French law on secularity and conspicuous religious symbols in schools

 
The French law on secularity and conspicuous religious symbols in schools bans wearing conspicuous religious symbols in French public (e.g., government-operated) primary and secondary schools. The law is an amendment to the French Code of Education that expands principles founded in existing French law, especially the constitutional requirement of "laïcité": the separation of state and religious activities.
The bill passed France's national legislature and was signed into law by President Jacques Chirac on 15 March 2004 (thus the technical name is law 2004-228 of 15 March 2004) and came into effect on 2 September 2004. The full title of the law is "" (literally "Law #2004-228 of 15 March 2004, concerning, as an application of the principle of the separation of church and state, the wearing of symbols or garb which show religious affiliation in public primary and secondary schools").
The law does not mention any particular religious symbol, and thus bans Christian (veil, signs), Muslim (veil, signs), Sikh (turban, signs), Jewish and other religious signs. It is, however, considered by many to target the wearing of headscarves (a khimar, considered by many Muslims to be an obligatory article of faith as part of hijab ["modesty"]) by Muslim schoolgirls. For this reason, it is occasionally referred to as the French headscarf ban in the foreign press. In addition, the law is seen by some as disproportionately affecting Muslims, arguing that Christians rarely wear oversized crosses, and Sikhs have successfully lobbied to be able to wear a simple under-turban, whereas Jews have greater opportunities to enroll children in private Jewish religious schools owing to their long presence in the country.
Background.
Islamic view of headscarves.
In Islam, Hijab is a duty prescribed on all Muslims, though in the matter discussed in this article it only applies to women. Hijab is often equated with the idea of modesty in all senses including personal, physical and social. While it prescribes restrictions and practices for both men (such as, for example, restraining one's thoughts from objectification of women and covering the aspects of oneself that attract others to them, incorporating the chest and between the navel and knee for many Muslims) and women, it is most known for its religious prescription for a woman to dress modestly and cover her hair.
While for some Muslims the concept of hijab is seen as balanced and consistent with ideas of gender equality, others see the religious prescription on female covering as chauvinistic, patriarchal, oppressive and an enforcement on women and against their rights. Most Muslims living in Western societies concede outright that the forcing of women to wear the headscarf is against Islamic precepts and cannot be accepted, but social pressure can in some cases be strong.
A number of Islamic feminists see the wearing of the headscarf, and particularly of the full-face veil such as the niqāb, as oppressive of women. French activist and politician Fadela Amara has thus stated: "The veil is the visible symbol of the subjugation of women, and therefore has no place in the mixed, secular spaces of France's public school system."
French education system.
Education is compulsory in France up to the age of 16. The French system of primary and secondary education consists of:
Schools in the first two categories are required to apply the same national curricula as defined by the Ministry of Education. The curriculum for schools in the third category is free, provided that students receive at least some minimal skills in writing, mathematics, etc. The law discussed in this article only applies to government-operated schools, in the first category.
The French government highly subsidises private elementary and secondary schools, even those affiliated with religious organizations, as long as they apply the same curriculum as the public schools, with the same academic standards, and that they do not discriminate on grounds of religious affiliation nor make religious education compulsory. It is for instance common that children of agnostic or otherwise non-religious families, or children of families from other religions, are put in Catholic schools, if their parents judge these schools to offer better conditions of education or to be more convenient. Consequently, families can use private schools at moderate costs. While there are no accessible official national statistics on the costs of private schools, typical prices per year for low-income families are in the range of a few hundred euros. The average costs are €500 a year per student; however, this statistic includes very expensive, exclusive schools. In addition, according to the figures from the secretariat, more than half of schools have established a price schedule taking into account a family's income; as a result, costs to parents can be as little as €20 to €30 per school month per student.
In addition, the French government operates a distant learning agency, the CNED, which is another solution for families impacted by the normal rules or schedules of public schools.
History.
Since 1905, France has had a law requiring separation of church and state, prohibiting the state from recognizing or funding any religion. Schools directly operated by the national or local governments must not endorse or promote any religious dogma (whether endorsing an existing religion or endorsing atheism or any other philosophy). Schools funded totally or in part by the national and local governments by law must not force students into religious education; 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 practice Catholicism), government-operated 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.
