As the Government of the Republic of Slovenia gave parents the option relating to the self-testing of children in schools as per the Ordinance on the temporary measures for the prevention and control of the COVID-19 infectious disease, the Human Rights Ombudsman of the Republic of Slovenia believes that these children should also be allowed the possibility to be graded without meeting the provisions determined in the Ordinance. Otherwise, the arrangement fails to be in the interest of the children who will ultimately carry the consequences of their parents’ decisions. As per Article 3 of the Convention on the Rights of the Child, the best interests of the child must be a primary consideration in all actions concerning children.
* * *
Among the complaints of parents who disagree with the self-testing of their children in schools, with the result that their children are involved in distance learning, the Human Rights Ombudsman (Ombudsman) received several complaints that dealt with the grading of children who are temporarily prohibited to gather in schools as per paragraph four of Article 8 of the Ordinance on the temporary measures for the prevention and control of the COVID-19 infectious disease (Ordinance). The parents were concerned about how their children would be assessed, as distance assessment was not implemented.
The Ombudsman wrote to the Ministry of Education, Science and Sport (MIZŠ), which explained that it requested the National Education Institute of the Republic of Slovenia (ZRSS) to provide an expert opinion regarding the relevant issue. The latter drafted recommendations and guidelines for distance learning in primary schools, special schools, educational institutions for children and adolescents with special needs, and music schools. It was evident from the recommendations that the assessment of knowledge was discouraged at the beginning of distance learning. Once the knowledge is consolidated and suitably tested, the teachers assess pupils in school in accordance with the Rules on knowledge assessment and grading and students’ progress to a higher class standing in elementary schools (Rules). The pupils may be graded in school, whereby they must meet the conditions determined in the Ordinance.
The Ombudsman was not satisfied with the clarifications of the MIZŠ. It thus addressed another letter to the Ministry, reminding it of the opinion of the pedagogical experts that distance learning is not and cannot equal education in school. In the given situation, the question thus arises whether or not all pupils should be educated in school or, if the experts assessed that the RVT condition must be met in school in the given epidemiological situation, why was there an option to refuse self-testing and instead engage in distance learning.
By means of the Ordinance, the Government of the Republic of Slovenia (Government) gave parents the opportunity to state their positions on the self-testing of children, but it is not clear how that was in the interest of children who would ultimately bear the consequences of their parents’ decisions. Even if leaving aside the aspect of socialisation and other factors due to which it is important for children to be in schools and limit only to the assessment: if it is necessary to carry out self-testing in schools for a longer period of time when observing the epidemiological situation, it may happen that these pupils will finish the school year without grades. As a result, they will have to take class exams, which is certainly more difficult and stressful than obtaining grades throughout the school year.
While observing the foregoing, the following conclusion presents itself: if the Government gave the parents the option to decide regarding the self-testing of children in schools by way of the Ordinance, then the children should also be given the option of assessment – either by distance assessment (which may also be problematic from the aspect of equal opportunities of pupils who obtain their grades in school) or by permitting the enforcement of the right to home schooling during the school year, which the Basic School Act (ZOsn) does not permit. The children undergoing home schooling officially are currently in a better situation with regard to grading than children involved in distance learning, as they have to take exams only for a few subjects before the end of the school year, while the children in distance learning must be assessed in all subjects.
The Ombudsman also requested that the MIZŠ state its opinion regarding the aforementioned criticism; in particular, we inquired whether any solutions regarding the issue of assessment were being prepared, especially because elections are approaching and the school year will soon end.
The MIZŠ further explained that it prepared additional guidelines for implementing lessons in the school year 2021/2022 and recommendations for knowledge assessment in primary schools, special schools, educational institutions for children and adolescents with special needs, and music schools together with the ZRSS due to the difficult epidemiological situation at the beginning of 2022. On 6 January 2022, the Minister adopted the Decision on measures for uninterrupted educational activities in basic schools in the school year 2021/2022 (Decision) by means of which the number of grades at individual subjects was reduced. The pupils who received no grades for individual subjects due to their absence in the first assessment period can obtain these by the end of the school year 2021/2022.
The recommendations for knowledge assessment and the implementation of lessons in the school year 2021/2022, drafted on the basis of the Decision by the ZRSS on 7 January 2022, further define that assessments implemented remotely (when conditions permit this) must be compliant with the principles of equality or equal opportunities (Internet connection, computer, pupil’s independence, etc.) and the provisions of the Rules.
The MIZŠ rejected the Ombudsman’s claim that children being officially educated at home are currently in a better position than children undergoing distance learning in connection with knowledge assessment. It stated that distance learning is a temporary form of educating pupils in an individual school year and it is a process in which a significant proportion of lessons is conducted by a schoolteacher who is temporarily and spatially removed from the pupil. During distance learning, the pupil’s responsibility is to actively participate in contact lessons, carry out independent activities in accordance with the teacher’s guidelines and seek help when this is necessary. On the other hand, home schooling is a permanent form of educating pupils in an individual school year. Parents and pupils decide on this form voluntarily and are bound by the provisions of the ZOsn. This form does not anticipate that pupils are, during home schooling, occasionally present at school or attend activities organised by a school in accordance with its annual work plan. Interim examination or knowledge assessment for pupils being home schooled is not anticipated by education legislation and it is also not anticipated that interim communication takes place between a pupil and a teacher in the form of forwarding learning material (exams, worksheets, access to material in e-classrooms, etc.).
The MIZŠ also wrote that various approaches to teaching, examining and knowledge assessment exist due to various forms of education. According to the MIZŠ, pupils undergoing distance learning have every opportunity to obtain grades, in agreement with their teachers, by the end of the school year 2021/2022.
The clarifications of the MIZŠ were not fully convincing. From the recommendations of the ZRSS of 7 January 2022, it is not sufficiently clear if and in which cases pupils who are not quarantining, but are undergoing distance learning due to their parents’ disagreement with self-testing in schools, can obtain grades remotely. It is commendable that, by means of the Decision, the MIZŠ reduced the minimum number of grades that pupils must obtain by the end of the school year. We can only hope that the epidemiological situation improves to such an extent that the self-testing of children in schools is no longer necessary, as this will be the only way for certain children to obtain their grades by the end of the school year. The Ombudsman is thus of the opinion that if the Government by way of the Ordinance gave parents the opportunity to state their position with regard to the self-testing of children, it should have also given the children the option to be graded without meeting the conditions set in the Ordinance. Otherwise, this arrangement is not in the interest of children who would ultimately bear the consequences of their parents’ decisions. As per Article 3 of the Convention on the Rights of the Child, the best interests of the child must be a primary consideration in all actions concerning children. 19.1-82/2021
 Official Gazette of the Republic of Slovenia [Uradni list RS], Nos. 174/21, 177/21, 185/21, 190/21, 197/21, 200/21, 201/21, 4/22, 8/22 in 13/22.