[Journal of the Simplified Spelling Society, J26, 1999/2 p20]
On this page: Prof. Gerhard Augst writes from Siegen, and
Opposition to the German Spelling Reform.
See Journal, Newsletter articles, Pamflet 15 and Cut Spelling by Chris Upward.

The German Reform:
Judgment by the Highest Court and a Little Local Difficulty

Chris Upward summarizes headline stories from the Frankfurter Allgemeine and the Frankfurter Rundschau of 15 July 1998, and a report on p10 of the Frankfurter /Allgemeine of 29 September 1998. Many of the arguments are of interest as potentially relevant to spelling reforms elsewhere. JSSS reported on the German reform most recently in issues J21 1997/1 (pp22-24 & 36), J22 1997/2 (p24) and J23 1998/1 (pp20-23).

Final legal approval.

On 14 July 1998 the Bundesverfassungsgericht (BVG, Federal Constitutional Court) removed the final legal barrier to implementing the German spelling reform. The Court declared the reform was "constitutional", did not infringe the rights of people who preferred to continue writing in the old way, and was to be used in schools from 1 August 1998, even if one of the Länder (states of the German Federation) rejected it.

The main objection to the reform had been brought by two parents from the north German state of Schleswig-Holstein. Although the objection was actually withdrawn a week earlier, the Court decided it was nevertheless in the public interest for its ruling to be published. The objectors argued that the reform infringed the constitutionally guaranteed rights of parents to determine their children's upbringing; but the Court ruled that the schools shared educational responsibility with parents. The state of Schleswig-Holstein itself did not accept the objection, since the new rules would make writing easier for children.

Other legal arguments against the reform were: that the State's remit did not extend to language, which 'belonged' to the people; that education was the province of the federal states, not of the national government; that if one of the states refused to accept the reform (as Lower Saxony had temporarily done), that would prevent its overall implementation; and that spelling reform required a special law and could not simply be decided by the Education Ministers of the states (together with Austria and Switzerland). All these arguments were rejected by the Court in its 60-page judgment (posted on the Internet at http://www.jura.unisb.de/Entscheidungen/Bundesgerichte/BVerfG/rereform.php), on the grounds that the reform was too limited in its effect to threaten any constitutional rights, with only 0.5% of words undergoing any change (not counting words switching from ß to SS); it was being introduced gradually over a period of 7 years (1998-2004); and if individuals or states refused to comply, communication between them and the rest of the German-speaking world would not be impaired.

Coping with the Schleswig-Holstein problem.

The Constitutional Court's judgment was not quite the end of the matter. One outstanding problem was that a referendum on the reform had been agreed for 27 September 1998 in Schleswig-Holstein. In the event, this produced a majority of 56.4% of the electorate against, versus 29.1% in favor of the reform.

This outcome placed the Schleswig-Holstein Minister of Education in a dilemma: she could not ignore the result of the referendum, but both she and her government were committed to the reform. She therefore planned to issue a decree to the effect that both old and new spellings would count as correct in schools, the new spellings were to be neither taught nor practised, and textbooks and dictionaries using either the old or the new spellings would be permitted.

But she also made clear the problems that would ensue. Teachers' and pupils' time would be wasted. Schools would be confused, as 90% had been using the new spellings for two years already, and almost all schoolbooks had already converted (Scheswig-Holstein could not finance special editions for its schools). It was educationally irresponsible to hold out against the reform, which would put the state's children at a disadvantage if they moved elsewhere in Germany.

Opponents were still active throughout Germany, gathering signatures in protest. These were, however, nowhere near sufficient to meet the requirements for further referendums, and the teaching profession had come out in favor of the reform. Many of the claims of the opponents were absurd, but they had perhaps one valid point: that not every reformed spelling was necessarily well-advised, and that in due course such cases should be reconsidered.

Now that the new Spelling Commission has begun its work in Mannheim, with the remit of overseeing plans for future reforms of German spelling, the machinery for undertaking revisions is in place.

See other journal articles by Gerhard Augst.

Prof. Gerhard Augst writes from Siegen, Germany:

Reform in the German-speaking countries is being implemented very gradually. The period since the government decision (1 July 1996) has been occupied with court cases. The opponents of the reform have been very busy. Numerous petitions were launched in Germany, though so far only one (in Schleswig-Holstein) has succeeded. The new spellings have been fully adopted in schools from 1 August 1998, and government bodies have made the change or are in the process of doing so. The German-language news agencies scheduled their change from 1 August 1999, though they have not accepted every detail of the official reform. Some major newspapers, such as Die Zeit, Der Rheinische Merkur, have compromised between old and new spellings. Particularly where alternative forms are allowed, most users are going for a variant.

