8-10/11/2012Brussels

O N T H E R I G H T TO A N D R I G H T S I N E D U C AT I O N

W O R L DCONFERENCE

2 n d Draft of the Proceedings of the Workshops on

Religious and Parental Convictions

in Educationin the

spirit of understanding,

peace, tolerance,

equality, and friendship

(CRC)

Gracienne Lauwers & Jan De Groof (Eds.)

1 Hent de Vries

A Religious Canon for Europe? Policy, Education, and the Post-Secular Challenge

A Religious Canon for Europe? Policy, Education, and the Post-Secular Challenge

Hent de VriesThe Humanities Center

Johns Hopkins University

It should by now be clear that the scholarly stakes in discussing religion historically and systematically are much higher than those of mere impassive, intellectual interest. Even “methodological atheism” and “ascesis”—two well-known provisos made by non-confessional, non-denominational, non-sectarian inquiries into religion that espouse not so much value-free but rather differently valued normative perspectives of their own—clearly do not suffice to suppress or contain the passion the subject of religion provokes and, perhaps, deserves. Modern states, their functionaries, and enlightened citizens have begun to take notice and express not just concern but also genuine curiosity, informing themselves more thoroughly about the cultural presence and political force of the phenomenon of “public”—or, as I would prefer to say, “global”—religion in the contemporary world. While many stress its perils far more than its promises, they are convinced—on either side of this somewhat artificial divide (artificial, since one could hardly separate such perils from their promises and the very conceptual and practical possibilities for which both stand)—that the phenomenon in question can no longer leave us indifferent, not least because it is unlikely to disappear from our expanding and increasingly flattening—worldwide, “global”— horizon anytime soon. To take up its political no less than metaphysical challenge, much more than the call for a basic familiarity with the established canons of Western and non-Western cultures, of so-called world religions or the religions of the world that have infused our contemporary sensibilities even though they are still largely ignored by institutions of higher learning, not to mention cultural and bureaucratic elites, will, once again, be required. Religion’s current publicity and globality has acquired new social and cultural dimensions that tie an increased worldwide expansion of its old and modern forms of life and everyday practices to a no less pervasive de-historicized impression of its meaning and legacies.As a matter of fact, there is a growing awareness that, in addition to the invaluable task of historical learning and the general cultivation of knowledge—moving us from an “ignorant” to an “intelligent” secularism (or laïcité), at best—there is an increasingly urgent need for understanding of “religious” signs and symbols, rituals and practices, acts and passions, movements and institutions, in the deepest, that is, extensive, and broadest, that is, generic as well as intensive possible sense. Such an understanding, we might venture to say, must reach across the board, into all sectors of society and beyond: in education and the arts, local and national levels of policy and administration, international diplomacy and military intelligence, the environment and matters of health, but evidently also into the proliferation of economic markets and the diffusions of global media culture, and, perhaps, the very “global soul” they prepare or already express. This fact seems more and more recognized by political authorities, policy makers, independent observers and informed publics, while most commercially and ideologically driven print and electronic media and their pundits, with few exceptions, do not advance

much beyond all too facile sensationalism and innuendo, caricatures and chatter, doxa and dogmatism.This much is clear: all secularist attempts at “neutralizing” and containing global religion’s recent phenomena have proven laughable at best and counterproductive at worst. Sadly, even some of the best scientific and philosophical minds—Richard Dawkins, Daniel Dennett, among other, lesser gods—waste their considerable talents on reinventing the wheel of atheism, bare bone secularism, and what have you. Yet they whistle in the dark, bark up against the wrong tree, and leave everything as it is or, worse still, fuel the very tendencies they fear most. What better alternative, then, can we propose?

I have divided my essay in three parts, the first entitled “The Need to Know: Public Policy and the Resurgence of Global Religion,” the second entitled “The Religious Fact: Education and the Secular State,” and the third “Conceptual Matters: Beyond Cult and Culture.” I will conclude with some very tentative observations concerning the desirability of a religious “canon”—to begin within and for “Europe”—suggesting that, if we adopt or, rather, stipulate a plausible definition of that historical and somewhat technical term (i.e., “canon”) and, indeed, apply it wisely, then nothing less—and nothing more—may be needed to avoid the old and new cultural “clashes” that so many have feared are invited by the so-called “post-secular challenge.” To do so requires revisiting and reconsidering the cultural idioms and cultic practices for which this term—“canon”—once stood, not least since many of its original assumptions seem no longer valid or useful, if ever they were.

The Need to Know: Public Policy and the Resurgence of “Global” Religion

Let me start out from two anecdotes that have inspired and guided the following reflections and the modest—if, perhaps, somewhat counterintuitive—proposal in which they result.

Not so long ago, I was asked to comment publicly on a surprising statement made by a senior policy advisor—more precisely, the Coordinator of Strategy Development of the previous Dutch Minister of Justice. During a symposium in November 2008, organized by the Royal Academy of Sciences (KNAW) and the Netherlands Organization for Scientific Research (NWO) on the subject of the Actuality of the Human Sciences [Actuele Geesteswetenschappen], he had claimed (and I cite verbatim): “with regard to the question as to what should be the proper role of government with respect to religion, a civil servant and policy advisor [ambtenaar] can advise his or her minister adequately . . . without consulting with scholars of religion about the question what, precisely, religion [or the meaning of religion] is.”1 Puzzled, indeed, flabbergasted, by this claim, I recall having improvised a double response, when, about a year later, in June 2009, NWO staged a debate in the Academic Cultural Center Spui 25 in Amsterdam, with the same official, Mr. Max Kommer, a member of the Labour Party (PvdA) and responsible (by his own account) for the task “to explore developments in society and ‘legal infrastructure’ in order to assess their impact on the ministry’s mid- and long-term strategy” as well as “policy development regarding extremism and national security.” No small matters.

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Of course, I acknowledged, those who prepare policy decisions and strategize cannot and need not know all there is to know and all that can be known about societal phenomena. Yet, I also felt the urge to insist that there is a minimum of “facts”—including “religious facts” (which is not the same as, say, a catalogue or catechism of principles, maxims, and values)—whose historical and analytical relevance no modern citizen and, a fortiori, no democratic policy maker or government official should ignore or set aside. But in what part of his or her education could or should this be encountered and taken in? In other words, how does one move, indeed, progress—since this would be “progress,” indeed—“From Passive Toleration to Active Appreciation of Religious Differences”? More precisely, how in fact do—or, perhaps, how ideally and normatively speaking should—“Religion, Beliefs, Philosophical Convictions and Education” relate so that such a transformation of deeply ingrained mindsets no less than of institutional, perhaps even legal and constitutional arrangements can be envisioned?2 Why, finally, do the resurgence of so-called “global religion” and the ensuing “post-secular challenge” make this all the more difficult and imperative?One reason, I suggested, may be that the post-secular challenge does not so much bespeak the resurgence of political religions and political theologies whose new assertiveness has undeniably had its moment and, perhaps, still gains in momentum; rather, it concerns the slow but steady emergence of an even more widespread and seemingly vague “global” religion that is anything but a relapse into the vicissitudes and violence of sectarianism and cults, yet also eludes our common understanding of culture and identity (hence, of cultural and identity politics, which are always off to a wrong start, premised as they are on “essentialist” and “meta-biological” categories of thought and agency that are not real or, metaphysically speaking, have no fundamentum in re). Such “global” religion, I would claim, is neither natural nor revealed, neither private nor public, neither aesthetic nor consumerist, neither ethical nor simply political (or even theologico-political). It requires altogether different concepts and tools for its analysis and interpretation, even though it holds something in reserve for all these aspects, whose words and things, gestures and powers, sounds and silences, disarticulate and re-constellate themselves as new forms of life for the twenty-first century. If one were to study “global religion” not just empirically (as one must) but also and first of all systematically, that is to say, conceptually, philosophically, indeed, metaphysically, then, obviously, the nation-state or intersections between religion and nation or state cannot be our point of departure or ultimate frame of reference. The question of nation or the state is, quite literally, a regional, local, and strangely derivative problem at best. Why assume, then, that the nation or nation-state is the locus classicus for the study of a religion that, clearly, is not identical or co-extensive with it? Further, would a federation or union of states and nations, of nation-states—and, a fortiori, would a trans- and multi-national community (and, perhaps, “ethical community,” a “community of values”) such as Europe rightly claims to be—enable one to pose these problems differently?Recent publications such as Christopher Caldwell’s Reflections on the Revolution in Europe, not to mention (and in a radically different category), Thilo Sarrazin’s book on immigration in Germany, Deutschland schafft sich ab, together with the disturbing phenomenon provided by the previous parliamentary elections in The Netherlands that produced a government based upon the indirect but crucial support of an Islamo-phobic party (Geert Wilders’ PVV, Partij

voor de Vrijheid or Party for Freedom), only underscore the need for a much more thoughtful and open-minded conversation on these matters.3

The Religious “Fact”: Education and the Secular State

The second anecdote, I think, is perhaps even more illustrative of the point I would like to make in what follows. One of the more interesting and puzzling approaches taken in recent years to tackle the question of religion and the modern nation or nation-state was the assignment given in December 2001 by Jack Lang, then Minister of National Education in France, to Régis Debray, then a professor of philosophy at the University of Lyon-III. As Lang pointed out, Debray was the author of a much debated study, entitled God: An Itinerary (Dieu, un itinéraire),4 as well as of numerous writings on the material—and, as he calls it, “mediological”—aspect of culture as it grounds all aspirations toward transcendence (meaning that “no society is capable of effecting its own closure” and is, hence, “necessarily incomplete.”5). Interestingly, the book that had drawn Lang’s attention sought to provide, not so much a biography, but another history of the changing “face and sense [sens]” of God, whose “original appellation” remains while his “Being” has no longer the same characteristics, caught up as it is in “the machineries of the divine production” (as the back cover of the French version stated). Debray was also known from his Latin American political adventures in Cuba and Bolivia and from his role as a longtime advisor of President François Mitterand, until his disappointment with the latter’s second term and his own increasing “exaltation of De Gaulle as supreme exponent of the ‘Europe of nations,’” led him to turn to the academic study of religion from what one of his commentators, Keith Reader, calls an “impenitent cultural materialist” perspective.6 Peter Sloterdijk, in one of the rare discussions of the relationship between Debray and Derrida (to whom I will return in a moment), suggests that God, An Itinerary “contains the most important hint at a mediological re-contextualization of Derrida” and takes Debray to have founded “the genre of what one might call theo-biographical discourse,” with its “hybridization of theology and historical mediology” and its invention of “a new type of secular, semi-blasphemous religious science which provokes a comparison with Niklas Luhmann’s 1977 work Funktion der Religion.”7

Mediology, as defined and explored by Debray’s 1991 Cours de médiologie générale (A Course in General Mediology), is introduced as “the study of the material mediations through which a Word becomes flesh, an idea, a collective force, a message, a vision of the world.”8 In Sloterdijk’s words:

If the last word of philosophy, driven to its limits, had been ‘writing,’ then the next word in thought would have to be ‘medium.’ By founding the French school of mediology—which differs from the slightly older Canadian school through its more deep-seated political orientation, but shares a sense of the weight of religion as a historical medium of social synthesis—he [Debray] had not only provided post-philosophical thought with a new material horizon, but also established the vital connection to culture-scientific research and the theoretical sciences of symbolically communicating systems.9

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With reference to Dieu, un itinéraire as a “much-noted work on the knowledge of religions,” Lang pointed to its discussion, “in passing” of the “question of teaching about religions in school.” Indeed, he cited Debray’s elegant diagnosis of the problem: “The Republic, rightfully, does not recognize any religious system. Must it therefore refuse to know any?”10

