Can state schools have a “distinct identity or their own ethos?

State schools, by law, are not supposed to have a distinct institutional identity—yet, in practice, they do

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Felipe J. de Vicente Algueró

The concept of distinct identity (a term borrowed from French and German educational legislation) was incorporated into Spanish law through the Organic Law on the Right to Education (Ley Orgánica del Derecho a la Educación, LODE, 1985, partially in force). Article 22 of this law states: “Within the framework of the Constitution and with due regard for the rights guaranteed in the preliminary title of this law to teachers, parents, and students, the proprietors of private institutions shall have the right to establish their distinct identity”. In reality, an analogous concept, own ethos, had already been introduced in Article 34 of the Organic Law on the Statute of Educational Centres (Ley Orgánica del Estatuto de Centros Escolares), the first major Spanish educational law enacted in Spain after the approval of the Constitution, under a government led by the Union of the Democratic Centre (UCD). When the Socialist Party (PSOE) came to power, they repealed the UCD’s Statute and introduced their own law, opting for the term distinct identity instead of own ethos. However, the Constitutional Court (Tribunal Constitucional, TC) ultimately ruled that both terms were analogous.

The principle of distinct identity is a consequence (though not the only one) of the broader concept of freedom of education, which has a long-standing constitutional and international legal tradition. The first Spanish constitution to recognise this right was that of 1869, which in Article 24 declared: “Every Spaniard may establish and maintain institutions of instruction or education without prior authorisation, subject only to inspection by the competent authority for reasons of hygiene and morality”. The Constitution of 1876 reaffirmed this right in Article 12, with similar wording.

Both constitutions were shaped by prevailing liberal principles, framing freedom of education as an essential component of the liberties inherent to liberal societies. Moreover, in both cases, this right functioned as a means of circumventing the overwhelmingly confessional nature of private schooling and curbing ecclesiastical control over education. This constitutional provision laid the groundwork for one of Spain’s most influential educational institutions: the Institución Libre de Enseñanza (ILE). Initially conceived as a university, it later shifted its focus to primary and secondary education. A parallel case was Ferrer i Guardia’s Escuela Moderna, which was able to operate precisely due to the very liberties afforded by the liberal society that its founder so vehemently opposed.

With the advent of the Second Republic and a constitution that was more state-centric and less liberal, freedom of education was omitted from the constitutional text (1931). Article 48 of the Republican Constitution asserted: “The provision of cultural services is an essential function of the State, which shall discharge this duty through educational institutions integrated into a unified school system”. This principle, reinforced by the Law on Religious Congregations, had a clear objective: to eradicate Catholic confessional education from Spain by prohibiting religious institutions from engaging in teaching—though this restriction did not extend to other entities. As a result, institutions such as the Institución Libre de Enseñanza continued to function, alongside a limited number of private schools, provided they adhered to a secular framework.

After the Civil War, the Franco regime took exactly the opposite approach: all schools, public or private, are religious. Religious education became mandatory in all of them and religious activities were as well held in either of them, obviously with greater intensity in those dependent on the Church. In other words, while in the two liberal constitutions, freedom of education is understood as part of religious freedom or freedom of expression, under Franco’s regime, the concept is reduced to a question of school ownership and funding: public funding in government schools, and through family fees in private ones, with no subsidies for non-state schools, although there were scholarships.

The 1978 Constitution enshrined the most comprehensive concept of freedom of education in Spanish history, explicitly recognising it in Article 27: “Everyone has the right to education. Freedom of education is recognised”. This provision articulates two fundamental aspects of this right: first, “the right of parents to ensure their children receive religious and moral education in accordance with their convictions”; and second, the recognition of “the right of individuals and legal entities to establish educational institutions, provided they respect constitutional principles”.

Furthermore, Article 10 of the Constitution establishes that fundamental rights “shall be interpreted in accordance with the Universal Declaration of Human Rights and international treaties ratified by Spain”. Among the principal international legal instruments affirming freedom of education, Article 26 of the Universal Declaration of Human Rights (1948) and Article 18 of the International Covenant on Civil and Political Rights (1966) explicitly recognise this right in terms closely aligned with those set forth in the Spanish Constitution.

