Germany: The teacher head scarf case

International Journal of Constitutional Law

Volumn 3, Issue 1, 2005, Pages 86-94

  Langenfeld, Christine ^a   Mohsen, Sarah ^a  

^a UNIVERSITY OF GÖTTINGEN   (Germany)

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EID: 33746385494     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/moi005     Document Type: Article

References (35)

1. Judgment of September 24, 2003-BVerfGE 108, 282.
2. See Bundesgesetz, Teil I, May 23, 1949, BGBL.I [Federal Law Gazette], amended on July 26, 2002 BCBL.I 2862. The English version is available at http://www.bundesregierung.de/static/pdf/GG_engl_Stand_26_07_02.pdf.
3. As a recent example, see the decision of the Constitutional Court decision concerning ritual slaughter (Schächten) of 2002-Jan. 15 BverfGE 1793/99
4. NEUE JURISTISCHE WOCHENSCHRIFT 663 (2002).
5. See also Christine Langenfeld, Germany, 1 INT'L J. CONST. L. (I·CON) 141 (2003). That decision made clear that a Muslim butcher under certain circumstances may obtain an exceptional permit to perform ritual slaughter.
6. See the Constitutional Court's decision concerning the admissibility of nondenominational schools of Christian character, 1975-Dec. 17 BVerfGE 41, 29.
7. Order concerning the affixation of crucifixes in state compulsory schools, 1995-May 16BverfGE 93, 1.
8. The former Bavarian Volksschulordnung contained, in its §13, a provision that in every class room a cross should be displayed on the wall. After the decision of the Constitutional Court a clause was inserted that in case of conflict a compromise has to be sought by the school authority. See Bayerisches Gesetz über das Erziehungs- und Unterrichtswesen of May 31, 2000, in GVBI. Bayern 414 (2000), last amended on March 24, 2003, GVBI. Bayern 262 (2003).
9. This aspect becomes even more important in elementary schools where pupils are mainly taught by a single homeroom teacher.
10. See Decision of the Verwaltungsgerichtshof Baden-Württemberg (VGH) [Court of Appeal], June 26, 2001-4 S 1439/00, 39 NEUE JURISTISCHE WOCHENSCHRIFT 2899 (2001).
11. See Decision of 2002-July 4 BverwGE 116, 359 [Highest Administrative Court].
12. See also judgment of Oct. 16, 2000-1 of the Verwaltungsgericht Lüneburg (VG) [Trial Court] A 98/00 [hereinafter Trial Court Judgment], 10 Neue Juristische Wochenschrift 767 (2001).
13. The court declared that the wearing of an Islamic head scarf by an elementary schoolteacher of the Muslim faith does not constitute incapacity for public-sector employment, that the religious symbol cannot be regarded in isolation from the perspective of the bearer. The abstract danger of potential conflicts does not justify the denial of access to the civil service. On the contrary, the Islamic head scarf can even be interpreted as a contribution to the promotion of democracy and tolerance towards other religions as prescribed by §2 of the School Law (Schulgesetz) of Niedersachsen. The Higher Administrative Court of Lüneburg overruled this decision on 2002-Mar. 13-2 BverwGE 2171/01, 8 Niedersächsische Verwaltungsblätter 212 (2002).
14. According to Article 140 of the German Basic Law (GG), the provisions concerning the relationship between the State and the religious communities/churches of the Weimar Constitution (Arts. 136 to 139, 141) form an integral part of the Basic Law. The Weimar Constitution was adopted in 1919 as the constitution for the German Reich after the German Empire had been overthrown in the aftermath of First World War. Germany became a federal republic with a national president elected by universal suffrage for a seven-year term, a chancellor and a ministry appointed by the president, but responsible to the Reichstag. The Reichstag was composed of the deputies of the German people. A system of proportional representation was also established. The rights and duties of the individual were protected by a bill of rights. During the "Third Reich" (1933-1945), the Weimar Constitution was suspended. In 1933, the Reichstag passed the so-called enabling act, which was the first of a series of laws and decrees, that converted the democratic republic into a totalitarian state with Hitler as the supreme leader.