Debray was asked to assess the needs of the Fifth Republic in having its functionaries and teachers—confronted with the complex demands of a multicultural, multi-ethnic society in a transnational, globalizing world and deeply troubled by the controversy over laïcité, the prohibition of veils in public schools, violence in the banlieue, and more—study and especially teach “religion” in a more engaged and useful, comprehensive, yet also intellectually acceptable, way than had been the case up to that day. Debray’s assignment was to “reexamine the place accorded to the teaching of religious facts” and this, Lang added in his “Letter of Invitation,” “within a secular and Republican framework [cadre].”11 It came some thirteen years after Lionel Jospin’s request for a report by Philippe Joutard in 1989, referenced by Lang but in need, in his eyes, of a sequel and was solicited some three months after the event of 9/11, which had inspired the outcry of Le Monde’s chief editorial Nous sommes tous Américains,12 and, finally, less than a year before the report of the Committee Of Reflection On The Application Of The Principle Of Secularity In The Republic, headed by Bernard Stasi of which Debray would also become a member. Could it do so without falling in the trap of the “secular fundamentalism” that the New York Times in its editorial of December 19, 2003, attributed to the Stasi recommendations at the very moment then President Chirac signed them into law?13 Conversely, could it avoid repudiation by secularists and religious traditionalists alike, without loosing anything of its critical edge and pedagogic corrective? As a secular school would have to give students “access to an understanding of the world” and since religions are “facts of civilization,” speaking of religion in the schools of the secular Republic had, Lang claimed, “always been possible” and had “long” been part of its curricula.14 In Lang’s interesting phrasing of the assignment:

While respecting laïcité, a principle of harmony [sic, HdV], teachers give the knowledge of religions its fair place in the teaching of their disciplines. History, philosophy, literature, the plastic arts, music . . . here we can rightfully call upon the humanities.

Without privileging one or another spiritual option, and deliberately distancing themselves from any religious instruction, teachers approach religions as defining and structuring elements in the history of humanity; sometimes agents of peace and modernity, sometimes sewers of discord, murderous conflicts, and regression.

It is thus within the framework of the existing disciplines—and not as part of a hypothetical new school subject—that religious facts must be presented. Carrying this out, however, is difficult for a numbers of teachers. It appears necessary to better train all to address religious facts calmly.15

Debray’s report, entitled L’enseignement du fait religieux dans l’école laïque [Teaching Religious Facts in Secular Schools], came out in 2002 and was circulated widely. I, for one,

got hold of my copy at a newsstand while waiting for my train at the Gare du Nord. An English translation came out in 2008 in a volume entitled Religion Beyond a Concept.The slim report proposed to relegate the responsibility for the training of teachers in this old-new domain of “religious facts”—that is, of these “defining and structuring elements in the history of humanity”—to the famous fifth section, founded in 1886, responsible for “Sciences religieuses,” of the École Pratique des Hautes Études (EPHE), a section in which luminaries such as Marcel Mauss, Étienne Gilson, Alexandre Koyré, Alexandre Kojève, Lucien Febvre, Louis Massignon, Henry Corbin, Georges Dumézil, and Lévi-Strauss, had taught and researched in earlier days.Indeed, this institutional proposal led to the establishment in 2006 of the Institut européen en sciences des religions (European Institute for the Sciences of Religion) of which Debray was the founding (and is currently the Honorary) Director. The I.E.S.R. forms an integral part of the EPHE and has instituted a host of academic initiatives and reflections on secondary education even though, to my knowledge, it has not yet succeeded in establishing a systematic or required curriculum for the training of all teachers in the public (laic or common) schools. This said, it has encouraged discussion on the content of the curriculum and offers a host of online resources on its website (www.iesr.ephe.sorbonne.fr).16 Debray had called for several concrete measures to regard the place of religion in course material on the school syllabus, albeit within the existing subjects such as History, French, and Civics, and to train teachers at secondary schools on the introductory and advanced level, notably in the context of a course on religious facts and laïcité that they would need to attend at Les Instituts Universitaires de Formation des Maîtres (I.U.F.M, the University Institutes for the Training of Schoolteachers). Such enhancement of the curriculum, supported by the training of its teachers, was aimed at enabling students, first, to learn to understand their cultural heritage (in monuments, art works, and the like) and, second, to help them develop the intellectual tools necessary for improved intercultural relations and mutual respect.17 A limited module of ten hours per year on the “philosophy of laïcité and the teaching of religious facts” was instituted.However, from a distance it seems that the model of the I.E.S.R. is much more like that of the Collège de France, the Collège International de Philosophie, or, indeed, the system of Grand Écoles (of which, again, it technically forms part), all of which offer a wide variety of courses open to the general public. What the I.E.S.R. adds, though, is a Professional Master degree and the possibility for public educators to enroll in a program consisting of internships in relevant institutions, just as it assists the National Education Department to formulate frameworks, pursue theoretical reflection and excellence in the study and teaching of religion within the existing disciplinary structures of higher and secondary education to enable the transition “from a laïcité of incompetence (the religious, by construction, is none of our business) towards a laïcité of intelligence (it is our duty to understand the religious).”18

I am aware of the fact that several further initiatives have been taken to address the question of religion in education in the European context, the 2008 conference and 2009 report of the European Research Project with the acronym REDCo (Religion in Education. A Contribution to Dialogue or a Factor of Conflict in Transforming Societies of European Countries), being one of them. Especially Jean-Paul Willaime, a member of that group and one of the subsequent directors of the Institut européen en sciences des religions, has made several efforts to relate this project to the original Debray proposal, producing surveys suggesting that a majority of French adolescents support “the idea that religion should be discussed

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impartially within existing subjects.”19 But I cannot go into them here. Their analyses and proposals do not affect the conceptual matrix that underlies them nor do they undermine my more modest—philosophical—reconstruction here.

Conceptual Matters: Deconstructing “Cult” and “Culture”

Now, the principal justification for Debray’s proposal for a new curriculum under the EPHE’s auspices is what is taken (by him) to be an insurmountable—analytical—distinction between two categories or concepts that have accompanied and structured “religion” throughout the course of its history, namely that between “cult” and “culture,” together with the assumption that preoccupation with the first (i.e., “cult”) should—under proper methodological and pedagogical guidance—be replaced with an investigation of the second (i.e., “culture”).20

While a “cult” would, first of all, be a “religious fact,” but then also a fact of “civilization,” one that “structures human history,” at times as a factor of “peace and moderation,” then again as a source of “discordance, of murderous conflicts and regression,”21 its counterpart, namely “culture,” as Jacques Lang’s preface suggested and Debray reiterated, would not seem or need to display such ambiguity and volatility. In the report it is as if Debray were arguing that whereas “cults” require our unconditional allegiance whose mythic origins and participatory modes of being must be described in “thick” language, “culture,” on the contrary, is a loose descriptive—historical and empirical—notion, whose referenced reality is characterized by a regimen and adherence best captured in “thin” language. Put differently, what is distinguished and, in fact, separated here is a certain diffuse and uncritical “appartenance” or “belonging,” on the one hand, and an “autoconstitution” or “self-constitution,” on the other.22 The pragmatic elegance and, dare we say, political and institutional courage, of Lang’s and Debray’s proposal thus gives way to a postulated, assumed ideological divide that rests on shaky presuppositions and condemns the whole project to failure.After all, the differentiation between “belonging” and “self-constitution,” in other words, by sectarian “communitaurisme” on the one hand, and republican-democratic “laïcité” on the other, is far from evident and, in fact, is questionable as an all too simple dichotomy such as those between “faith” and “knowledge,” “value” and “fact.” It rests upon a naive assumption of a space of non-confessional, civic neutrality or liberality, while allowing (indeed, requiring) at the same time to conceive and speak of the common, public school in quasi-religious terms as a “sanctuaire républicain” (as president Jacques Chirac called it in 2003). Further, Debray claims that teaching “cults” as an integral part of the study of “culture” needs to be premised on the axiom that “the teaching of the religious is not a religious teaching.”23 Only thus could the integrity of republicanism as promulgated by the institutions of secondary and h igher learn ing be main ta ined and the cor responding “demons o f communitarianism” (feared by secularists) and the “Trojan horse” of “syncretism [confusionisme]” or “relativism” (scorned by clerics) be contained.24

All depends, therefore, on our intellectual ability and political will to avoid blurring the categorical distinctions that exist between “catechism” and “information,” or between “testimony” and “reports,” that is to say, between a “sacramental” relation to “memory” on the

one hand, and an “analytical” attitude towards “knowledge” (as opposed to “faith”) on the other.25 Moreover, without allowing any single confession to make its necessarily exclusivist claim to “authority,” let alone its “monopoly of meaning,” the Republic should, on Debray’s view, abstain from putting itself in the position of an “arbiter;” it should instead offer a merely “descriptive, factual, and notional” approach to the residual (now stable, then again growing) presence of the religious phenomenon in its midst.26 Its assumption is that to let “religion” circulate outside the accepted institutional channels for the publicly controlled and rational transmission of knowledge ipso facto means to relegate it to a series of “pathology,”27 which religious cults generate when left to their own devices. And holding these in check would require nothing less than a methodological and didactic approach, based upon sound philosophical premises, which “stipulates the bracketing of personal convictions,” steers clear from the fruitless alternatives of “devitalizing” and “mystifying” tradition and opts, instead, for informed interpretation of religious, that is to say, socio-historical, literary, and cultural facts.28

All this does not mean that Debray—in addition to excavating its most salient and pervasive phenomena—has much use for the term or reality of “religion” (or, for that matter, any of “object” and “region of reality”29) per se. In fact, his more recent Les communions humaines: Pour en finir avec “la religion” [Human Communions: Doing Away With “Religion”] explicitly calls for the concept’s retirement and for its substitution with the more sober notion of “communion.”30 In either case, mediology’s claim would be that “religion” has come to serve as a “medium” of sorts:

What mediology wishes to bring to light is the way in which something serves as a medium, and the often unperceived complexities that go with it, looking back over the long term (from the birth of writing) without being overly concerned with present-day media (even if certain mediologists are prepared to consider these)… The mediologist’s interest is therefore neither in an object nor a region of reality (the media, let us say), but on the relations between objects or regions; between an ideality and a materiality, a feeling and a piece of equipment, a disposition and a device. What matters is putting two terms into relation with each other… A study of the desire for immortality is welcome in itself: but it becomes a mediological inquiry only if one attempts to show how this moral sentiment has been transformed by contact with, and under the influence of, painting, photography, cinema, and television—in short, with the evolution of the apparatus of the collective imagination. Thus, what phenomenologists asked of the “eidetic variation” (namely to imaginatively modify the properties of an empirical object in order to intuitively discover its essence), the mediologist asks of the “technological variations” of supposedly invariant faculties, behaviors, and institutions.31

And these distinctions would seem to hold true whether one thinks of religion as an “object of culture” or an “object of cult.”We need not investigate here whether the deployment of these (or, for that matter, any other) conceptual alternatives create more clarity, allow for more resourcefulness, in assessing and addressing the phenomenon or set(s) of phenomena whose name or concept we may, indeed, have to change one day. They may or may not do so; in any case, it remains doubtful whether successive functional equivalents for—and beyond—a concept, in this

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case, “religion,” will escape the long shadow cast by the very tradition or, rather, set(s) of traditions, whose common denominator and supposed commonality, community, let alone “communion” was admittedly something of a stretch, that is, nothing less than a violent imposition (as any concept will be). Nothing, strictly speaking, falls under a concept (albeit it the most pertinent or appropriate concept found or coined so far). In the end, there is nothing but the at once minimally different and infinitely multiple “beyond” of a concept (e.g., of “religion,” but also of “God,” “the Other,” “communion,” even of the “beyond” itself) that could possibly interest, captivate or inspire us. And when and wherever it does, this happens in barely visible (audible, tangible, etc.) yet at the same time radically, globally transformative ways.

