Issuance by the Minister of Education of a decree on the organization of religious instruction in school without the required consent of churches and other religious associations

This post contains an excerpt from the report “A year of devastation of the rule of law”, published by the Ordo Iuris Institute on December 13, 2024. The full report can be found at https://en.ordoiuris.pl/civil-liberties/year-of-devastation-of-rule-of-law-in-poland

Main theses:

Already on the day the government was sworn in, Minister Nowacka announced that the number of religious instruction lessons was going to be halved, this subject would no longer be taken into account in a student’s average grade and would not appear on his or her school certificate, and religious instruction, which is not compulsory, would have to be scheduled by schools at the beginning or the end of the school day. In addition, the Minister of Education has attempted to allow schools to group students of different ages for religious instruction classes.

The Constitutional Tribunal, in a November 27, 2024 ruling, ruled that due to the lack of agreement with churches and other religious associations, the July 26 decree of the Minister of Education is unconstitutional in its entirety.

1. Introduction

One of the primary goals of the Minister of Education Barbara Nowacka is to combat religion in schools. This observation is supported by the fact that repeated initiatives have been taken in the past year resulting in the downgrading of the reputation of religion and ethics classes and the introduction of legal solutions to discourage students from attending these classes.

Already on the day Donald Tusk’s government was sworn in, Barbara Nowacka announced that her goal would be to limit the number of hours of religious instruction in school, place them before or after compulsory classes, and not include the final year’s grade in religion on a student’s certificate[1]. On January 2, 2024, Secretary of State at the Ministry of Education Katarzyna Lubnauer confirmed that as of September 1, 2024, grades in religion will not count in a student’s average grade[2]. On January 26, 2024, the Government Legislation Center’s website published a draft decree on grading, classifying and promoting students and other participants in public schools, under which it was decided to abandon the inclusion in the average of annual or final grades of religion and ethics classifications[3]. Its rationale indicated that “since religion and ethics classes are not classes that a student is obliged to attend, it is unreasonable that the annual or final grade for these classes should affect the average of the grades obtained.”[4] The decree of March 22, 2024 eventually came into effect on September 1, 2024.[5].

On the last day of April 2024, a draft decree of the Minister of Education amending the decree on the conditions and manner of organizing religious instruction in public kindergartens and schools appeared on the website of the Government Legislation Center[6]. The changes were to allow students attending religion or ethics classes to be combined into interdepartmental groups (including students at the same stage of education) or interclass groups (bringing together students from different stages of education)[7]. Such practice violates Article 96 of the Law of December 14, 2016. – Education Law (OJ 2024, item 737, i.e.). The Decree of the Minister of Education dated July 26, 2024, amending the Decree on the conditions and manner of organizing religious instruction in public kindergartens and schools (OJ item 1158). The procedure for issuing the decree violated Article 25 (paragraphs 3-5 of the Polish Constitution), which sets the rules for the state’s relations with religious communities in the Republic of Poland, because the minister did not reach an agreement with the religious communities concerned before issuing the decree, and this violates the constitutional principle of consensual regulation of state-church relations. Accordingly, on August 26, 2024, the First President of the Supreme Court filed a request with the Constitutional Tribunal to examine the constitutionality of the Decree of the Minister of Education[8], asking the Constitutional Tribunal to issue a protective order.

2. Control of the constitutionality of the decree of July 26, 2024

The Constitutional Tribunal, by its decision of August 29 (ref. U 10/24)[9], granted the request of the First President of the Supreme Court, Małgorzata Manowska, suspending the application of the provisions of the decree of the Ministry of Education dated July 26, 2024. The following day, a communiqué was published on the website of the Ministry of Education, in which the Minister of Education “informs that the aforementioned protective order does not have any legal effect and the aforementioned decree was issued in accordance with the law and is generally effective as of September 1, 2024.”[10]

The Constitutional Tribunal ruled on November 27, 2024 that the Minister of Education’s decree of July 26, 2024, amending the decree on the conditions and manner of organizing religious instruction in public kindergartens and schools (OJ item 1158) is wholly inconsistent with Article 12(2) of the Law of September 7, 1991 on the educational system (OJ 2024, item 750, as amended) in connection with Article 92 (1) in connection with Article 25 (3) in connection with Article 2 and Article 7 of the Constitution of the Republic of Poland[11]. This means that the main reason for the unconstitutionality was the violation of the principle of adherence to the law and the principles of a democratic state of law by issuing a decree in violation of the constitutional requirement to agree on its content with the authorities of churches and other religious associations.