15. See Para. 75 of the decision, for the dissenting opinions of Judges Jentsch, Di Fabio, and Mellinghoff, who consider the complaint not to be well founded. From their point of view, a legal reservation had not been made in the present case. The prohibition of the Islamic head scarf, therefore, could be left to the discretion of the school administration. It lies in the exclusive competence of the Constitutional Court to judge regarding the ultimate range of fundamental freedoms and not in the hands of the parliament. The dissenting judges also make the criticism that the majority's decision risks an imbalance between legislative and executive power. They assert that the principle of neutrality directly emanates from the Constitution and, therefore, has to be respected by the state and its officials. The fundamental freedoms of a teacher are functionally limited and thus do not have the same weight as the rights of children and their parents. It is up to the employer to give a prognosis regarding the applicant's willingness to fulfill the prescribed duties. The judges also stress that the decision must not be based on a concrete endangerment of school peace.
16. See Federal Administrative Court's Judgment of June 24, 2004-2 C 45.03 (full text not yet available to the public).
17. See amended law of April 1, 2004, GVBI. Baden-Wurttemberg 178 (2004). According to the press release published by the court, the new law was considered to comply fully with the principles laid down in the decision of the Constitutional Court. The Federal Administrative Court held that the provisions applied equally to all religious affirmations and thus did not constitute discrimination against the Muslim faith. As a consequence, the teacher's request for employment was rejected. It is not yet clear whether the claimant will appeal the decision to the Constitutional Court.
18. See Decision of the Federal Administrative Court on the amended law, supra note 13.
19. See Law of April 29, 2004, GVBI. Niedersachsen 140 (2004). The provision concerning teachers' appearance is §51 (3).
20. See Trial Court Judgment, supra note 10.
21. In the case of a Muslim schoolteacher in Niedersachsen, the administration rejected the request for employment without any indication of a concrete threat to school peace. Neither were there any complaints presented by pupils or their parents. In the meantime, the teacher agreed not to wear the head scarf during class lessons. As a consequence, the pending case before the Federal Administrative Court was concluded without judgment.
22. June 2004.
23. See Document No. 12/1072, available at http://www.landtag-saarland.de. The final text is not yet published in the official journal.
24. Document No. 15/368, §59(2), available at http://www.bayern.landtag.de.
25. Document No. 16/1897 neu, available at http://www.hessischer-landtag.de.
26. Hessisches Beamtengesetz §68(2) and Hessisches Schulgesetz §86(3), respectively.
27. All the draft laws (as well as those already enacted) provide exemptions for the teacher-training period, on the theory that the state has a monopoly on teacher education and that this provision is accordingly required in order to guarantee the teacher's occupational freedom, as laid down in Article 12 of the Basic Law. However, the exemption seem inconsistent in that teachers also conduct classes during their training period and thus could conceivably have the supposed negative influence on their pupils the laws are meant to forestall.
28. Para. 71 of the Court's decision, supra note 1.
29. European Convention on Human Rights, 213 U.N.T.S. 221, also available at http://www.echr.coe.int/Eng/BasicTexts.htm.
30. See Decision of the European Court of Human Rights, Dahlab v. Switzerland, February 15, 2001-Application No. 42393/98, available at http://hudoc.echr.coe.int/default.htm.
31. See Decision of the European Court of Human Rights, Leyla Sahin v. Turkey, June 29, 2004-Application No. 44774/98, available at http://hudoc.echr.coe.int/default.htm. The other case, that of Zeynep Tekin v. Turkey, Application No. 41556/98, was struck from the list after the claimant withdrew her application without specifying a reason.
32. For details see the Stasi Report at http://www.publicsenat.fr/dossiers.
33. Report No. 1275 of Mr. Jean-Louis Debré, President of the Parliament, at http://www.assemblee-nat.fr.
34. See Law No. 2004-228 of March 15, 2004, J.O. March 17, 2004, p.5190, J.C.P 2004, III page 640. The text is also available at http://www.legifrance.gouv.fr.
35. It is understood, however, that in exceptional cases, where instruction is negatively influenced by the appearance of a pupil, a prohibition on such clothing may be compatible with the provisions of the law.