“A Little Further”

Jacques Derrida, who had been Debray’s teacher at the École Normale Supérieure, rue d’Ulm, in Paris, was asked by Jacques Lang to critically evaluate and respond to Debray’s proposals. Derrida made an important observation, on which he reported in rough outlines during a conference at Stanford University in 2002, about a year after Debray’s report was first presented.32 The change in the French government that soon followed probably explains why this invited response, at least to my knowledge, never materialized.In 2004, Debray and Derrida appeared in a lively long televised debate with each other on France 3, in the program Culture et Dépendances, without ever touching upon these matters directly, let alone explicitly. What did become clear, though, was the sharp contrast between Debray’s long held belief in “the determinant specificity of the nation-state, a belief . . . which animate[d] his hostility to pan-European federalism and his admiration for an . . . ‘idealized de Gaulle,’”33 on the one hand, and Derrida’s more radical and resolute federalism and internationalism (in matters European and well beyond), on the other.In his remarks at Stanford, Derrida noted that the distinction between the “cult” and “culture of religion” or between “religious teaching” (or “teaching religiously”) and “teaching religion” is both useful, even necessary, and unhappy, indeed, questionable and (as you guessed) deconstructable. As he put it:

I approve of Debray’s distinction between culture and cult, teaching religion and religious teaching. Nevertheless, I am not totally convinced by and happy with this distinction, and I would try something else. Not to object to his rhetoric or logic, but to try to go a little further.34

Derrida’s different approach does not so much propose to leave concepts—here those of “cult” or “culture”—behind, but instead asks what such concepts have to rely on for their distinction and application to offer any guidance at all. More precisely, he hints at a “space” or “spacing,” which would allow for any concept—“religion” or each single one of “religion’s” central notions, such as, say, “revelation”—to make its appearance in the first place. “Revelation” would require some “revealability,” not so much in terms of the latter’s logical, chronological, or ontological precedence or prevalence, but as a “condition” or “in-condition” which is “conditioned” by what it “makes possible,” in turn, thereby undercutting every traditional and modern assumption of foundationalism, transcendentalism, possibilism, and the like. As the quasi-condition of any possibility, more precisely, as a “conditioned condition”

(and, hence, no condition at all), it would “be” the impossible par excellence and, as such, irreducible to any theologico-religious or –political stratagem.Further, Derrida invokes once more Plato’s term chora, which in the Timaeus stands for the impossible possibility (rather than a possible impossibility, as Heidegger would have phrased it) of, precisely, a beyond of the concept (here: of any concept). Unthinkable that we should not attempt to think it, Derrida seems to say, unthinkable that we find it readily—or, indeed, ever at all—anywhere present. Derrida would thus insist on (what Adorno called) the “unthinkability [Unausdenkbarkeit] of despair,” while acknowledging (again, like Adorno) that this difficulty can hardly be the source of much hope.Everything comes down, then, to relating or negotiating two different endeavors, irreducible to each other, but also unthinkable without each other. On the one hand, there would be our taking “religion,” in short, all our efforts to maintain the term, for lack of better substitutes, while venturing into territories and dimensions, possibilities and virtualities, that exceed its past and present conceptual grasp. On the other hand, there would be the need to study the incomplete set(s) of phenomena of apparent historical and systematic relevance for the eventual understanding of its (i.e., “religion’s”) phenomenon and, as we said, phenomenality (studying words and things, gestures and powers, sounds and silences, smells and feels, shapes and colors, affects and effects, etc.). Having distinguished these two—broadly systematic and roughly empirical—approaches to one and the same object, subject, name or concept, a simple but far-reaching hypothesis imposes itself. What is at stake in these endeavors is not so much a metaphysical dualism between the here and the hereafter (the Hinterwelt, before, around, beyond, under or above the world we know), than an at once ontological and methodological duality of perspective: a “dual-aspect theory of reality,” to cite Stuart Hampshire’s characterization of Spinoza’s deus sive natura, a two-way seeing of “aspects” of which Wittgenstein speaks in his Philosophical Investigations (invoking the duck-rabbit picture), a differentiation between langue and parole, as Ferdinand de Saussure proposes in his Cours de linguistique générale, a “double séance” and “double science,” as Jacques Derrida proposes in his study of Mallarmé, and the list of exemplifications is far from complete.Instead of asking, perhaps, what the attempt “to go a little further” aspires toward, we are thus invited to see what promise and what difficulty the proposed—in Derrida’s view, provisional and, at best, strategic—distinction between “cult and culture” or between “teaching religion and religious teaching,” entails exactly.The division of labor between theoretical (cultural, historical) versus confessional and ritual (cultic, confessional) interest it implies is thus at once pragmatic and deeply steeped in a metaphysical as well as societal need for separating, contrasting, perhaps, contradicting normative domains or “value-spheres.” But its inevitable suggestion of dichotomy and definitional or methodological purity is, ultimately, also misleading and has no fundamentum in re. If there is any religious “fact,” it will take on the form—philosophically no less than sociologically speaking—of a “fait social total,” that is of a total (“global”?) phenomenon of which it is hard to believe that its historical and more than historical presence is that of a “fact” and a “social fact” at that. As a fact of its own kind (“un fait total d’un genre particulier”), it is “multidimensional.”35 Indeed, as Marcel Mauss (on whom Debray draws here) already knew—borrowing this expression from his pupil Maurice Leenhardt (who in turn had taken his lead from Emile Durkheim)—the term “fait social total” conjures up a reference or reality

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that is neither purely material nor spiritual but transcends both in a way and direction that is at once magical, mysterious, mystical. Its “archive” (as Derrida will say) or “apparatus” (as Giorgio Agamben, following Michel Foucault, will add) has a certain virtuality that is not without effect—and, hence, “actuality”—in the world we experience.Over the years, Derrida had devoted much attention to the philosophical and theological underpinnings of the French concept of laïcité in view of what Michael Naas has ventured to call “a radical secularity that inscribes faith (though not religion) at the very origin of the sociopolitical and thus . . . at the very origin of all sovereignty.”36 But what does such “radical secularity”—a “reworked and originary laïcité,”37 as Naas also calls it—imply in more practical-institutional matters? And, can its “faith” keep “religion” at bay, that is to say, distance, separate, indeed, emancipate itself from it?

The concept and practice of laïcité would have to be “reworked” in pursuit of its “originary” meaning, sense, and force, so that its remaining—perhaps, inevitable—“sacrality” and “sovereignty” might not so much be removed but be put under erasure, deconstructed, subjected to an interminable analysis that disjoints a certain “faith” from all the historical and natural, revealed and positive, private and public forms of “religion.” It is this “faith” that I am tempted to call “global.” In sum, this notion—hardly a “field”—requires a different type of analysis than the one that history or, for that matter, social science, literary studies, even philosophy are most familiar with. It is here that the question of what I would like to call “deep pragmatism” arises. For one thing, such an inquiry touches upon theoretical and conceptual problems that challenge the very basis and parameters of “History” (even “Intellectual History”) as a discipline or, for that matter, of any other field. Indeed, it requires one to invite the perspectives of scholars steeped in different domains of inquiry and reflections (philosophers and other theorists to begin with), without invoking all too facile appeals to inter- or transdisciplinary scholarship.38 For reasons that I cannot develop here, I take Lang’s and Debray’s view to be indicative of a systematic (call it conceptual or analytic, hermeneutic and normative) problem that we have long been familiar with: namely that history or historiography, whether as an ancient discipline or as a modern academic field, even when it relies on the most sophisticated and nuanced among its methods, cannot adequately address or fully resolve on its own account (i.e., on its own turf) the questions raised by the modern phenomenon of “global religion.” Indeed, no single field can.

A Religious Canon for Europe?

It should be noted that, for Jack Lang and Régis Debray, religion—the “religious fact”—within the French national context of the Republic and its laic public school (in the “Europe of nations,” as Debray, a leftwing Gaullist, is only happy to add) does not need a new or separate field of study. In Lang’s and Debray’s view, religious education or, rather, the teaching of religion does not enter the curriculum as an added subject, a theme or field sui generis. The need and duty to know does not need specialized, religion oriented, disciplinary knowledge per se. It requires even less the privileged, insider kind of “thick,” putative knowledge that is based upon revelation, tradition, dogma, mystic illumination, spiritual

exercise or ritual practice. “Theology” is not what is called for here, as, on Lang’s and Debray’s terms. It can only be “cultic.”

It is important to emphasize this assumption and also its relative merit, if only to get into clearer view what goes wrong with the overall argument that claims to sustain it.Some have argued that the “cross curricular treatment” of the religious “fact” in French education is “seriously problematic” since it presupposes, precisely, a “kind of detachment from religious beliefs that is neither possible nor desirable” and also that to better understand religion (the intellectual aim Lang and Debray wish to achieve, albeit not so much for its own virtue, but as a conduit, first of all, to civic education and its ethos) “young people require a thicker encounter with religion than the study of le fait religieux will permit.”39

Yet, this familiar objection all too easily reverts into a contrary (and no less dubious) assumption, namely that only religion gets religion, in other words, that only a “theological approach” to the phenomenon of, say, global religion has a better chance to respect and protect the very “substance” that would otherwise get lost in the methodologically atheist and neutral or secular approach that forms its alternative. But, in this, Lang and Debray are certainly right: one does not need a separate discipline or field—a department or program of religious studies, nor, for that matter, a comprehensive or integral account of the so-called history of religions or world religions—to discuss matters of importance that find their proprium in the very “fact” (a “religious fact,” if ever there was one) that they are no longer identifiable and localizable (and, perhaps, never were) and that, hence, tend to subvert all explanatory genealogies, chronologies, the very nexus of cause and effect, law and exception, between structure and event, if you like. The study of “global religion”—of its words and things, gestures and powers, sounds and silences, smells and touches, etc.—suggests nothing else.As a consequence, there is nothing wrong with a “thin,” that is to say minimal—and be it “minimal theological”—cross-curricular and trans-disciplinary approach to “religion” per se. Provocatively put, the only elements and forms of religion that could truly and responsibly interest us all are “generic” and, hence, “generalizable,” perhaps, “universal” in their intent and import.40

This said, it is, perhaps, more appropriate to say that the two perspectives or “takes” (“snapshots,” really) on one and the same worldwide yet elusive or, as I said, “global” phenomenon—i.e., the “thin” and “thick,” the “public” and “particular” (whether “private,” “communal” or “national”)— cannot be kept apart that easily. Nor should they be. This is why the “movement away” from an “abstentionist” and “incompetent” laïcité to “a return of religion to public education’”41 in a laïcité of “intelligence,” of sorts, leaves neither the former nor the latter untouched or intact, but traverses and transcends both. The question, really, is how one both “traverses and transcends” (to use Alain Badiou’s elegant formulation) historical and legal, cultural and situational differences so as to achieve a result in which needless abstraction and all too much concretion are mostly avoided.If what I have argued is at all plausible, then, in fact, there is no such thing as a fully “indirect” teaching of religion, just as there can be no absolutely “direct” instruction of its putative reference or lack thereof, that is to say of its experience and promise, either. In other words, the very distinction between the “teaching of religion” and “religious teaching” is misleading or somewhat artificial at best.

