Hoja de trabajo No 3: “Temperatura del Agua”

The issue of using religious symbols in schools has become very controversial in some Member States while it is of lesser relevance in others.

In Belgium, there is no general rule regulating the wearing of religious

symbols (e.g. the veil) in schools, neither in the French nor in the Flemish community. Each school makes its own decision on this issue according to general school rules.

In Denmark, the highly publicised debate and the legislation initiative in

France regarding the carrying of religious symbols had a substantial impact. So far no legal initiatives have been made addressing the issue. There are therefore no legal restrictions regarding the displaying of religious symbols by pupils or staff in schools. Local restrictions might exist, but no documented cases are presently reported. A Member of Parliament representing The Danish People’s Party has put forward the suggestion to abolish religious symbols carried in public schools,

293 The Comparative Report on Education published by the EUMC in 2004 provides an overview of current anti-discrimination legislation in the field of education in all Member States.

singling out the Muslim headscarf and adding that the Jewish kippah might be exempted. The party has made it known that an official bill will be presented in Parliament within a year.294

In Germany, on 24 September 2003, the Federal Constitutional Court

(Bundesverfassungsgericht) ruled that there is no clear legal basis in the

present laws to support the banning of teaching staff wearing headscarves in school. Thus, it overturned a decision of the Federal Administrative Court (Bundesverwaltungsgericht) of 4 July 2002. Nonetheless, it remains open to the individual Länder to establish a legal provision which forbids the wearing of headscarves in the classroom (BvR 1436/02). The state administrations in Bavaria, Baden-Württemberg, Lower Saxony, Saarland, Hesse, North Rhine-Westphalia, and Berlin are planning to introduce corresponding laws, with great variety in the content of the drafts. The SPD (Social Democratic Party) in Berlin plans to ban all religious symbols from certain areas of public service. The drafts in the other Länder, which are ruled by the Christian Democratic Party or the Christian Social Union, prescribe banning only the wearing of headscarves by female teachers, whereas Christian and Jewish items of clothing would still be allowed. In Rhineland-Palatinate, Schleswig- Holstein, Hamburg and the five Eastern German states, no such legal provisions are planned at present. No decision has been made as of yet in Bremen.

In Greece, the controversial issue of religious symbols has not surfaced

yet. The privileged status of Orthodox Christianity in Greek education has so far not been seriously challenged. It is worth noting that the ministry responsible for education is also responsible for religious matters (Ministry of National Education and Religions295_{). Christian} orthodox religious instruction in schools is a compulsory course for Orthodox Christians and subject to examinations. However, believers in other faiths may request in writing their exemption from religious instruction.

In Spain, there is no regulation or national law governing the use of

religious symbols in classrooms. Also, no reports are made about any regional government regulating this issue. In practice, it is up to individual schools to decide in that matter. When problems arise, such as in the case of a Muslim student expelled from class in 2002 because of

294 Source: www.danskfolkeparti.dk Press release of 16th of April 2004

295 Refer to the Greek NFP’s Analytical Study on Education for more information on this subject.

her wearing the traditional headscarf, the lack of a framework of reference results in a broad social debate.

In France, the year 2003 was marked by an intense debate on this issue,

widely covered by the media. Until 2003, the High Administrative Court

(Conseil d’Etat) in principle did not consider the wearing of religious

symbols in school to be incompatible with the principle of secularity. A regulation could only set rules for the purpose of prohibiting symbols that undermined the dignity or liberty of others or that disrupted ongoing educational activities, the educative role of teachers, and public order within the educational facilities. However, a veil or a turban could not interfere with the identification of the individual or with the exercise of regular student activities (i.e. it may not be too long, hide the face, or incompatible with mandatory sports classes, etc). On 11 December 2003,

the Commission of Reflection on the Application of the Principle of

Secularity in the Republic presented a report concluding that peace in

school required a regulation of the conditions relating to the wearing of religious symbols in schools and it proposed that the Parliament adopt a new law. This law was adopted on March 15th, 2004, and while it does not prohibit the wearing of religious symbols per se, it forbids, in public primary and secondary schools, all ostentatious religious symbols and

clothing by which pupils assert their religious obedience. The

implementation of a disciplinary measure for a student breaking this rule must, however, always be preceded by a dialogue with the student. These principles should be put into practice by the beginning of the 2004/05 school year and their enforcement will be evaluated after one year of implementation.296

