Germany

Key documents: Basic Law, Unification Treaty, Constitutions of the individual Länder, Education Acts of the individual Länder, Recommendations on the Organisation of Special Schools, Book Eight of the Social Code, Recommendations on Special Needs Education in the Schools of the Federal Republic of Germany, Recommendations on the Education of  Children with Autism, Book Nine of the Social Code, Amendments to the Recommendations on Special Needs Education in the Schools of the Federal Republic of Germany, and the Decision on Inclusive Education of Children and Young People with Disabilities.

Characteristics: Even though German SEN policy is harmonised, it still gives sufficient room for interpretation for the Länder, resulting in subtle differences. Saxony is notably less developed in terms of SEN policy, possibly because of the separation between Western and Eastern Germany after the Second World War and consequently differential development of their respective educational systems. With the Basic Law of the Federal Republic of Germany becoming binding for all of Germany since 1990, former Eastern German States were incentivised to develop similarly to Western Germany. Additionally, the provision of support and education for parents on the SEN or disability of the child is regulated through the harmonised law, yet the active involvement of parents in education is generally limited to the decision on school choice.

Overview
National level

  • The right to equal treatment of people with disability is highlighted in Article 3 of the Basic Law [1]. It also lays down the foundations for a system for special education in Article 7, while declaring in the same Article that the regulation of the education system is a responsibility of the federal states (Länder). 
  • At this point, the Basic Law only applied to the Federal Republic of Germany. The Basic Law became binding for Länder within the former German Democratic Republic after the adoption of the Unification Treaty in 1990 [2]. 
  • Even though the competence on education lies with the Länder, the Standing Conference of the Ministers of Education and Cultural Affairs (henceforth SCMECA) harmonised the development and organisation of special education by adopting several resolutions, most notably the Recommendations on the Organisation of Special Schools in 1972 [3]. 
  • Book Eight of the Social Code (1990) implemented youth services to assist parents in the development of the child and to support the child in his or her development and education [4]. It also identifies a wide range of supporting services in Articles 27 through 40 that can be used to provide assistance, based on the condition of the child with special needs and the environment it lives in. 
  • In Chapter 3 of the Recommendations on Special Needs Education in the Schools of the Federal Republic of Germany (1994) developments were formulated that aimed to dismantle barriers and promote the equal participation of young people with disabilities in mainstream education and special education [5].   
  • SCMECA published recommendations on the education of children with autism in 2000 that address the diagnostic criteria to be used for autism in schools in Chapter 3, the goals for the education system in general in Chapter 4, and the key points for every educational institution separately in Chapter 5 [6].  
  • Book Nine of the Social Code on the rehabilitation and participation of people with disabilities specifies in Articles 46 and 79 that early (medical) screening intervention is paramount in addressing disabilities as adequately as possible [7].
  • In 2008, the SCMECA decided to amend the Recommendations on Special Needs Education in the Schools of the Federal Republic of Germany in order to respect the intentions of the CRPD in the Länder.  
  • The SCMECA adopted the Decision on Inclusive Education of Children and Young People with Disabilities in schools in 2011 [8]. The aim was to enable children and young people to be educated and trained together in mainstream education and to guarantee and develop the standards achieved in special education teaching, advisory, and support services.


Federal level

  • In addition to the Basic law on national level, each Land has its own constitution as well. Bavaria adopted its constitution in 1946, it already included the right to education for all (Article 129) [9]. 
  • In North Rhine Westphalia, where the constitution was adopted in 1950, it states that every child has the right to education (Article 8) [10].
  • The Constitution of Lower Saxony was drafted so it closely resembles the Basic Law of 1951 [11]. Because of its close resemblance, it avoided repetition of elements such as civil rights that were already mentioned in the Basic Law. As such, the right to education is not mentioned.  
  • Since Saxony was part of Eastern Germany, which fell under the Soviet regime, it did not have a constitution comparable to the one in Western Germany until the first version was implemented in 1992 [12]. 
  • The education systems for the Länder are specifically laid down in their Education Acts (Bavaria, Article 19 [13]; North Rhine Westphalia, Article 20 [14]; Saxony, Article 13 [15]; Lower Saxony, Article 14 [16]).  
  • While each Act acknowledges the existence of special education schools and their importance, there are slight differences in the regulation on how these schools should be implemented. Bavaria (Article 2), North Rhine Westphalia (Article 20), and Lower Saxony (Article 4) aim at including as many children in mainstream education and providing special education services there, while still retaining specific special education schools for children that are unable to attend mainstream education due to their disability. In contrast, the system in Saxony remains strongly split between mainstream and special education with the only overlap being the degrees that can be acquired. 
  • There are also other subtle differences between the Education Acts. Firstly, the Education Act of Bavaria lays down the conditions for a child to be eligible for admission into a special education school in Article 19, stating that access is warranted when either a child cannot be supported or insufficiently supported and taught in mainstream education. Next, Article 30b discusses the aim to include as many children in mainstream education as possible, providing special education services where applicable and necessary.  
  • Secondly, the Act of North Rhine Westphalia provides a specific definition of "special education needs" and the general conditions for which SEN services are provided.  
  • Thirdly, the Education Act of Saxony incorporates counseling centers in special education schools in Article 13, whose responsibility is early detection and facilitate early interventions for children with disabilities. 