In France, historically, differences between religions (or later between religious and non-religious people) have often resulted in deep divisions of society, from the 16th-century Wars of Religion to the late 19th-century Dreyfus Affair. The relations between the Church of France and the state were disputed under Louis XIV (see Gallicanism); they were severely strained under the Revolution of 1789, when the constitutional government of the National Assembly promulgated the Civil Constitution of the Clergy and the Church divided into the constitutional clergy, who accepted it, and the ultramontanes who did not. Roman Catholicism was recognised as the faith of the majority of French citizens, but Napoleon also named Judaism and the Lutheran and Reformed Churches as officially recognised by the state. Although these four 'official' religions received state funding and protection (until the 1905 law as above), they were not given the status of a religion of the state. France had begun to view faith as a matter for each individual citizen rather than for a nation as a whole.
As a result of this history, religious manifestations are considered undesirable in government-operated schools; primary and secondary schools are supposed to be neutral spaces where children can learn away from political or religious pressures, controversies and quarrels. Because of this neutrality requirement, students are normally prohibited from conducting religious proselytising or political activism on the premises.
Civil servants are expected to stay neutral with respect to politics or religion when they discharge their duties. More generally, they are expected to keep a certain reserve and not make comments or demonstrations that may be interpreted as political, religious, or other bias in the course of their duties or as an endorsement of particular religious or partisan political views by the government. Teaching personnel in government-operated schools must not, by law, endorse any political or religious point of view; they may also face sanctions for wearing overt religious symbols.
1980s and 1990s.
For many years school administrators have accepted, or tolerated, that schoolchildren wear symbols of their various religions, such as a Christian student wearing a cross, or a Jewish student wearing a kippah. However, there was some leeway and uncertainty in those matters, and occasionally some students faced disciplinary action for overly ostentatious attire.
Many people find crosses and yarmulkes acceptable, but not headscarves, for a variety of reasons. Some feminists do not consider them as religious symbols, but as symbols of female alienation, or dangerous signs of mounting "communautarisme" (ethnicisation of social relationships, which the French do not view favorably), rising Islamist movements, or attacks on the Republic, are sometimes deemed 'foreign' and 'un-French'. However, some people regard the wearing of headscarves as a feminist choice and do not view this as fundamentally different from other choices relating to clothing. The fact that most Muslims in France come from former French colonies has added a racist/antiracist tint to the debate. The issue has deeply divided France and debate has raged on ever since.
The issue of religion has wider implications than the mere wearing of headscarves, which contributed to the complexity of the debate. Occasionally, Muslim students have refused to attend certain classes when they or those influencing them deemed aspects of their faith to be contradicted (such as swimming classes or physical education); or insisted on attending them in Islamic garb, thus raising the question of whether this purported solution denatured the intended activity.
The wearing of the headscarf was also criticized as a means to enforce peer pressure on the girls not wearing it. One defense against this argument was that the ratio of Muslim girls to other girls was not always high in classrooms, and that scarf wearing did not necessarily reflect proselytizing intent; but a countervailing relevant issue was that the relevant group being pressured was Muslim girls not wearing the scarf, who could sometimes be endangered inside or outside school unless they submitted to wearing the scarf like their classmates.
Because of the absence of unambiguous law, action was taken on a case-by-case basis against students wearing ostensible religious garb, with differences of practice between establishments. School administrators, in such cases, were taken into legal, social and media quarrels far beyond their ordinary responsibilities. This was highlighted by the 1989 "Affaire du Foulard" ("the headscarf affair"), when three young girls were expelled from their school in Creil, near Paris, for refusing to take off their headscarves. This caused such an uproar that administrators realized something had to be done soon to regain control.
