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A general ban on headscarves for teachers at state schools is not compatible with the Constitution
Press Release No. 14/2015 of 13 March 2015
Order of 27 January 2015
1 BvR 471/10, 1 BvR 1181/10
In an order published today, the First Senate of the Federal Constitutional Court has decided that a general prohibition, incumbent on teachers in state schools, of expressing religious beliefs by outer appearance, is not compatible with their freedom of faith and their freedom to profess a belief (Art. 4 secs. 1 and 2 of the Basic Law, Grundgesetz – GG). Therefore, § 57 sec. 4 sentences 1 and 2 of the North Rhine-Westphalia Education Act (Schulgesetz Nordrhein-Westfalen - SchulG NW) have to be interpreted restrictively, in a way that is in conformity with the Constitution: to justify the prohibition, it is not sufficient that the expression of religious beliefs by outer appearance or conduct constitutes an abstract danger, it has to constitute a sufficiently specific danger of impairing the peace at school or the state’s duty of neutrality. § 57 sec. 4 sentence 3 of the Education Act, which is designed as a privilege of Christian-occidental educational and cultural values or traditions, violates the prohibition of discrimination on religious grounds (Art. 3 sec. 3 sentence 1 and Art. 33 sec. 3 GG) and thus is void. The decisions of the labour courts in the initial proceedings do not meet constitutional requirements; the Senate has reversed them and has remanded the cases to the Higher Labour Courts (Landesarbeitsgerichte). The Senate’s decision was reached by a majority of 6 votes to 2; Justices Schluckebier and Hermanns have attached a dissenting opinion. Vice-President Kirchhof did not participate in the proceedings (cf. Press Release no. 22/2014 of 13 March 2014). Justice Hermanns was designated as substitute through drawing of lots. Justice Gaier presided as the most senior Justice present.
Facts of the Case and Procedural History:
The constitutional complaints are directed against sanctions, as confirmed by the labour courts, imposed on the complainants after they refused to remove the headscarf, worn at school for religious reasons, or the woollen hat worn as a replacement. Indirectly, they also challenge § 57 sec. 4 and § 58 sentence 2 of the Education Act of North Rhine-Westphalia in the version of 13 June 2006 (SchulG NW).
Pursuant to § 57 sec. 4 sentence 1 SchulG NW, at school, teachers may not publicly express views of a political, religious, ideological or similar nature which are likely to endanger, or interfere with, the neutrality of the Land with regard to pupils and parents, or to endanger or disturb the political, religious and ideological peace at school. Under sentence 2, conduct that might create the impression among pupils or parents that a teacher advocates against human dignity, the principle of equal treatment, fundamental freedoms or the free democratic order is prohibited. Pursuant to sentence 3, carrying out the educational mandate in accordance with the Constitution of the Land and presenting (Darstellung) Christian and occidental educational and cultural values accordingly do not contradict the prohibition set out in sentence 1. These provisions apply to other educational staff, including socio-educational staff, employed by the Land, § 58 sentence 2 SchulG NW.
Both complainants are Muslims of German nationality. The complainant of proceedings 1 BvR 471/10 has been employed in a state comprehensive school in North Rhine-Westphalia as a social educator since 1997. She followed the request by the school authority to remove the headscarf while on duty, but substituted it by an off-the-shelf pink-coloured beret with a knit band and a polo-neck pullover of the same colour to cover her neck. Following this, the school authority issued a warning. Her lawsuit brought to the labour courts was unsuccessful at all levels of jurisdiction. The complainant of proceedings 1 BvR 1181/10 entered into a private employment contract with the Land North Rhine-Westphalia in 2001. She taught the Turkish language for native speakers at several schools. After the complainant had refused to discard the headscarf while on duty, the Land first issued a warning and then dismissed her. Her lawsuits at the labour courts that were directed against these measures were unsuccessful.
Key Considerations of the Senate:
The admissible constitutional complaints are mainly well-founded.
