Religious & Non-religious Minorities, State Neutrality, and Access to Public School Education

1. Religious & Non-religious Minorities, State Neutrality, and Access to Public School Education Jeroen Temperman, Erasmus University Rotterdam

2. Outline • Why State Neutrality? • Access to Adequate Education • Position/Role of Teachers • Emerging State Duty to Include a Neutral Subject on Religion into Curriculum?

3. Why State Neutrality? • Primary School Education is Compulsory • Freedom of Religion or Belief argument: Children’s autonomous right to freedom of religion + Parental liberties • Access to adequate education argument • State Neutrality in Public School Education does not prejudice residual rights of parents to found and administer religious schools

4. Access to Adequate Education Key challenges/failures: • Religious education is made compulsory for children; • The state has ‘contracted out’ the issue of education to religious institutions, thus not actively making available sufficient adequate education; • The state fails to frame a supposedly neutral subject on religion truly in a non-confessional manner; • The state practices defective opt-out policies; • The state tolerates traditional forms of religious symbolism, affecting the compulsory non-confessional character of state schools; or: • The state de facto bars access to public school education by virtue of other policies, for instance regulations on dress codes.

5. Compulsory Religious Education Prevalent theory (HRCee & ECtHR): The state fulfils its human rights obligations flowing form the right to education and the right to freedom of religion or belief if it: • creates an public educational system (curriculum) which is designedly and sufficiently neutral or non-religious in itself; or: • in case it does allow religious instruction in public schools, if it grants adequate opt-out rights.

6. Education is ‘Contracted Out’ • Access issues: children of parents with dissimilar religious affiliations or of non-religious parents (HRCee) • Forced conversions, e.g. Ireland (cf. Mawhinney 2008) • Laissez-faire attitude towards education fosters religious segregation, e.g. UK (CESCR)

7. Introduction of a ‘Neutral’ Subject about Religions HRCee, Leirvagv. Norway;ECtHR, Folgerø and Others v. Norway: • Religious instruction disguised as neutral course: wrong objectives/unfair emphasis/proposed activities overtly religious • Compulsion element not remedied by defective opt-out policy • Requirement to provide reasons when availing of exemption scheme breaches privacy and religious rights What is a neutral religion subject?: the manner in which the subject is taught should reflect a profound commitment to the freedom of religion or belief of all pupils (cf. ODIHR, Toledo Guiding Principles on Teaching About Religions and Beliefs in Public Schools)

8. Defective Opt-Out Policies Exemption mechanisms do not remedy the compulsion element if: • Religion is tightly integrated with curriculum • Opt-out rights are not universally applicable • People are not informed about their rights Minimum conditions posed to exemption schemes: (i) religious instruction must be limited to a specific subject (and not inextricably interwoven with the educational system); (ii) exemptions must be open to everyone; (iii) people, both parents and children, must be informed about the availability of these schemes. Are adequate opt-out policies an illusion?: • Right to freedom of religion includes important privacy rights that are inevitably infringed upon in the course of availing of the exemption scheme • Marginalization/ostracization of exempted children See: Queen’s University Belfast, Opting Out of Religious Education: The Views of Young People from Minority Belief Backgrounds (2010)

9. Religious Symbolism Rationale/justification for far-reaching impact of state neutrality principle (à la Lautsi): human rights system premised on: • state duty to provide create an educational system which is designedly and sufficiently non-denominational (positive obligation); and • at the same respect for the residual right of parents not to avail of the schools established by the public authorities: respect for their right to establish or send their children to private, denominational schools so as to ensure the ‘religious and moral education of their children in conformity with their own convictions’ (negative obligation)

10. Secular Dress Codes • Distinction symbolism in public spaces (buildings) vs. individual religious attire (worn in private or public) • Discrepancy European Convention System and UN Monitoring Bodies • Distinction Teacher vs. Pupil largely ignored: how to define the ‘public square’? • Advanced grounds for limitation suitable in abstracto, but not sufficiently tested: necessary in democratic society in concreto?

11. Position of Teachers • Employing Public School Teachers • The Position & Role (Rights and Professional Duties) of Public School Teachers

12. Introducing Neutral Subject about Religions & Beliefs into Public School Curricula? • Strict Educational Secularism Possible? • Strict Educational Secularism Desirable? • Countering Stereotypes • Basic Understanding Main Religions • Human Rights Arguments: Promotion Religious Tolerance • Toledo Guidelines