The hijab in German public schools: New court case lets old questions resurface

The protracted German debate on Muslim teachers’ right to wear the hijab when working in the public sector has received its newest episode. The State Labour Court (Landesarbeitsgericht) of Berlin and Brandenburg decided in favour of a Muslim teacher who had sued the state of Berlin for barring her from exercising her profession because of her hijab.

Landmark decision by the Constitutional Court

In German public schools, pupils are free to wear the Muslim headcovering; yet the situation with respect to teachers is more complex. This is partly linked to the country’s federalised geography: educational matters are generally not governed from Berlin but handled by the capitals of the country’s 16 federal states, leading to often strongly differing educational practices.

As Euro-Islam reported, Germany’s top Constitutional Court had overturned North-Rhine Westphalia’s blanket ban on teachers wearing the Muslim headscarf in 2015; yet the practices of state governments have been slow to adapt. Moreover, the precise implications of the Court’s verdict itself have remained unclear.

While the judges rejected a generalised ban of the hijab, it did not unconditionally allow its wearing, either. In fact, based on the verdict, school authorities retain the right to prohibit individual teachers from wearing the hijab if they demonstrate that the teacher’s clothing constitutes “a sufficiently concrete threat or disruption of school peace”.(( http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2015/01/rs20150127_1bvr047110.html ))

Current court cases

Perhaps also because of this considerable degree of equivocation in the Court’s judgements, a number of states have not changed their discriminatory practices. Instead, state governments have preferred to wait until Muslim women take to the courts, attempting to enforce their right to wear a hijab.

Subsequently, lower-instance courts have issued a number of verdicts that appear favourable to Muslim women’s demands. Yet upon further inspection, the judges have often dodged the real issues at stake.

In 2016, a Munich Administrative Court, for instance, ostentatiously ruled in favour of a junior lawyer whom the State of Bavaria had banned from wearing a headscarf while working at court. Yet in its reasoning, the court based itself on purely formal grounds, thus refraining from commenting on the overall legality of prohibiting women from wearing the hijab while fulfilling public functions.

The situation in Berlin

In Berlin, the local government did not amend its legal provisions after the Constitutional Court’s landmark verdict on the hijab. It seems that the state authorities deemed themselves immune from legal challenges because Berlin’s “neutrality law” (Neutralitätsgesetz) does not explicitly discriminate against the hijab: in fact, it prohibits the wearing of any and all religious symbols in public service.(( http://gesetze.berlin.de/jportal/portal/t/iaf/page/bsbeprod.psml?pid=Dokumentanzeige&showdoccase=1&js_peid=Trefferliste&fromdoctodoc=yes&doc.id=jlr-VerfArt29GBE2005pP2&doc.part=X&doc.price=0.0&doc.hl=0 ))

In the present case, the court of first instance had dismissed the teacher’s lawsuit. In its verdict, it based itself on the non-discriminatory nature of Berlin’s neutrality law, arguing that the educational board had the right to refuse an applicant with a hijab.(( http://www.zeit.de/gesellschaft/zeitgeschehen/2016-04/kopftuchverbot-berlin-urteil-arbeitsgericht-lehrerinnen ))

This judgement has now been overturned in the second instance by the State Labour Court. Now, the judge argued that the State of Berlin did in fact discriminate against the prospective teacher by refusing to employ her because of her headscarf. Consequently, the State was condemned to pay the woman close to 9,000 Euros in salaries.(( http://www.zeit.de/gesellschaft/zeitgeschehen/2017-02/berlin-lehrerin-kopftuch-gericht-berufungsverfahren-entschaedigung ))

Caveats persist

However, like in the case of the Munich junior lawyer, the court’s verdict comes with a caveat: the State Labour Court did not object to the neutrality law itself. For the judge, the neutrality law itself is fully constitutional.

Instead, the court objected to the fact that state educational authorities had not sufficiently justified their decision to deny employment to the plaintiff: the state had failed to demonstrate that the “school peace” would be threatened or disrupted by the presence of a headscarf-wearing woman.(( http://www.spiegel.de/karriere/berlin-abgelehnt-wegen-kopftuch-lehrerin-bekommt-schadensersatz-a-1133806.html ))

Walking a tightrope

This showcases how the court sought to bridge the divide between Berlin’s neutrality law on the one hand and the verdict of the Constitutional Court on the other hand – an exercise that resembles walking on a tightrope.

