November 04, 2014
Co-authored by Yousra Benfquih* and Saïla Ouald Chaib**
As in many other countries in Europe, the wearing of religious signs has been the topic of heated debate in Belgium. This has been the case for public servants, teachers, employees in private firms and the wearing of religious signs by pupils in school. It is the latter issue that was the subject of two recent judgments of the Belgian Council of State (Conseil d’Etat, Belgium’s highest administrative court), judgments that might prove to mark a watershed in the Belgian discourse on headscarf bans, freedom of religion and the right to education of pupils. (The judgments are in Dutch and can be found here and here) The judgments are furthermore interesting because of their inclusive comprehension of neutrality through systematic reference to the case law of the European Court of Human Rights. This post will start by briefly shedding light on the structure of the Belgian education system and the implementation of a ban on religious signs in Flanders. We will subsequently highlight the crucial parts of the judgments of the Council of State (hereafter ‘the Council’) and conclude with some reflections.
Education system in Flanders
In Flanders, the education system comprises the subsidized privately run network – mainly consisting of Catholic schools – and the subsidized public network consisting of municipal and provincial education and the GO! (“het Gemeenschapsonderwijs”) Flemish Community Education. The latter, with which the present judgments are concerned, is constitutionally bound to provide neutral education, meaning that it must respect the philosophical, ideological or religious views of the parents and pupils.
This constitutionally guaranteed educational neutrality lies at the heart of the cases. Traditionally, the position of the Board of the ‘GO!’ Flemish Community Education (hereafter ‘the Board’) was one of positive neutrality, inter alia reflected in active pluralism being a key value of their pedagogical project. Until recently, the concrete implementation of the principle of neutrality was left to the local autonomy of each school. In practice, several schools introduced a headscarf ban. Many others followed suit, and as a consequence of the ensuing domino-effect – with equivalent ripples in the pond of the private schools – the schools in the city of Antwerp permitting the wearing of religious signs became scarce. When the latter also changed course, in 2009, large protests took place and several organizations mobilized against the bans. This is when the Board of the GO! decided to introduce a general ban on religious symbols for students and staff in all its schools in Flanders. A ban that, and this is also accentuated by the Council of State, de facto was mainly directed towards the headscarf and consequently disparately impacted on female Muslim students.
Several complaints were introduced before the Council of State, some directed against the general ban and others against individual school regulations. The former were declared inadmissible, with the general ban being qualified as a preparatory measure of internal order and thus not a judicially reviewable act. In light of their directly binding nature for the pupils, the Council focuses solely on the school regulations of the educational institutions concerned. In doing so, however, the Council does take a clear stance on the general ban as such as well. Although the litigious bans primarily targeted the headscarf in schools, Sikh pupils wearing a turban or patka were also victims of the ban. In two judgments, one concerning Sikh pupils and one concerning Muslim pupils, the Council of State now finds that the school regulation go against their fundamental rights.
Judgment of Council of State
The Council first critically examines the several aims invoked by the Board. Relying on the principle of equality of opportunities in the field of education, the Board argues that it wants to avoid the (non)existence of a ban in schools being a possibly exclusive determining factor for the school choice of parents and pupils. The Council responds firmly that the right to parental school choice does not include the right to demand that their children would not be exposed to the religious signs worn by other pupils. There can only be an exception to this rule in case these signs are worn in an ostentatious way as a deed of aggression, pressure, provocation, proselytism or propaganda.(§36) These exceptions aside, the Council furthermore fails to see how the mere wearing of religious signs would jeopardize the school’s ability to provide objective and pluralistic education enabling pupils to develop a critical mind. Hence, the Council’s choice for an inclusive model of neutrality is loud and clear.