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I would now like to turn to a question that the European Educational and Cultural Forum, among other platforms and public debates, has sought to answer, namely what does “living with religious differences in education” amount to given the historical and accelerating tendencies toward “Europeanization and globalization” that “bring people closer together than ever before” while, perhaps, prompting them to “fall back on traditional identities and private loyalties, where religion often plays a major role,” as well? Put differently, how should we give new “impetus to a European dialogue on the direction of a new model in education with religious difference, moving from passive toleration and mutual misunderstanding to active appreciation and accommodation of religious difference, without surrendering the goal of a shared citizenship,” indeed a “shared European space”?42

My tentative answer would be: by introducing a religious canon for Europe, to begin with, a canon that would be at once provisional and open, limited and selective (if not restrictive, as most, perhaps, all canons are) and mobile, indeed, virtual (which I take to mean “digital” and much more). Traditionally, at least since Irenaeus, the “canon” is a “single, sacred, and unalterable corpus.”43 Is there a modern, contemporary substitute for this definition that would be adequate to the world that is ours? To conceive one, we might, indeed, concede that we do not need a separate field or set of disciplines—just as we do not need departments or programs of religious studies, divinity schools, and religious academies per se—to study contemporary religion intensively and extensively, that is to say, deeply and broadly or, as I prefer to say, globally.It would seem that what Lang and Debray have in mind is a religious “canon” for the secular nation-state, not just for France but for Europe, convinced as they seem, in the words of Jean-Paul Willaime, that “Europe, contrary to the impression gained by a superficial study, is more laical than one would think” and assuming that that is the reason “why the French solution which is now in the process of emerging can expect a positive and interested response in other European Union member states and, possibly, in countries aspiring to membership now or in the future.”44 Willaime continues:

It is not the laïcité of understanding, brought about through the Joutard colloquium and the Debray Report, which risks a rebuff from Europe, but an abstentionist and paralysed laïcité that, in the eyes of our European partners, will appear suspicious and outdated. Between a process of internal secularization in religious education curricula in various European countries, on the one hand, and the opening of the question of introducing religious culture to school in France, on the other, there is a certain degree of convergence emerging from very different historical and legal contexts. Characterized by a longstanding secularization process and suffused with the spirit of cultural secularism, European countries face the same challenges: a growing number of Muslim school students, the threats posed to respect for civil liberties by certain religious groups, the religious ignorance of students, demands for direction and ethical guidance, and the education towards citizenship in culturally diverse societies . . . Whatever their legal frameworks, all European countries are facing the question of how to approach religious faith respecting the freedom of conscience of students and their families while at the same time educating them towards freedom of thought and a critical stance. The question is, then, how to integrate these different orientations into the school without diminishing its laical stance or its educative mission. In France it is the very success of laïcité, the maturity of the system, that allows is to open itself calmly to the question of instruction about religion in a laical school.45

But what form, in Lang’s, Debray, and Willaime’s eyes, could such a secular canon take as it moves from laical “incompetence,” with its putative “abstinence” and “ignorance” in matters religious, to a “laicity” or “laicism” of “intelligence”? On the basis of their premises and going “a little further,” with Derrida and others, the following might be said.

A religious canon (for instance, to begin with, for Europe), should be able to name or nominate, present and recommend, religious authors and texts, authoritative documents and doctrines, themes and concepts, images and gestures, sounds and silences, places and spaces, just as it must leave room for alternative—if not necessarily historically or culturally dominant—roots and resources, archives and apparatuses, that may well acquire more strength and prominence one fine (or terrible) day (depending on whom you ask).

That is to say that such a canon presents the—necessarily limited and selective—list of books, of authors and ideas, idioms and icons, that have been more influential than others in shaping, say, the Western imagination, like it or not, for good and for ill. Put differently, such a canon would comprise and compress—indeed, expand and condense—a set of regulating principles and notions, values and norms, practices and ways of life, by which current intuitions and so-called maxims are measured and judged and, thereby, found to be wanting or, on the contrary, proven to be genuine innovations, improvements for learning. Last but not least and somewhat paradoxically (since this seems to violate the very concept of “canonicity,” traditionally defined), such a canon would have to be updatable and, as it were, up- and down-gradable.

After all, to propose and determine a canon—the canonicity of certain words and things, gestures and proven or supposed spiritual powers—is not necessarily an imperial, authoritarian gesture (although, of course, it can become one and, historically, this has been the default, of sorts). But just as canonization in the Roman Catholic Church does not make someone a saint but merely declares that that person is and, indeed, previously, was one, so also can the establishment of a so-called religious canon for Europe be a descriptive, if selective, as much as a normative, hence, discriminatory, act. The difference would merely be that, other than traditional canonization, a religious canon for a contemporary and future Europe remains not only open-ended—new saints, like worthy texts and words, images and sounds, may come along—but is also revisable and amendable in principle. Moreover, given the fact that it will be an inevitable compromise—no matter what consensus is reached—it will be no less inevitably compromised in ways that no “give and take” can fully balance or compensate. With religious (or, for that matter, any other) canons winner takes all is the rule of the game, at least for a certain period of time, until revisions take hold.

However, it would be unwise and presumptuous to declare what the content—here and now—of such canon or even its method of instruction might or should be. In principle, we might say, “anything goes.” The canon, we can safely trust, will take care of itself.

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What do I mean, then, by a “mobile” canon or by a canon pictured as a “mobile,” a moving structure of cloudlike figures that revolve around each other, each of them separate and all of them synchronized as touching upon one means touching upon all others? For one thing, it is a canon premised not so much on the selecting and (temporary) privileging, codification and memorization of texts, but it is one modeled after and profits from recent insights in so-called “serious gaming,” thus offering innovative digital, image and sound based methods to envision a new Pascalian wager, directed at honnêtes hommes, liberal minded folks of general culture, or, better and more broadly, “people of good will,” if you like.46

Indeed, a canon of “make believe” might well turn out to be one of “belief in the making” and create or invite new faith (but, this time, in the world, in others, and, least but not least ourselves), as we go.

One could easily imagine enlisting some of the most interesting ideas in new labs investigating digital media and learning for this task. I am thinking of the work done by scholars such as Tim Lenoir and Katherine Hayles, at the Greater than Games Lab at Duke University, whose Virtual Peace and Emergence as well as Speculation, respectively, use multiplayer and transmedia simulation environments taken from the emerging field of “alternative reality games” (ARGs) to help students and humanitarian groups and workers in situations of peace and conflict resolution to think and act more creatively and cooperatively.47 Emergence, for example, is described as “the first massively multiplayer online game that encourages diplomacy and social cooperation over violence,” set in the 22nd century, in a “post-apocalyptic future,” in which androids have destroyed much of humanity with few survivors left scrambling for what is next. It is intended to be played by thousands of players at a time and is “designed as an interactive ecology in which players help themselves by helping others.”48

These online alternative reality games are thought- and act-experiments at the same time. Serious games developed out of computer simulations pioneered in the medical and military fields, on the one hand, and massively multiplayer online games, on the other. The wider availability of hardware and the spread of mobile technology, which went along with the development of apps, however, has led to the use of serious games in fields such as diplomacy and policy planning and has found wide appeal in education. ARGs now allow players to explore the practical viability of strategies of cooperation and solidarity through, for example, love and forgiveness in international affairs.The potential of the serious game approach is particularly apparent where what is known in game theory as the prisoner’s dilemma—the question of whether to back down, cooperate, or stay silent—is concerned. Exploring the possibilities opened up by love and forgiveness for backing down without losing in practical yet hypothetical situations is the strength par excellence of ARGs and of Emergence in particular. One possible example to model the game on the practical applications of Gandhi’s thought explored in Mark Juergensmeyer’s Gandhi’s Way.49

The humanities have been traditionally not only the place for the acquisition and interdisciplinary synthesis of knowledge but also have been marked by a concern with

education and its continual improvement. A serious game, as an innovative way of communicating knowledge and training skills, seamlessly fits into this tradition, while carrying it into altogether new terrains and dimensions. ARGs allow players to draw on the tradition of religion as much as philosophy, political theory as well as history, literary writing no less than the sampling of contemporary visual culture, to acquire a vocabulary and set of approaches to resolve situations of cultural and political impasse, to begin with those presented in imaginative variation in a game experience whose very mediatic “space” is both theoretically and practically oriented towards knowing as well as knowing how.This is not to say that more classical formats of canons are obsolete, even in the world of today. Examples such as The Netherlands in a Nutshell: Highlights from Dutch History and Culture, the booklet produced by the Committee for the Development of the Dutch Canon which was assigned this task by the Minister of Education, Culture and Science in 2005 and published its result in 2008 (as “a canon in fifty key topics, or ‘windows’: important people, inventions and events which together show how the Netherlands has developed into the country that it now is”50), or The Bètacanon, edited under the direction of Robbert Dijkgraaf,51 serve their purposes as they address specific domains (national history and natural science) that form an integral part of our societies and will continue to do so. These canons even present their selection of “basic knowledge” while referencing other, further points of reference (places and websites to visit, popular and scholarly literature, etc.). The historical canon, for its part, was generated “in a typically Dutch way: it was not decreed by a central authority or a single lofty institution, and neither was it created by a majority vote in a referendum.”52

That being said, “global religion” is no such domain (of either history, nature, or anything else); it lacks the specificity necessary for even a polyphonic, musical interpretation of the term “canon” that van Oostrum and his committee borrow from Edward Said. In Said’s words: “canon as a contrapuntal form employing numerous voices in usually strict imitation of each other, a form, in other words, expressing motion, playfulness, discovery, and, in the rhetorical sense, invention. Viewed this way, the canonical humanities, far from being a rigid tablet of fixed rules and monuments bullying us from the past . . . will always remain open to changing combination of sense and signification.”53

But such an open-ended, provisional and limited, if mobile, canon for Europe, it might be objected, is hardly religious and precisely in its celebration of diversity and heterogeneity, equality and freedom, obeys a secular concept of reason and “intelligence” more than anything else. Put differently, a canon of European religion—more precisely, of religions in and (still or already) beyond the “shared European space” we inhabit—could not have the same historical and theological weight (indeed, the same existential feel and political impact) as a properly religious canon does (or, should we say, once did). It would seem that we could no longer teach religiously when we teach religion in this way, in the old-new format of a canon that from this present moment onwards would have to be principally open in all (past and present, lateral as well as future) directions at once.

But then again, it is easy to see that this objection merely reiterates and returns us to the—philosophical no less than theological—impasse into which the Lang-Debray lead us, in spite of their best intentions to solve these matters once and for all.

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Should we conclude, then, first, that the concept and practice of “the secular”—and, a fortiori, secularism and French laïcité—were never neutral, value-free to begin with, and, second, that the boundaries between the two cultural domains of the religious and the secular with their respective pasts and present references are porous, even fluid? That this is the case and will, no doubt, become ever more seems obvious as current tendencies towards globalization, the expansion of economic markets and technological media, render ideological systems and ways of life associated with revealed, natural, world, private, or public religions in the modern world, if not obsolete, then in any case increasingly “global.”In contrast with the US and unlike other immigration societies (such as Canada, Australia, perhaps even Israel and Palestine), the EU, its populations, policy makers and leading intellectuals do not tend to conceive of “their” canon—let alone, a “religious canon”—as something principally and practically mobile and open. Even less are they capable of conceiving of a canon that, while attuned to elements and forms of religious life, remains open in any imaginable direction. The ongoing debate about Civic Integration (“inburgering”) requirements and courses for immigrants and new citizens, especially in the wake of growing skepticism concerning the politics of multiculturalism, is a case in point.54 A religious canon “for all,” that is to say, equally distributed among all—in public as well as confessional schools, in governance bodies high and low—might not only be a better substitute for them; the catch of a religious canon for Europe is, ultimately, this: it is “ok” to expect from immigrants and new citizens that they blend in, culturally no less than legally and politically, if and only if what they blend into has a genuine chance of receiving and registering what they themselves are (or even, in “their” putative original state, were) or, indeed, may yet take themselves to be and become, when their beliefs and practices enter into the mix. But for this to happen a certain converse of this process of civic integration or “inburgering” of those who are supposedly already integral parts of the civic community (nation, state, or body politic) and tend to self-identify themselves as such is logically and practically necessary and imperative as well: a certain “uitburgering” by which I mean here an at least mental (intellectual and spiritual, moral and affective) “expatriation,” rather than an inner or outer emigration, a shedding of “bourgeois” identity and espousing the “coolness” of “global soul.” Even taken as a “spiritual exercise,” “ideal role taking,” or “serious game,” such a countermove—and a move that should come first, before anyone (or any law) asks “others” to do their share—could work wonders pragmatically and politically, in Europe and beyond, as it ruptures and fractures the “natural disposition,” the dogmatic slumber of identities and ethnicity that are presumably homegrown and far more ingrained than is good for us all. A gradual widening of our horizon, broadening our circle by pulling “others” (including other circles) in, won’t establish this all by itself. And in this sense, the traditional and modern concept of cosmopolitanism may no longer suffice.

