Are Organic Education Laws Truly Organic?

License Creative Commons

Felipe J. de Vicente Algueró

A few weeks ago, the High Court of Justice of Catalonia (TSJC) issued a ruling annulling certain provisions of a decree by the Generalitat (Catalan government) that permitted the organisation of the Baccalaureate curriculum into broad subject areas or clusters (even when unrelated) and mandated an integrated, undifferentiated assessment system, whereby all components of a given subject area would receive the same grade.

The challenge was brought by ASPEPC-SPS, the majority secondary education teachers’ union in Catalonia. The core argument against the Catalan regulation was that these provisions infringed upon state competencies, as the basic regulation: Ley Orgánica de Educación, LOE, as amended by the Ley Orgánica de Modificación de la Ley Orgánica del Estado, LOMLOE (the Organic Law on Education, LOE, as amended by the Organic Law Amending the Organic Law on Education, LOMLOE) does not permit such arrangements. What is particularly striking is that it was a private entity, rather than the central government, that initiated this challenge in defence of state powers. The government itself should have taken legal action, given that ensuring regional regulations comply with national law falls within the remit of the Alta Inspección (High Inspectorate). This raises an uncomfortable question: is the High Inspectorate simply negligent, or—if it did flag the issue to the Ministry of Education and was ignored—does this represent an even graver dereliction of duty?

The ruling, however, introduces some noteworthy nuances. The claimant argued that structuring the curriculum into broad subject areas and imposing integrated assessment constitutes a methodology—an argument the court accepted. This, in turn, opens up several critical questions.

Organic Education Laws and Pedagogical Methodologies

It is true that the Ley Orgánica de Educación (LOE) does not authorise subject-area grouping and integrated assessment at the Baccalaureate level, although it does permit them in the first three years of Compulsory Secondary Education (ESO). Moreover, the law explicitly endorses project-based learning and collaborative problem-solving (Article 19). Article 24 further stipulates that educational authorities must ensure that students in the first two years of ESO take no more than one additional subject beyond the number of areas studied in the final cycle of primary education. These provisions, among others, clearly pertain to educational methodology—an inherently fluid, complex, and diverse field. But how many teaching methodologies exist? Only those expressly mentioned in the law? Is the traditional lecture format or the structured use of textbooks not also a methodology?

The law takes an even more categorical stance when it embeds specific teaching methods into the official curriculum (Article 6)—a clear overreach, given that a basic curriculum should not dictate pedagogical approaches, which rightly fall within the domain of individual teachers. Furthermore, in the context of vocational training, the law mandates assessment based on “new learning methodologies” (Article 43) without specifying what these new methodologies are, thereby creating a climate of legal uncertainty.

It is remarkable that such provisions should be enshrined in an organic law. The Spanish Constitution introduced this category—borrowing from German constitutionalism but applying it with far less restraint—to regulate legal matters of intermediate status between the Constitution itself and ordinary legislation. Organic laws govern issues such as statutes of autonomy, electoral law, and the development of fundamental rights and freedoms as stipulated by the Constitution. That an organic law should impose specific pedagogical methodologies is, at the very least, questionable.

Education, as a fundamental right, requires an organic law to develop Article 27 of the Constitution (the right to education) and Article 149.1.30, which governs the issuance and recognition of academic qualifications. But does the scope of organic legislation truly extend to project-based learning, subject-area clustering, collaborative problem-solving, or the precise number of subjects in the first year of ESO? What is the connection between the right to education and the pedagogical methodologies used in classrooms? These are questions of teaching practice, better suited to regulatory provisions and, above all, to professional autonomy, provided they align with essential curricular standards.

Notably, the 1970 General Education Law, in its preamble, explicitly stated that it was not based on the imposition of a fixed body of universally accepted pedagogical doctrines, nor on the authoritarian enforcement of specific criteria. Accordingly, it refrained from mandating any particular teaching methodology, recognising that reforms of educational institutions attempted through a general and rigid provision, prescribing untested plans or methods aimed at a teaching staff that is not aligned with the legislator’s thinking, are of little efficacy. This law, which remained in force (at least partially) until 1990, fostered diverse methodological experimentation in education. Educational authorities supported innovation but did not impose it upon teachers. Experimental and pilot schools emerged to test the effectiveness (or lack thereof) of new pedagogical trends and teaching methods. There were even primary schools attached to Teacher Training Colleges, where students could do their practicum and teachers with new teaching methodologies could “leave their offices” and teach their new ideas.

However, this landscape began to shift with subsequent organic education laws. Instead of focusing solely on developing the right to education and establishing the conditions for obtaining and recognising academic qualifications, these laws increasingly overstepped into areas ill-suited to organic legislation. Under the guise of organic law, an excess of provisions—more appropriate for ordinary legislation or even administrative orders—were introduced.

The Ley Orgánica de Ordenación General del Sistema Educativo (LOGSE)) contained 98 provisions (67 articles, 19 additional provisions, 9 transitional provisions, and 3 final provisions); the La Ley Orgánica de Calidad de la Educación (LOCE) grew to 197 provisions (107 articles, 19 additional provisions, 7 transitional provisions, and 1 final provision); the Ley Orgánica de Educación (LOE) expanded even further, reaching 234 provisions (157 articles, 49 additional provisions, 19 transitional provisions, and 9 final provisions). The escalation in the volume of educational legislation is undeniable. But do all these provisions truly belong in an organic law? Is project-based learning or subject-area grouping really a constitutional matter of educational law?