The Evolution and Legal Implications of distinct identity

To implement the constitutional mandate outlined in Article 27, the adoption of an Organic Law was required. The first attempt, the Estatuto de Centros Escolares, was unsuccessful, while the second, LODE, introduced the concept of distinct identity. Article 115 of the current Organic Law on Education (Ley Orgánica de Educación, LOE) reiterates this provision in nearly identical terms. However, a crucial distinction must be noted: only private institutions may establish a distinct identity, whereas state institutions are bound by the principle of ideological neutrality. As stipulated in Article 18 of LODE: “All state institutions shall conduct their activities in accordance with constitutional principles, ensuring ideological neutrality and respect for the religious and moral choices referred to in Article 27.3 of the Constitution”. This distinction creates a fundamental divide: private institutions may adopt a specific ideological orientation, while public institutions are precluded from doing so.

This distinction is far from trivial, as its legal and practical consequences are significant. The Constitutional Court (TC) has clarified the meaning of distinct identity—a concept neither LODE nor subsequent legislation has explicitly defined. In ruling STC 5/1981 (13 February), the Court stated:

“As an autonomous right, the right to establish an ideological orientation is not limited to the religious and moral aspects of education. Within the framework of constitutional principles, respect for fundamental rights, service to truth, the demands of science, and the other essential educational purposes mentioned, among other places, in Article 27.1 of the Spanish Constitution and Article 13.1 of the International Covenant on Economic, Social and Cultural Rights, educational institutions that provide formal education, in accordance with the minimum requirements set by public authorities concerning curriculum content, teaching hours, etc., may develop their own educational ethos, which extends to various aspects of their activity”.

This ruling represents a fundamental shift. The concept of distinct identity emerged within the broader historical context of ideological conflicts—not only in Spain—between proponents of a unified state school system and advocates of educational freedom. The latter group primarily comprised faith-based institutions and the parents who supported them. Even in secularist France, a compromise was reached through the Loi Debré (1959), which ended the monopoly of state-run schools by recognising the legitimacy of faith-based institutions and granting them public subsidies. In Spain, this historical backdrop shaped the intense deliberations surrounding Article 27 of the Constitution, where distinct identity was, at the time, largely synonymous with religious affiliation.

However, Constitutional Court rulings and developments in the Spanish education system have since redefined this dichotomy between state and faith-based schools. A growing number of private institutions now claim a distinct identity unrelated to religious affiliation. The Constitutional Court, by adopting a broad (and legally binding) interpretation of the concept, has extended its scope beyond religious considerations to include pedagogical approaches and other educational philosophies. Nonetheless, the fundamental restriction remains unchanged: only private institutions may possess a distinct identity. As explicitly established by LODE and LOE, state institutions cannot adopt any distinct identity—whether religious, pedagogical, or otherwise.

This legal distinction has profound implications, particularly for academic freedom. Two key Constitutional Court rulings—STC 5/1981 (27 June) and STC 217/1992 (1 December)—clarify the scope of this right, differentiating between levels of education and between state and private institutions. Specifically, the Court acknowledges that in private education, an institution’s distinct identity may place certain limits on academic freedom, whereas in state institutions, this right enjoys broader protection. The first ruling affirms: “Academic freedom is, in this sense, a notion incompatible with the existence of an official science or doctrine”. This requirement of neutrality for state institutions raises critical questions. When the Court asserts that state institutions cannot endorse an official science or doctrine, how broadly should this be interpreted? Could it extend to pedagogical doctrines? Given the Constitutional Court’s expansive definition of distinct identity, one could reasonably argue that it does.

The Educational Project as a Disguised Distinct Identity

Recent education laws have introduced legal innovations that, in practice, blur the clear distinction between distinct identity and neutrality. This shift began with the now-repealed 1995 Law on Participation, Evaluation, and Governance of Educational Institutions. Article 6 of this law introduced a novel concept in school governance: the educational project. It stipulated that “educational institutions shall develop and approve an educational project defining objectives, priorities, and operational procedures, in line with the guidelines set by the School Council”. Crucially, this requirement applied to both state and private institutions.

Initially, educational projects focused on ostensibly non-ideological aspects—such as institutional objectives, operational priorities, and procedural guidelines. Private institutions, in addition to their distinct identity, were also required to develop an educational project, with the former often becoming an appendix to the latter. Over time, however, this framework led to a gradual dilution of institutional distinct identity, integrating it into the broader educational project rather than maintaining it as a separate principle.