Second aim for the Board’s ban concerns the prevention of certain behavior that is (allegedly) incompatible with their pedagogical project; the first of which being the exercise of moral pressure on female pupils who do not wear religious signs (thus in particular regarding headscarves). The Council accepts this as a legitimate aim, but not without issuing an immediate caveat. Basing itself on the ECtHR judgment in SAS v. France (at §119), the Council underlines that a prevailing majority view on the equality of men and women does not suffice to justify a restriction on of a freely chosen religious practice.(§37.2) The Council explicitly joins the Court’s view, that such a practice (in casu the wearing of the headscarf and not the niqab), is an expression of cultural identity that contributes to the religious pluralism inherent to a democracy. The second situation allegedly targeted by the ban is the school choice being exclusively determined by the presence of a ban instead of the pedagogical project. This in particular refers to (Muslim) parents and children choosing for a school where the wearing of e.g. a headscarf is allowed. The Council rejects this, as it forms an infringement of the right to free school choice. Interestingly, the underlying objective of school desegregation is also denounced, which for the Council cannot be a legitimate reason to – by means of a ban disparately impacting on Muslim girls – indirectly discourage their enrollment. Hence, the indirectly discriminatory nature of the ban is highlighted. Third reason for the ban – certain religious symbols (read: the headscarf) growing into expression of political-societal views – is also dismissed, as the relationship with problematic behavior remains unclarified for the Council.
Final but ultimately most central justification put forward by the Board for the general ban on religious insignia is that of neutrality. Qualifying the principle of neutrality as an operational rule of the public service, the Council draws a fundamental line between teachers as providers of the public educational service on the one hand, and pupils as beneficiaries of this service on the other hand. Very carefully, it nonetheless accepts neutrality as a legitimate aim in the case of pupils but only to the extent that their behavior would impact the school’s capacity to provide neutral education. As such, this position of the Council differs little from that of the Strasbourg Court in cases such as Kervanci v. France. However, it is at the level of the proportionality assessment that the Council choses a radically different and more inclusive path.
Although the Council clearly recognizes that it falls within the Board’s competence to give meaning to the principle of neutrality, it does not accept the transposition of the ECtHR principle of the wide margin of appreciation in matters of religion to the domestic level. The Council clarifies that it is its duty to evaluate whether the national authority, in this case the Flemish education board, used their discretionary role in a justified manner in the specific situation.
In this regard it is noteworthy that the European Court of Human Rights’ reference to this wide margin of appreciation in cases concerning religious freedom has been highly debated. In the Strasbourg Court’s case law, this notion very often led to a hands off approach leaving the applicant’s rights unprotected. The way the Council of State in the present cases respects the authorities’ autonomy to take appropriate measures while simultaneously putting the applicants’ fundamental rights in the limelight, in our opinion brings the role of judges – namely that of fulfilling their “duty to protect the applicants against unlawful decisions” – back to the forefront. (§46) Something the Strasbourg Court has been criticized for not doing in several cases concerning bans on the wearing of religious signs in schools. (See e.g. Dogru and Kervanci v. France)
In concreto assessment
Subsequently, the Council assesses the extent to which the aforementioned aims that were considered legitimate in concreto justify the litigious ban. With regard to the first aim, the Council holds that the defendant does not prove nor claim that there was problematic behavior in the educational institution concerned that would entail disruption of the order in the school. As for the aim of neutrality, the Council first notices the shift in neutrality perspective of the Board. Traditionally considering the wearing of religious insignia by students in principle compatible with the idea of active pluralism, the Board used to be averse to a general repressive measure and left it up to the autonomy of schools to act if need be. The Council describes the rather sudden introduction of a collective ban after years of tolerance as a reversal to a notion of neutrality that limits rather than condones the freedom of religion of students. Whilst the Council acknowledges the need for the societal context to be taken into account, it underlines that the context had not changed over the years and had always been dealt with through case-by-case measures, potentially including a ban in the entire school in cases of significant peer pressure. For the Council, the generalized ban therefore, comes out of the blue, and is insufficiently supported by concrete facts and examples. Half of the schools of the GO! Flemish Community Education already upheld a ban at the time the Board adopted the general one, which therefore became void for these schools. As for the other half, the Council considers the defendants’ one-sided reliance on the situation in merely two schools in Antwerp an insufficient justification for the aforesaid reversal to a drastically generalizing ban.