1. With regard to educational staff expressing religious beliefs by outer appearance § 57 sec. 4 sentences 1 and 2 and § 58 sentence 2 SchulG NW are only compatible with the Basic Law when interpreted restrictively.
a) The freedom of faith and the freedom to profess a religious or ideological belief (Art. 4 secs. 1 and 2 GG) guarantees teachers at interdenominational state schools the right to adhere to a rule to cover oneself that is considered to be binding due to religious beliefs. When assessing which conduct qualifies as exercise of religious beliefs in a given case, one has to take into account the self-perception both of the relevant religious community and of the individual concerned. However, the state authorities may analyse and decide whether it has been made plausible, with sufficient substantiation, that the conduct can actually be attributed to the scope of application of Art. 4 GG. This holds true for the complainants. It does not matter that the exact content of the female dress code is quite disputed among Islamic scholars and that some schools of Islam do not have such a compulsory rule. It is sufficient that this interpretation exists in different schools of Islam and can be traced back to two verses in the Quran, in particular.
b) The interference with the complainants’ freedom of faith is serious. They did not merely invoke a religious recommendation. Rather they have plausibly demonstrated that, in their case – and in accordance with the self-perception of some Islamic groups –, covering themselves in public constitutes an imperative religious duty, which, in addition, as has been plausibly shown, touches upon their personal identity (Art. 2 sec. 1 in conjunction with Art. 1 sec. 1 GG). Therefore, a ban on covering the head when teaching may even block their access to the teaching profession (Art. 12 sec. 1 GG). The fact that this effectively means that mainly Muslim women are being kept away from qualified professions as teachers or other educational staff needs justification when seen against the backdrop of the requirement to achieve real equality of women in practice (Art. 3 sec. 2 GG).
c) This interference is disproportionate if the labour courts base it on an interpretation of § 57 sec. 4 sentence 1 SchulG NW according to which a mere abstract danger to the peace at school or to the neutrality of the state are sufficient for a prohibition.
aa) The legislature of the Land North Rhine-Westphalia pursued legitimate aims when prohibiting the expression of religious beliefs by outer appearance or conduct by introducing § 57 sec. 4 sentence 1 SchulG NW. The legislature’s aims are to preserve the peace at school and the neutrality of the state and thereby to safeguard the educational mandate of the state, to protect conflicting fundamental rights of pupils and parents and thereby to prevent conflicts from the outset.
bb) Concerning the assessment of facts and new developments, the legislature possesses a prerogative of evaluation. However, the legislature has to strike a fair balance, taking into account the weight and importance of the educational staff’s fundamental freedom of faith and freedom to profess a belief, and to respect the limit set by reasonableness in its overall assessment.
(1) Wearing clothes with a religious connotation does not per se constitute an interference with the pupils’ negative freedom of faith and freedom to profess a belief (Art. 4 secs. 1 and 2 GG). As long as members of the teaching and educational staff do not verbally promote their position or their faith and do not try to influence the pupils apart from their outer appearance, pupils are only confronted with the positive freedom of faith as exercised by educational staff, which, in addition, is relativised and compensated by the conduct of other members of staff with adherence to different faiths or ideologies. In this respect, the religious-pluralist society is mirrored in interdenominational schools.
(2) Nothing else can be derived from the fundamental right of parents (Art. 6 sec. 2 GG). Art. 6 sec. 2 GG does not entail a right to keep pupils away from the influence of such educational staff that follows a common religious rule to cover the head.
(3) Moreover, the state’s educational mandate (Art. 7 sec. 1 GG), which has to be carried out in accordance with the state’s duty to observe religious and ideological neutrality, does not as such conflict with female educational staff exercising their positive freedom of faith by wearing an Islamic headscarf. The state’s educational mandate may only justify a prohibition of conduct that has plausibly been shown to be based on a religious duty perceived as imperative if there is a sufficiently specific danger to the peace at school or to the neutrality of the state.
(a) The religious and ideological neutrality required of the state is not to be understood as a distancing attitude in the sense of a strict separation of state and church, but as an open and comprehensive one, encouraging freedom of faith equally for all beliefs. This is also true with regard to the sphere of school, for which the state has taken responsibility. The mere visibility of the religious or ideological affiliation of individual members of educational staff is not as such precluded by the neutrality of the state in religious and ideological matters.
(b) The strict prohibition of the expression of religious beliefs by outer appearance or conduct, which is applicable in the whole Land and for which a mere abstract danger to the peace at school or to the neutrality of the state is deemed sufficient, cannot reasonably be imposed on the holders of fundamental rights in cases such as these. The ban unreasonably restricts their freedom of faith. If individual members of educational staff wear a headscarf, this does not entail identification of the state with a particular faith – quite different from the case of a cross or crucifix in the classroom that has been installed by state authorities. In addition, the complainants follow a commandment of faith which they have plausibly shown to perceive as imperative. Thus their freedom of faith attains much higher weight in the balancing process than would be the case if the question referred to a non-imperative rule.
