Religious Symbols in German Schools

1. Religious Symbols in German Schools Law, Religion and Education: Religious Freedom in the Sphere of Education Conference, Oxford, 8-9 October 2010 Dr Tobias Lock, Faculty of Laws, University College London

2. Legal Framework I: Guarantees in the Basic Law Article 4 (1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable. (2) The undisturbed practice of religion shall be guaranteed. Article 6 (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty. Article 7 (1) The entire school system shall be under the supervision of the state.

3. Legal Framework II • Federalism: organization of schools in Länder (state) competence • Neutrality of the state in matters of religion and philosophy of life • No state church • But: no laïcité either • rather: ‘open neutrality’ • Decisions by Federal Constitutional Court (FCC) on Christian state schools (Baden-Württemberg) and education according to Christian principles (Bavaria): accepted as constitutional • Also accepted: school prayer • BUT: no identification with a religion

4. Part I: Symbols Installed by the State: the Crucifix decision • Bavarian Regulation: ‘In every classroom a cross shall be affixed’ • Constitutional complaint by pupils and their parents: violation of Article 4 (negative freedom) • FCC: • The cross as a Christian symbol • Definition of negative freedom of religion • Interference with that freedom by a symbol

5. Part I: Symbols Installed by the State: the Crucifix decision • Dissenting opinion • Criticism voiced by commentators • Follow-up: • Amendment to Bavarian legislation • Teachers demanding removal of the cross

6. Part II: Symbols Worn by Teachers: the Ludin Saga • Facts: • female Muslim primary school teacher (German national) insisted on wearing a headscarf at school • Was applying for her first job • Authority refused to employ her for lack of aptitude • Legal Background • Teachers employed as civil servants (Beamte) • Article 33 (2) Basic Law Every German shall be equally eligible for any public office according to his aptitude, qualifications and professional achievements.

7. Part II: Symbols Worn by Teachers: the Ludin Saga • Federal Administrative Court • Confirmed authority’s decision • Aptitude requires prognosis whether candidate will fulfil their duties • Wearing of headscarf protected by Article 4 • But restrictions possible • Neutrality of the state • Negative freedom of religion of pupils • Federal Constitutional Court • Successful complaint • Technical argument: denial to employ a teacher for the reasons stated requires explicit legislative basis, which was missing

8. Part II: Symbols Worn by Teachers: the Ludin Saga • FCC (cont’d.) • On the headscarf as a religious symbol: subjective test • On interference with negative freedom of pupils: objective test • Explicitly distinguished the crucifix decision • Criticism • Dissenting opinion • Interesting that it was not questioned that there could be an interference • Commentators • Distinction to crucifix not convincing

9. Part II: Symbols Worn by Teachers: the Ludin Saga • Ludin follow-up: • Legislation passed in Baden-Württemberg to ban headscarf • Ludin lost in Federal Administrative Court • No further complaint made • Legislation: in 8 out of 16 Länder: ban • In 6 Länder: privileging of Christianity? ‘the [...] portrayal of Christian and Western cultural and educational values does not contradict the conduct required of teachers’ • Federal Administrative Court:

10. Part III: Symbols Worn by Students • Difference to teacher: forced to attend school • Interference with student‘s right to religious freedom would hardly be justifiable