French law on secularity and conspicuous religious symbols in schools

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The French law on secularity and conspicuous religious symbols in schools is an amendment to the French Code of Education banning students from wearing conspicuous religious symbols in French public, primary, and secondary schools.

The law expands principles founded in existing French law, especially the constitutional requirement of laïcité: the separation of state and religious activities. This amendment prohibits conspicuous religious symbols and clothing being worn by students in public primary and secondary schools. The amendment further supports the French constitutional provision of freedom of opinion, including religious opinion.

The bill has passed France's national legislature and was signed into law by President Jacques Chirac on March 15, 2004 (thus the technical name of law 2004-228 of March 15, 2004). It came into effect on September 2 at the beginning of the new school year.

The law does not mention any particular symbol, though it is considered by some to specifically address the wearing of headscarves by Muslim schoolgirls.

Contents

The law

The full title of the bill is "Loi encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics." (This could translate as: "Law, as part of the implementation of the principle of laïcité, on wearing symbols or clothing that indicate religious adherence in publicly-operated schools, colleges [11-15 years] and lycées [16-18 years].")

The law is very brief; it says, in addition to technical dispositions:

"In public elementary schools, junior high schools and high schools, students are prohibited from wearing symbols or attire through which they conspicuously exhibit a religious affiliation.
Note that the internal regulations [of the schools] require disciplinary procedures to be preceded by a dialogue with the student."

Two important points must be taken into account:

  • this law concerns only public primary and secondary schools; it does not concern other public spaces, nor does it concern public universities or other establishments of higher education (but there already are other restrictions in place, such as the obligation of reserve and neutrality of French civil servants);
  • this law does not concern private establishments, even if they get public subsidies;
  • the French government highly subsidises private elementary and secondary schools, even those affiliated to religious organizations, that apply the same curriculum as the public schools, with the same academic standards, and that do not discriminate on grounds of religious affiliation nor make religious education compulsory; as a consequence, families who do not wish to abide by the normal disciplinary rules of public schools can use private schools at moderate costs.

Background

History

Since 1905, France has had a law requiring separation of church and state, prohibiting the state from recognizing or funding any religion. Schools in France which receive all their funding from public sources must not, by law, promote any religion; they should remain equally accessible to children of any, or no, faith. For example, even though a majority of the population nominally professes Catholicism (although far fewer regularly practise Catholicism), state-funded French schools have no communal prayers, religious assemblies, or Christian crosses on the walls. The Constitution of France says that France is a laïque (roughly, secular) Republic.

For many years school administrators have however tolerated schoolchildren wearing symbols of their various religions, such as a Christian student wearing a cross, or a Jewish boy wearing a yarmulke (French: calottes). However, there was some leeway and uncertainty in those matters. School administrators were supposed not to allow religious or political demonstrations; occasionally, action has been taken on a case-by-case basis against students wearing ostensible religious garb.

Since the late 1980s, increasing numbers of young Muslim girls have worn headscarves (French: voiles) in schools. Many people find crosses and yarmulkes acceptable, but not these headscarves, for a variety of reasons. The issue has divided France, at least in some circles, and debate has raged on ever since.

The issue has wider implications than the mere wearing of headscarves, which contributed to the complexity of the debate. Some Muslim students have refused to attend certain classes, such as biology classes, whose teaching they disagreed with; or they have refused to attend physical education classes, or insisted on attending them in garb judged inappropriate for the activity. On some occasions, Muslim girls failing to wear the veil have been threatened by Muslim males who felt their lack of modesty was inappropriate.

The majority of French people welcomed the 2004 statute, if for no other reason than the fact the French government has finally acted, taken the decision out of the hands of individual school principals, and created a law at the national level.

Complex reasons may influence why an individual either supports or opposes this amendment in favor of laïcité. They range from upholding the principle of laïcité, ensuring sex equality, preventing girls from being pressured into wearing the headscarf, or a desire to see the Muslim community 'assimilated' into French society on the one hand; to upholding the rights of individuals of any religion to dress as their religion requires or opposing what may be seen as discrimination against Muslims on the other.

The Stasi Commission and the build up to the enforcement

In July 2003 the French President Jacques Chirac set up an investigative committee (la commission Stasi) to examine how the principle of laïcité should apply in practice. It consisted of 20 people headed by Bernard Stasi, the ombudsman of France.