In Ireland, to date, the question of religious symbols in schools has also

not been a source of controversy. Dress code policies are considered the remit of individual schools and there has only been a limited amount of anecdotal evidence to suggest that the wearing of headscarves has been problematic.

In Italy, discussions have arisen during 2003 regarding religious symbols

in light of the non-discriminatory nature of school education. In October 2003, a decision by the Tribunal of L’Aquila, in central Italy created a nation–wide debate on the widespread presence of crosses in State schools. The President of the Union of Italian Muslims applied to the Tribunal for an injunction to the State school in Ofena (a village in the L’Aquila Province, where his children go to school) to have the cross

removed from the classrooms walls, placed on the basis of a law of 1923. The tribunal’s decision was based on constitutionally sanctioned principles of non-discrimination, secularity of the State, and impartiality of the State and State education towards religious beliefs, which, according to the deciding judge must lead to the absence of any religious symbols in State schools.297 _{The tribunal’s decision, which upheld his} complaint, caused great public debate and was met with strong criticism by government representatives, some of who also called for disciplinary sanctions against the deciding judge, and by Catholic Church representatives.298

In Luxembourg, discussions about headscarves worn by pupils299 arose

in two secondary schools and were solved in a bilateral way. The guidelines of the Ministry of Education (MENFPS) are that every pupil is free to wear such symbols as long as she or he participates in all school activities (including sports) and that clothing has to be decent (including scarves). However, there is no official text regarding this issue by the MENFPS.

In the Netherlands, the school system allows schools and pupils to

express their religious beliefs. Many schools are based on a belief system. It becomes controversial when the expression of religion, for example, through dress codes, differs from the religion the school is based upon. For this reason some schools try to ban or limit religious symbols. Such bans, however, are subject to equal treatment legislation, and often not allowed. Over the last years, some cases have been brought to the council regarding discriminatory regulations due to prohibiting the wearing of headscarves. When in 2003 several girls were expelled from school due to wearing a veil, it became apparent that schools and the public are not fully aware of the conditions that the equal treatment act puts on religious dress codes. As a consequence, the CGB issued an advice300 _{concerning veils and headscarves in schools. Following the} Equal Treatment Act, schools are allowed to prohibit veils, if they can provide sound arguments that they pose a problem. Sound argumentations are that veils inhibit communication between pupil and teacher and that schools are not able to identify pupils wearing such veils,

297 The decision referred to precedent decisions by the Constitutional court, including decision no.203 of 12.04.1989 and decision nr. 13, of 14.1.1991.

298 Court od Justice of L’Aquila; Ordinance of 15 October 2003. “Crocifisso nelle aule scolastiche”, La Repubblica (25.10.2003); “ Tribunale de l’Aquila: via I crocefissi dalla scuola”, Corriere della Sera, (25.10.2003); “Via il crocefisso dalle aule”, la Padania, (26.10.2003).

299 There has been no incident of teachers wearing religious symbols. 300 Netherlands / CGB / 2003-40 (20.03.2003)

which may lead to unsafe situations, like having unauthorised people in the school. Headscarves, however, can only be prohibited if their wearing contradicts with the actively promoted religious orientation of the school. In Austria, in schools where more than half of the pupils belong to a

Christian religion, a crucifix must be put up in every classroom.301 _No comparable provisions exist concerning other religions. Religious clothing in schools is considered a matter of religious freedom. There are no legal regulations either forbidding or granting a right to wear specific garments like a headscarf or kippah.302 _{Pupils’ clothing only must be} adequate to the requirements of the respective classes or school activities in which they (have to) participate.303 _{It seems that latent aggressions} sometimes break out in conflicts over the Muslim headscarf. In October 2003, a teacher at a school for textile professions tore the headscarf from a Muslim girl’s head in front of the other pupils during an ironing class. The girl turned to representatives of the Islamic community, who managed to deescalate the situation in encounters with the teacher and the school’s headmistress. The girl agreed to wear a kind of headscarf in the future, which would not constitute a danger for her to get hurt by getting caught in a machine.