As the concept of the educational project expanded, it increasingly absorbed elements traditionally associated with distinct identity. A striking example is Article 121 of the LOE, which states: “An institution’s educational project must define its values, goals, and priorities; integrate the curricula established by the educational administration (subject to approval by the faculty); and promote principles, objectives, and methodologies geared towards competency-based learning for active citizenship. Furthermore, it must incorporate cross-curricular themes such as values education, sustainable development, gender equality, non-discrimination, prevention of violence against women and girls, bullying, and cyberbullying, as well as a culture of peace and human rights”.

This raises a fundamental question: is there still a meaningful distinction between a distinct identity and an educational project? By requiring schools to incorporate values, principles, and methodologies—many of which are inherently normative—does this framework not, in effect, establish an official doctrine? Which values are included? Those determined by a transient parliamentary majority? Which methodologies? Discovery learning, project-based learning, situational learning, or a particular interpretation of key competencies that aligns with the views of certain pedagogues but not others? Can a specific (and contested) pedagogical doctrine be made mandatory? If the Constitutional Court has ruled that state institutions cannot endorse an official science, then why are particular pedagogical methodologies—some lacking empirical validation—effectively imposed?

Further rulings by the Constitutional Court refine the concept of academic freedom, defining it as “a projection of ideological freedom and the right to freely disseminate thoughts, ideas, and opinions, which each professor assumes in relation to their subject” (STC 217/1992, 1 December; STC 212/1993, 28 June). To what extent, then, can a teacher be compelled to adopt a particular pedagogical doctrine? The Court acknowledges that requiring teachers to comply with organisational norms—such as curriculum planning, timetables, and assessment criteria—does not infringe on academic freedom. However, a crucial distinction must be drawn between what is taught (the curriculum) and how it is taught (pedagogical methodology). When a teacher closes the classroom door, they are obligated to teach the prescribed curriculum. But are they also required to adopt constructivism? Or to implement meaningful learning? The issue lies in how educational projects implicitly endorse specific pedagogical frameworks, thereby restricting teachers’ legitimate freedom to choose among various approaches.

Article 19 of the LOE (Pedagogical Principles) exemplifies this, effectively enshrining a particular pedagogical doctrine in official policy by mandating meaningful learning and a prescribed set of methods aligned with a specific school of thought. If such principles are codified in law, how much more restrictive could they become through the educational project?

One might argue that educational projects are the result of teacher participation. However, this claim faces two critical objections. Firstly, participation through the teaching staff assembly (claustro) or the school council does not supersede academic freedom or the principle of neutrality, both of which remain in force, as clearly interpreted by the Constitutional Court (TC) in its rulings on academic freedom. The right to participation is recognised in Article 27.7 of the Spanish Constitution, which states: “Teachers, parents and, where applicable, students shall participate in the control and management of all state-funded educational institutions, under the terms established by law”. What, precisely, is meant by control and management? The Constitutional Court has interpreted this as referring to the participatory bodies within educational institutions, namely the school council and the teaching staff assembly. Among the functions of the school council (as set out in Article 127 of the Organic Law on Education—LOE), we find: “To approve and evaluate the projects and regulations referred to in Chapter II, Title V of this Law”, that is, the educational project. Participation is thus limited to a mere approval and evaluation process. Similarly, while the teaching staff assembly also participates, its role is restricted to: “Submitting proposals to the management team and the School Council for the development of institutional projects and the annual general plan” (Article 129(a) LOE). In other words, participation is highly limited—even the teaching staff assembly does not have a direct role in formulating the educational project; it may only submit non-binding proposals.

Academic freedom is a subjective right which, as the Constitutional Court reminds us, derives from freedom of expression. Mere passive participation in a questionable decision-making body, such as the school council, which ultimately endorses the educational project, cannot override an individual right, unless expressly waived. If an educational project mandates a project-based curriculum, de-emphasising subject knowledge, is a teacher obliged to accept this doctrine if, in good conscience, they believe that knowledge-based instruction is more effective? Constructivism, after all, remains merely a scientific hypothesis—one that, like any other, must withstand empirical testing—yet it has been elevated to the status of official and compulsory doctrine. It is not the only pedagogical hypothesis, and it is subject to scientific scrutiny. Can a specific pedagogical doctrine be imposed as official policy? In reality, this is precisely what happens. Moreover, the facts increasingly highlight the shortcomings of such approaches. Yet this seems to matter little to official pedagogues, who appear to adhere to Hegel’s dictum: “If the facts do not fit my theory, so much the worse for the facts”.