Because of these difficulties, public powers sought a more consistent approach. In 1989, the Minister of Education requested the legal analysis of the "Conseil d'État" on the issue of whether or not school administrators could, or should, expel students for wearing religious symbols, within the current framework of applicable regulations, laws, constitutional rights and international conventions. The general assembly of the "Conseil" gave a detailed analysis, containing the following opinion:
It results from the above that, in teaching establishments, the wearing by students of symbols by which they intend to manifest their religious affiliation is not by itself incompatible with the principle of laïcité, as it constitutes the free exercise of freedom of expression and of manifestation of religious creeds, but that this freedom should not allow students to sport signs of religious affiliation that, due to their nature, or the conditions in which they are worn individually or collectively, or due to their ostentatious and provocative character, would constitute an act of pressure, provocation, proselytism or propaganda, or would harm the dignity or the freedom of the student or other members of the educative community, or would compromise their health or safety, or would perturb the educational activities or the education role of the teaching personnel, or would trouble public order in the establishment or the normal functioning of the public service.
On 2 November 1992, the "Conseil" ruled that a school regulation prohibiting all philosophical or religious signs, including those that were worn, was excessively sweeping and against the principle of "laïcité".
On 14 March 1994, the "Conseil" ruled that a school regulation prohibiting any headgear was excessive (the intent of this regulation was to prohibit the wearing of certain religious signs). The "Conseil" found that this regulation was excessively sweeping, without a clear need for it to be so.
On 10 March 1995, the "Conseil" upheld the expelling of three students from a highschool, on the basis that the three students gravely perturbed classes, infringing on school rules and the alleged prohibition of proselytism. One factor was the insistence of the students on wearing the scarf during sports classes, which was deemed inappropriate attire for such an activity. It also upheld some stipulations of the school regulations which restricted the wearing of signs of a religious, philosophical or political character, with the same legal analysis as the 1989 one cited above.
On 11 September 1995, three families appealed before the "Conseil" rulings of lower administrative courts, which had upheld decisions by high schools to exclude their daughters because they wore the veil; and the Minister of Education appealed rulings of lower courts that had declared illegal three exclusion decisions. The actual legal reasons differed slightly; however, in every case, on 27 November 1996, the "Conseil" ruled that the children had been inappropriately expelled, considering that the headscarf worn by the student, while it expressed the student's religious beliefs, did not have a protest or ostentatious character, nor did wearing it constitute in any case an act of pressure or proselytism.
The opinion and the decisions of the "Conseil", which established some kind of case law, still left a considerable margin of appreciation to school administrators, which led to many tensions and embarrassments. It was thus argued that clear and consistent rules should be enacted.
Stasi commission's report.
In July 2003, French President Jacques Chirac set up an investigative committee ("commission Stasi") to examine how the principle of "laïcité" should apply in practice. It consisted of 20 people headed by Bernard Stasi, then ombudsman of France ("médiateur de la République"). While an obvious focus of the commission was wearing religious attire in public schools, the commission noted in its report that the issues went further.
The Stasi Commission published its report on 11 December 2003, considering that ostentatious displays of religion violated the secular rules of the French school system. The report recommended a law against pupils wearing "conspicuous" signs of belonging to a religion, meaning any visible symbol meant to be easily noticed by others. Prohibited items would include headscarves for Muslim girls, yarmulkes for Jewish boys, and turbans for Sikh boys. The Commission recommended allowing the wearing of discreet symbols of faith such as small crosses, Stars of David or Fatima's hands.
The Senate commission based its report on multiple sources: school representatives, headmasters, teachers; political associations, such as Ni Putes Ni Soumises or SOS Racisme; representatives of the main religions; or leaders of human-rights organizations.
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 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.
Most of the debate has centered on hijab – the Islamic dress code, which may include a headscarf for women, but more generally, on the wearing of religious or political symbols in schools. The wearing of headscarves 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 by some to a rise in extremist activity in France, in particular in poor immigrant suburbs. However intellectuals such as Xavier Ternisien of Le Monde Diplomatique have maintained that the indubitable rise in religious observance is not linked with Islamic extremism, but with the frustration of children of immigrants no longer accepting to remain invisible as their parents often were. Further it is often associated with the idea of Muslim communities feeling settled and established in, and thus a part of, in French society such that they feel comfortable in expressing their identity.
