VG Berlin: Style of dress may not be evaluated during the examination
In a nutshell:
In its ruling of 19.02.2020 (-12 K 529.18), the Administrative Court decided that requirements for clothing in an oral examination may in principle be subject to the evaluation standard, but only if they have a factual connection and are linked to determinable and clearly defined prerequisites. The deduction of points in the evaluation category “Presentation (lecture)” due to wearing blue jeans with a matching blouse is unlawful because the relevance to the subject matter of the examination is not guaranteed.
Background:
The plaintiff, a student in the master’s program “Law for Public Administration,” is suing the Berlin School of Administration and Law. In her action for annulment, she challenges her master’s certificate, which was issued to her with an overall grade of “(good) 1.6”. In an action for a commitment filed at the same time, she is seeking the issuance of a new certificate with an overall grade of “(very good) 1.5”. The plaintiff had only achieved a grade of 1.7 in one submodule, which had a correspondingly negative effect on her overall grade.
She viewed the sub-module’s assessment standards as flawed. The applicant objects to the assessment of the examination performance, which consisted of a presentation followed by an oral examination. The subject of the evaluation was also the category “presentation style (lecture)”, under which also fell the choice of clothing. The plaintiff had received only 6 out of 10 possible points in this category, which, according to the reasoning, was due, among other things, to her inappropriate choice of clothing. The defendant’s reasoning for deducting points was that tight blue jeans and a patterned blouse did not show a “business casual” outfit. Also, the clothing was not airy enough at an outside temperature of 35 and did not live up to the suggestions given earlier in the lecture regarding appropriate clothing choices. It had been communicated unambiguously by the lecturer that the choice of clothing fell under the evaluation standard.
The plaintiff objects to this assessment and argues that her choice of dress was chosen “in accordance with the occasion” and that explicitly due to the summer outside temperatures she was able to forego wearing a formal business outfit – as communicated accordingly by the lecturer. Nor had it been apparent from the previous references that a particular style of dress such as “business casual or “business attire” was required of students. The point deduction was not justified on the basis of extraneous considerations.
Decision:
In its ruling, the VG Berlin upholds the plaintiff’s case and considers the deduction of one point because of the clothing to be an assessment error. For this reason, the overall certificate is unlawful and the plaintiff is entitled to a new final certificate with an overall grade of very good “1.5”.
The court begins by briefly addressing the plaintiff’s need for legal protection. This is what the court assumes. By evaluating the disputed module with an overall grade of 1.7, the plaintiff achieved an overall grade in her master’s degree of 1.6 “good,” instead of 1.5 “very good.” Any grade improvement will therefore have an impact on the overall final grade and thus indirectly on the plaintiff’s further career.
In its ruling, the VG Berlin also deals with the limited judicial reviewability of examination decisions. Open to judicial review are the objective standards of evaluation and compliance with these bases, as well as the review of technical issues. The degree of difficulty of the questions asked and the quality of the content of an examination, on the other hand, are not subject to judicial review.
The subject matter of the dispute presented is subject to review by the court, as it involves the discussion of objective evaluation standards.
The court states that the criterion of clothing can in principle fall under the evaluation standard, but only if no extraneous considerations were made in this regard and the other (substantive) examination performances are not evaluated based on this. Including the parameter of clothing in the presentation exam as an evaluation criterion is not in itself illegal. It was lawful to presuppose clothing appropriate to the occasion in the context of an oral examination. However, the framework of legality is exceeded by requirements that have not been explicitly mentioned and are unspecific. Although the defendant had given examples of an appropriate style of dress, this mention did not give rise to a legitimate demand for specific requirements with regard to the choice of dress.
However, the defendant had not presented what was not “suitable for examination” about wearing blue jeans trousers and a matching top. The request for a dress code that makes demands on the candidate beyond the factual reference – such as the “airiness of the clothing” or a “business casual look” – is unlawful and characterized by subjective feelings that can no longer be inferred from the task. The standard of dress appropriate to the examination must not be based on the subjective fashion taste of the instructor.
The deduction of points for worn clothing of the plaintiff violates the evaluation principles resulting from Article 12 I GG in the present case.
What can readers take away:
Audit decisions are not entirely beyond judicial review. Clothing may be used as an assessment criterion for examination performance, provided that these considerations are not irrelevant and clear criteria have been set for the choice of clothing, which have also been communicated to the candidates in an unambiguous manner. Furthermore, the criteria for the choice of clothing must not be based on a subjective “sense of beauty”.