(See also letter from Zé do Rock, p35)

[Journal of the Simplified Spelling Society, J26, 1999/2 p21-23]

Opposition to the German Spelling Reform

Gavin Hutchinson

As part of his degree program in Modern Languages at Aston University (graduated 1998) Gavin Hutchinson spent the summer of 1997 working in Münster, Germany, where he researched his dissertation on the legal aspects of the German spelling reform. In the present article he summarizes certain aspects of that dissertation.

1. Challenges to the spelling reform.

The specific challenges to the reform of German spelling took place in a context of profound resentment of the project. Numerous statistics were published in the German media, claiming to illustrate this unpopularity. Perhaps the most striking example of this came in the shape of a Forsa opinion poll in 1996. The German weekly news magazine, Der Spiegel, reported at the time (44/96, p71) that the survey showed three quarters of the German population to be in favour of stopping the reform. Whatever reservations one may have about such surveys, the fact that 75% of the sample opposed the reform could only lend credibility and momentum to the campaigns led by opponents of the reform.

2. Parents, politicians, writers against the reform.

Who then were these opponents? One major group were parents of schoolchildren, who would have to learn the new rules and write in 'reformed' German. These parents made up the majority of those who took legal action against the reform. In fact, when the wave of opposition was at its peak in 1997, more than 20 cases were lodged in the German Administrative Courts (Verwaltungsgerichte) by parents.

A second group of critics of the spelling reform consisted of politicians. On the one hand there was the group of Members of Parliament led by Detlef Kleinert, of the liberal FDP, who lodged an appeal specifically against the planned use of reformed German as the administrative language of Germany; more of this group later. On the other hand several prominent politicians took the opportunity to criticize the reform without committing themselves to campaigns against it. One such politician was the President of the Federal Republic, Roman Herzog. Whilst Herzog neither went as far as criticizing the content of the proposed reform, nor called the legal validity of the introduction of the reform into question, he rejected the idea that such a reform was necessary. However, whilst branding the reform as pointless, Herzog was reported as saying that his opposition to the reform would be restricted to " carrying on writing in the old way" .

Other politicians, by contrast, demanded a more radical review of the situation. One of the most interesting examples of this is the case of the liberal Member of Parliament and then Foreign Secretary, Klaus Kinkel, who in November 1997 spoke out in favour of (at the least) postponing the reform. This development was especially interesting given that Kinkel - in his role as a cabinet member - had twice officially acknowledged the proposed reform. At the time Kinkel expressed no misgivings whatsoever about the reform. The fact that this apparent change of heart came immediately after an Oberverwaltungs-gericht (Higher Administrative Court) had ruled against the reform, leads one to believe that opponents of the reform had some influence, subconscious or otherwise, on politicians. This opinion is further reinforced by Kinkel's acknowledgement of an argument proposed by reform opponents, namely that the conference of education ministers (Kultusministerkonferenz or KMK) responsible for implementing the reform in the 16 states of the Federation - did not have the constitutional power to introduce such a change. Although such developments alone could not halt the reform, the influence of the protesters on leading politicians was clear proof of the strength of the protest movement.

This movement was further reinforced by prominent authors. Such heavyweights as Martin Walser and Günther Grass signed the 'Frankfurt Declaration' composed by the previously unknown teacher of German, Friedrich Denk. This declaration criticized the content of the reform, predicting dire consequences if it were allowed to proceed.

Yet, as with criticism from politicians, this general criticism from the literary community was insufficient to halt the reform. Opponents therefore turned to the nation's courts and judges to try and stop the spelling reform.

3. The general public against the reform.

The anti-reformers who brought cases to court saw them dealt with in two ways: in a 'Full' hearing or in a 'Preliminary' hearing.

3.1 Full Hearings.

In this situation the parents who wish to see the reform stopped apply for a ruling ordering the relevant Bundesland Federal State) not to apply the reform to their children's education. Such a situation arose in the Administrative Court in Berlin in 1997. The court found in favour of the parents, thus forcing the Bundesland of Berlin to withdraw the reform solely for the 3 children of the family bringing the case. The decision applied only to these 3 children, as the German Administrative Courts refused to hear cases in the name of whole classes of children or of entire regions. A decision could only apply to more than one set of children if it emanated from the highest court in Germany, the Federal Constitutional Court in Karlsruhe. As this court gave no decision until the summer of 1998, minor battles occurred in various courts all across Germany. Most of the cases were taken in Preliminary Hearings.

