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.

Marine Le Pen vows to ban ‘all religious symbols’

All religious symbols, including the Jewish skull cap, will be banned if leader of the far-right French party National Front, Marine Le Pen, is elected president next year.

“It is clear that kippahs are not the issue within our country. But for the sake of equality, they should be prohibited,” said Le Pen. “If I requested to ban solely Muslim attire, people would slam me for hating Muslims.”

In an interview with France’s BFMTV station on October 16, Le Pen said she would extend a 2004 law banning religious symbols in schools to all public spaces.

“I know it’s a sacrifice, but I think the situation is too serious these days… I think every French person, including our Jewish compatriots, can understand that if we ask them for a sacrifice in order to help fight against the advance of this Islamic extremism… they will make the effort, they will understand, I am absolutely convinced because it will be in the best interests of the nation,” she explained.

Meanwhile, the French Jewish community has harshly condemned Le Pen’s proposal to ban the kippah, reported the Jerusalem Online.

 

 

‘Burkini Ban’ trojan horse for banning the veil?

Since the mayor of Cannes banned burkinis on July 28 more than thirty towns and communes in France followed suit. In certain municipalities such as Alpes-Maritimes, Var, Haute-Corse, Bouches-du-Rhône, Pas-de-Calais, and Aude, “correct dress, respectful of morality and secularism” and of “the rules of hygiene and the safety of swimming” is now mandatory.

On August 25, the Council of State will examine one of the “anti-burkini” orders, that of the Villeneuve-Loubet. The ruling will concern much more than beach attire, and affects further possible rulings against the veil in the public sphere at the initiatives of certain mayors.

Burkini or not, the orders have caused rupture and division. “What’s currently happening is a form of extending the need for neutrality or invisibility in areas and to people who were up until now not affected by the 1905 law,” said Marwan Mohammed, sociologist with the CNRS. “There has since been a lobby to extend this to universities as well as to businesses. With the recent orders, we are attacking the public sphere.”

These measures have been denounced by associations such as the CCIF and the League of Human Rights (LDH). “The danger, is that tomorrow we work to ban the veil in public or on public transportation,” said Patrice Spinosi, who defends the LDH.

Movements such as Osez le féminisme and Les Effrontées that usually denounce the veil as a tool of religious oppression, referred to the orders as “acts of humiliation,” of Muslim women. Even Femen and the writer Caroline Fourest, a secular feminist, denounced the orders, with the latter referring to them as “unacceptable.”

The government’s position seems unlikely to soften.  Interior Minister Bernard Cazeneuve, echoed Manuel Valls by stating: “As the Prime Minister indicated, we can understand these orders.”

In a recent interview with Le Figaro Magazine Nicolas Sarkozy proposed a law that would “prohibit any religious symbols in schools and also universities, in the administration, and also in businesses.” The National Front urged a law that went as far as to prohibit “all general, visible, religious symbols in the public arena.”

Baby Loup affair pushes question of religion at workplace into centre

October 22, 2013

The Baby Loup affair surrounding the question of wearing religious symbols in general and the hijab in particular in a nursery returned to the media when the French Court of Appeal opposed the Supreme Court’s decision on calling the termination of a French Muslim woman’s work contract in a nursery unlawful. The legal battle will most likely continue and will bring the question of religion at workplace to the forefront of the debate.
Le Monde:

http://www.lemonde.fr/idees/article/2013/10/22/l-entreprise-n-echappe-pas-a-la-politisation-du-religieux_3500730_3232.html?xtmc=musulman&xtcr=11

http://www.lemonde.fr/societe/article/2013/10/16/affaire-baby-loup-la-cour-d-appel-de-paris-entre-en-rebellion-contre-la-cour-de-cassation_3496539_3224.html

A ban of the hijab in higher education?

05.08.2013

The High Council for Integration (HCI) called for a controversial ban of the Islamic headscarf in higher education in a report leaked to the public. The publication of the report caused confusion in social networks. Questioned by the AFP, the secretary general of HCI, Benoît Normand, said that the report had been submitted in April to the President of the new National Observatory of Secularism, Jean-Louis Bianco and  should not be released before the end of the year.

For his part, Jean-Louis Bianco expressed regret over the “misunderstanding”. “The report commits only the Chair of Secularism of the HCI  who is no longer in office.” The issue of the headscarves in higher education is, according to Bianco, not part of the task plan of the National Observatory of Secularism. The 2004 national law on banning the wearing of  religious symbols in secondary schools does not apply to higher education. Only the niqab remains to be banned in public spaces including universities in France, not the hijab.

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’

Muslim groups concerned about parliamentary debate upon secularism

12.04.2013

Le Figaro

The representatives of eight large Muslim groups in France have expressed their concerns about the announcement of a new law against religious symbols, specifically the Muslim veil, during a meeting with France’s Secretary of Interior and Religion, Manuel Valls.

Muslim organisations are worried about the renewal of stigmatization of France’s Muslim communities in the wake of a potential legislative debate, which will as previously highlight Islam and Muslims in a negative, problematic way. According to them, statistics have proven that with each announcement upon Islam made in French politics, acts of Islamophobia are statistically proven to have increased in the country.

Parti Quebecois: Crucifixes in, hijabs and monarchy out

News Agencies – August 15, 2012

 

Pauline Marois’s vision for Quebec includes fewer hijabs and fewer symbols of the Crown. She announced that if her Parti Quebecois wins the Sept. 4 election [ed note: they did], it will introduce a Charter of Secularism that would forbid public employees from wearing religious symbols on the job — like Muslim head scarves.

But the Charter of Secularism, it seems, would not be applied evenly. The ban on religious symbols would not extend to employees who wear a crucifix necklace. Nor would it extend to the crucifix hanging in the legislature, which Marois says is part of Quebec’s heritage. The ban on religious symbols would extend, however, to some non-religious aspects of Quebec’s history as selected by the PQ.

Artistic references to the monarchy would also disappear from the legislature under Marois’ watch. She allowed that “some moldings” might remain.

Marois made her secularism announcement on land belonging to a Christian religious order. She was accompanied by one of her candidates, Algerian-born Djemila Benhabib, an author who has been deeply critical of Islamic fundamentalism and a vocal proponent of secularism.

Amnesty International: “European Muslims are discriminated against”

April 24, 2012

 Amnesty International reports that European countries discriminate against Muslims who show their faith publically. This is especially visible in places of education and at various workplaces. The report focused on Belgium, France, Netherlands, Spain and Switzerland. Amnesty urges those governments to do more on prevention of prejudices about Islam. The organization is particularly critical of the countries which had banned face veils (niqab) and the religious symbols in their schools.

French court backs nursery for firing veil-wearing employee

News Agencies – October 27, 2011

 

A French appeals court has ruled that a kindergarten had acted legally by firing a female employee who refused to remove an Islamic headscarf, the nursery’s lawyer said.

The Versailles Appeals Court said the Baby-Loup nursery in nearby Chanteloup-les-Vignes had acted within a law allowing privately-owned kindergartens to forbid the wearing of religious symbols when it fired the employee in 2008, lawyer Richard Malka said. The decision upheld a previous ruling by a French employment tribunal. Malka hailed the ruling as “a major victory for secularism”.