The defendants’ arguments remain too hypothetical for the Council, and do not attest to peer pressure or other elements that would threaten the neutrality in the educational setting. The actual need for an all-encompassing ban is therefore left unascertained. The Council accordingly concludes that “Taking into account the proportionality requirement, a justification is all the more necessary as the litigious ban might lead to a denial of access to education for students for the sole reason that they exercise a fundamental right, without it being adequately demonstrated that they disrupt the public order or endanger the rights and freedoms of others”(§53) and proceeds to the annulment of the individual school regulations under scrutiny.
The way ahead: isolated cases or general conclusions?
Putting the rights-holder centerstage, the ultimate question we are now left with is what these judgments mean for pupils in Flanders. Is the decision of the Council only relevant for the ban on religious insignia as incorporated in the school regulation of the school concerned, or does it additionally have implications for the general ban of the Board of the GO! Flemish Community Education? Notwithstanding its declared incompetence to annul the general ban, the Council does not shy away to point out its problematic nature. Quite the contrary, as the Council unmistakably indicates that; given the absence of a problematic situation in the school concerned, the ban was included in the school regulation on the exclusive account of the general policy of the Board. Therefore, according to the Council, it is precisely this general policy that must assessed under article 9.2 ECHR. Hence, through the internalization by the school of the general ban of the Board, the latter becomes clear subject of assessment. In the course of this assessment, the Council clarifies that it does not hold that article 9 ECHR only allows for individualized measures: “in proportion to the nature and magnitude of the problematic situation, it is conceivable that individual measures cannot suffice and that time and circumstances require a more generalized regulation”. Yet, for the Council this can only be the case in “certain circumstances”. Several criteria can be identified in its reasoning. A generalized ban requires the existence of an actual and not merely hypothetical problematic situation and must be in proportion thereto. Besides, the generalized measure must be limited to the educational institution in which the problems occur. The Council argues that only in cases of a “turning point”, −which it exemplifies in terms of unequal educational opportunities or segregation but of which it can nonetheless be said to be a rather vague concept – a general ban for all schools can be conceivable. Bearing in mind the foregoing, the position of the Board that has been vehemently vocalized in the aftermath of the decision – claiming the general ban as left unimpaired – seems a hard one to defend.
We believe that the importance of the decisions of the Council of State cannot be overstated. They attest to a judicial bravery that finally dares to assess in concreto a measure infringing the religious freedom of the students concerned. It is a bravery that might perhaps be inspiring to the European Court of Human Rights, notwithstanding its subsidiary nature and ensuing space for domestic divergence. The Council undeniably puts the student as the rights-holder at the center of its reasoning through a dual legal basis consisting of the freedom of religion combined with the right to education. The decisions can therefore be seen as promoting a rights-based approach to educational neutrality, by balancing it against the right to religious freedom and access to education and accordingly giving it a clear inclusive understanding. They unmistakably denounce the Flemish educational shift towards exclusive neutrality, and though not absolutely prohibiting generalized exclusive measures, they certainly limit the contours in which such measures could be upheld. The current general ban and large majority of the current individual bans, have clearly trespassed too far on these contours.
* Yousra Benfquih is FWO aspirant, PhD Fellow Research Foundation Flanders at the University of Antwerp.
** Saïla Ouald Chaib is a PhD researcher at the Human Rights Centre of Ghent University.
 A third judgment, concerning the general ban, was issued the same week. That complaint was however declared inadmissible. In this post we focus on the two judgments concerning bans introduced through individual school rules.
 More particularly, this duty is guaranteed in art. 24 of the Belgian Constitution, in which the principles of the 1958 Schoolpact – by means of which the so-called School war between the publicly run and privately run Catholic education came to an end – were consolidated.
 It is noteworthy that the legal dynamics following the introduction of the ban have been stirred by BOEH! – “Boss of my own head” (freely translated from “Baas over eigen hoofd”) – a Flemish feminist platform against discrimination of headscarf-wearing Muslim women founded in March 2007 following the municipal ban on religious, philosophical or political symbols in local services. Ever since January 2007, BOEH has been undertaking a series of actions, seminars and manifestations. Bringing together a platform of grassroots organizations, legal action was initiated against the general ban of the Board through complaints before the Council of State.
 The references used in this post concern the case initiated by Muslim girls wearing a headscarf (Council of State, 14 October 2014, 228.752)