The Stasi Commission published its report on December 11 2003, ruling that ostentatious displays of religion violated the secular rules of the French school system. The report recommended a law forbidding pupils from wearing "conspicuous" signs of belonging to a religion, meaning any visible symbol meant to be seen. Prohibited items would include headscarves for Muslim girls, yarmulkes for Jewish boys, turbans for Sikh boys and large Christian crosses. The Commission recommended allowing the wearing of discreet symbols of faith such as small crosses, Stars of David or Fatima's hands. The previous system had left the decision to individual schools and their principals, some of whom chose to exclude Muslim girls who refused to remove their headscarves, but the majority of whom did not.

The investigation of the Commission originated in a long debate over headscarves that has divided France since 1989, when l'affaire du foulard ("the headscarf affair") saw two young girls expelled from their school in Creil, near Paris, for wearing headscarves. However, as the Commission noted in its report, the debate covered more than the issue of the veil.

The Senate commission based its report on multiple sources: school representatives, headmasters, teachers; local associations, such as Ni Putes Ni Soumises or SOS Racisme; representatives of the main religions; and leaders of human-rights organizations. In 2003 Nicolas Sarkozy (the minister for domestic affairs at the time) set up the French Council of the Muslim Faith, which the State now officially recognises as a discussion partner for such issues. This council, however, is merely a private nonprofit association and has no special legal standing, nor is it universally accepted as being representative of the opinions of Muslims residing in France.

The Commission's report emphasised that publicly-funded schools in France should transmit knowledge, teach students critical awareness, assure autonomy and openness to cultural diversity, and encourage personal development. Schooling aims both to train students for a professional career, and also to make them into good citizens of the French Republic. The report states that such a mission presupposes fixed common rules, like gender equality and respect for secularity.

However, since the 1990s, many schools have fallen short of this ideal. Many cultural clashes have occurred, leading to violence, threats to individual freedom, and problems with public order in general. Most of the debate has centered on hijab – the Islamic dress code, which may include a veil for women – but more generally, on the wearing of religious or political symbols (such as Nazi symbols) in schools. The wearing of veils in school started comparatively recently in mainland France (since the late 1980s), and has become the focus of the conflict. The increasing number of visible headscarves has been attributed to a rise in extremist activity in France, in particular in poor immigrant suburbs.

The Commission identified the following positions with regard to wearing the Muslim veil:

For those wearing it, the veil can have different meanings. The wearers may have exercised a free personal choice to wear the veil; or external pressure may have forced them to do so. Most French people find this idea of constraint or pressure particularly intolerable when it relates to young girls (some girls start wearing a veil before the age of 11). For those not wearing it, the meaning of the Islamic veil stigmatised the young girl or the young woman as responsible for attracting male desire, a vision which fundamentally contradicts the principle of equality between men and women – although this overlooks the fact that the Qur'an instructs all Muslims - both men and women - to dress modestly. The purpose of dressing according to hijab varies from person to person. Some women see the veil as a way to preserve their modesty, submit to Allah, and to achieve respect equally regardless of physical appearance; others, forced to wear it against their wishes, see it as a way to keep women hidden and subservient, and as a way to justify violence towards women who choose not to wear it.

For the whole of the school community, the fact that some students wear a veil very often becomes a source of conflict and division. Many teachers resent the veil's visibility: they believe it goes against the goal of schools to function as places of neutrality and of critical awareness. Some people also see the veil as a threat to the principles and values that the schools must teach – for example laïcité, but more importantly equality between the sexes. Many French female teachers, in particular, hold this position. As a consequence, school representatives want a clear framework, a nation-wide policy, and a decision taken by the country's political authorities following from a public debate. Most school representatives, principals, and teachers want a law forbidding all visible symbols, so that school principals alone need not determine whether a symbol worn by a pupil gives offence or not.

The representatives of the main religions and leaders of human rights organizations have expressed several objections to a law banning the wearing of religious symbols. They believe it will lead to the stigmatisation of Muslims, exacerbate anti-religious sentiment, promote the image of a France that restricts personal freedom, and encourage Muslim girls to drop out of schools if they feel forced to choose between schooling and their faith.