The risk of my proposal for a religious canon for Europe is clear. “Europe” is both too big and too small a reference to begin with. For one thing, it is too big, given that the situation in different countries varies historically and legally and given the fact the “the principle of subsidiarity, laid out by the European Union in the 11th Annex to the Treaty of Amsterdam, respects the status accorded to religious and non-confessional organizations according to national law.”55

For another, the reference to “Europe” is still or already too narrow since global religion does not stop at the borders of the Union, nor does it originate there. It traverses and transcends national and international boundaries and helps us imagine a global civil society or public sphere that is no longer determined or restricted by the principles of national and statist—or, for that matter, federalist—sovereignty, but emerges and inspires, as it were, from the bottom up (or, if you like, from a higher “top,” more precisely, a greater idea of perfection and perfectibility, down).

In other words, Willaime’s assurance that “we are not talking of introducing any kind or rupture in the school’s ethos”—but also that the school’s contribution, not only to the transmission of knowledge, but to a whole “deontology of intellectual conduct” is, first of all, that of a “national institution which culturally and socially integrates students from different social backgrounds and educates them in civic virtues”—may be based on a silent axiom that merits interrogation.56 After all, the “cultural dimension of knowledge transmission” opens up an understanding of known and unknown horizons of understanding, namely of “the entirety of cultures past and present,” that hardly fits the mold of any given national identity, let alone the civic or intellectual “ethos” that are derived from it.57 A different type of archive and apparatus—one that is virtual in more than one respect—is implied here.

Willaime is right to claim that the teaching of “historical method,” “procedures of verification,” and “critical reasoning” when applied to the “religious fact” studied in school contributes all by itself to the establishment of a distinct “citizenship education,” if only because religion thus enters “a space of collective examination.”58 Indeed, Willaime continues:

The need to speak of religion in front of a diverse audience, the inability to appeal to the connivance of co-religionists, the necessity to objectify and explain the worlds of representations and attitudes proper to a given religion, alone constitute a position that marries religious belief to citizenship in a pluralist democracy. It enforces the recognition from the start that the religious worldview under discussion is not an all-encompassing symbolic structure for all society—even if it is the majority religion—but one orientation among many. Such an approach must inevitably clash with all religious self-descriptions that refuse a historical perspective. In other words, the fact that religion is treated in school means we must enter into conflict with all fundamentalists and especially with all understandings of religion that insist on forcibly applying their own norms to the whole of society.59

But then again, while this allows and requires pupils and parents to learn “to speak of one’s own religion as though it was someone else’s,” it is certain that no given civic and intellectual ethos—indeed, no nation or state or union of these—can proscribe or control what its outcome will be. The aforementioned “examination” may very well end up carving out the (social, cultural, and legal) “space” in which it takes place or from which it starts out. Indeed, treating religion at public school within the context of existing subjects creates a phenomenon of “interference” with the religious education outside of school and, as it were, in the general culture as well.60

An explicit reference to—and engagement with—the religious archive, in its totality no less than in its inevitable limitation (working with specific words and things, texts and practices,

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images and sounds, gestures and powers, etc.) literally signals and names this principal open-endedness and pragmatic depth that all education, in schools (public or not) and beyond, will have to aspire to in order to make any intellectual and ethical sense and contribution in our world at all. In the age of globalization with its predominance of economic markets and technological media, the resurgence of “global religion” serves as a reminder of just that incontrovertible “fact.”

Canon and Constitution: Invocatio Dei, Minimalkanon, and the Open Archive

A final question remains. Could one imagine a religious canon for Europe without reopening the contentious debate about the explicit mentioning of religion—more in particular, Christianity—in the preamble or, for that matter, anywhere else in the European Constitution and its accompanying documents?As I see it, plea for a canon need not present itself as an Invocatio Dei per se, nor need its authors and privileged texts, topics and themes, images and sounds, be seen as a prolegomenon in the theological—and, in that register, dogmatic (or, as Debray would say, “cultic”)—sense of the term. A canon, after all, is not a “catechism” even if it does have certain structural features of catechism—notably, “secular catechisms”—in common.61 And the last thing we should envision, let alone expect, is a re-Christianization of Europe and its formal-legal justification as a point of departure or prime reference for all future debates on education and civic integration.62

Joseph H.H. Weiler makes this very clear in a host of writings, most notably his 2003 Un’Europa Cristiana. Un saggio explorativo, which I have consulted in its expanded German edition, entitled Ein christliches Europa: Erkundungsgänge, published a year later.63 A more than merely “passive toleration” and, indeed, truly “active appreciation of religious differences,” he seems to suggest, aims for less than a re-Christianization and, in fact, for more. It moves beyond the self-imposed “walls of separation” and treats constitutional documents and especially their preambles as “more than a minimal canon [Minimalkanon] of universal values,” seeing Europe, instead, as an “ethical community,” a “community of values”64 of which religion—and, hence, also Christianity—forms an integral part, like it or not. The constitution, thus seen, would be a “repository [Depot] of values, ideals and symbols that are shared in a society.”65 Yet, could a more than minimal, if not necessarily maximal—by which I mean, strictly dogmatic-theological, ecclesial—canon be seen in this light, as an archive of “values, ideals, and symbols” that may or may (not yet or no longer) be shared by most? And, would not a “global” canon come closest to this ideal, which is an “Ideal of Reason”—a Kanon der Vernunft—as Immanuel Kant knew all too well?Revisiting the debate about Europe’s constitution, in this context, might be of use, then. I am thinking of the simple and elegant argument Weiler invokes to justify a reference to God or “Christian roots”—an Invocatio Dei—in the preamble of the Constitution of the European Union (a reference that was in the end kept out of it and for which Weiler reclaims neither exclusivity nor privilege, but just a necessary, if not sufficient, mention and use).

Redeploying a host of terms and concepts that we encountered already—“thick” and “thin,” “cult” and “culture,” “laic” and faith-based—Weiler points out:

[A]ll members of the European Union, under the tutelage of the European Convention of Human Rights, are committed to the principle of the ‘Agnostic or Impartial State,’ which guarantees both freedom of religion and freedom from religion.66

Indeed, state neutrality in matters religious is a conditio sine qua non for liberal, parliamentary democracy, Weiler maintains, but this given (which is respected throughout Europe, albeit with different emphases) by no means excludes a corollary insight, namely that “a reference to God is both constitutionally permissible and politically imperative.” Weiler continues:

In its substantive provisions, the European Constitution reflects the homogeneity of the European constitutional tradition. It is fully committed to the notions of freedom of religion and freedom from religion, as it should be. But when it comes to the preamble, the EU Constitution should reflect European heterogeneity. It should reflect the European commitment to the noble heritage of the French Revolution, as reflected in, say, the French constitution, but it should reflect in equal measure the symbolism of those constitutions that include an invocatio dei. The refusal to make a reference to God is based on the false argument that confuses secularism with neutrality or impartiality. The preamble has a binary choice: yes to God, no to God. Why is excluding a reference to God any more neutral than including God? It is favoring one worldview, secularism, over another worldview, religiosity, masquerading as neutrality. How, then, can one respect both traditions? The new Polish constitution gives an elegant answer: It acknowledges both traditions: ‘We, the Polish Nation - all citizens of the Republic, both those who believe in God as the source of truth, justice, good and beauty, as well as those not sharing such faith but respecting those universal values as arising from other sources, equal in rights and obligations towards the common good …’A similar solution should be found for the European Constitution. Europe cannot preach cultural pluralism and practice constitutional imperialism. Indeed, the political imperative is as great as the constitutional one.67

On Weiler’s view, the principle of the so-called “agnostic premise of the state” is, first of all, a principle of “positive constitutional law.”68 Not only does it allow, it even calls for supplementary references, mostly voiced in the preambles of constitutions and conventions, that ought to include invocations of religion (and, in the European context, as Weiler sees it, of Christianity).Agnosticism, then, means a “pluralism”69 that is at once deep in that it gives traditions and convictions based upon divine transcendence and human autonomy their respective due and more liberal than all too restrictive, secularist-laïcal (read: Franco-American) models, in that it does not privilege one position on either side of the supposed—and, often, exaggerated and misunderstood—ideological divide, but, instead, treats them freely and equally. Indeed, recalling Augustine and Maimonides, Spinoza and his own father (an orthodox rabbi and a scholar), Weiler claims that, clearly, the “antithesis” of religion and reason is “false.”70 Indeed, he chastises:

One of the greatest obstacles to the spread of democracy is the widely held view that religion and democracy are inimical to each other: to adopt democracy means to banish God and religion from the public sphere and make it strictly a private affair. Indeed, that is the

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message that the Franco-American model of constitutional democracy sends to the world. But is the particular relationship between church and state at the time of the French and American Revolutions the model that Europe wishes to propagate in the rest of the world today? Is the European Constitution to proclaim that God is to be chased out of the public space? How long must we be prisoners of that historical experience? The state has changed, and the church has changed even more. In this area, as in many others, Europe can lead by example and offer an alternative to American (and French) constitutional separationism. It can be a living illustration that religion is no longer afraid of democracy and that democracy is no longer afraid of religion. The truest pluralism is embodied by states that can, on the one hand, effectively guarantee both religious freedom and freedom from religion, yet acknowledge without fear—even in their constitutions—the living faith of many of their citizens. Only this model has any chance of persuading societies that still view democracy with suspicion and hostility.71

In sum, Weiler’s “thesis” is that only the secularist rigidity or “secular fundamentalism”72 of so-called “lay sensitivity,” but no legal constitutional argument, stands in the way of a fuller and more salutary appreciation, political accommodation, and pragmatic utilization of religion—to begin with the Christian religion—in the constitutions of modern democratic states and their federalist union. In particular, he notes, “from the point of view of constitutional law there is no obstacle—apart from lay sensitivity—to recognizing Christian historical and cultural identity in the symbolism of the preamble to the European Constitution.”73 Indeed, aside from doing justice to historical and cultural complexities and their ongoing legacies, such symbolical rendering, paradoxically, seems one of the preconditions for the decentering and loosening of a certain hegemonic (read: Christian) grip on the identity and future of “Europe,” of its global geopolitical features no less than of its very idea. Ignoring this leaves the Church in the splendor of an ideological and institutional isolation that, ultimately, harms its spirituality and overall politics just as it impoverishes Europe and keeps us from “seeing the situation clearly” and, interestingly, from welcoming aspirant members, as we should:

Christian thinking and European integration seem to exist in two mutually exclusive spheres. Christianity does not enter into the debate around European integration, and Europe, it seems, does not enter Christian thinking in any significant way. The walls between the two are dangerous; they prevent us from seeing the situation clearly.What would happen if the walls of the ghetto were torn down? There are doubtlessly several answers to this question. Some appear quite simply inadmissible . . . at a pragmatic, conceptual and moral level. A plea to make Christianity the official religion of the Union would quite simply be ridiculous on any of these three levels. [T]he church itself would not be in favor of this. Any vision that would reduce Europe to a Christian state also seems unacceptable. It is rather comical (or perhaps tragic) to see those most opposed to any mention of religion or Christianity in the draft constitution battling in the front line against Turkey’s accession to the European Union.74

Who would have ever imagined that the simplest mention and use of what Weiler calls invocatio Dei or Minimalkanon might very well—and quite miraculously—end up doing all this (much needed) theologico-political and more robustly constitutional work? But a further caution is in order.

