Equal Protection, Legitimacy, and the Legalization of Education: The Role of the Federal Constitutional Court in West Germany

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Abstract
The article reviews the role of the Federal Constitutional Court in the shaping of educational policy in the Federal Republic of Germany. It identifies two related, but different, constitutional norms which the Court brings to bear upon its views of the relationship between education and the state: (a) the norm of “equal protection,” which has had a particularly precarious role in the German constitutional tradition as far as education was concerned; and (b) the norm of legitimacy as it relates to the decision-making processes through which educational policy objectives are set and the means for achieving them elaborated. The Court's efforts to make current practices in West German educational policy comply with these norms led the Court to develop its own notion of “legalization” in the twin principles of “statutorization” and “parliamentarization.” Against the background of this development, the article argues that the Court succeeds reasonably well in terms of satisfying the “equal protection” norm, but that it may have underestimated the seriousness and precari-ousness of the legitimacy issue.