Recently however, in addition to the issue of the veil, tension (mostly over religious issues) and even violence in schools has increased in France. Many school representatives have faced these issues alone for 20 years now, often in difficult areas (officially recognised as such), already plagued by student violence and rejection of the principles of education. They have highlighted the tensions provoked by the claims of religious and group identities, like the formation of gangs, for instance. They express concerns about the frequent violence toward themselves as well, in particular toward female teachers.

Local associations also frequently call for help for young girls and women, daughters of immigrants, living in problem areas. They see these girls as the silent majority and as victims of pressures within the family or within the neighbourhood. Local associations believe these girls need protection and, with this in mind, they asked the political authorities to issue strong warnings to Islamic fundamentalist groups.

Local associations noted in particular that a lot of pressure goes on young girls to force them to wear the veil - pressure which did not occur to the same extent 20 years ago (even though France had a Muslim population of a similar size at that time). The girls' families, in particular their brothers (more often than their fathers) sometimes force them to dress and act in ways they do not choose to of their own free will. The brothers may see the fact their sisters show their hair or wear jeans instead of dresses as signs of western depravity. In that case brothers may abuse and threaten their sisters. Several well-known cases have occurred where persons have regarded young Muslims girls who refused to adopt the veil and dress code as "prostitutes" and have subjected them to gang rape. This view of the veil receives particular emphasis from the now famous (in France) feminist group Ni Putes Ni Soumises (Neither Whores Nor Submissives), which campaigns to defend the right of women to go without the veil - if they wish - without losing their status as "decent" women, and not just to be seen as sex-objects for men to abuse freely for their pleasure.

The Commission said that the Republic must face this situation, and that schools must remain a place of freedom and emancipation for women.

A section of the report which received less media attention recommended that the school system stop acknowledging Christian holidays exclusively, that it celebrate Yom Kippur and Eid each year, and also that it ban conspicuous symbols of political affiliation. The French National Assembly has not taken up these proposals.

The Commission also noted that some pupils refuse to attend school because of the presence of teachers of the opposite sex, or refuse to attend certain classes (such as gymnastics or swimming lessons). The Commission suggested that only schools or state-recognised doctors (not simply parents) should have the right to grant exemptions.

The creation of the law

In December 2003, President Jacques Chirac decided to act on the part of the Stasi report which recommended banning conspicuous religious symbols from schools. This meant that the legislature could adopt the recommendations, according to the emergency procedure, in January or February, ready for application at the start of the next school year in September 2004. The President had formed the Commission because he felt that wearing religious symbols in schools had become no longer just a question of freedom of conscience, but one of political order.

On February 10, 2004 the lower house voted by a large majority (494 for, 36 against, 31 abstentions full results in French (http://www.laic.info/Members/webmestre/La_laicite_en_France.2004-02-11.3232)) in support of the ban, which includes the caveat that the ban will be reviewed after it has operated for one year.

The law will apply in France and its overseas territories (which France administers as a part of its metropolitan territory), but Overseas Countries and Territories with a large Muslim community will receive some exemptions. For example, Mayotte girls may wear small bandanas (salouva) and light veils (kishall).

As with all rules in the Republic, schools should use sanctions as a last resort.

Interpretation

The law is written in broad, vague terms. As a consequence, much will be left to the interpretation of the administrative and judicial authorities:

  • the Minister of Education will issue circulaires, or instructions for its services; it seems that large crosses, full hijabs or yarmulkes would be banned, while small symbols such as small Stars of David or crosses in pendants would not be;
  • headmasters will have to judge whether particular attire is or not acceptable with respect to the law;
  • if necessary, families will go to administrative courts; a final decision may not be reached until the Conseil d'État at litigation, supreme administrative court, decides some points of jurisprudence.

The law itself may not be challenged before French courts (since this would have warranted action before the Constitutional Council before the signing of the law); however, the courts may curtail its application.

The initiators of the law essentially targeted two items of clothing: the headscarf and the veil (French: foulard and voile respectively). However, the law does not mention any item by name, and the actual scope of its application remains unclear.