3. Draft decree of September 30, 2024 – Content in violation of the Constitution

On the first day of October 2024, a draft decree of the Minister of Education, amending the decree on the conditions and manner of organizing religious instruction in public kindergartens and schools in the version of September 30, 2024, was published on the website of the Government Legislation Center (number on the list of legislative works of the Minister of Education – 38)[12]. This draft decree envisages limiting the number of religion classes to one per week and imposing an obligation on school principals to place religion or ethics classes before compulsory education classes or after those classes[13] on a given day starting in September 2025. In addition, the draft clarifies that the rules for organizing religious and ethics instruction in an interdepartmental group or interclass group will be applied to the organization of religious or ethics instruction in an interschool group or in an out-of-school catechism point. Thus, the draft extends the application of solutions from the July 26 decree, which was declared unconstitutional in its entirety by the Constitutional Tribunal.

The proposed § 8a provides for the imposition of an obligation to place religion and ethics lessons in the timetable either before or after the compulsory educational classes of the day. This constitutes a de facto obstruction of attendance of voluntary religious or ethics classes, and therefore amounts to a violation of the constitutional right to education[14]. In the case of religious instruction, this also constitutes a violation of the freedom of religion manifested, among other things, in the freedom to teach it as a school subject[15]. As the Constitutional Tribunal pointed out, “religious instruction is, by the standards of a modern democratic state, one of the elements of freedom of religion, which is one of the essential manifestations of the idea of individual freedom in a democratic society.”[16] Obstructing students from attending religion or ethics classes therefore also violates the principle of a democratic state of law as expressed in Article 2 of the Polish Constitution. It also violates the right of parents to raise their children according to their own beliefs (Article 48(1) of the Polish Constitution), including in the sphere of moral and religious teaching and upbringing[17]. In addition, the entry into force of the legislation in question will also mean discrimination against students wishing to attend religion or ethics classes and parents wishing to provide their children with an education that includes their system of values. Meanwhile, according to Article 32 of the Polish Constitution, everyone is equal before the law. All persons shall have the right to equal treatment by public authorities (paragraph 1). No one shall be discriminated against in political, social or economic life for any reason whatsoever (paragraph 2). The rigid order to place religious instruction before or after compulsory educational classes, in addition with the possibility of so-called “windows” between them, also raises reasonable doubts about its compliance with Article 12(1) of the Concordat[18], according to which religious instruction is organized as part of the school and kindergarten timetable. Moreover, the proposed amendments must be considered contrary to Article 31(3) in conjunction with Article 53(5) of the Constitution of the Republic of Poland, because they take the form of a decree, i.e., a sub-statutory act. Furthermore, they are neither necessary nor implement the prerequisites that form the basis for the possibility of restricting freedom of religious instruction described in the aforementioned provisions, and therefore do not implement the constitutional requirements for lawful restrictions on human freedoms and rights[19].

4. Draft decree of September 30, 2024 – Procedural notes

The order to place religious instruction before or after compulsory education classes and the limitation on the number of religious instruction lessons represents a significant change in the conditions and manner in which public kindergartens and elementary schools organize religious instruction. Carrying out such changes requires the state authorities to reach an agreement “with the authorities of the Catholic Church and the Polish Autocephalous Orthodox Church and other churches and religious associations,” which follows directly from Article 12(2) of the Law on the Education System[20]. In doing so, this agreement must not be understood as an opportunity for representatives of churches and other religious associations to take a non-binding position, but requires a consensus to be reached among the parties involved. Therefore, it is not allowed in Poland to base changes in the law in this area only based on the knowledge of the opinion of the church party[21].

In light of the Constitutional Tribunal’s jurisprudence, “the elements of the reconciliation process are: 1) the obligation of the lawmaking body to provide information on the draft lawmaking decision;
2) the establishment of a deadline for the presentation of the position; 3) the discussion of the substantive content of this draft; 4) the possibility of presenting different positions, attempts to unify them and align them with the expectations of the partners in this discussion; 5) the development of a final, if possible common and optimal, law-making decision; 6) memoranda of agreement and memoranda of divergence in the event that divergent positions on the content of the act are maintained; 7) justification of the need to adopt the drafters’ version in the event of divergence as to the content of solutions.”[22] The elements indicated are universal and should also be applied to the co-participation of religious communities in the creation of laws concerning the state’s relations with these entities.