The Commission identified the following positions with regard to wearing the Muslim headscarf:
The purpose of dressing according to hijab varies from person to person. Some women see the headscarf as a way to preserve their modesty and prevent any sexual attractions as in western countries. Some see it as a form of liberation above the sexualisation and consumerism of modern society. Others see it as a patriarchal article intended to keep women hidden and subservient.
The representatives of the main religions and leaders of human rights organisations 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.
The Commission said that the Republic must clarify this situation.
A section of the report which received less media attention recommended that the school system make Yom Kippur and "Eid" (festival) into vacation days each year: currently, only some Christian holidays are vacation days (see Holidays in France); students who want to celebrate other festivities have to take some work day off with the authorisation of their parents. However, for critics and Muslims this did not balance out affairs: the banning of Muslim girls from freely choosing to wear an article of faith, seen by them as a religious obligation, could not be balanced with the permission to celebrate a religious festival, which is not obligatory at all.
The report also recommended enacting a ban on conspicuous symbols of political affiliation. The French National Assembly has not taken up these proposals.
The Commission also noted that occasionally 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.
Law creation and interpretations.
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.
On 10 February 2004, the lower house voted by a large majority (494 for, 36 against, 31 abstentions) in support of the ban, which includes the caveat that the ban will be reviewed after it has operated for one year.
The initiators of the law are said to have particularly targeted two items of clothing: the headscarf and the veil (French: "foulard" and "voile" respectively); however the law mentions neither and just addresses "ostentatious" ("conspicuous") symbols. Because of its terse, broad, vague terms, the law will leave a lot of its interpretation to the administrative and judicial authorities.
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. Rather than encourage public participation of such women, her participation in school deliberations while entirely covered was highly criticised. It was finally tolerated.
In order to enforce the law, effective decisions whether certain items are "ostentatious" or not will have to be taken. In order to achieve that:
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 significantly curtail its application — especially given the inherent margin of appreciation of what is ostentatious or not.
The law will apply in France and its overseas territories (which France administers as a part of its metropolitan territory), but it is likely that appropriate enforcement measures will depend on the local context, given the margin of appreciation offered by the law. Overseas Countries and Territories with a large Muslim community will receive some exemptions. For example, it was suggested that Mayotte girls may wear small bandanas and light veils ("kishall").
Public reaction.
France.
The proposed ban was extremely controversial, with both sides of the political spectrum being split on the issue.
In 2004, French Cardinal Bernard Panafieu, the Archbishop of Marseilles called the ban "unenforceable". While agreeing that some Muslim immigrants have had trouble adjusting to a "lay, pluralistic society" he asserted that the ban was wrong as it prevented Muslims from "asserting their identity" and that it would be "better to act through persuasion than by compulsion" if the state wanted to limit the use of religious symbols.
Population.
On 14 February 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."
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. 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.
Complex reasons may influence why an individual either supports or opposes this amendment. They range from ensuring sex equality, preventing girls from being pressured into wearing the headscarf, boys into wearing turbans (for example), or a desire to see the Muslim community assimilated into French society on the one hand; to uphold freedoms of expression or conscience or religion, preventing the state from imposing restrictions on what a person can or cannot wear, preventing state victimisation of a minority group and opposing what may be seen as discrimination against Muslims or 'the other'.
Political reactions.
While all major political parties were somewhat divided on the issue, all major parties (the majority UMP and UDF, the opposition PS) supported the law.
However, André Victor, member of Workers' Struggle wrote in his article "Islamic Hijab and the Subjugation of Women" 25 April 2003 that "Sarkozy has spoken out against hijab on passport photos, and presumably earned the approval of millions of voters, which was probably the real purpose of this exercise in demagoguery[...] Therefore, this policy leads to increase the weight of the most reactionary religious authorities within the immigrant population."
Legal arguments.
Some critics have raised a legal point: they see the law as incompatible with the European convention on fundamental human rights. The Stasi Commission responded: "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; it therefore seems highly unlikely it would declare the French law contrary to the Convention.