Closing Comments: Germany is a federal state that consists of 16 states. It was not feasible to cover all 16 individual states in the corresponding research paper, so we decided to pick Bavaria, North Rhine Westphalia, Saxony, and Lower Saxony to represent Germany as these states cover a large majority of the population and include states from both the Federal Republic of Germany and the German Democratic Republic. 

References
[1] Bundesrepublik Deutschland. Grundgesetz für die Bundesrepublik Deutschland. 1949. Available from: https://www.juris.de
[2] The Unification Treaty between the FRG and the GDR. 1990. Available from: https://www.cvce.eu/en/obj/the_unification_treaty_between_the_frg_and_the_gdr_berlin_31_august_1990-en-2c391661-db4e-42e5-84f7-bd86108c0b9c.html
[3] Standing Conference of the Ministers of Education and Cultural Affairs. Empfehlung zur Ordnung des Sonderschulwesens. 1972. 
[4] Bundesministerium des Justiz und für Verbraucherschutz. Sozialgesetzbuch - Achtes Buch (VIII) - Kinder- und Jugendhilfe. 1990. Available from: https://www.gesetze-im-internet.de/sgb_8/BJNR111630990.html
[5] Standing Conference of the Ministers of Education and Cultural Affairs. Empfehlungen zur sonderpädagogischen Förderung in den Schulen in der Bundesrepublik Deutschland. 1994. Available from: https://www.kmk.org/fileadmin/Dateien/pdf/PresseUndAktuelles/2000/sopae94.pdf
[6] Standing Conference of the Ministers of Education and Cultural Affairs. Erziehung und Unterricht von Kindern und Jugendlichen mit autistischem Verhalten. 2000. Available from: https://www.kmk.org/fileadmin/Dateien/veroe ffentlichungen_beschluesse/2000/2000_06_16-Empfehlung-autistisches-Verhalten.pdf
[7] Bundesministerium des Justiz und für Verbraucherschutz. Sozialgesetzbuch (SGB) Zwölftes Buch (XII) - Sozialhilfe. 2003. Available from: https://www.gesetze-im-internet.de/sgb_12/BJNR302300003.html
[8] Standing Conference of the Ministers of Education and Cultural Affairs. Inklusive Bildung von Kindern und Jugendlichen mit Behinderungen in Schulen. 2011. Available from: https://www.kmk.org/fileadmin/veroeffentlichungen_beschluesse/2011/2011_10_20-Inklusive-Bildung.pdf
[9] Verfassung des Freistaates Bayern. 1946. Available from: http://www.dircost.unito.it/cs/docs/bayern1946.htm
[10] The Constitution of North Rhine Westphalia. 1950. Available from: https://www.landtag.nrw.de/portal/WWW/GB_II/II.1/OeA/International/en/North_Rhine_Westphalia_Constitution_revised.jsp
[11] The Constitution of Lower Saxony. 1993. Available from: http://www.landtag-niedersachsen.de/the_constitution_of_lower_saxony/
[12] Sächsische Verfassung. 1992. Available from: https://www.revosax.sachsen.de/vorschrift/3975/33328
[13] Bayerisches Gesetz über das Erziehungs- und Unterrichtswesen in der Fassung der Bekanntmachung. 2000. Available from: http://www.gesetze-bayern.de/Content/Document/BayEUG/true0quelle=jlink&query=SchulG+ND&psml=bsvorisprod.psml&max=true&aiz=true#jlr-SchulGNDV45P14
[14] Schulgesetz für das Land Nordrhein-Westfalen. 2005. Available from: https://recht.nrw.de/lmi/owa/br_bes_text?anw_nr=2&gld_nr=2&ugl_nr=223&bes_id=7345&menu=1&sg=0&aufgehoben=N&keyword=schulgeset#det
[15] Niedersächsisches Schulgesetz. 1998. Available from: http://www.nds-voris.de/jportal/;jsessionid=5B0EBD84D2CC606349B2AAA1FDB49767.jp15?
[16] Landesrecht Sachsen - Sächsisches Schulgesetz. 2004. Available from: https://www.revosax.sachsen.de/vorschrift/4192-Saechsisches-Schulgesetz