3.2 Preliminary Hearings.

This type of hearing is intended to offer temporary legal protection to a party until a definitive judgment is reached. A decision in favour of a reform opponent in such a hearing would exempt the affected children from the reform until the decision was overtaken by one of three events. First, the Constitutional Court might reach a definitive decision. Second, if the hearing had ruled that the reform had simply been introduced too early, the decision would cease to be valid on the 1.8.98 (this was the official start date for introducing reformed spellings in schools, but most schools had started earlier to avoid an overnight changeover). Third, if the grounds for a judgement against the reform were the lack of a law to give it judicial validity, then it follows that the introduction of such a law would nullify the judgement against the reform.

The intricacies of the German legal system, as well as the fact that no consensus for or against the reform was developing amongst the judges concerned, meant that prior to the decision of the Constitutional Court no resolution to the situation was in sight.

3.3 Volksinitiativen.

Beside court cases, the anti-reformers were armed with the option of Volksinitiativen (Public Initiatives) to attack the reform. The aim of these Initiatives was to bring about either a parliamentary disqualification of the reform or a referendum, whereby each Bundesland would vote simply for or against the reform.

However, opponents of the reform resorting to such Initiatives faced numerous and demanding hurdles. First, each Initiative had to be judged acceptable in form and content in order for the case to be heard by the regional State parliament - not a foregone conclusion. One Initiative that fell at the first hurdle was that in the state of Lower Saxony, which was rejected in 1997 by the State's electoral authorities, as the latter had not been approached by the proposers of the Initiative about the correct form of the petition.

According to the regulations governing Public Initiatives, the State parliament would have four months to examine the petitioners' case. The Initiative's demands could vary, but were likely to take the form of a Bill reversing the decision to reform German spelling. This was the case with the most widely publicized Initiative, which originated in the state of Schleswig-Holstein. The theoretical consequence of parliamentary acceptance of such a Bill is that it would become law forthwith; should the parliament vote against the proposal this would not be the end of the road for the proposers of the Initiative - they could then seek a referendum.

The Initiative in Schleswig-Holstein showed that demanding criteria had to be fulfilled for a referendum to be successful. Having collected a preliminary figure of 20,000 signatures just to have their application heard, the protesters then had to find the support of 5% of the regional electoral roll to be sure of a referendum, and of over 400,000 voters for the referendum itself to succeed. Little wonder that a definitive decision was reached in the German Constitutional Court before the referendum process could be completed.

4. Legal arguments of the anti-reformers.

The arguments presented in German courts by opponents of the reform were as complex as they were diverse. Before attempting to summarize them, it should be pointed out that, whilst some criticism was levelled against the linguistic quality of the reform, not one of the court cases brought against the reform took issue with the content or the linguistic quality of the reform.

The two main arguments cited in the courts by reform opponents were as follows. First, it was claimed that the reform contravened the Grundrechte, or Basic Rights, of the population, and this rendered the reform unconstitutional. Second, it was argued that the KMK, the conference of States' education ministers responsible for the reform, did not have the authority to dictate on such a 'basic' matter.

Whilst separate in theory, these two arguments were often cited together in actual court cases, as many opponents of the reform considered the matter to have acquired 'basic' status, on the grounds that Basic Rights were being compromised. This brings in the question of the Wesentlichkeitsprinzip, or principle of essentiality. More of which later.

4.1 Contravention of Basic Rights.

These Basic Rights (Grundrechte) are the rights laid out in Articles 1-19 of the German Constitution. Opponents of the reform claimed that it contravened certain of these rights and called for the 'unconstitutional' reform to be stopped.

The rights which were cited most often in the courts were: the right to free development of personality (Article 2.1); the right to freedom of written expression (Article 5.1); and the right of parents to raise their children as they wish (Article 6.2). Parents referred to this parental right, claiming that the KMK could not force their children to write according to the new rules, as the Constitution says the right to make such decisions falls to parents.

Two cases from 1997 give a practical example of how these arguments were received. Clearly, the reformers had a winnable case. A judge of the Administrative Court in Hanover, capital of the state of Lower Saxony, found in favour of parents who had based their case on their parental rights. However, a judge in the equivalent court in Munich, capital of the state of Bavaria, denied the possibility that parental rights were being contravened. Such developments made it evident that the 'parental rights' argument was no guarantee of success for reform opponents. As mentioned already, no consensus of opinion developed amongst the nation's judges, the courts contributing to, rather than eliminating, the confusion about the validity of the reform.

