El concierto educativo como instrumento de garantía de la libertad de enseñanza

Abstract

The educational system designed by our Constitution is a plural system, made up of public and private centers that provide compulsory education free of charge, so that parents can choose, in freedom and equal opportunities, the education model that they they want for their children. To make parental choice effective, the Constitution has been concerned with guaranteeing educational pluralism through the recognition of natural and legal persons of the right to create private centers, which implies for their owners their right to direction and provision of educational ideology. and incorporating a mandate to help centers that meet the requirements established in the Law. This duty to help is materialized, today, in the educational agreement, which is a contract whose main benefits consist of the Administration providing the holders of private centers with public funds for their support in exchange for them offering the teachings that are the subject of the concert for free. The objective of this thesis is to analyze the figure of the educational agreement in order to verify if it guarantees the freedom of education of parents, if it allows them to freely choose the education of their children as well as if the freedom of education of the owner is respected. of the center, if the subscription to the concert respects or limits its right of direction and if the concert module is sufficient to guarantee free teaching. Given the limitations and deficiencies detected in the figure of the educational concert, proposals for improvement or lege ferenda are proposed. The methodology followed has been the analysis and comparison of regulations, study of doctrine and jurisprudence in this regard, often finding ourselves with many difficulties because in many aspects there is no doctrinal unity, the jurisprudence is contradictory and the filing of unconstitutionality appeals is also common every time. every time a new educational law is approved. In fact, as will be seen, the pacifying work that the Constitutional Court has carried out has been fundamental in education. After a detailed study we can conclude that the educational agreement guarantees the freedom of education for parents as it allows them to choose, with freedom and equal opportunities, the education model they want for their children. Without prejudice to the above, throughout this thesis the limitations in the choice that parents find themselves with derived from the educational agreement are revealed, thus one of the problems that arises is that some calls for aid as important as the transportation, dining room or conversation assistants, in some Autonomous Communities, are only aimed at students enrolled in public centers, which violates the principle of equality and educational pluralism, discriminating against students enrolled in subsidized centers based on the center chosen by their parents. Another aspect that can condition the freedom of parents when choosing an educational center depends on the score given by the different educational administrations to the student admission criteria, since the vast majority give a very high score to the criterion of home proximity or labor, making it a determining factor, this circumstance means that zoning has a great impact when choosing because if it is excessive it greatly limits the choice of parents who will only be able to choose the centers in a specific area. Another possible limitation occurs with the denial or reduction of a concert because it is a differentiated education center. With the utmost respect, we do not agree with the latest jurisprudence of the TC that has considered legitimate the exclusion from financing of centers that separate by sex. We believe that it cannot be discretionary for the legislator to decide which model to exclude from financing because it is considered less correct. Even for political or ideological reasons, despite being a constitutional model, we understand that article 27.9 CE must guarantee educational pluralism that allows families to choose freely, helping the different educational models that, in compliance with the requirements for access to the concert, choose to A constitutional model, on the contrary, will mean that only families with economic resources will be able to choose differentiated education, since the paradox is that it is not the model itself that is prohibited, but rather its access to public financing. From the point of view of the owner of the private center, the concert also guarantees his freedom of teaching as it allows him to offer the teaching he provides, with a specific ideology, with a specific orientation, under free conditions, allowing parents to choose the education model. what they want for their children without economic discrimination. Notwithstanding the above, the subscription to the concert implies for its holder limitations on its right of direction and its assimilation in many aspects to public centers, to which is added the economic insufficiency of the concert module that does not guarantee free teaching and yet He is prohibited from charging any amount to the families for the delivery of the lessons that are the subject of the agreement, which results in a disproportionate burden. Without prejudice to the above, and despite its deficiencies, we can conclude that the concert, also analyzing other financing formulas, is the best instrument to guarantee the freedom of education of the owner of the center and the parents.