Against Juridification

To further substantiate my overall claim that a religious canon for Europe could be envisioned, provided one defines and circumscribes its content and proper function with an awareness that its “archive” and “apparatus” contain an intellectual and imaginative resource and repository whose deeply pragmatic relevance we have hardly begun to explore, I could also refer to the recent work done by Charles Taylor and Gérard Bouchard.75 One solution for the canon problem might be gleaned from their report. Instead of putting all cards on an unrealistic—and, in the end, counterproductive—“juridification” of these matters by conceiving of the canon as curriculum that parliaments should turn into law for public schools at the very least, one could easily think of the above proposal as part and parcel of a broader citizen’s initiative that makes good upon the promises or prospects of the multicultural society that did not so much fail to realize but were never really tried out. This would resolve the dilemma as to “who decides?” since no general vote or legislation would be necessary and the proposal might work through example, nothing more, nothing less.This will have to be for another occasion, though, and my overall point, I think, should be clear by now. Let me summarize it in concluding.

Conclusion

Needless to say, the canon I have sketched constitutes a temporary and open—i.e., provisional and pragmatic—condensation and sedimentation of an immense and immemorial, indeed, virtual or absolute past that reaches deeper and wider, higher and further, than the metaphor of “roots” or the singling out of names (be it divine ones, such as “God” or “Trinity”) allows or imagines. Indeed, it uproots them as well and exceeds what Weiler calls the register of “constitutional symbolism or iconography.”76 And I am not sure that Weiler would be willing to goes so far or even “a little step further” than he says.Paradoxically, and in light of the orthodox traditions of all stripes, in all confessions where the concept of “canon” or “canonicity” plays a role (which is to say, virtually everywhere), the proposed “religious canon for Europe” would have to conceive of itself as fundamentally “open” and “mobile.” It would be geared more towards topics and themes—call them words and things, sounds and silences, gestures and powers, etc.—that would allow one to loosen all too direct references to supposedly fixed historical and cultural identities (in short, all the presumed givens that theorists of the “clash of civilizations” have needlessly hypostatized with all the consequences we know). Neither final nor authoritative, such a canon would thus make an altogether different claim upon us.The problem is not so much that we “need religion” (to use Hans Joas’s suggestive expression) per se—assuming that our psychological and sociological, not to mention evolutionary, biological or neurological, condition and make-up is that of a homo religiosus, of sorts—but that in pragmatically determined contexts religion may, indeed, be a need or useful; in other words (to adopt a well-known insight and phrase by the American pragmatist, the late Richard Rorty, who, in turn, borrowed it from William James’s conception of truth): “what it is better for us to believe.”77 (Indeed, to add that religion, like the metaphysical concept of truth, offers “the accurate representation of reality,” Rorty claims, leads nowhere:

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“Or, to put the point less provocatively, . . . the notion of “accurate representation” is simply an automatic and empty compliment which we pay to those beliefs which are successful in helping us do what we want to do.”78)Yet such need or use or belief will be conditional and provisional, pragmatic if deep, dictated by encounters, opportunities, and challenges, here and now. And a limited and preliminary, open-ended, and mobile religious canon—for Europe, its individual “nations” and “shared European space,” to begin with—might capture just that idea, give it a form and an at once political and spiritual life. As Debray intuited—but, perhaps, did not anticipate in this fuller and at once thinner and thicker, global and post-national form—such a religious canon might, ironically, become the most promising “material mediation . . . through which a Word becomes flesh, an idea a collective force, a message a vision of the world.”79

Endnotes

1. For a more extensive account and analysis of this debate, “Naar een dieper pragmatisme: de actualiteit van de geesteswetenschappen in de voorbereiding & uitvoering van beleid,” Intelligent Verbinden: Liber amicorum ter gelegenheid van het afscheid van Wim van de Donk als voorzitter van de WRR (Den Haag: Wetenschappelijke Raad voor het Regeringsbeleid, 2009), 121-130.

2. I am referring here to the title and subtitle of a conference organized under the auspices of the European Association for Education Law and Policy and the Collège d’Europe, held in Bruges, Belgium, December 7 – 9, 2010, where these thoughts were first presented in the city’s Town Hall as one of the two Piet Akkermans Memorial Lectures.

3. Christopher Caldwell, Reflections on the Revolution in Europe: Immigration, Islam, and the West (New York, London: Doubleday, 2009); Thilo Sarrazin, Deutschland schafft sich ab: Wie wir unser Land aufs Spiel setzen (Munich: Deutsche Verlags-Anstalt, 2010).

4. Régis Debray, Dieu, un itinéraire: Matériaux pour l’histoire de l’Éternel en Occident (Paris: Éditions Odile Jacob, 2001); God: An Itinerary, trans. Jeffrey Mehlman (London: Verso, 2004).

5. Keith Reader, “Régis Debray,” in Lawrence D. Kritzman, The Columbia History of Twentieth-Century French Thought (New York: Columbia University Press, 2006), 490-492, 492.

6. Ibid., 491.7. Peter Sloterdijk, Derrida, an Egyptian, trans. Wieland Hoban (Cambridge: Polity Press, 2009),

41-49, 44-45. 8. Keith Reader, “Régis Debray,” 491.9. Sloterdijk, Derrida, An Egyptian, 43-44.10.Régis Debray, L’Enseignement du fait religieux dans l’école laïcque, Préface de Jacques Lang

(Paris: Éditions Odile Jakob, 2002); “Teaching Religious Facts in Secular Schools,” trans. Daniela Ginsburg, in Hent de Vries, ed., Religion Beyond a Concept (New York: Fordham, 2008), 415-431, 430. See also Régis Debray, “Qu’est-ce qu’un fait religieux?,” in Études, 2002/3, Vol. 397, 169-180. For a discussion, see Enda McCaffrey, “The Return of Faith and Reason to Laïcité : Régis Debray and ‘le fait religieux,’” in French Cultural Studies Vol. 16, Issue 3 (2005), 273-290.

11.Debray, “Teaching Religious Facts in Secular Schools,” 430/61.12.Jean-Marie Colombani, “Nous sommes tous Américains” in Le Monde, September 13, 2001.13.See Joan Wallach Scott, The Politics of the Veil (Princeton: Princeton University Press, 2007) and

John R. Bowen, Why the French Don’t Like Headscarves: Islam, the State, and Public Space (Princeton: Princeton University Press, 2007).

14.Debray, “Teaching Religious Fact in Secular Schools,” 415/9.15. Ibid., 415/9-10.

16.For a discussion of the reception of Debray’s report, see Jean-Paul Willaime, “Teaching Religious Issues in French Public Schools: From Abstentionist Laïcité to a Return of Religion to Public Education,” in Robert Jackson, Siebren Miedema, Wolfram Weisse, and Jean-Paul Willaime, eds., Religion and Education in Europe: Developments, Contexts and Debates (Münster: Waxmann, 2007), 87-101, 93 ff. Willaime served as Director of the European Institute for the Sciences of Religions (ISER), as Debray’s successor. See also Luce Pépin, Teaching About Religions in European School Systems: Policy Issues and Trends—NEF Initiative On Religion and Democracy in Europe (London: Alliance Publishing Trust, 2009), 24, 72-73.

17.Jean-Paul Willaime, “Religion in the Classroom – the Challenge of a “laïcité d’intelligence” in Europe and Findings of the REDCo-Project,” in: Wolfram Weisse, in cooperation with Robert Jackson, Christian Rudelt and Jean-Paul Willaime, eds., Religion in Education – A Contribution to Dialogue or a Factor of Conflict: Presentation in the European Parliament, 22-29. http://www.redco.uni-hamburg.de/cosmea/core/corebase/mediabase/awr/redco/research_findings/REDCo_Brussels_Doc.pdf, accessed September 5, 2011.

18.Debray, “Teaching Religious Facts in Secular Schools,” 424/43.19.Willaime, “Religion in the Classroom.”20.See also Jakob Taubes’s Vom Kult zur Kultur: Bausteine zu einer Kritik der historischen Vernunft,

ed.,. Aleida and Jan Assmann, Wolf-Daniel Hartwich, and Winfried Menninghaus (Munich: Wilhelm Fink Verlag, 1996); From Cult to Culture: Fragments Toward a Critique of Historical Reason, edited by Charlotte Elisheva Fonrobert and Amir Engel, with an Introduction by Aleida Assmann, Jan Assmann, and Wolf-Daniel Hartwich (Stanford: Stanford University Press, 2010).

21.Jacques Lang, “Préface,” in Debray, L’Enseignement du fait religieux dans l’école laïcque, 9-11, 10.

22.See Yolande Jansen, Stuck in a Revolving Door: Secularism, Assimilation, and Democratic Pluralism (Dissertation, Amsterdam 2006), 193.

23.Debray, “Teaching Religious Facts in Secular Schools,’ 419/23.24. Ibid., 418-419/22.25. Ibid., 419/23.26. Ibid., 419/24.27. Ibid., 420/26.28. Ibid., 421/29, 30. These formulas remind one of an old debate concerning the academic study of

religion and the “methodological atheism” that it should or should not—could not—entail. See for a review of some of these arguments the opening chapter of my Minimal Theologies: Critiques of Secular Reason in Theodor W. Adorno and Emmanuel Levinas (Baltimore and London: The Johns Hopkins University Press, 2005).

29.Régis Debray, “Mediology,” in The Columbia History of Twentieth-Century French Thought, ed., Lawrence D. Kritzman (New York: Columbia University Press, 2006), 289-291, 289-290.

30.Régis Debray, Les communions humaines: Pour en finir avec “la religion” (Paris: Fayard, 2005), 60 ff.

31.Debray, “Mediology,” 289-290.32. I am grateful to Helen Tartar for providing me with an unpublished transcript of this intervention.33.Reader, “Régis Debray,” 491.34.Unpublished transcript.35.Debray, “Qu’est-ce qu’un fait religieux?,” 173-175.36.Michael Naas, “Derrida’s Laïcité,” in idem, Derrida From Now On (New York: Fordham University

Press, 2008), 62-80, 63.37. Ibid., 64.38.There are several recent books that have aimed at reconstructing the modern history and

construct of “religion” as a supposedly separate field of academic study, interrogating its premises along the way. Tomoko Masuzawa’s Inventions of World Religions: Or, How European

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Universalism Was Preserved in the Language of Pluralism (Chicago and London: University of Chicago Press, 2005) and Guy G. Stroumsa’s, A New Science: The Discovery of Religion in the Age of Reason (Cambridge and London: Harvard University Press, 2010) come to mind. There is no consensus as to what its alternative might look like and I will not pretend to be able to offer a definite answer here.

