Statecraft

26 July 2026 · analysis

The Lower Limit as Upper Limit

How a Strasbourg duty of the state came to limit the parental right to choose

by Jacob Huibers · Lees in het Nederlands →

Statecraft analysis · a sequel to “The Marginal Test” · Jacob Huibers

§ 01 · Occasion

Education lawyer Joke Sperling observed in NRC of 12 June that the Dutch Supreme Court’s judgment of 21 April 2026 has changed the parental right to choose in substance: from a right to education that actively supports the parents’ convictions, to a right to education that treats those convictions objectively, critically and pluralistically.1 She calls this a hollowing-out and warns that the reasoning can be extended to article 23 of the Constitution itself — the provision that guarantees freedom of education and funds denominational and public schools on an equal footing.

That observation is correct, and it fills a gap in the earlier analysis. The Marginal Test described what the chain did after the legislator had failed to act. What that piece did not work out is where the new standard comes from and what its provenance explains. That is not a detail. It is the mechanism.

§ 02 · The origin of the standard

The formula objective, critical and pluralistic is not a Dutch invention and it does not stem from the Compulsory Education Act. It comes from Kjeldsen, Busk Madsen and Pedersen v. Denmark, in which the European Court of Human Rights held in 1976 that the state must convey knowledge in public education in an objective, critical and pluralistic manner and must refrain from indoctrination.2 The formula describes an obligation of the state. It is framed as protection of parents, not as a limit to their right. It is a floor beneath government action.

The Supreme Court adopts that floor and gives it a second function. A reliance on the exemption of article 5(b) of the Compulsory Education Act — the provision that lets parents keep a child out of school on grounds of conviction — now succeeds, with respect to public education, only where the parent demonstrates that education at every public school within reasonable distance does not take place in that manner.3 The standard the state must impose on itself has thereby become the standard against which the citizen’s objection is measured. As long as the government meets its own minimum, the objection can no longer succeed. The lower limit has become the upper limit.

The same judgment makes a second choice that is likewise not in Dutch law. Article 2 of the First Protocol to the ECHR contains two sentences: the right to education, and respect for the right of parents to ensure education in conformity with their convictions. The Supreme Court treats the first sentence as leading and derives from it a positive obligation to enforce actively, by criminal-law means if necessary.4 Both sentences are in the same article. The ranking is judicial work, produced in a criminal case about a single family raising its daughter according to Tasawwuf.

This is norm migration in its purest form: a norm laid down for one purpose is read in a later column as a given fact and acquires a different function there. No one decided that transfer. There is no body that reviewed it. It is there, and it works.

§ 03 · Effect as availability

Sperling asks who guarantees that the argument that neutral education suffices will not later be used to call the denominational school itself into question, for instance when funding a new school of a particular conviction. She places that question in the register of political intent: parties advocating abolition of article 23 gain ammunition.

That register is unnecessary and it weakens the observation. What happens is not that someone will use the argument. What happens is that the argument becomes available. A line of reasoning developed in criminal law about exemptions now sits on the shelf for every dispute in which the question arises whether a philosophical or religious denomination is still an independently protectable interest. Availability requires no intent. It requires only a next case.

That the establishment side is already moving reinforces the point. Since the More Room for New Schools Act, denomination is no longer the basis for planning new schools; a measurement of demand is.5 If denomination loses its legal weight on the establishment side and its defensive force on the exemption side, the denominational school is left standing on a category hollowed out at both ends, without any legislator having decided so. That is precisely the pattern this corpus describes elsewhere: form remains, function shifts.

§ 04 · The absent fact

What remains consistently absent from the debate is the following. The bill that does what Ingrado — the professional association of compulsory-education officers — the Association for Public Education, the state secretary and Sperling all want, namely additional requirements to article 5(b) with supervision by the compulsory-education officer and the inspectorate, is not an intention. It exists. It went into public consultation on 2 June 2020. The consultation closed on 16 July 2020. According to the legislative calendar the measure remains, more than six years later, in the Preparation phase.6

Set the rest of the chain beside it. The Public Prosecution Service halted prosecution in April 2025.7 Ingrado, which by its own account was taken by surprise by that decision, produced in May 2025 the guidance that dropped the substantive review. The Supreme Court reformulated the standard in April 2026. The Public Prosecution Service resumed prosecution in May 2026. Large municipalities have since been provisionally rejecting new requests. Ingrado and the VNG, the association of Dutch municipalities, issued new guidance in June 2026. The state secretary announced a wish to abolish the exemption.

Every link in the chain has moved within fourteen months. The only one that can solve the problem has not moved since 2020. The inversion of the separation of powers is no longer a thesis here. It is a timeline.