The neutrality law itself incorporates in its Article 3 a provision that allows educational authorities to exempt individual teachers from the requirement of absolute religious neutrality, provided that this measure does not endanger the “ideological-religious neutrality” of the school in question and does not threaten “school peace”.(( http://gesetze.berlin.de/jportal/portal/t/iaf/page/bsbeprod.psml?pid=Dokumentanzeige&showdoccase=1&js_peid=Trefferliste&fromdoctodoc=yes&doc.id=jlr-VerfArt29GBE2005pP2&doc.part=X&doc.price=0.0&doc.hl=0 ))

This might appear to allow a reconciliation of the neutrality law with the Constitutional Court’s verdict. Yet it is noteworthy that the Berlin law flips on its head the default position that underlies constitutionally acceptable restrictions on the wearing of the hijab.

The Constitutional Court argues that it is per se legal for teachers to wear the hijab, unless it be proven that the headscarf upsets the orderly working of the school. Conversely, the State of Berlin starts from the position that it is per se illegal for teachers to wear the hijab, unless it be shown that the religious symbol in question does not undermine school peace.

A question of equality

As noted above, the Constitutional Court passed its landmark ruling in 2015 in response to a case from North-Rhine Westphalia (NRW). In contrast to Berlin, the NRW state government had banned only the hijab from public schools, while continuing to allow kippah or Christian habits. Consequently, the main thrust of the Court’s verdict is directed against this unequal treatment of religious symbols.

In its verdict, the Court also briefly and somewhat hurriedly accepts as constitutional bans on religious symbols that do not discriminate between the faiths and instead prohibit all religious symbols from public institutions.((See esp. Section III, Art. 1 c) for the Court’s positioning on that matter: http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2015/01/rs20150127_1bvr047110.html ))

Different versions of secularism

While this would seem to legitimise Berlin’s neutrality law, this somewhat underdeveloped aspect of the Constitutional Court’s verdict remains problematic. Most notably, the Court’s recognition of a non-discriminatory policy of neutrality departs from the German tradition of Church-State relations, anchored in Article 140 of the German Basic Law.

In contrast to the French practice of laicité on the other side of the Rhine, the post-WWII German state has defined its position vis-à-vis institutionalised religion as one of fostering and support. There are extensive cooperation agreements between state and religious bodies, for instance in various domains of social or charitable work. This cooperative framework of Church-State relations also forms the basis of the extensive confessional education offered to children in public schools.

Against this tradition of cooperation, neutrality laws introduce a more categorical separation into the German framework. It remains to be seen whether the recognition of this practice by the Constitutional Court signals the onset of a full-fledged transformation of the German system.

Political reactions

In Berlin itself, where the struggle between these two different visions of secularism will take place over the coming months and years, the reactions to the decision in the teacher’s favour have been mixed.

In its official response, the ruling coalition of Social Democratic, Green, and Left parties asserted that it would uphold the state’s neutrality law. However, the junior partners in the coalition, the Green and Left parties, criticised the law.

The city’s Justice Senator Dirk Behrendt asserted that the neutrality provision had become untenable. In his interpretation, the court’s verdict did in fact reveal the law’s irreconcilability with the Constitutional Court’s position, i.e. its unconstitutionality.(( http://www.rbb-online.de/politik/beitrag/2017/02/berlin-kopftuchurteil-senat-neutralitaetgesetz-wird-nicht-ueberprueft.html )) The political debate over the place of the hijab in public institutions is thus far from over.

Veiled women protest against exclusion

Liberation

Veiled Muslim women protested on Saturday in Central Paris against the exclusion of mothers who wear veils (hijab) from public institutions. The Muslim women joint together with the ‘Mamans toutes égales’ (Mothers are all equal) collective, which was founded in 2011 by Muslim and non-Muslim parents in Montreuil, following the exclusion of a Muslim mother from an elementary school because of wearing the Muslim veil.

The collective of mothers demand the retreat of the Chatel decision of 2004, which they consider as discriminatory. The decision was mainstreamed by the centre-right Sarkozy government, which advocated against the wearing of religious symbols in schools to safeguard public schools as secular institutions. According to the Chatel decision, schools are allowed to regulate their own internal policies in regards to religious symbols, which provides inconsistent everyday practices as well as confusion and room for selective discrimination.