This is different if the outer appearance of educational staff constitutes a sufficiently specific danger to, or impairment of, the peace at school or state neutrality or contributes to such danger or impairment. In this case it would be reasonable to expect the educational staff to refrain from following the rule to cover their heads that they perceive as imperative. In addition, there might be a constitutionally relevant legal interest to prohibit expressions of religious belief by outer appearance or conduct for a certain amount of time in a more general way if, at certain schools or in certain school districts, due to considerable conflict situations regarding adequate religious conduct the threshold of sufficiently specific danger to the peace at school or to state neutrality has been reached in a substantial amount of cases. At first, however, it would have to be considered whether it would be possible to employ the person concerned in other educational environments.
As long as the legislature has not established a more differentiating regime, restricting the freedom of faith of educational staff [in a way that does not leave any room for its exercise by outer appearance at school] can only be the appropriate result of balancing the relevant constitutionally protected legal interests if it can be shown that there is at least a sufficiently specific danger to the neutrality of the state or the peace at school. This is particularly true when considering that it is precisely the task of “interdenominational” (“bekenntnisoffen”) schools in particular to convey to pupils the idea of tolerance with regard to other religions and ideologies. It has to be possible to lead a life according to this ideal, even if this entails wearing clothes with a religious connotation, as – apart from the headscarf – the Jewish kipah, the nun’s habit, or symbols such as a cross worn visibly. In general, merely wearing an Islamic headscarf does not constitute a sufficiently specific danger. Wearing an Islamic headscarf as such does not have the effect of promoting the Islamic belief or even proselytising. Even if a majority of Muslim women does not wear an Islamic headscarf, it is not uncommon in Germany. The mere visual perceptibility of an Islamic headscarf at school has to be accepted as the result of the exercise of fundamental rights, as there is, as usual, in general, no constitutional right to be spared of exposure to the exercise of other religious or ideological beliefs by other people.
d) These conditions of interpretation apply accordingly to § 57 sec. 4 sentence 2 SchulG NW. Taking into account the content of the fundamental right guaranteed by Art. 4 secs. 1 and 2 GG, it is wrong to presume that wearing an Islamic headscarf or other headgear indicating a specific religious denomination in itself constitutes a conduct in the sense of § 57 Abs. 4 sentence 2 SchulG NW that might give rise to the impression among pupils or parents that the person wearing it opposes human dignity, the principle of equal treatment pursuant to Art. 3 GG, fundamental freedoms, or the free democratic basic order. Such a general assumption is impermissible. If wearing the headscarf points to an individual decision on how to dress, on how to deal with tradition and how to express personal identity, or indicates that the wearer is a Muslim who strictly adheres to the rules of covering the head that she considers to be imperative for religious reasons, this cannot be interpreted to imply renouncing the constitutional principles mentioned in § 57 sec. 4 sentence 2 SchulG NW without any additional facts. Likewise, one may not infer from the fact that some Islamic schools of thought, without setting further conditions, demand of women to wear a headscarf to meet the requirement of covering the head that they, with regard to their believers, demand, recommend or hope for a conduct directed against human dignity, the principle of equal treatment according to Art. 3 GG, fundamental freedoms, or the free democratic basic order.
e) The challenged decisions of the regular courts, particularly those of the Federal Labour Court (Bundesarbeitsgericht), do not meet the standards of the required restrictive interpretation in conformity with the Constitution. Therefore, they violate the complainants’ fundamental right protected by Art. 4 secs. 1 and 2 GG.
2. § 57 sec. 4 sentence 3 SchulG NW, which aims at conferring a privilege on presenting Christian and occidental educational or cultural values and traditions constitutes a discrimination against adherents of other religions which violates the prohibition of discrimination on grounds of faith and religious beliefs (Art. 3 sec. 3 sentence 1, Art. 33 sec. 3 GG).
a) According to the concept of the legislature, as seen in the legislative process, the overall design of § 57 sec. 4 SchulG NW was meant to provide in sentence 3 for an exemption from the prohibition on the expression of religious beliefs by outer appearance or conduct of sentence 1 and thereby to cause direct discrimination on religious grounds. This unequal treatment cannot be justified under constitutional law. If the legislature prohibits expressions of religious beliefs by outer appearance or conduct of educational staff at school, in general, this has to be done without discrimination.
b) There are no tenable reasons to discriminate against expressions of religious beliefs by outer appearance or conduct that cannot be traced back to Christian-occidental cultural values and traditions. While some argue that an objective observer would perceive women wearing an Islamic headscarf as proponents of an extensive unequal treatment of men and women, including in the legal sphere, and therefore this conduct would cast doubts about the aptitude of such a person for practising educational professions, such a general assumption is impermissible. In addition, such a reason cannot serve as justification, as, under a generalising perspective, it does not provide a reason for differentiation for all non-Christian-occidental cultural values and traditions.
