Constitutional Tribunal Rejects Government’s School Punishment Measures, Highlighting Constitutional Violations

El Ciudadano

Original article: Portazo del TC al castigo escolar del Gobierno: pérdida de gratuidad, revisión de mochilas y exclusión chocan con la Constitución

The Constitutional Tribunal (TC) has firmly rejected the Government’s initiative known as the ‘Protected Schools Law,’ put forth by President José Antonio Kast, by declaring four key provisions unconstitutional that form the core of this proposal.

This legislation, which had already been passed by Congress, establishes security, order, and respect measures in schools. Among the controversial articles rejected by the TC was the measure that proposed the loss of university tuition waiver for five years for students convicted of serious crimes, as well as regulations regarding backpack searches; and the prohibition of hoods and other items that hinder students’ facial identification.

During its legislative process, the law faced constitutional reservations from a cross-party group of legislators from the Broad Front, Communist Party, Socialist Party, Party for Democracy, People’s Party, and independent deputies. They argued that the punitive measures in the law violate explicit constitutional guarantees and contravene international commitments made by Chile concerning the rights of children and adolescents (NNA).

The TC issued a statement announcing its conclusion regarding the parliamentary requests concerning the project, declaring several provisions unconstitutional.

Article 6 on Loss of Tuition Waiver is Unconstitutional

The content of Article 6 was one of the most contentious aspects as it introduces a new requirement for accessing tuition waivers: students must not have been convicted by a final judgment for crimes against life, physical integrity, property, or public infrastructure.

Opposition parliamentarians argued that this condition undermines fundamental guarantees and constitutes a double punishment for underprivileged youth.

They noted that it represents a double sanction, that is, the punishment itself and the loss of the tuition waiver. The regulation’s shift to administrative rule contravenes the guarantee of due process and disproportionately affects the right to education, violating provisions in articles three, 10, and 26 of said law.

Upon analysis, the TC determined that Article 6 is unconstitutional and invalidated the provision that modifies Law N° 21.091 on Higher Education, placing conditions on the tuition waiver based on prior convictions for specified crimes with a five-year ineligibility period starting from when the conviction becomes final.

TC Challenges Backpack and Clothing Searches

Regarding the Article 1 of the Protected Schools Law, which allows educational establishments to incorporate backpack, bag, or personal effects searches into their internal regulations, the TC declared unconstitutional the specific section stating that «if the parent or guardian does not attend within the specific timeframe or conditions set by the internal regulations, the school administrator must report to Carabineros de Chile or the Chilean Police Investigations and request their intervention».

The Tribunal also contested Article 2 of the legislative proposal, which permits Carabinero and PDI officials to search students’ clothing and personal effects at educational institutions without a prosecutor’s order or prior request from school staff, where there’s evidence that a student has committed or attempted to commit a crime or minor offense or is about to do so.

Hood Prohibition Declared Unconstitutional

Regarding Article 5, the TC declared «partially unconstitutional» the provision that «modifies the Subsidy Law (DFL N° 2 of 1998), mandating internal regulations to prohibit clothing or accessories that hinder facial identification and those that glorify or reference violence, drugs, or criminal behavior, classifying significant disruptions to the school environment as actions aimed at disrupting or interfering with classes and incorporating a new cause for admission denial for having been expelled or had enrollment canceled for such actions».

The judicial body declared unconstitutional the phrase that asserts: «It is mandatory to prohibit accessories or clothing that promote, glorify, or reference violence, drugs, criminal conduct, or anything contrary to the law«.

It also nullified the subsequent statement: «It will be understood (…) that actions aimed at impeding normal class operations or directly causing total or partial class interruptions or the suspension of academic activities significantly affect school coexistence. Excluded are those actions committed inadvertently that may produce the same effects, as well as situations arising from crises, emotional dysregulation, or health, disability, or neurodevelopment conditions».

The TC ruling raises a structural dilemma that permeates much of the public debate: How to address complex violence phenomena without undermining the essential guarantees of the Rule of Law?

*Featured Image: Ailen Díaz / EFE

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