers.209 If at the school there are religious education classes of more than one denomination, churches and religious associations should attempt to agree on a common date for the Lenten retreat.210 The regulation uses a phrase taken from the Catholic tradition because it is the dominant religion in Poland. However, followers of other religions are entitled to a similar exemption, if their religion provides similar days of contemplation under its own principles. In addition, a student who is a member of a church or other religious association whose religious holidays are not public holidays can submit a request for an exemption from the study for his or her religious holidays. 211
In regard to the display of the crucifix in the public schools, the law provides for such a possibility.212 Prayer before and after classes is also allowed at public schools.213 Teachers should show tact and sensitivity when reciting prayers at schools, and they should be an expression of the common goals of the students.214 The Constitutional Court stressed that these are permissive rights and schools are not mandated to provide formal opportunities for prayer or to place crucifixes in school buildings.215
Students’ participation in classes about human sexual life, the principles of conscious and responsible parenthood, family values, life in the prenatal phase and methods and means of conscious procreation, which are conducted within the framework of educational classes called “Family life education”, is not mandatory.216 In order for minors to participate in these classes, their parents or legal guardians must give a written consent.217 Upon reaching the age of majority, the students themselves
can decide on whether to participate in the classes, declaring it in writing.218 In the case of students of legal age with mild learning disabilities, their parents or legal guardians decide on their participation in the classes.219
e) freedom of speech
Students’ freedom of expression is guaranteed by the Constitution and other
legal documents.220 Students have the right to speak about school related issues through the students’ board. They can submit their conclusions and opinions to the school board, the teachers' board and the principal regarding all matters related to school. In particular, they can give their opinions regarding the implementation of the fundamental rights of students. These fundamental rights include the right to know the content, purpose and posed requirements of the curriculum, the right to an open and justified evaluation of their learning progress and behavior, the right to organize school life in order to enable and maintain appropriate balance between the effort put into study and the possibility to develop and meet the students' own interests, the right to edit and issue a school newspaper, organize cultural, educational, sports and entertainment activities according to their own needs and organizational abilities, and the right to choose the teacher acting as a guardian of the students’ board.221
f) students with special needs
In Poland students with disabilities are defined as those students who are deaf, hard of hearing, blind, with low vision, who have physical disabilities (including aphasia), mild, moderate or severe intellectual disabilities, autism (including Asperger
syndrome), as well as multiple disabilities.222 Education and care for students with disabilities is provided at every stage of basic education. It can be integrated into regular education classrooms or provided by other special institutions.223 Students with special educational needs attend appropriate institutions closest to their place of residence.224 These institutions include kindergartens and mainstream schools;
mainstream schools with integrative class groups; integrative schools; mainstream schools with classes for students with special needs; and special needs schools.225 Education and care for students with disabilities can also take place in special needs schools that prepare them for future work, youth education centers, youth social therapy centers, special education centers and centers for children and adolescents with severe learning disabilities, as well as children and adolescents with severe educational needs combined with multiple disabilities.226 Integrative class groups have 15 to 20 students, including 3-5 students with disabilities.227 Children with disabilities are admitted to such class groups upon preliminary examination in a psychological and pedagogical counseling center and after receiving a referral from a psychologist regarding placing the child in an integrative class group.228 Since March 2016 special needs education has been the topic of the national debate "Uczeń. Rodzic. Nauczyciel - Dobra Zmiana" ("Student. Parent. Teacher - Good Change"). The campaign was organized by the Ministry of Education in response to reports that in many schools students with special educational needs are not receiving an adequate support, and the organization of their education needs improving.229
6. Emerging Issues
In the Polish education system, there are a number of emerging issues that might be observed, the majority of which are connected with an increased growth in the use of technology. In 2012, the Minister Education appointed the Council for Computerization of Education. The duties of the Council is to support the Minister in preparing and carrying out a governmental program of introducing digital technology into education, as well as advising on matters connected with the issues of modern technology in education. The Council consists of 17 people and gathers representatives of academia, principals, teachers and local governments. In 2012, a governmental plan “Digital school” was introduced, which aimed at developing students and teachers’ skills in applying information and communication technology. As a part of the plan, schools were provided with computer equipment and digital teaching aids.