c) Likewise, there are no tenable justifications for favouring expressions relating to Christian or Jewish faith. The educational mandate of the state cannot justify favouring office holders of a certain denomination when establishing official duties. As far as provisions of the constitutions of the Laender may be interpreted to contain references to Christian values of the state school system, this is meant to refer to secularised values of Christianity.
d) It is not possible to interpret § 57 sec. 4 sentence 3 SchulG NW restrictively in conformity with the Constitution as the Federal Labour Court has done in its decisions. The Federal Labour Court has argued, inter alia, that “presenting” (“Darstellung”) Christian and occidental educational and cultural values in the sense of sentence 3 is not identical with “expressing” (“Bekundung”) an individual faith in the sense of sentence 1. Furthermore, the word “Christian” was held to mean a set of values stemming from the tradition of Christian-occidental culture, but not connected to Christian beliefs. Such an interpretation surpasses the limitations of interpreting a legal provision in conformity with the Constitution and is not compatible with the principle that the judiciary is bound by the law (Art. 20 sec. 3 GG). Such an interpretation is impossible due to the unequivocal intent of the legislature [to the contrary]. This intent has not been changed by discussing the possibility of interpreting the provision restrictively before concluding the legislative process; this only shows that the Landtag (state parliament) was aware of the risk of incompatibility of the law with the Constitution.
In the interpretation of the Federal Labour Court, § 57 sec. 4 sentence 3 SchulG NW only serves to clarify the meaning of the provision. Nonetheless, in this case, a provision would remain in force which, due to its wording, could be interpreted extensively as allowing discriminating administrative practice, and whose vagueness in this regard has been deliberately maintained during the legislative process. Therefore, § 57 sec. 4 sentence 3 SchulG NW, on which the challenged decisions are also based, is to be declared void due to its incompatibility with Art. 3 sec. 3 sentence 1, Art. 33 sec. 3 GG.
Dissenting Opinion of Justices Schluckebier and Hermanns
1. From a constitutional point of view, there is no call for the restrictive interpretation of § 57 sec. 4 sentence 1 SchulG NW as demanded by the Senate. In comparison to the weight attributed to the educational staff’s freedom of faith, such an interpretation gives too little weight to the importance of the educational mandate of the state, which is to be carried out under a duty of ideological and religious neutrality, to the protection of the constitutionally guaranteed parental right to raise their children and to the pupils’ negative freedom of faith. The Senate curtails the margin of appreciation of the Land legislature acting in the field of the school system and education that exists when weighing legal interests in multipolar fundamental rights situations, which are typical in interdenominational state schools.
a) The Senate departs from the criteria and guidelines developed in the so-called Headscarf Decision by the Second Senate on 24 September 2003 (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 108, 282). In this decision, the Second Senate had held that the legislatures of the Laender (states) are responsible and free, particularly with regard to state schools, to regulate the scope of religious references permitted at school, or to completely ban such references from school due to a stricter understanding of the principle of neutrality. The Land legislature’s freedom of discretion includes the possibility to decide to keep pupils away from the religious references evoked by the outer appearance of the educational staff, to avoid conflicts with pupils, parents or other members of the educational staff right from the start. In the interest of predictable constitutional jurisprudence, those criteria, which the legislature of the Land North Rhine-Westphalia and the legislature of other Laender have taken as basis of their respective statutory provisions, should have constituted the legal framework of the evaluation of the case at hand under constitutional-law aspects.
b) When acting on matters of school and education, the Land legislature can rely on good and sound reasons to deem an abstract danger to the peace at school and the neutrality of the state sufficient to justify a general prohibition of expressions of religious beliefs made by way of one’s outer appearance. Choosing this solution to pursue this legitimate aim determined by the legislature is both appropriate and reasonable.