The requirement for the state to come to an agreement with churches and other religious associations is a consequence of the recognition of the autonomy and independence of churches and other religious associations, as well as the principle of cooperation for the individual and the common good (Article 25(3) of the Constitution of the Republic of Poland) and the special position and function of these entities in a democratic society[23], which is confirmed by the wording of the provisions of Chapter I of the Polish Constitution (only with religious communities does the state regulate its relations). The unique constitutional position of religious communities also justifies a special understanding of the term “in consultation” as limiting the powers, in this case, of the Minister of Education by obliging him to consensually interact with religious communities in the law-making process[24]. At the international legal level, an additional guarantee of the systemic mode of regulating the state’s relations with the Catholic Church is provided by Article 27 of the Concordat, which states that matters requiring new or additional solutions will be regulated by new agreements between the Contracting Parties or arrangements between the Government of the Republic of Poland and the Polish Bishops’ Conference authorized by the Holy See.

According to the Communiqué of the Commission for Catholic Education of the Polish Bishops’ Conference following the meeting of the Polish Bishops’ Conference’s Working Group for Contacts with the Government of the Republic of Poland on Religion Lessons at School with representatives of the Ministry of Education on October 9, 2024, the church side presented its objections and doubts relating to the draft decree and the changes proposed by the Minister of Education[25]. The lack of agreement is emphatically confirmed by the communiqué of December 9, 2024, in which the church side expresses its disapproval of the government side’s rejection of its proposals and the failure to reach an agreement[26].

5. Summary

Education Minister Barbara Nowacka’s actions since her first day in office have been aimed at, among other things, lowering the reputation of religion classes and discouraging students from attending them. This is a product of the minister’s personal worldview (she belongs to the left-wing party Inicjatywa Polska, and comes from the extreme liberal-left party Twój Ruch, which has a social-liberal and anticlerical profile) and the legal impossibility of completely abolishing a school subject such as religion.

Minister Nowacka, faced with the impossibility of reaching an agreement with churches and other religious associations, began to introduce legal changes without fulfilling this constitutional requirement. It was not until the Constitutional Tribunal’s ruling of November 27, 2024 and Poland’s presidential pre-campaign period that further changes were slowed down, and dialogue with churches and other religious associations, especially the Catholic Church, started being conducted in a formally correct manner. However, this does not mean that the parties are getting any closer to reaching an agreement, and the expectations of the leftist electorate could lead to further unlawful actions by Poland’s education minister. It should therefore be emphasized that making further changes without the agreement required by the law and the Concordat between the government and church parties on changes to the organization of religious instruction lessons will constitute another constitutional tort.

Łukasz Bernaciński

^[1] Nowacka on religious instruction lessons: Two hours is an exaggeration, 13/12/2023, https://www.rmf24.pl/fakty/polska/news-nowacka-o-lekcjach-religii-dwie-godziny-to-jest-przesada,nId,7206792 (accessed: 10/12/2024).

^[2] Radio ZET, Deputy head of the Ministry of Education announces changes in schools. We would like them to come into force from September 1, https://wiadomosci.radiozet.pl/Gosc-Radia-ZET/wiceszefowa-men-zapowiada-zmiany-w-szkolach-chcielibysmy-zeby-to-weszlo-od-1-wrzesnia (accessed: 10/12/2024).

^[3] For a broader commentary on the draft decree, see. Ł. Bernaciński, K. Szymańska, Assessment in religion is a natural consequence of organizing religious instruction by public schools, https://ordoiuris.pl/wolnosc-religii-w-szkole/ocena-z-religii-stanowi-naturalna-konsekwencje-organizowania-nauczania (accessed: 10/12/2024).

^[4] Explanatory Memorandum to the Draft Decree of the Minister of Education Amending the Decree on the Grading, Classification and Promotion of Students and Other Participants in Public Schools, https://legislacja.rcl.gov.pl/projekt/12381254 (accessed: 10/12/2024).

^[5] Decree of the Minister of Education of March 22, 2024, amending the Decree on the Grading, Classification and Promotion of Students and Other Participants in Public Schools, OJ item 438.

^[6] Draft Decree of the Minister of Education amending the Decree on the conditions and manner of organizing religious instruction in public kindergartens and schools, https://legislacja.rcl.gov.pl/projekt/12384702/katalog/13056500#13056500 (accessed: 10/12/2024).

^[7] For a broader commentary on the draft decree, see. Ł. Bernaciński, M. Puzio, Steps to take religion out of schools. Discriminatory project of the Ministry of Education, https://ordoiuris.pl/komentarze/krok-do-wyrugowania-religii-ze-szkol-dyskryminujacy-projekt-ministerstwa-edukacji (accessed: 10/12/2024).