This regulatory overreach within organic education laws underscores the outsized influence of pedagogical lobbies in the legislative process. These groups might do well to reflect on a striking irony: why was a Franco-era law far less interventionist in teaching methodologies, while their own laws are overflowing with unverified pedagogical experiments, elevated—no less—to the status of organic law?

Indeed, organic education laws have become an incoherent mix—blending provisions of genuinely organic character with others that belong in ordinary legislation or even ministerial orders. Yet organic laws, alongside the Constitution, form what is known as the “constitutional bloc”. Are project-based learning, subject-area clustering, or collaborative problem-solving genuinely part of this bloc? The notion that modifying or repealing a mere pedagogical methodology should require an absolute majority of 176 votes in Parliament is legally absurd. This excessive detail and prescriptiveness in organic education laws fuels legislative instability. Every change in government brings with it a new organic law.

What Becomes of Academic Freedom?

The incorporation of pedagogical methodologies into an organic law, with the legal weight this entails, also impacts another constitutionally recognised right—academic freedom, as enshrined in Article 20 of the Spanish Constitution. If we accept that project-based learning or interdisciplinary teaching are not inherently linked to the right to education, then enshrining these methodologies in organic law amounts to a restriction on a right that is explicitly protected by the Constitution. Moreover, such restrictions go beyond the limits set by judicial rulings. In non-university education, Organic Law 8/1985, of 3 July, on the Right to Education (LODE) transposes the constitutional principle that guarantees academic freedom to teachers. However, the vague wording of this guarantee means its precise scope must be understood through case law—particularly STC 5/1981 (27 June) and STC 217/1992 (1 December). These rulings affirm that while academic freedom enjoys broader protection in higher education, it is progressively restricted in primary and secondary education—with greater limitations at the lower levels and comparatively fewer in upper secondary education. The rulings also establish a distinction between teachers in state schools—who enjoy greater academic freedom—and those in private institutions, whose freedom is more constrained. However, this freedom is not absolute. The rulings emphasise that academic freedom does not include the right to indoctrinate, and must respect constitutional values as well as parents’ rights to determine their children’s moral and religious education (Article 27 of the Constitution).

Another key limitation on academic freedom—as established by the courts—is the State’s authority to define the national curriculum and study plans. The extent of teachers’ autonomy depends on how these curricular guidelines are formulated. When an organic law overreaches, descending into excessive detail on matters unfit for legislation of such rank, it effectively curtails academic freedom. For instance, Article 91 of the LOE assigns teachers (not the educational institutions): the responsibility of planning and delivering instruction in the subject areas, subjects, modules, or interdisciplinary domains assigned to them; assessing both students’ learning processes and the effectiveness of teaching methods. Yet, in the same article, the law contradicts itself by prescribing how these functions must be carried out: “Teachers shall perform the aforementioned functions under the principle of collaboration and teamwork”. Thus, while the law nominally acknowledges teachers’ autonomy in planning, which implicitly includes methodological choices, it simultaneously imposes a restriction. Of course, cooperation and coordination among staff—as structured in a school’s educational project—is necessary.

From both a legal and pedagogical standpoint, a more coherent approach would be to remove from organic laws any regulation of teaching methodologies, as these are by nature debatable and should be left to the discretion of teachers, thereby preserving academic freedom to the fullest extent possible. An organic law is not the appropriate vehicle for imposing opinions or experimental ideas stemming from pedagogical theorising. A teacher, exercising their right to academic freedom, cannot be legally compelled to adopt or endorse doctrinal positions (i.e., pedagogical theories underpinning specific methods) with which they do not agree.

The second Constitutional Court ruling cited earlier clarifies the scope of academic freedom, defining it as the possibility for each teacher to express their own ideas and convictions in relation to the subject they teach”. Can a teacher be forced to adopt pedagogical or didactic convictions they do not share? The State unquestionably has the authority to define the national curriculum—but does this authority extend to mandating adherence to particular pedagogical doctrines? By incorporating teaching methodologies into the national curriculum, as the LOE does, the law overreaches, legislating beyond its proper remit and imposing restrictions on academic freedom that go even further than the limits previously set by the Constitutional Court.

Today, in Spain—particularly in Catalonia—there is an intense and highly polarised debate. On one side, there are those who fervently defend the new pedagogical methodologies that have been stealthily embedded in the Ley Orgánica de Educación, as well as in burdensome regional regulations, which their proponents have rebranded as “progressive pedagogy”. On the other, there are those who oppose these methodologies, who are often dismissively labelled as “anti-pedagogists”. However, the true conflict is between those who defend academic freedom and the right to choose one’s teaching methodology—which includes the option of adopting so-called progressive pedagogical approaches, and those who seek to impose a single pedagogical model through legislation rather than through professional consensus—exploiting their privileged connections with government institutions and benefiting from well-funded organisations that supply politically aligned personnel to drive these initiatives from within the system. At its core, the fundamental choice is between freedom and imposition. That is the real dilemma.

The State—including regional governments such as the Generalitat—must uphold neutrality when it comes to teaching methodologies. It must resist the temptation to institutionalise any form of “pedagogical sectarianism”, which ultimately undermines academic freedom in practice. An organic law is a serious and highly specific legal instrument. Or at least, it should be.

Source: educational EVIDENCE

Rights: Creative Commons