The current centre-left government under President Francois Hollande has sent, according to the group, ‘worrisome signals’ in regards to a future legally applicable amendment.  A spokeswoman of the group said ‘We can’t be fooled. There is a tendency to fabricate laws of exception against Muslims in general and for Muslim women in particular. The left has taken the same path as the right in this game’

Prince George’s Co. school lets Muslim students out of class to pray

The growing number of Muslim students seeking accommodations to practice their religion in public schools has stirred debate about the long-contentious issue of prayer in America’s public institutions.

But a Prince George’s County high school principal believes she has found a way to accommodate Muslim students: She gives those with parental permission and high grades a pass out of class every day to pray.

At Parkdale High School, about 10 Muslim students get out of class for about eight minutes each day to pray together on campus, said Principal Cheryl J. Logan. Another student is working hard to raise his grades so he too can join the group of students, who belong to the school’s chapter of the Muslim Students’ Association, she said.

When Muslim students began praying during the school day at Parkdale, she said, some Christian teachers got upset and told the students that “it was a Christian school.” She said she explained to the students that public schools are not religious, but are legally allowed to accommodate students to practice their religion in some ways.

According to Charles Haynes, director of the Religious Freedom Education Project at the Newseum who writes and speaks on religious liberty and religion in American public life, the accommodations that Logan is providing to the Muslim students are “certainly permissible” under the U.S. Constitution though probably not required.

Religious accommodations in public schools vary depending on state law, he said. Some states have passed laws that allow schools to “simply treat everyone the same way and not give exemptions or special accommodations for religious reasons.”

Last November, the Montgomery County Board of Education told leaders of the county’s growing Muslim community that it would be impossible to add an Islamic holy day to the school calendar. There are Christian and Jewish holidays on the school calendar because it was determined long ago that even if class stayed open on those days there would be too many students and teachers taking the day off anyway to operate viable classrooms.

And in some schools, female teachers and students are not allowed to wear Islamic head scarves, or have been harassed for doing so, according to the American Civil Liberties Association.

The Guardian Profiles Former French Minister Rachida Dati

This article in the the Guardian profiles Rachida Dati (b. 1965), former French justice minister, which she stepped down from in May 2009. She has come under scrutiny for her fashion sense and as a single mother of Algerian-origin. She was the second of 12 children born to north African immigrant parents, neither of whom could read or write, and yet by the time she was 41, she occupied one of the most senior roles in government as President Sarkozy’s justice minister, the first woman of Arab descent to be given a key ministerial position in the French cabinet. At 44, she is now a single mother to a one-year-old daughter, a member of the European parliament and the mayor of the 7th arrondissement in Paris. Dati believes the criticism she faces springs from class resentment more than anything else.

Dati is unequivocal in her support for banning the burka in public institutions, an issue currently being debated in France. “When you are part of a society, the first foundation of this social contract is trust,” she says. “To be totally hidden, to not show one’s face, is a challenge to that trust and one cannot construct a society without trust in each other… [the burka] does not correspond to our values.”

The government prepares reform of the Freedom of Religion Law (LOLR)

The Spanish government is preparing a draft bill for reforms of the Freedom of Religion Law. The current law was defined in the Spanish Constitution of 1978, but the text was created and approved in 1980. It is possible that this draft bill will be presented in April of this year.
The objective of this new legal text is to better reflect the changing religious situation in Spain. Currently, the details of the text have not been disclosed, but it probably includes the elimination of all religious symbols in public institutions.

The legality of practicing law with Islamic headscarves

A lawyer of Moroccon origin, Oubida Barik, presented an administrative appeal against the president of the Criminal Division, Javier Gomez Bermudez because he wouldn’t allow her to remain in the courtroom while wearing her Islamic headscarf or hijab.

The lawyer was wearing her gown and hijab while sitting on the lawyers bench helping a colleague, the lawyer Salellas Benet, in the defense in a trial for Islamist terrorism.

Gomez Bermudez, applying his powers as president of organization of the trial, ordered Barik to take off the headscarf, but as she refused, he invited her to sit in the audience or leave the room.

The General Council of the Judiciary will decide on the legality of this practice.