^[8] Contents of the proposal available at: https://www.sn.pl/sites/Serwis_WWW/SiteAssets/Lists/Wydarzenia/AllItems/Wniosek Pierwszego Prezesa Sądu Najwyższego do Trybunału Konstytucyjnego z dnia 26 sierpnia 2024 r. BSA III.4011.1.2024.pdf (accessed: 10/12/2024).

^[9] The text of the decision is available at: https://www.sn.pl/sites/Serwis_WWW/SiteAssets/Lists/Wydarzenia/AllItems/postanowienie TK U 10-24.pdf (accessed: 10/12/2024).

^[10] The Minister of Education’s position on the CT’s protective order, https://www.gov.pl/web/edukacja/stanowisko-ministra-edukacji-ws-zabezpieczenia-tk (accessed: 10/12/2024).

^[11] See https://trybunal.gov.pl/postepowanie-i-orzeczenia/wyroki/art/nauka-religii-w-publicznych-przedszkolach-i-szkolach-4 (accessed: 12/10/2024).

^[12] Decree of the Minister of Education amending the decree on the conditions and manner of organizing religious instruction in public kindergartens and schools, available at https://legislacja.rcl.gov.pl/projekt/12390003, (accessed: 10/12/2024).

^[13] This follows from the proposed § 8a of the decree, which refers to the compulsory classes listed in Article 109(1)(1) of the Law of December 16, 2016. – Education Law (OJ 2024, item 737, as amended).

^[14] Cf. Article 70 (1) first sentence and (4) first sentence of the Polish Constitution.

^[15] Cf. Article 53 (1) and (4) of the Polish Constitution.

^[16] Judgment of the Constitutional Tribunal of December 2, 2009, ref. U 10/07.

^[17] Cf. Article 53(3) of the Constitution of the Republic of Poland, Article 2 of Protocol No. 1 of March 20, 1952 to the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 (OJ 1995 No. 36, item 175), hereinafter referred to as: Protocol No. 1; Article 18(4) of the International Covenant on Civil and Political Rights, opened for signature in New York on December 19, 1966 (OJ 1977, No. 38, item 167); Article 14(3) of the Charter of Fundamental Rights of the European Union (OJ EU C 83, p. 389).

^[18] Concordat between the Holy See and the Republic of Poland of July 28, 1993 (OJ 1998 No. 51, item 318).

^[19] For a broader discussion, see Ł. Bernaciński, Comments on the draft decree of the Minister of Education amending the decree on the conditions and manner of organizing religious instruction in public kindergartens and schools, https://ordoiuris.pl/wolnosc-religii-w-szkole/uwagi-do-projektu-rozporzadzenia-ministra-edukacji-zmieniajacego-0 (accessed: 10/12/2024).

^[20] Law of September 7, 1991 on the educational system, OJ 2024, item 750, as amended.

^[21] Cf. D. Walencik, Formalnoprawne uwarunkowania stanowienia regulacji prawnych dotyczących finansowania związków wyznaniowych w Rzeczypospolitej Polskiej [in:] Finansowanie Kościołów i innych związków wyznaniowych, ed. P. Sobczyk, K. Warchałowski, Warsaw 2013, p. 40.

^[22] Judgment of the Constitutional Tribunal of June 27, 2013, ref. K 12/10.

^[23] Ł. Bernaciński, Civic tax write-off as a potential source of funding for churches and other religious associations in Poland. A legal and denominational perspective, p. 92. Text of the defended dissertation available (in Polish) at: https://www.bip.uni.lodz.pl/stopnie-naukowe/przewody-doktorskie-postepowania-w-sprawie-nadania-stopnia-doktora/mgr-lukasz-bernacinski, (accessed: 10/12/2024).

^[24] Cf. P. Stanisz, D. Walencik, The procedure for amending the decree of the Minister of Education of 14 April 1992 on the conditions and manner of organizing religious instruction in public kindergartens and school, “Studia z Prawa Wyznaniowego” 2024, https://doi.org/10.31743/spw.17760.

^[25] Opoka.news, Communiqué following the meeting of the Working Group on Contact with the Government of Poland, https://opoka.news/komunikat-po-spotkaniu-zespolu-roboczego-ds-kontaktow-z-rzadem-rp, (accessed: 10/12/2024).

^[26] Communiqué from the Church side following the meeting of the Joint Commission of Representatives of the Government of the Republic of Poland and the Polish Bishops’ Conference, https://episkopat.pl/doc/222048.Komunikat-strony-koscielnej-z-posiedzenia-Komisji-Wspolnej (accessed: 10/12/2024).