An issue directly connected with the digitization of education is a broader access to open educational resources. These resources are teaching and learning materials that can be accessed and redistributed at no cost or with limited restrictions. In Poland, electronic repository of educational materials, which are freely accessible for teachers and learners, are run by the Governmental Center for Educational Development (“Rządowy Ośrodek Rozwoju Edukacji”). Since 2014, the government has run a project “Our Primer”, within which textbooks for pupils from first to third grade of the primary school, concerning areas such as the Polish language, mathematics, science and social education, are provided free of charge. Apart from a paper version delivered to schools, the Ministry of Education shared an electronic version of those textbooks on the website of the project: http://naszelementarz.men.gov.pl. However, there are still a limited number of educational resources, which are free of charge, and widely available in a digital form, and even when they are freely available, the rules to access them are often diverse.230 Therefore, there is a call to introduce homogenous rules of availability
of those resources by the institutions that are subordinated to or supervised by the Ministry of Education.231
One of the current policy issues in the educational sector is vocational education.
There is a trend among young people to choose general upper secondary education instead of vocational secondary education, as general education is considered to be more prestigious. At the same time, the needs of the labor market clearly show that there is a greater demand for the graduates of vocational secondary schools. Because of this situation, the Minister of Education announced that the year 2015 would be “the year of vocational education” and so the Ministry of Education undertook that year a number of activities in order to strengthen the position of vocational education. IBE points out that vocational schools, instead of reacting to local labor markets’ needs, aim for recruiting more students.232 With an intention to improve the situation of vocational schools, IBE calls for taking over some or all responsibilities connected with vocational education by local governments.233
Another noticeable phenomenon is the development of the private tuition industry. The Ministry has estimated that in primary and lower secondary schools about 10% of students attend private tuition, while among upper secondary students the number reaches 50-60%.234 Especially in large urban schools, attending additional private tuition is common. It is less popular among students in the rural areas, which leads to deepening of the differences between the level of education in the urban and rural areas, and enhances the growth in social inequalities.
7. Conclusions
The currently binding Law on Education has been amended several times since its enactment in 1991. According to the IBE, this law does not ensure enough autonomy of public schools, which disturbs the balance between the influence of local governments and autonomous development of schools.235 These statements by the IBE are supported by the fact that Polish public schools are dependent on the decisions made by local governments when it comes their financing; local governments have also a significant influence on the choice of the principal, promotion of teachers, approval of school organizational plans and decisions on opening and closing schools.
The report prepared by the IBE draws attention to inequality in the provision of education in Poland. According to the report, there are some local governments that actively strive to enhance quality, while others focus just on managing financial resources.236 At the same time, the supervisory bodies that monitor the school system do not have sufficient capacity, which results in schools not having adequate support, which, in turn, leads to even greater differences in the quality of education.237 The system of supervising schools is currently undergoing change from the formal supervision model to a model based on a culture of evaluation.238
A further problem is that the Polish education system is currently facing a decreased number of students due to the drop in the birth rate. Between 2007-2012, 954 of all primary schools were closed down239 and 500 primary schools were handed on to different associations.240 The IBE maintains that these transfers may result in lower standards of teaching, especially in separated rural communities.241
The Ministry of Education, aware that some regulations do not function properly and that there is a need for changes, launched in March 2016 a series of regional debates with stakeholders of the education system. In every region, the
following issues regulated by the Law on Education are discussed: funding, special education, vocational education and safety at schools. 242
Short biographies
Dr Maria Stożek, LL.M., is a Research Fellow at the Institute for Culture and Society, University of Navarra. She graduated with a Master of Laws at Jagiellonian University in Cracow, Master of Laws at Harvard Law School, and a Ph.D. in Law at Jagiellonian University in Cracow, pursuing a part of her Ph.D. studies at Heidelberg University.
Ms Marta Ponikowska is a lawyer, and a political science analyst. Her academic interests focus on international and education law. She graduated from the University of Warsaw with a Master of Laws and a Master of Political Science, and conducted part of her political science studies at the University of Maastricht. Currently, she works as an education law expert at the EU Twinning project in Macedonia, and is preparing her Ph.D. thesis on parental rights in education at the Cardinal Stefan Wyszyński University. Ms Ponikowska was also a Visiting Researcher at the office of European Association for Education Law and Policy in Antwerp and the Human Rights Institute at University of Navarra.
Correspondence to: Maria Stożek
