The French Council of State has recently pronounced on an issue that has attracted much attention from the media and public opinion. The issue of the wearing of religious symbols in schools, and their prohibition in deference to a 'strong' conception of secularism, is in fact almost traditional by now, but it does not cease to remain central in the political agendas of western legal systems, especially the French one.

 

The facts are quite simple. Following the decision of the transalpine Minister of Education and Youth to prohibit pupils in state schools from wearing the abaya and the qamis, typical traditional Islamic garments, the association 'Action droits des musulmans' brought an immediate appeal before the administrative judge, requesting an urgent suspension of the implementation of the decision.

Not even two weeks after the ministerial circular, the Council of State thus rejected the association's request, adhering to the government's position and its reasons. The minister, on 31 August 2023, had in fact declared that wearing the abaya or the qamis in public schools was an obvious manifestation of religious affiliation, and therefore prohibited by Article L. 141-5-1 of the French Education Code, promulgated by the law of 15 March 2004. This is the well-known provision whereby in public schools, collèges and lycées it is forbidden to wear signs or clothing by which pupils ostentatiously manifest a religious affiliation.

 

The Palais-Royal judges considered, on the basis of the summary inquiry, that the ban imposed by the minister did not violate the law, as it did not seriously and manifestly infringe any fundamental right: the right to privacy, freedom of religion, the right to education, respect for the best interests of the child or the principle of non-discrimination.

Moreover, the Council of State also noted that during the 2022-2023 school year there was a sharp increase in the number of reports of pupils wearing the abaya or qamis in schools. The judge noted that this trend was part of an obvious process of religious affirmation, as was evident from comments made during interviews with pupils.  However, the law prohibits pupils from wearing religious symbols or conspicuous clothing that show, either by themselves or by the pupil's behaviour, their membership of a religion and, for these reasons, the Muslim organisation's appeal must be dismissed.

 

It could be seen, therefore, as another step in the direction desired by the well-known Law No. 1109 of 2021 on the 'reinforcement of respect for the principles of the Republic' so much desired by President Macron. One of the pillars of the ambitious project, whose primary objective is to counter the threat of religious separatism - first and foremost, of course, Islamic separatism - is in fact represented by the school environment, identified as the most relevant place for education in republican citizenship. In this context, for example, the principle that "instruction obligatoire est donnée dans les établissements ou écoles publics ou privés" is reaffirmed. This rule can be waived - subject to authorisation granted annually and for proven reasons by the competent authorities - only for instruction given "dans la famille par les parents, par l'un d'entre eux ou par toute personne de leur choix"; thus, by making those with parental authority directly responsible for the minor, the aim is to reduce the possibility of families entrusting their children's education to improvised denominational schools, while at the same time providing for strict control by the public authorities.

Again, following the tragic affair of Samuel Paty, law no. 1109 introduced into the penal code the specific crime of obstructing the duties of a teacher, thus demonstrating the will to particularly protect those who, more than anyone else, are deputed to transmit republican values to the youngest.

The final piece in this mosaic is precisely the decision of the Minister of Education and Youth, as well as the consequent pronouncement of the Council of State, which is reported here. The aforementioned symbols and garments, the abaya and qamis, do not in fact hinder the recognition of the wearer, nor do they pose any problem of public safety; however, they unequivocally represent a sign of religious affiliation, and this aspect is ipso facto sufficient to fall within the scope of the prohibition laid down in Article L. 141-5-1 of the French Education Code, without this, in the opinion of the administrative judge, causing any violation of fundamental freedoms.

 

(Comment by Alessandro Negri)