39.Kevin Williams, “Religious Worldviews and the Common School: The French Dilemma,” in Journal of Philosophy of Education, Vol. 41, No. 4 (2007). 675-692, 685.

40.More than abstract X’s, they reveal, rather than present or represent, singular and genuinely “saturated” phenomena (icons and events, miracles and special effects), whose very idea and, indeed, “immortality” requires not so much testimony and memory, but a militant “fidelity” carried by a “subject” that no longer coincides—i.e., is no longer defined and determined by—the situations in which it found and founded itself through intervention, decision, nomination, and the like. It is along these lines, using an idiom and “phenomenology” and “materialist dialectic” that Jean-Luc Marion and Alain Badiou develop in their alternative and contrasting projects that I would be inclined to formalize and de-formalize the point I am trying to make here.

41.Williams, “Religious Worldviews and the Common School,” 682, with reference to Jean-Paul Willaime, “Teaching Religious Issues in French Schools: From Abstentionist Laïcité to a Return of Religion to Public Education,” in: R. Jackson, S. Miedema, W. Weisse and J-P. Willaime, eds., Religion and Education in Europe: Developments, Contexts and Debates (Münster/New York/München/Berlin: Waxmann, 2007), 87–101, 87.

42.These quotations are drawn from the conference announcement.43.Cf. Robert Carroll and Stephen Prickett, “Introduction,” in The Bible: Authorized King James

Version (Oxford: Oxford University Press, 1998), xi-xlvi, xii.44.Willaime, “Teaching Religious Issues in French Public Schools,” 100.45. Ibid.46.Official Church documents such as the Catechism of the Catholic Church signed by the “supreme

pontiff” John Paul in the wake of the Second Vatican Council and Pope Benedict XVI’s third encyclical letter, entitled caritas in veritate, are typically addressed to the “brothers” the cardinals, patriarchs, archbishops, bishops, priests and deacons, men and women religious, the lay faithful, and “all people of good will.”

47.http://www.virtualpeace.org/, accessed September 5, 2011. See Jane McGonigal, Reality is Broken: Why Games Makes Us Better and How They Can Change the World (New York: The Penguin Press, 2011) and Tim Gross, “All the World’s a Game: A Special Report of Video Games,” in The Economist, December 10th, 2011.

48.http://dukeresearch.blogspot.com/2009/10/emergence-wages-peace-not-war-after.html, accessed September 5, 2011.

49.Mark Juergensmeyer, Gandhi’s Way: A Handbook of Conflict Resolution. Updated with a New Preface and New Case Study (Los Angeles and London: University of California Press, 2005).

50.Frits van Oostrum, ed., The Netherlands in a Nutshell: Highlights from Dutch History and Culture (Amsterdam: Amsterdam University Press, 2008), 7.

51.Robbert Dijkgraaf, Louise Fresco, Tjerk Gualthérie van Weezel en Martijn van Calmthout, eds., De bètacanon: Wat iedereen moet weten van de natuurwetenschappen (Amsterdam: De Volkskrant en J.M. Meulenhof, 2008).

52.Van Oostrum, ed., The Netherlands in a Nutshell, 7. Cf. ibid.: “This canon was created by bringing together a number of specialists and allowing them to consult for a year with one another and with a selection of interested individuals and stakeholders. A website that featured a discussion forum gave every Dutch citizen the opportunity to voice his or her opinion. The process brings to mind the way in which the Netherlands has succeeded for centuries in keeping its polders dry: collective craftsmanship.”

53.Cited after ibid., 6.

54.Among the more subtle interventions, see Paul Scheffer, Het Land van Aankomst (Amsterdam: De Bezige Bij, 2007); trans. Liz Waters under the title Immigrant Nations (Cambridge, UK, and Malden, 2011).

55.Willaime, “Teaching Religious Issues in French Public Schools,” 100.56. Ibid., 98.57. Ibid.58. Ibid.59. Ibid.60. Ibid.61.See Nils F. Schott, “Catechism and Enlightenment.” Diss. Johns Hopkins University, 2010. Print.62.For a source book, see Yves Hersant and Fabienne Durand-Bogaert, eds., Europes: De l’antiquité

au xxe siècle. Anthologie critique et commentée (Paris: Éditions Robert Laffont, 2000).63.Joseph H. H. Weiler, Un’Europa Cristiana. Un saggio explorativo (Mailand: Rizzoli, 2003); Ein

christliches Europa: Erkundungsgänge, trans. Franz Reimer, with a preface by Ernst-Wolfgang Böckenförde (Salzbug and Munich: Verlag Anton Pustet, 2004). See also Joseph H.H. Weiler, “A Christian Europe? Europe and Christianity: Rules of Commitment, in European View, Vol. 6 (2007), 143–150, and Camil Ungureanu, “The European Constitution-Making and the Question of Religion,” EUI Working Papers SPS, No. 2007/01, published by the European University Institute’s Department of Political and Social Sciences.

64.Weiler, Ein christliches Europa, 28 and 34.65. Ibid., 39.66.Joseph H.H. Weiler, “Invocatio Dei and the European Constitution,” Project Syndicate, May 2004,

http://www.project-syndicate.org/commentary/weiler1/English (last accessed November 23, 2010).67. Ibid.68.Weiler, Ein christliches Europa, 45, 48.69. Ibid., 48.70. Ibid., 57-58. Cf. also Joseph H. H. Weiler, “The Trial of Jesus,” in First Things, No. 204, June/July

2010, 39-46. 71.Weiler, “Invocatio Dei and the European Constitution.”72.Cf. Hent de Vries, “Introduction: Before, Around, and Beyond the Theologico-Political” Political

Theologies: Public Religions in the Post-Secular World, ed. Hent de Vries and Lawrence E. Sullivan (New York: Fordham University Press, 2006), 1-88, 67.

73.Weiler, “A Christian Europe?,” 143.74. Ibid.

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2 Thomas Misco

An Educational Right: Teaching and Learning about Controversial Issues

An Educational Right: Teaching and Learning about Controversial Issues

Thomas Misco1

1. INTRODUCTION

The work of developing tolerant, reflective, and engaged democratic citizens hinges upon the full release and discussion of controversial issues in the classroom. Without this educative mandate realized, students are ill-prepared for their exposure to prejudicial and propagandistic entrepreneurial efforts. With a teacher fortified by a strong philosophical rationale for teaching about controversy and armed with appropriate instructional strategies and curriculum within a supportive context, students will have the opportunity to develop understandings of nuanced normative issues and confront prejudice. Every free society, as well as those who aspire to be, struggles with this most critical and foundational educative enterprise (Misco, 2011a). Yet, teaching and learning about controversial issues as an educational right, which implies a normative universality, may find discord within the context of a majoritarian democracy. A rationale for educational rights, as supported by a democratic rationale rather than in opposition, does not look to popular will, which can certainly promote unjust outcomes. The foil to this problem lies within the fallacy of the will of the majority as the most quintessential democratic enterprise. Decisions made democratically should not find quarter, after all, if they are unjust (Newman, 2012). The United States Supreme Court has ruled on education-related cases demonstrating that the “rights-democracy tension” (Newman, 2012, p. 13) is perhaps not at tension at all. For example, in the case of Lau v. Nichols (1974), the court spoke to providing meaningful participation in a public education program, regardless of the student’s first language, as not doing so would violate the Civil Rights Act of 1964. Although difficult to imagine, some teachers might assume that if they have English Language Learners who are illegal immigrants, these rules need not apply. But the U.S. Supreme Court case Plyler v. Doe (1982) made it clear that illegal aliens and their children, though they are not citizens, are people and are therefore entitled to all the protections provided under the 14th Amendment. These two court cases make the legal obligation of responsive curriculum adjustments for English Language Learners quite clear. In addition, education has the distinct goal of preparing children for active and effective members of society (McMillan, 2010) and social studies teachers specifically have an obligation to prepare future citizens, which includes meaningful civic experiences for students of all backgrounds (Misco & Castañeda, 2009). Central to the development of democratic citizens is their exposure to, and ability to grapple with, controversial issues (Camicia, 2008; Engle, 1960; Engle & Ochoa, 1988; Graseck, 2009; Hahn, 1991; Harwood & Hahn, 1990; Hess, 2008; 2009; Hunt & Metcalf, 1968; Lee, 2004; Ochoa-Becker, 2007; Oliver & Shaver, 1966).

2. CONTROVERSIAL ISSUES

Controversies constitute a normative anchor within citizenship education curriculum and the degree to which controversial issues are subjected to reflection has profound implications for the vibrancy of a democracy. When students broach difficult issues and work toward their resolution, including the “normative possibilities” that flow from conflict, they have opportunities for social change beyond local communities (Ettlinger, 2004; Fluckiger & Wetig, 2003). Dewey (1933) situated controversy as a central fulcrum in the reflective thinking process. Without doubt and controversy, there is no judgment—only perception and recognition. Doubt, found in controversies, fuels the active search for answers and prompts judgment to filter and weigh the reasonability of meanings, ultimately leading to decisions based on reasonable grounds.In a pluralistic democracy, the means of education has exceedingly significant implications for developing skills and dispositions that perpetuate free, active, and harmonious social life. Students need to engage in judgments concerning societal values and evaluating how standards, which some perceive as established and uncontested, originate and perpetuate (Griffin, 1942). As societies continually renegotiate the degree to which students will rationally grapple with closed and gray areas, they are also shaping the larger enterprise of education as fostering either more democratic or totalitarian attitudes (Hunt & Metcalf, 1968). In the former, students require the chance to deliberate on controversial matters (Parker, 2003; Ross & Marker, 2005), but an often narrow focus on content knowledge is divorced from controversial topics, leaving little room for experiences to develop that promote and contain considerations for the common good. Ultimately, the avoidance of controversial issues leaves disciplines isolated and removed from their social bearings, thereby compromising their utility (Dewey, 1938).

2.1. What is controversial?

Controversies are dynamic and they weave throughout time. Although they often appear in variegated and unique ways, they have underlying and universal qualities of being normative, relevant, and contested. Controversial issues are those where “significant numbers of people argue about them without reach a conclusion,” typically based within value judgments located within individuals and their moral and ethical principles (Oulton, Dillon, & Grace, 2004, p. 411). Alternatively, we can think of controversial issues as those without a fixed or universally held point of view that divide society and have conflicting explanations and solutions (Crick, 1998), “if contrary views can be held on it without these views being contrary to reason” (Drearden, 1981, p. 38). Often controversies bring forth personal involvement and a belief that reasons for holding one position is because it is better than those held by others (Gardner, 1984). Simply put, controversies are “reasonable disagreements” (Levinson, 2008, p. 1217) that have two legitimate opposing viewpoints (Stoddard, 2009), where people are divided and have different opinions of “pertinacity and vehemence” (Thorndike, 1937, p. 1). Differences in values, divergent interpretations of the same value, or variable weights placed on values give rise to intellectual and emotional controversy (Bridges, 1986). Any critical treatment of social aims may enliven controversy in the classroom (Thornton, 2005) and what constitutes a controversial issue changes over time. For example, in the United States, Dewey (1908) pointed to fair wages, monopolistic enterprises, and the relationship of government and commercial interests. Thorndike (1937) cited “tariffs,

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government ownership of public utilities, international court, the New Deal, divorce, sterilization of idiots, insane, and criminal sorts” as controversies of his era and witchcraft, slavery, and the divine right of kings as controversies of the past (p.1). Oliver and Shaver (1974) put forth a set of perennial controversial problems concerning race and ethnic conflict; religious and ideological conflict; security and the individual; conflict among economic groups; conflict over health, education, and welfare; and national security. Parker viewed domestic abuse, sexual harassment, urban homelessness, racism, racial inequality, and citizen apathy as controversial issues in 2003. Yet, even within a specific culture and era, teachers and students have divergent ideas about which issues actually are controversial (Hess, 2002). The extent to which an issue is controversial is also highly contextual. For example, in teacher education classrooms of South Africa, the current identified controversies are HIV/AIDS, sex education, sexuality, rape, race/ethnicity, xenophobia, religion, and corporal punishment. In England, preservice teachers mention climate change, drugs, divorce, war, immigration, racism, religion, poverty, gender, sexuality, population migration, crime, and bullying in school (Chikoko, Gilmour, Harber, & Serf, 2011). In Turkey, pre-service teachers identified hijab, mandatory religious education, and conflicts among religious sects and ethnic groups (Ersoy, 2010) while in China, students suggested that beggars, corruption, pollution, food safety, culture, economic disparity, human rights, and Taiwan constitute the main controversial issues (Misco, 2011b). As issues change their underlying controversial nature, they “tip” and their status as controversies change at both local and societal levels (Hess, 2009). It is often difficult to determine whether an issue is open, closed, or in the process of tipping (Hess, 2009) and multiple stakeholders in different contexts may view the current controversial state of an issue differently. Therefore, in order to determine the degree of controversy an issue contains at a particular time and place we need to understand ideological context and the dominant or prevailing ideology (Camicia, 2008). We also need to gauge the degree to which stakeholders even find value in broaching controversies as a part of citizenship education (Misco, 2007; Misco, 2010a). Ultimately, how stakeholders frame issues, for they ultimately decide whether issues are controversial, and how the “contexts of historical and contemporary events, the interpretation of these events, ideologies, and power relations mediate these negotiations,” helps to inform the degree to which an issue can be considered controversial (Camicia, 2008, p. 311).