The headscarf (sometimes referred to as the hijab in both French and English) covers the hair, ears, neck, and sometimes the shoulders, but not the face. Most Muslim girls who cover their heads in school wear such a headscarf. More rarely, girls may also wear a complete dress covering their body (djelbab). The full or Afghan burka, which covers the entire body except for a slit or grille to see through, occurs more commonly as the dress of an adult woman than that of a schoolgirl. A recent controversy occurred when a mother who wore a full burka became a representative of parents in a city school. Her participation in school deliberations while entirely covered was highly criticized, but finally tolerated.

Public reaction

The proposed ban has attracted a high level of controversy. On February 14, 2004, the Associated Press reported that "Thousands of people, many of them women wearing headscarves, marched in France ... to protest a law banning the Islamic coverings and other religious apparel in public schools.". However, it must be pointed out that thousands of people nationwide constitute, by French standards, a fairly small protest.

Polls suggest that a large majority of the French favour the ban. A January 2004 survey for Agence France-Presse showed 78% of teachers in favour. (in French (http://www.laic.info/Members/webmestre/Revue_de_presse.2004-02-04.2241/view)) A February 2004 survey by CSA for Le Parisien showed 69% of the population for the ban and 29% against. For Muslims in France, the February survey showed 42% for and 53% against. Among surveyed Muslim women, 49% approved the proposed law, and 43% opposed it. [1] (http://economist.com/world/europe/displayStory.cfm?story_id=2404691)

While all major political parties were somewhat divided on the issue, all major parties (the majority UMP and UDF, the opposition French Socialist Party) supported the law. Jean-Marie Le Pen's Front National, a party advocating anti-immigration policies, does not support it.

Arguments against banning headscarves from schools include:

  • if a girl decided to wear one freely, the ban might force her to choose between schooling and her faith
  • if parents force a girl to wear a headscarf, they may pull her out of the public schools and, for instance, send them to a Koranic school, which may even reduce the openness of education they receive
  • if a girl wears one because of peer pressure and fear of harassment, she will perhaps not feel less pressured or less afraid after the ban

Some have seen the ban as targeting the Muslim population of France — the nation's largest religious minority. Many Muslim leaders have expressed their opposition to the ban, as have some Jewish, Christian, and civil liberties groups. The lawmakers admitted that they did not take into account France's small Sikh population, whose males have a religious obligation to cover their heads, and who may also be banned from wearing their covering. Some Muslims also argue that hijab forms a part of a cultural tradition rather than part of a religious tradition and as such does not conflict with the tradition of laïcité in French schools.

French Jews have not expressed significant opposition to the law. Some think that Jewish people hope that such a law will prove a step in the direction of less gang violence toward Jewish boys, such as has occurred in past years.

Some critics have raised a legal point: they see the law as incompatible with the European convention on fundamental human rights. The Commission dismissed that argument: The European Court in Strasbourg protects laïcité when it is a fundamental value of the State. It allows limits to the freedom of expression in public services, especially when it is a matter of protecting minors against external pressures.. The Commission considers that the expression of an individual's religion in the French state has to comply with the basic rules regarding the secular nature of the state and has to comply with the requirements of equality between the sexes and the safeguarding of the rights of minors. Similar debates on the education of girls in headscarves have long raged in secular-yet-Muslim Turkey; the European Court of Human Rights upheld the laws of Turkey, which are more restrictive than the French law [2] (http://www.ledevoir.com/2004/06/30/58018.html); it therefore seems highly unlikely it would declare the French law contrary to the Convention.

On 30 August 2004, despite demands from armed Islamic militants holding two French hostages (Georges Malbrunot and Christian Chesnot) in Iraq, France upheld its ban on religious symbols and clothing, including that against Muslim headscarves.

Enforcement

The law came into application on September 2, 2004, with the new school year. According to statistics from the French government [3] (http://news.tf1.fr/news/france/0,,3171904,00.html), out of 12 million students, only 240 girls attempted to come to school with a veil; 170 agreed to take it off, and 70 conciliation procedures were started. 2 female collège (junior highschool) students, Dounia and Khouloudewere, aged 12 and 13 respectively, were the first to be expelled under this law for refusing to take off their headscarves on the 20th October 2004, from a school in Mulhouse, Alsace. At the end of the first semster, according to François Fillon, Minister for Education, 48 students have been expelled under the new law.

See also

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