4.2 Challenges to the KMK's authority to reform spelling.

Again there are two theoretically separate arguments against the reform, which were often mentioned as one. In the Administrative Court in Wiesbaden, capital of the state of Hesse, in July 1997, it was claimed that the executive branch of the state, ie, the Government, and therefore the KMK, as representing all 16 states together on the spelling reform question, could not introduce such a fundamental reform. According to opponents of the reform, only a law, introduced by the legislative branch, ie, Parliament, would suffice in such a 'basic' matter.

This principle of 'essentiality', not mentioned in the constitution but recognized by the Constitutional Court, dictates that all decisions on 'essential' matters for the country can only be taken by the legislative branch, ie, Parliament. The most famous application of this principle came in the 1970s, when the Constitutional Court ruled that the introduction of sex education in German schools was a 'basic' matter and therefore required an accompanying law.

As mentioned earlier, there were also claims that the KMK's spelling reform was invalid as it came from an inter-state, rather than national, ie, federal, body. Reformers countered this argument by referring to the fact that it was normal practice for educational matters to be decided on an inter-state level.

5. Limited success of reform opponents.

Given that the reform was not brought down by its opponents, their actions can only be judged as unsuccessful overall. Hopes of the reform being halted were dashed in 1998 when the Constitutional Court, Germany's highest court, ruled that the reform could proceed (see report on p20).

Although they won individual court cases and the support of prominent politicians, writers and large sections of the population, the ultimate aim of the opponents of the reform was to have it stopped definitively - and in this they failed. That is not to say that the anti-reform movement seemed incapable of success at the time. In 1997 alone, 7 courts found in favour of anti-reformers, raising hopes that the Constitutional Court would do the same. Yet these decisions by themselves were never enough to stop the reform and were subject to many qualifications. Decisions against the reform from the lower courts only applied to individual plaintiffs and were always open to revision by a higher court.

6. Role of politicians in the debate.

Opposition to the spelling reform emanating from the Bundestag, the lower house of the German parliament, was less striking than that from the public but is still worth mentioning.

6.1 Members of Parliament opposed to reform.

A group of MPs dissatisfied with the reform rallied behind Liberal MP Detlef Kleinert. They were protesting against the proposed use of reformed German as the official language for state business, rather than about the reform in the nation's classrooms.

This group originally made a clear request for the government to scrap plans to use reformed spelling in state business. At the time it appeared that the group had a good chance of success, given that the unpopularity of the reform was not confined to one party. Yet the MPs were no more successful than the other opposing movements in stopping the reform. In March 1998 the Bundestag accepted the proposal of a compromise drawn up by its legal committee, according to which a committee would simply report back on what the linguistic community thought of the reform. The fact that the critics of the reform did not oppose this suggestion was a sign that their opposition to the reform was weakening. This unexpected stand-down remained unexplained by the anti-reform group. It may be that the spirit of compromise - described below - shown by the reformers had convinced their opponents that the reform lay in good hands. A sceptic may prefer to believe that the diminishing opposition in the Bundestag to the reform was due to reduced interest in the reform.

6.2 Attempts at compromise.

At the start of 1997 there were hopes that a compromise would be produced by politicians, which would satisfy not only MPs, but all other reform opponents as well. In hindsight, these hopes were over-optimistic. Despite attempts of the reformers to reach a compromise, not one person bringing a case against it withdrew their complaint from the courts in 1997.

It cannot be denied that the reforming groups made a concerted effort to make the reform more acceptable to their critics. As regards the content of the reform, the KMK began to react to criticism in 1997. For example, the spelling commission set up by the IDS (Institute for the German Language - the German academic body responsible for the reform), announced at the start of 1998 that both variants (old and new) for more words would be allowed under the reform.

The reformers also reacted to accusations of undemocratic procedures, by trying to increase the role of the legislative, ie, parliamentary, branch in the reform. For example, the KMK suggested a Staatsvertrag, a policy document which would be signed by representatives of the German state, by other German speaking countries and by the parliaments of all 16 German states or Bundesländer.

It was, however, no great surprise that such suggestions failed to convince the plaintiffs to drop their cases against the reform. First, this is because none of the court cases challenged the content of the reform, as we have already seen. Second, the aim of the anti-reform groups was not to see the reform accompanied by a political contract or similar document, but rather to tumble the reform altogether.

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