In Portugal, there is no record of prohibition of religious symbols in

schools. Portugal is a lay State and the Constitution of the Portuguese Republic guarantees freedom of religion and religious practice, stating, “No one shall be persecuted or deprived of rights or exempted from civil responsibilities or duties by reason of his or her convictions or religious observance.”304

In Finland, on the whole, it appears that the issue of using religious

symbols in schools has not become very controversial. Finnish legislation does not contain any articles that directly cover the use of religious symbols in public places or schools. There are general articles in the Constitutional Law (§6 and §11) concerning equality and freedom of religion, as well as an article concerning equality in the School Law (§2), which may be significant with respect to the issue of religious symbols. The use of religious symbols is most often an issue involving the Muslim

301 Sec 2b Religionsunterrichtsgesetz, Austria / BGBl 190/1949 as last amended by BGBl 324/1975

302 Mr Stifter, Mr Rochel of the Federal Ministry of Education, Science and Culture, via telephone, 20.04.2004

303 Sec 4 (1) Schulordnung, Austria / BGBl 402/1987, Z4

304 N.º 2 of Atrº 41 of Constituição da Republica Portuguesa, [Constitution of the Portuguese Republic]

minority. In practice, girls can wear headscarves in Finnish schools. Until now, there has not been a single publicly known case of banning the use of headscarves for either pupils or teachers. Schools in Helsinki have, for example, allowed pupils to wear headscarves during sports lessons provided that the scarf is tied in such a way that it does not cause health problems or obstruct movement. In a few cases, there have been problems with the use of the burqa or niqab,305 because they may prevent the teacher from hearing the student’s speech.

In Sweden, on the whole, the issue of religious symbols in schools has

not become a controversial issue, with one exception. In 2003, there was a public discussion on the use of the burqa or niqab after a policy decision made by the National Agency for Education that gives Swedish schools the authority to prohibit the use of this garment if it is found to cause disorder in the classrooms.306 _{Arguments against its use are that the}

burqa or niqab interferes with communication between pupils and

teachers. After the policy decision was taken, the Ombudsman against Ethnic Discrimination advised schools against prohibiting the use of the

burqa because prohibiting certain religious clothing might be seen as

breaking the law, which forbids discrimination. The issue has been discussed in several municipalities after the policy decision was made, mainly because the xenophobic party Sverigedemokraterna proposed its enforcement in several municipal councils in Sweden.307 _{Only one} municipality adopted the proposal, which drew extensive media attention. The controversy ended when the Board of the municipality Svedala in southern Sweden rejected the proposal to ban the burqa in the schools.308 _{As it turned out, the discussion was entirely hypothetical, as} there was not a single girl wearing the burqa in the schools of Svedala. In the United Kingdom, there are no national guidelines on the display

of religious symbols in schools. Relevant guidelines such as guidance on dress codes are decided upon at the local level by Local Education Authorities (LEA). Each LEA has a Standing Advisory Council on Religious Education. LEAs have a leadership role in informing schools and ensuring that they fully understand their duty under the Race Relations Act. Schools’ policy on uniforms has to make allowances for, for example, headscarves.

305 Items of traditional Islamic women's clothing. Niqab covers the face except for a slit at the eyes. Burqa covers the entire body and face (a 'net curtain' prevents other people from seeing the eyes).

306 National Agency of Education, PM 2003-10-23. Dnr 58-2003:2567

307 Sverigedemokraterna has at present 48 municipal seats in different parts of Sweden. 308 Sveriges Radio, Ekot, 2004-03-25

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Minorities and the education