HEAD SCARVES IN GERMANY

Yesterday's announcement of the German Constitutional Court's decision that existing law does not allow for a prohibition on head scarves worn by teachers in the classroom has not won the Court many friends, but it does seem to have had the desired effect: increasing public dialogue about the issue.

In a 5 to 3 decision, the Constitutional Court divided primarily on the question of whether existing law allowed school authorities to prohibit muslim teachers from wearing headscarves in the classroom. According to the opinion, which you can read here (see also the press release, here) a thirty-year old German citizen (originally from Afghanistan) had successfully completed all the formal requirements for becoming a public school teacher in Baden-Wuerttemburg, a large state in the southeastern corner of Germany. She was nonetheless denied a post because, in the judgment of the Stuttgart school authorities, her refusal to remove her head scarf was incompatible with the rights of school children, the rights of parents, and the requirement that the state be neutral with respect to religion and "world views" in general. The school authorities argued that students had few opportunities to change teachers and hence were required to "come to terms with" the religious views that the head scarf represents; muslim students might also feel compelled to wear head scarves or to comport themselves in a certain way with respect to their teacher's beliefs, and this might work against the "pedagogical task of the school" with respect to their "integration." The teacher-to-be argued that the state's refusal to employ her amounted to discrimination based on her religious beliefs, which is forbidden according to Article 33 of the basic law:

2) Every German shall be equally eligible for any public office according to his aptitude, qualifications, and professional achievements.

(3) Neither the enjoyment of civil and political rights, nor eligibility for public office, nor rights acquired in the public service shall be dependent upon religious affiliation. No one may be disadvantaged by reason of adherence or nonadherence to a particular religious denomination or philosophical creed.

She also referred to the more general equality protections and protections of religious freedom from Articles 1 - 4 of the Basic Law. You can read the text of Germany's Basic Law here (and this site is also my source for the above translation of the sections from Article 33).

The majority view on the Constitutional Court was that mere administrative prohibition of head scarves and refusal to employ those who wish to wear them is contrary to Article 33 as well as general rights of conscience and equal treatment, but that the state could reasonably (and permissibly) conclude that there are sufficient grounds for such a prohibition.

It seems that the Court saw itself in the position of requiring a wider political debate on these issues. Probably Cass Sunstein's "democratic dialogue enforcing" role for courts was the kind of thing that they were aiming at here. Sunstein is not cited, but he might as well have been. In Sunstein's view, constitutional courts act legitimately when they require the legislature to engage in deliberation before rights claims can be rejected by either the legislature itself or by administrative bodies that act under its authority. The German court made explicit reference to the desirability of a broader social and political discussion on the question of religious plurality in the classroom. Here are some key passages from paragraphs 64, 65, and 68 of the opinion, in my rough translation:

The social changes that are accompanied by increased religious plurality can provide an occasion for a new specification of the permissible amount of religious references in school. . . .The religious diversity that has grown up in society is mirrored [in schools] in a particularly clear manner. The school is the place where different religious conceptions are forced to meet each other and where this fact of being together in the same space has particularly sensitive effects. An ability to live with each other in a tolerant fashion could be practiced, through education, in a particularly effective manner. This would not necessarily require the denial of one's own convictions; instead, it could provide an opportunity for a recognition and strengthening of one's own positions and an opportunity for reciprocal tolerance. . . . Thus, there could be reasons why one would open up schools to increasing religious diversity and use it as a means for practice in reciprocal tolerance. . . .Nonetheless, this development that we have just described is also combined with a greater potential for conflict in the schools. Therefore, there could be reasons for affording a stricter interpretation of the state's neutrality-related duties in the schools by giving those duties a meaning that places emphasis on more distance and on keeping students away from religious references that emerge from the external appearance of certain teachers in order to avoid, prospectively, conflicts with students, parents, or other teachers. . . .

The Constitution reserves to Parliament the restriction of basic rights-related freedoms and the balancing of colliding basic rights, in order to determine that decisions that have such significance emerge from a process that [1] allows the public an opportunity to form and to express its positions, as well as [2] requires the representatives of the people to clarify the necessity and extent of actions that hem in basic rights [Citation omitted]