aa) In our view, the Senate’s analysis that educational staff wearing clothes with a religious connotation does not interfere with the pupils’ negative freedom of faith and with the fundamental right of parents is not in line with reality. It neglects the fact that the relationship between educational staff and pupils is one of specific dependency to which pupils and parents are subjected not merely briefly, and without the possibility to avoid it. The responsibilities of the educational staff include educating and assessing pupils (§ 57 sec. 1 SchulG NW). Therefore, the exposure to the expression of religious beliefs is much stronger than in the context of everyday life. Furthermore, at school, the members of educational staff interacting with the pupils serve as a role model to them. The educational staff members’ conduct, including their adherence to certain religious rules of clothing, is perceived by persons who, due to their youth, have not yet fully established their beliefs. A truly open discussion on adhering to a religious dress code in cases where members of educational staff are individually concerned in the specific context of the relationship of dependency established at schools is only possible to a limited extent, if at all. Eventually, clothing with a religious connotation worn by members of the educational staff may trigger or further conflicts among the pupils or the parents.
bb) Members of the educational staff are entitled to enjoy their freedom of faith as individuals. However, at the same time they are holders of a public office and thereby also bound by the principle of supportive neutrality of the state with regard to religious matters. This is due to the fact that the state cannot act as an anonymous being, but only through the holders of a public office and members of educational staff. Therefore, the state’s duty of neutrality cannot be different from the duty of neutrality incumbent on its holders of a public office.
cc) When deciding on the mostly preventive ban at hand, the legislature was able to base its decision, inter alia, on expert opinions given by teachers and other members of educational professions as consulted during hearings in different Landtage. Those opinions illustrated the importance of a general, uniform, statewide prohibition of the expression of religious beliefs in the case of a merely abstract danger for the peace at school and neutrality of the state. Additionally, it is clear that limiting the application of the prohibition to cases in which there is a sufficiently specific danger will result in difficulties in practice when it comes to collecting evidence and proving such a case. Those difficulties will have to be solved with the participation of pupils and parents and will reinforce a personalisation of the conflict, which is rather detrimental when carrying out the educational mandate.
dd) Basing one’s decision on the fact that the state only tolerates the individual exercise of the educational staff‘s fundamental rights not directly attributable to the state and that pupils merely have to look at certain clothing of educational staff that is obviously based on their individual decision, falls short of the constitutionally necessary standard. Such a simplified differentiation between symbols attributable to the state, on the one hand, and clothing with a religious connotation worn by educational staff, on the other hand, negates the influence that educational staff exercising their fundamental rights might exert on pupils.
c) To sum up, in our opinion, it is not constitutionally objectionable to prohibit expressions of religious belief by the outer appearance of educational staff even if there is only an abstract danger to the peace at school and the neutrality of the state. In accordance with the jurisprudence of the European Court of Human Rights, it is necessary to limit the application of this provision to cases in which the clothing has strong religious connotation. When acting on matters of the school system or education, the Land legislature is constitutionally free to allow references to religions to a large extent, for example if it considers this to be appropriate in the interest of teaching tolerance and understanding [of other cultures, traditions or beliefs]. However, it is under no constitutional duty to do so.
2. The Federal Labour Court’s interpretation of § 57 sec. 4 sentence 3 SchulG NW, which stipulates that carrying out the educational mandate of the school in accordance with the Constitution of the Land North Rhine-Westphalia and presenting Christian and occidental educational and cultural values or traditions do not contravene the rule pursuant to sentence 1, is in line with the principle that the judiciary is bound by the law (Art. 20 sec. 3 GG) and is not objectionable under constitutional law. We agree with the Senate that interpreting sentence 3 of § 57 sec. 4 SchulG NW in the sense of a clause really exempting from the prohibition of sentence 1 by favouring certain beliefs would not be compatible with the Constitution, because this interpretation would violate the principle of equal treatment. However, the interpretation chosen by the Federal Labour Court avoids such a result. It is compatible with the wording of the statute, by no means does it contradict the unequivocal intent of the legislature, and it does not give a completely new meaning to the normative content of the provision. It is true that the initiators of the bill, when proposing sentence 3, initially thought that traditional clothing having its roots in the Christian or the Jewish faith might be permitted, even when the Islamic headscarf was not permissible. These ideas have changed during the legislative process, which was defined by many different influences. In addition, the Landtag has passed the law taking into account the Federal Administrative Court‘s restrictive interpretation of an identical provision to the one at hand. This interpretation was taken up by the Federal Labour Court when rendering the challenged decisions.
3. In our opinion, concurring with the Senate in the final analysis, the constitutional complaint of the complainant in the proceedings 1 BvR 471/10 is well-founded. The coverage used, a woollen hat and a polo-neck pullover of the same colour, does not have a religious connotation as such and is not automatically open to an interpretation as strong religious statement even in the given context of a school. However, according to the standards set out above, the constitutional complaint of the complainant in the proceedings 1 BvR 1181/10 does not seem to be well-founded.