22 March 2016

In a landmark ruling on the role of religious symbols in public schools in March 2015, the German Federal Constitutional Court (Bundesverfassungsgericht) decided that a generalised prohibition of the hijab in schools was unconstitutional, as was any privileging of Christian or Jewish symbols. The Court asserted that neither the rights of third persons nor the religious neutrality of the state would be challenged if a female teacher decided to wear the hijab at her workplace. An infringement of the teachers’ freedom of religious expression by not allowing her to wear the headscarf was only legitimised by the ruling in cases where massive religious rows would undermine the school’s ability to teach.

In the German federal system, educational matters are, by and large, decided at the level of the country’s 16 states. In the mid-2000s, 8 West German states had introduced various forms of a headscarf ban in public schools, sometimes but not always accompanied by a strengthening of Christian symbolism. As the only state to conclusively amend its legal framework following the Court’s verdict, the state of North Rhine-Westphalia has since issued a new law that discontinued the ban on the headscarf and has gone further in defining public schools as spaces of religious freedom and tolerance of different beliefs and expressions thereof.

By contrast, most other states have been reluctant to implement the Court’s decision. Bremen and Lower Saxony merely informed their schools via decrees that it was now permissible to employ teachers wearing the hijab while not moving to create a state law that would explicitly entrench this new policy. In Bavaria, the conservative government has retained its laws imposing the headscarf ban, as well as a privileging of ‘Christian-occidental’ symbols, in contravention of the Constitutional Court. So far, this has not been challenged in court by any teacher wearing (or wishing to wear) the hijab.

The situation is even more complicated in a number of other states. The state of Hesse has implemented an extremely onerous procedure of dubious legality in which each and every teacher wishing to wear the hijab is vetted in order to test whether her religious convictions constitute a danger for the order and the educational mission of the school. This vetting process also applies to teachers wearing the kippah. In Baden-Württemberg, the Green-led government has begun the legislative process of revoking the existing headscarf ban amidst considerable public debate; yet after the recent state elections this law is still in limbo. In the state of Berlin, the SPD-led government has so far not amended its ban of the headscarf and of the kippah in teaching employment and a range of other public-sector jobs, since it conceives of this ban as in tune with state neutrality towards religion because it extends to all religious symbols. In all of these states, hijab legislation will most likely be amended only when female Muslim teachers choose to use juridical means and sue state agencies in order to force them to comply with the Court’s ruling. Aside from the possibility to opt for the long march through the courts, female Muslim teachers desiring to wear the hijab are thus generally at the mercy of their immediate superiors and school principals and their willingness to allow the headscarf at their schools.

The Court’s original ruling can be found at: http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2015/01/rs20150127_1bvr047110.html

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