Der mit zunehmender religiöser Pluralität verbundene gesellschaftliche Wandel kann Anlass zu einer Neubestimmung des zulässigen Ausmaßes religiöser Bezüge in der Schule sein. . . .Die gewachsene religiöse Vielfalt in der Gesellschaft spiegelt sich hier besonders deutlich wider. Die Schule ist der Ort, an dem unterschiedliche religiöse Auffassungen unausweichlich aufeinander treffen und wo sich dieses Nebeneinander in besonders empfindlicher Weise auswirkt. Ein tolerantes Miteinander mit Andersgesinnten könnte hier am nachhaltigsten durch Erziehung geübt werden. Dies müsste nicht die Verleugnung der eigenen Überzeugung bedeuten, sondern böte die Chance zur Erkenntnis und Festigung des eigenen Standpunkts und zu einer gegenseitigen Toleranz. . . . Es ließen sich deshalb Gründe dafür anführen, die zunehmende religiöse Vielfalt in der Schule aufzunehmen und als Mittel für die Einübung von gegenseitiger Toleranz zu nutzen. . . . Andererseits ist die beschriebene Entwicklung auch mit einem größeren Potenzial möglicher Konflikte in der Schule verbunden. Es mag deshalb auch gute Gründe dafür geben, der staatlichen Neutralitätspflicht im schulischen Bereich eine striktere und mehr als bisher distanzierende Bedeutung beizumessen und demgemäß auch durch das äußere Erscheinungsbild einer Lehrkraft vermittelte religiöse Bezüge von den Schülern grundsätzlich fern zu halten, um Konflikte mit Schülern, Eltern oder anderen Lehrkräften von vornherein zu vermeiden.

Nach der Verfassung sind die Einschränkung von grundrechtlichen Freiheiten und der Ausgleich zwischen kollidierenden Grundrechten aber dem Parlament vorbehalten, um sicherzustellen, dass Entscheidungen von solcher Tragweite aus einem Verfahren hervorgehen, das der Öffentlichkeit Gelegenheit bietet, ihre Auffassungen auszubilden und zu vertreten, und die Volksvertretung dazu anhält, Notwendigkeit und Ausmaß von Grundrechtseingriffen in öffentlicher Debatte zu klären.

The dissenters disagreed that existing law -- particular the existing law relating to the status of civil servants -- did not allow for administrative refusals to employ individuals who refused to take an outwardly neutral stance toward religious belief. They argued that civil servants are not allowed to claim the same kinds of individual rights protections that private individuals can claim; the special situation of civil servants as administrative agents of the "generality" of the people requires them to give up some individual rights claims. This requirement is fully expressed in existing legal standards for civil servant behavior. The dissent argued that school authorities have sufficient discretion under existing law to make rules within their realm of responsibility -- here, rules that can be considered as directed toward the end of keeping schools free of conflict. The dissenters also note that a law may not be able to do justice to the individual cases that arise on the border between administrative discretion and individual religious freedom. In addition, the state legislature of Baden-Wuerttemberg had refused to pass a law regulating teachers' head scarves -- probably because the far-right Republican Party had proposed the law.

Today the papers are filled with stories about school authorities and politicians from all parties contemplating legislative action. Members of the SPD (here and here), CDU (here) and CSU (here and here) have all argued that legal prohibitions are now on the table. The teachers union is not happy with the ruling, according to this article in the Sueddeutsche Zeitung, which notes that speakers for the union favor a clear legal standard in order to reduce conflicts with parents. Legislative responses are likely throughout Germany, although the Sueddeutsche reports that leaders in some eastern states have said that they are not likely to act because the issue has not arisen in their schools, which draw on a population with comparatively fewer minority group members. The Greens and the FDP were happy with the court's ruling: the FDP, apparently, would welcome a prohibition, while the Green party position is not clear to me yet.

Reader Dan Gordon called my attention to the ruling, and he also notes that the question of the status of the symbols here is important. In French law, apparently, patriotic symbols have an established place, so the question of the significance of symbols is crucial in the French discussion of such issues. German law is cognizant of the power of symbols (the swastika is banned, for example), and the possibility that the scarf could be seen by students as a symbol of state endorsement of religion is at the forefront of the widespread political push to ban it in the classroom. The Court did get expert testimony as to the meaning of the head scarf, and in general the testimony seemed to indicate that it has a plural meaning (it can be seen as an expression of individual identity along a variety of dimensions). Appropriately enough, given the ruling, the court is also very interested in the head scarf as an opportunity for cross-cultural dialogue and cross-cultural tolerance and understanding. But my impression of the debate is that most politicians seem to take the view that the head scarf can and should be banned in order to safeguard state neutrality in matters of religion (sort of like Justice O'Connor's "endorsement" views on religious symbols). Those on the left want to safeguard neutrality as such, and those on the right (like the CSU) also want to safeguard a specifically non-muslim state position so that the state can at least be seen as not rejecting catholicism. The Catholic Church has been mum, as far as I have read.

See my earlier posts on related issues here and here.