The bill passed France's national legislature and was signed into law by President Jacques Chirac on March 15, 2004 (thus the technical name is law 2004-228 of March 15, 2004) and came into effect on September 2, 2004, at the beginning of the new school year. The full title of the law is Loi n° 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics (literally "Law #2004-228 of March 15, 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 symbol, though it is considered by many to specifically target the wearing of headscarves (a khimar, considered by some to be required 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.
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 do not discriminate on grounds of religious affiliation nor make religious education compulsory. It is for instance common that children of agnostic families, or families from other religions, are put in Catholic schools, if their parents judge these schools to offer better conditions of education. 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. According to an official from the General secretariat of French Catholic education, 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. As an element of comparison, this is approximately twice the monthly price for a telephone landline in France. Newspapers have reported that on some occasions, the costs of private schooling of students who would not accept the ban on religious garbs were thus paid for by the state rather than those families.
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.
In France, historically, differences between religions (or 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 Roman Catholic Church was the dominating religion until the Revolution of 1789, when the French people sought to overthrow not only the monarchy and its supporters, but also the whole social and political system, including the Church. Although the Church survived the revolution, according to the ideology of the new republic it could no longer remain a separate estate with its own possessions. Therefore, the new government confiscated the land and assets belonging to the Church and auctioned them off to help resolve the financial problems that had led to the revolution. The state also attempted a huge restructuring of the Church hierarchy and demanded that the clergy swear allegiance to the French government ahead of the Church. Only 54% of priests complied with this request, but nevertheless, this attempt to bring the Catholic Church under state control can be seen as the beginning of the development of secularism in France.
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 being officially recognised by the state. Although these four 'official' religions received state funding and protection (until the 1905 law as above), none of them were given the status as the 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.
For many years school administrators have accepted that schoolchildren wear symbols of their various religions, such as a Christian student wearing a cross, or a Jewish boy wearing a kippah. However, there was some leeway and uncertainty in those matters, and occasionally some students faced disciplinary action for ostentatious attire.
Since the late 1980s, increasing numbers of young Muslim girls have worn headscarves (French: foulards) in schools. Many people find crosses and yarmulkes acceptable, but not these headscarves, for a variety of reasons, most 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, especially by right-wing or xenophobic groups 'foreign' and 'unfrench'. 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 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, such as biology classes, whose teaching they disagreed with; or they have refused to attend physical education classes, or insisted on attending them in garb which accords with their religious beliefs. The wearing of the headscarf was also criticised as a means to enforce peer pressure on the girls not wearing it.
Because of the uncertainty on the 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 wearing 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 November 2, 1992, the Conseil ruled that a school regulation prohibiting all religious, philosophical or religious signs, including in wearing, was excessively sweeping and against the principle of laïcité.
On March 14, 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 March 10, 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 at wearing the scarf during sports classes, which was claimed to be 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 September 11, 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 November 27, 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 revendicative 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.
In the intervening period the terrorist attacks on the USA and the launching of the "war against terror" had led to an increased suspicion of, and sometimes discrimination against, the Muslim religion across the Western world.
The Stasi Commission published its report on December 11, 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, turbans for Sikh boys and large Christian crosses. 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; and 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 centred 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 headscarfs 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. 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.
The Commission identified the following positions with regard to wearing the Muslim headscarf:
For those not wearing it, the meaning of the Islamic headscarf allegedly stigmatized the young girl or the young woman as responsible for attracting male desire, a vision which fundamentally contradicts the principle of equality between men and women. 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. Others, forced to wear it against their wishes, see it as a way to keep women hidden and subservient, and as a way to justify violence towards women who choose not to wear it.
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. 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.
On February 10, 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. Her participation in school deliberations while entirely covered was highly criticised, but 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 (salouva) and light veils (kishall).
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.
On February 14, 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 in favour of laïcité. They range from upholding the principle of laïcité, ensuring sex equality, preventing girls from being pressured into wearing the headscarf, or a desire to see the Muslim community assimilated into French society on the one hand; to upholding the rights of individuals of any religion to dress as their religion requires or opposing what may be seen as discrimination against Muslims on the other.
Arguments against banning headscarves from schools include:
Some critics have raised a legal point: they see the law as incompatible with the European convention on fundamental human rights. The Stasi Commission dismissed that argument: 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 head gear by administrative authorities was contrary to law.
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 in salaat.
In October 2004 the Archbishop of Canterbury, Rowan Williams, in his Chatham lecture in Oxford criticised the French government's position on laîcité.
Criticism of the law was particularly vocal in the United States. The United States Commission on International Religious Freedom, appointed by the US government, declared in its 2004 report:
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.
On August 30, 2004, despite demands from armed Islamic militants holding two French hostages (Georges Malbrunot and Christian Chesnot) in Iraq, France upheld its ban on religious symbols and clothing, including that against Muslim headscarves.
According to statistics from the French government, 240 girls attempted to come to school with a headscarf; 170 later accepted -more or less voluntarily - to take it off, and 70 "conciliation procedures" were started. Two junior highschool female students, Dounia and Khouloudewere, aged 12 and 13 respectively, were the first to be expelled under this law for refusing to take off their headscarves on the October 20, 2004, from a school in Mulhouse, Alsace. At the end of the first semester, according to François Fillon, Minister for Education, 48 students were expelled under the new law, including three Sikh students who went to Catholic schools.
On October 6, 2004, the Conseil d'État rejected a recourse from the family of a student (born in Syria and on the way to leaving for the United Arab Emirates) who was asked to leave a highschool for insisting on wearing a bandana, which they claim is for aesthetic and not religious reasons. The court ruled that the school's administration had applied diligence in maintaining contacts with the child's family and offering pedagogical tutoring.
On October 8, 2004, the Conseil d'État rejected a recourse against a circulaire by the Minister of Education giving precisions the executive's view of the law, judging that it did not violate constitutional rights nor the European Convention of Human Rights.
On July 19, 2005, the Paris administrative court of appeals rejected the respective requests from the parents of two students who were expelled from a highschool in Bobigny on November 5, 2004 for wearing turbans (keshkis), albeit small ones, demonstrating their belonging to the Sikh religion.
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 distance-learning classes from CNED. There is a case of a Sikh student in the académie of Créteil, who refused to remove his turban.
The very small number of young muslim women refusing to take their headscarf off at school has been seen by supporters of the law as a victory against strict islam. Opponents of the law have seen this fact as a result of the rule of fear in an islamophobic society.
While the text of the law called for an evaluation by Parliament after one year, as of September 2005, no such evaluation has taken place yet.
Occasionally, mayors have refused to allow women wearing headscarves to act as witnesses at weddings, or to receive their naturalization papers.
One or two universities have attempted to ban students who wear headscarves, but most universities seem to believe that the students, being adults, are free to show their religious beliefs as they wish.
In 2007 a petition was launched to ban headscarves in universities; it obtained some support but not enough for it to enter public debate on a large scale.
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