Another piece of legal criticism is that a full-fledged law was not needed to enforce a measure that basically amounts to a new set of school regulations. Any binding document of lesser value (such as a "décret" or an "arrêté ministeriel") would have had a similar effect. Since the writing of the Napoleonic Code, a principle of French law has been that it must be, in the words of the great legislator Portalis, "general and abstract." Critics therefore argue that, by legislating on issues that could be solved with texts other than laws, the French legislature lowers the values of the law in general. Article 34 of the Constitution of France vests power in Parliament to legislate on the "fundamental principles of teaching", leaving the application of these principles to the executive branch. By legislating on such minutiae, the argument goes, Parliament may have overstepped the "domain of the law" ("domaine de la loi") that is set out by the Constitution only for the sake of pleasing the media and some interest groups.
However, a counter-argument is that the "Conseil d'État", ruling according to current statute law, considered that sweeping prohibitions of religious attire or headgear by administrative authorities was contrary to law.
Opposition.
Human rights NGOs.
Some international human rights' organisations criticised the law. Human Rights Watch stated:
The proposed law is an unwarranted infringement on the right to religious practice. For many Muslims, wearing a headscarf is not only about religious expression, it is about religious obligation.
The United States Commission on International Religious Freedom said:
In February 2004, the Commission issued a public statement expressing concern over the proposed new law. The Commission expressed particular concern that the proposed restrictions may violate France's international human rights commitments. The Commission also stated that though increased immigration in France in recent years has created new challenges for the French government, including integration of these immigrants into French society as well as problems of public order, these challenges should be addressed directly, and not by inappropriately limiting the right to freedom of thought, conscience, religion, and belief. The French government's promotion of its understanding of the principle of secularism should not result in violations of the internationally recognized individual right to freedom of religion or belief.
In 2012, the United Nations Human Rights Committee stated that the expulsion of a Sikh pupil from his school in 2008 because of his Sikh turban or keski was a violation of the International Covenant on Civil and Political Rights signed by France.
Jihadists.
Several members of Al-Qaeda criticized the law: Ayman al-Zawahiri criticized the law in 2004 and considered it to be part of an ongoing campaign against Islam by "Crusaders", Abu Mus’ab al-Zarqawi criticized the law in 2005. In 2009 Al-Qaeda in the Islamic Maghreb called France the "mother of all evils" and urged revenge against France for its “fierce war on our daughters who wore Hijab”.
International.
Various commentators outside of France condemned the law based on what they saw as its racist implications. Susan Price, an Australian activist, argued that "the wedge-politics of racism has always been used to divide the working class, which in France pulled off spectacular rolling strikes against the government in 2003," adding that "the current attack must also be seen as part of a continuum of racist policies which go back to the mid-1990s and the 'Fortress Europe' policies of the major European capitalist governments" designed "to appeal to the support base of Jean-Marie Le Pen's right-wing National Front (FN)."
Similar arguments were made at the time by American anti-racist activist, Sharon Smith, who added the claim that Muslim women in France opposing the 2004 law were fighting against the same "state-imposed oppression" as women in Afghanistan were opposing by seeking freedom to choose to refrain from wearing burkas.
Enforcement.
The law came into effect on 2 September 2004, with the new school year. In September 2005, the Ministry of Education reported that only 12 students showed up with distinctive religious signs in the first week of classes, compared to 639 in the preceding year. A number of students have elected to take state-provided distance-learning classes from CNED. There was one case of a Sikh student in the "académie" of Créteil, who refused to remove his turban.
The decision caused an outcry from many Muslims across the world, calling it a violation of freedom of practicing their religion. In addition to protests of a few thousand people in Paris, there were protests of up to a few hundred people in other countries, especially in the Muslim world.
As a consequence of the law, the years following the ban has seen an increasing number of Islamic secondary schools being established, some Muslim female students chose to study at home, and others left France with their families.
Interpretation.
In some schools, the ban was also applied to long skirts and headbands. In April 2015, a 15-year-old schoolgirl in northeastern France was sent home for wearing a long skirt deemed an "ostentatious sign" of the girl's Muslim faith by the principal. It caused further controversy and infuriated many of the country's Muslims, who saw the school system's censure of the girl as discriminatory. The Collective Against Islamophobia in France has documented 130 similar cases across France between January 2014 and April 2015.