The Fribourg Linguistic Case – Controversy about the language of instruction in schools in the light of freedom of language and equal educational opportunities in Switzerland

Abstract

Plurilinguism represents an essential characteristic of the Swiss conception of state.1 According to Article 4 of the Swiss Federal Constitution (Bundesverfassung, hereinafter BV)2 German, French, Italian and Rhaeto-Romanic are recognised as national languages on an equal footing.3 Although plurilinguism as such is not a specifically Swiss phenomenon, the language equality with regard to four national languages can certainly be said to be a Swiss particularity worldwide.4 A characteristic of the language diversity in Switzerland is the quite clearly demarcated geographical distribution of the four national languages within four language areas according to their traditional distribution. Hence, although the Swiss federal state is, officially, quadrilingual, most of the Cantons are unilingual.5 Conflicts with regard to the use of languages in the public sphere arise in particular in the multilingual Cantons of Switzerland.6 One sensitive area is the question of the language of instruction in the public school system. It is therefore not surprising that the highest Swiss Court (hereinafter Federal Court) has often been confronted with the problem of language of instruction for national minority children starting school in multilingual Cantons and, interrelated with that, the question of a right to education in one’s mother tongue. The jurisprudence and legal scholars in Switzerland have so far discussed these conflicts mainly, if not exclusively, in the light of the constitutional guarantees regarding the use of languages, in particular the tension between the freedom of language and the territorial language principle (principle of territoriality). Besides, the principle of non-discrimination of minorities has recently been put in the limelight of the discussion.7 Strikingly, problems with regard to the more general principle of equality, in particular the principle of equal educational opportunities, have hardly been discussed and considered so far. The aim of this article is to show that against the legal and educational scientific background regarding equality in education there are good reasons to put more emphasis on the interrelation between language of instruction and equal educational opportunities and, consequently, to mitigate the meaning of the territorial language principle which has, time after time, served to justify considerable restrictions as to the use of (national) minority languages in schools. The focus will be on the recent Fribourg Linguistic Case8 which, once again, brought the latent conflicts regarding language of instruction in multilingual Cantons before the Federal Court. Associations with the Belgian Linguistic Case of the European Court of Human Rights (ECHR) will inevitably arise and, at some points of the discussion, this jurisprudence shall be included. Furthermore, European and international instruments aiming at the protection of language minorities shall be considered where they are of importance and interest in our context. Finally, I will present a short discussion on recent developments in Swiss language policy regarding the field of school education.