The second objection concerns the practical reality of participation in shaping the educational project—which is, in most cases, virtually non-existent. In many institutions, the educational project is dictated by the management team, largely through the management project. Article 134 of the LOE mandates that the management project define “the objectives, lines of action, and evaluation mechanisms of the institution”. These broad, ambiguous terms provide substantial discretionary power. Ultimately, given the limited involvement of teaching staff in the formulation of the educational project, it is the management team that drafts it. In essence, as in private schools, it is the headteacher who dictates the institutional framework.

Between the educational project and the management project, state schools have, in practice, acquired their own distinct identity, thereby erasing the once-clear distinction between private schools, which may have a confessional or pedagogical ideology, and state schools, where two fundamental rights should prevail: neutrality (including neutrality regarding pedagogical doctrines), and academic freedom. This distinction remains constitutionally valid. Yet, by applying the broad definition of distinct identity established by the Constitutional Court, it becomes evident that the educational project has introduced a specific ideological and pedagogical framework into state education. As a result, the principles of neutrality, academic freedom, and the fundamental right to freedom of teaching are being systematically eroded.

Freedom of Education, Freedom to Teach

The liberal architects of the 1869 and 1876 Spanish Constitutions understood freedom of education as freedom to teach, encompassing both academic freedom and freedom of expression. As true liberals, they did not seek the abolition of faith-based schools; rather, the issue at the time was not so much the freedom to choose a school but rather the freedom to establish educational institutions free from religious oversight, with teachers free to teach according to their ideological and pedagogical convictions.

The anti-religious education laws in France—particularly the Combes Law of 1904 and the 1905 law separating Church and State—marked the decline of educational freedom understood as freedom of choice. Spain’s brief Second Republic pursued a similar agenda, shifting the emphasis of educational freedom toward the right to choose non-state, primarily faith-based schools. This interpretation was later enshrined in international human rights treaties and ultimately adopted in Spain’s 1978 Constitution.

However, freedom of education extends beyond the right to establish, manage, and choose schools; it also includes the freedom to teach. The Spanish Constitutional Court made this explicit in its 5/1981 ruling, which states in legal ground 7: “The freedom of education, as recognised in Article 27.1 of the Constitution, entails, on the one hand, the right to establish educational institutions (Article 27.6) and, on the other, the right of those who personally carry out the function of teaching to do so freely, within the limits inherent to their teaching position (Article 20.1.c)”. Thus, the Court reaffirmed what 19th-century liberals had long upheld: freedom of education inherently includes freedom of teaching. Notably, it also clarified that academic freedom derives from the right to freedom of expression rather than from the right to education.

The imposition of educational and institutional projects, combined with the overreach of organic educational laws—which frequently incorporate regulations lacking a clear constitutional mandate under the guise of their organic status—raises serious doubts as to whether Spain can, in practice, be said to uphold genuine freedom of education (as defined by the Constitutional Court) and academic freedom. These are fundamental rights in liberal democracies. A previous article has already examined the intrusive nature of organic laws. Perhaps the absence of true liberals in Spanish governments has led us to this predicament. It is paradoxical that so-called progressive pedagogy employs illiberal methods to impose itself.

State schools, by law, are not supposed to have a distinct institutional identity—yet, in practice, they do. The freedom to teach and to exercise academic autonomy is constrained by legal frameworks that dictate pedagogical approaches and curricular content. This has resulted in a peculiar form of confessionalism within state institutions. The educational project of a school, rather than a neutral administrative document, becomes an ideological manifesto enforcing an official pedagogical doctrine. Spain has thus transitioned from religious confessionalism to pedagogical confessionalism—yet it remains confessionalism nonetheless. After decades of struggle to establish an educational system rooted in fundamental rights such as freedom of education and academic freedom, these very rights are now quietly disappearing. Ironically, those who have historically opposed confessionalism are now the ones subtly imposing a new form of it.

Source: educational EVIDENCE

Rights: Creative Commons