§ 05 · Anchoring

The de facto norm behaves like a pendulum. In 2025 a quiet loosening through the Public Prosecution Service’s decision on prosecution; in 2026 a quiet tightening through the judgment, the same Service’s reversal and the municipal rejection policy. Article 5(b) remained unchanged throughout. The text of the law explains no movement in practice whatsoever.

To the only question that matters in this file — what stands when no one is looking — the answer is therefore: nothing. What determines the legal position of some 2,500 children is guidance that compulsory-education officers need not follow, a municipal policy that differs from one municipality to the next, a prosecution policy that turned a hundred and eighty degrees within fourteen months, and an undated pledge. That the pendulum currently swings the way most of those involved consider desirable is not anchoring. It is chance with a happy ending.

§ 06 · Conclusion

The debate is about whether the Supreme Court went too far. That is the wrong question, and it is comfortable for everyone who asks it. A judge who must close a gap that the legislator itself had already identified, formulated and put out to consultation six years ago is doing what is left to him. The gap he fills is not his gap.

Freedom of education is not being abolished in the Netherlands. It is being left unmanaged, and then managed by whoever happens to pass by.

Colophon

“The Lower Limit as Upper Limit” is a Statecraft analysis and a sequel to “The Marginal Test”.

Statement of interest. The author chairs the Supervisory Board of the Kafkabrigade Foundation. This contribution is written on his own initiative, without commission or financial contribution from the foundation, and reflects the substantive position of Statecraft.

Responses and counter-arguments via Statecraft.nl.

Jacob Huibers is an interim manager with more than twenty years of experience in the Dutch public sector. He has worked as cluster manager, cluster director and quartermaster at municipalities ranging from fifty thousand to over two hundred thousand inhabitants, and at inter-municipal collaborative bodies across the social and physical domains. Statecraft is his platform for strategic reflection on public-sector execution, pillar IV of House of Viridian.

Footnotes

  1. J. Sperling, “Hoge Raad legt tijdbom onder de vrijheid van onderwijs” (“Supreme Court plants a time bomb under freedom of education”), NRC, 12 June 2026. Sperling argues for abolition of the exemption and the introduction of a statutory regime for home education with inspectorate supervision. Her closing empirical claim — that home-schooled children function at least as well as school-going children and that assertions to the contrary rest on prejudice — is not adopted here: the available research is predominantly American and works with self-selected samples. The question is empirically open. ↩

  2. ECtHR 7 December 1976, Kjeldsen, Busk Madsen and Pedersen v. Denmark, § 53. The derivation of the standard from Kjeldsen is also made by Ingrado in its reading of the judgment: Ingrado, “Hoge Raad scherpt met recent arrest toetsingskader leerplichtvrijstelling 5 onder b Lpw aan”, May 2026. ↩

  3. Dutch Supreme Court 21 April 2026, ECLI:NL:HR:2026:658, and the related ECLI:NL:HR:2026:659. The judgment adjusts in part the earlier line from HR 12 December 2017, ECLI:NL:HR:2017:3111. On its scope see The Marginal Test (Statecraft, May 2026), in particular § 03 on the open norm “reasonable distance” and the mistaken attribution of distance thresholds to the judgment in the reporting. ↩

  4. See the summary of the judgment: the child’s right to education may not be made subordinate to the religious and philosophical convictions of the parents, and active intervention may be required of the government to enforce the Compulsory Education Act 1969, by criminal-law means if necessary. ↩

  5. The More Room for New Schools Act, in force since 2021, which replaced denomination-based planning with denomination-neutral planning on the basis of a measurement of demand. The interplay with the judgment has, as far as is known, not yet been described in the literature; the claim in this paragraph is a hypothesis, not an established legal consequence. ↩

  6. Bill amending the Compulsory Education Act 1969 and the Educational Supervision Act laying down additional requirements to the exemption referred to in article 5(b) of the Compulsory Education Act 1969 (Bill on requirements for compulsory-education exemption on grounds of conviction), KetenID WGK009318. Public consultation 2 June 2020 to 16 July 2020. Legislative calendar consulted on 14 July 2026, current phase: Preparation. ↩

  7. Public Prosecution Service, “Vervolging leerplichtzaken (artikel 5b)”, 7 April 2025. Ingrado, “Position Paper: Herziening wetgeving schoolverzuim en vrijstellingen”, 3 April 2025, in which the professional association records that the Public Prosecution Service’s decision surprised it. Ingrado, “Handreiking formele vereisten artikel 5 onder b Leerplichtwet”, version of 23 May 2025. On the resumption of prosecution: NOS, May 2026. On the new Ingrado and VNG guidance: June 2026. ↩