2.2. Benefits of discussing controversial issues

Engaging controversial issues pays a democratic dividend for student-citizens by increasing civic participation, critical thinking skills, interpersonal skills, content understanding, and political activity. These judgments also elevate interest in current events, social studies, social issues, and increase the development of tolerance while developing democratic values (Curtis & Shaver, 1980; Goldensen, 1978; Harwood & Hahn, 1990; Hess & Ganzler, 2006; Hess & Posselt, 2002; Hess, 2009; Remy, 1972; Torney-Purta et al., 2002). Students who engage in discussions involving controversial issues are well-positioned to become agents of change and recognize, celebrate, and embrace diversity among and within groups, as well as expand content knowledge though the consideration of other perspectives and develop understandings of justice and the common good (Crossa, 2005; King, 2009; Young,

1996). In addition, opening heretofore closed areas and entering into polemical discussions helps to make political issues become meaningful and relevant for students (McGowan, McGowan, & Lombard, 1994). Challenging assumptions and addressing prejudices (Gaughan, 2001) fits within the aims of prejudice reduction and democratic citizenship education and reflective pedagogy, where “right” answers are not sought (Graseck, 2009; Hunt & Metcalf, 1968).Controversial issue instruction is consonant with human rights education. Many of the benefits of controversial issue instruction supports UNESCO educational goals, including promoting pluralism and human rights, promoting empowerment and participation, developing students who are respectful others, and learning within an atmosphere of tolerance, international understanding, practicing democracy, and diversity of cultural identities (Osler, Starkey, & Vincent, 2002). The normative and moral nature of controversial issues also interlocks with general human rights questions (Lockwood, 2010; Waterson, 2009) and investigating values reflected in public policy leads to dealing with controversial issues in a manner that contributes to improving research skills, critical thinking, deductive and inductive reasoning, persuasive writing skills, and interpersonal skills in students (Byford, Lennon, & Russell III, 2009; Hess, 2002; Lockwood, 1996). Addressing controversial issues allows for developing higher levels of moral reasoning (Flinders, 2005) and promotes self-reflection over preconceived beliefs and an awareness of multiple perspectives necessary for civic learning (Byford, Lennon, & Russell; 2009; King, 2009). Through controversial issues education, students are more critical of accepted views (Oulton, et al., 2004) and having the academic freedom to discuss controversial issues reflects the vales of a democratic society (Hess, 2008; McCully, 2006; Nelson, 2003). The Role of Context in Teaching Controversial Issues

Schooling is supposed to challenge local traditions (Hlebowitsh, 2005) and unearthing controversies can help shift student focus from authoritative narratives and perspectives to heterogeneous micronarratives that draw on and challenge local and individual knowledge (Levinson, 2008). Controversies widen and enlarge student experiences both in terms of the normativity of topics, but also the multiple perspectives entertained among their teacher and peers to establish understandings and formulate solutions without succumbing to the tyranny of forced meaning (Giroux, 1983) and the often seductive appeal of prevailing belief and opinion. Discussing controversial issues can overlap with ideological battles outside the school, or within it, but it trumps those given the essential mandate for students to deliberate about the common good, take a stand on issues, and look at issues with multiple sources and perspectives (Hess, 2004; Marcus & Stoddard, 2009). Dewey (1940) eloquently warned of the dangers associated with avoiding controversial ideas and the consequences for intellectual freedom among both individuals and society:The discussion of a wide variety of opinion, unorthodox and orthodox, with an intelligent teacher in the classroom, is the best protection the schools can afford against our students being later misled by unscrupulous propagandists of one doctrine or another. It is surely better for our young people to face controversial issues in the open atmosphere of the schoolroom, than to seek out what is forbidden in some dark, unwholesome corner. No thought is so dangerous as a forbidden thought. Schools therefore serve as a unique and venerable role as a sanctuary for the free release of divergent ideas and how to move forward through distrust and disagreement (King, 2009).

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The context of controversial issues matters in a degree that is “not always obvious in other Western nations” and we need to be wary of “too-facile application of policies and ideas that are well-suited for other contexts” (Barton & McCully, 2007, p. 127). There are no nomothetic prescriptions for teaching controversy and certainly no “easy answers” (Barton & McCully, 2007, p. 127). Sometimes a critical obstacle hinges on the “social and political winds” that blow through the school and “grab hold of the curriculum in a way that limits the range of expression that can emerge” (Hlebowitsh, 2005, p. 222). The antiquated and decontextualized fidelity approach to curriculum implementation has enjoyed resurgence within a measurement and high-stakes era of teaching, whereby context, or milieus, can overpower other commonplaces to stymie the discussion of controversial issues. When teachers subscribe to a fidelity model, controversies are often no longer important or are rendered independent of social context and milieus which also risks enactment. Yet, pushing too far into the discomfort zone can often invite rejection of enactment (McCully, 2006; Patrick, 2005). The sociohistorical location of the teacher is therefore critical for the normative decision about what should be done about an issue, which is typically underpinned by the differences in “key beliefs or understandings about the issue held by the protagonists” (Oulton, Dillon, & Grace, 2004, p. 411).

3. MILIEU

Schwab (1973) distilled educational phenomena into four commonplaces, where someone is teaching something to someone, somewhere (teacher, subject matter, learner, and milieu), all of which demand coordination when we focus on the ultimate goal of doing what is best for the learner as a human being, child, and citizen. It is the final commonplace, which Schwab referred to as “the milieus,” which include the school, classroom, and relations of students to each other. The relations of students to subgroups, students to structures of authority, teachers to educational leaders, as well as student to student, teacher to student, and teacher to teacher all help shape not only what is taught, but how it is taught. Other relevant milieus include the “family, community, the particular groupings of religious, class or ethnic genus” (p. 367) and the aspirations of these groups. Milieus also include the relations of these groups and individuals within town, city, country, and locale as “represented in miniature” by the students of each genus (p. 367). Many of these milieus, in the form of school structure, community members, and parents who want students to reflect their views, undermine a marketplace of ideas and act as barriers to discussion of controversy (Hess, 2009).Schwab (1973) suggested that connected to these milieus are what teachers will know, the degree of flexibility they bring to teaching and learning new techniques, as well as the “biases they bring” (p. 367). When considering controversial issues within overlapping milieus, Schwab emphasized whether learning experiences will not only lead to the improvement of the community, but also if they will be acceptable to the community and if not, what steps can be taken to facilitate acceptance. Teacher preparation, student relations, and the juxtaposition of multiple layers of incommensurable values suggest that these milieus are of paramount consideration for designing learning experiences that address controversial issues. Even with a provocative curriculum, eager students, and well-prepared teachers poised to confront controversy, the milieus act as pathways and obstacles to

opening and discussing closed areas. Controversial issues span both societal and educational knowledge domains and learning about these issues is a negotiation between the individual and their social milieu (Barnett & Hodson, 2001).Context and the milieus are therefore of paramount concern for teaching controversial issues as they influence and acts in conjunction with prior knowledge to influence reticence (Ersoy, 2010; Leib, 1998). Employing Pedagogical Context Knowledge (PCK) (Barnett & Hodson, 2001) is instructive here as it focuses our attention to the knowledge of learners’ understanding, knowledge of effective teaching strategies for particular content, alternative ways of representing the subject matter, and curricular saliency. Part and parcel of saliency is teacher judgment of matters of depth and treatment within a context as “teacher’s classroom decisions are located in, and contingent upon, a specific social, cultural, and educational context” (Barnett & Hodson, 2001, p. 433). Because controversies change over time, as personal narratives are interpreted and mediated with local knowledge to create new knowledge (Levinson, 2008), context is a critical lever for how an issue is filtered, rendered, or avoided. Controversial issues are controversial because they ultimately speak to normative value judgments, which individuals frame within their ethical principles (Oulton, Dillon, & Grace, 2004), but also historical, social, political, and ethnic contexts. Often, it is the not the issue itself that prompts the type or degree of treatment in a classroom, but the dynamics as shaped through the attitudes and experiences of participants (McCully, 2006). It is not the teaching controversy which raises concerns typically, but the moral, social, and political substructure and the ways that schools handle these issues that provokes resistance and brings about teacher protection-oriented postures (Bridges, 1986; Byford, Lennon, & Russell, 2009). For example, Taiwanese curricula focuses on “harmless” social and cultural issues instead of controversial political ones (Meihui, 2004) while only the top schools in Singapore provide students with the opportunity to debate controversial issues (Gopinathan & Sharpe, 2004). Conflicting beliefs about issues reflect “contested terrain supported by deeply embedded cultural values” (Evans, Avery, & Pederson, 2000, p. 298) and these can be recondite or readily apparent. There are “multiple tensions” and “conflicting demands” that inform classroom life, including school policies directly relating to the treatment of controversial issues (Barnett & Hodson, 2001, p. 434). Of the numerous variables influencing the discussion of controversial issues, a key determinant is the extent to which the classroom enjoys an “open climate” where students are encouraged to examine competing views of controversial public issues. But classroom climate, while important for a flow of diverse ideas among teachers and peers (Hahn, 1998), is not a panacea. Teachers are not the sole condition of climate as student perception of peers has such a profound influence leading to self-censure (Hess, 2002; King, 2009). School environmental factors, pointing to context and milieu, are significant variables where the “wider cultural milieu also mediates the effects of classroom climate” (Hahn & Tocci, 1990, p. 358) and an intractable web of “social, cultural, and historical relations in which students themselves are situated” (King, 2009, p. 240). In some communities, issues simply take on more controversy if they are perceived as “inappropriate for the curriculum or because there is pressure to deal with only one perspective on an issue” (Hess, 2002, p. 14).

4. TEACHERS

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Despite evidence supporting the teaching of controversial topics, they often receive little attention in schools as teachers avoid addressing the belief systems of cultures and societies, including their own (Evans, Avery, & Pederson, 2000). Whether implementation of controversial issues occurs decisively depends upon the teacher and their beliefs about the relevance of the issue, knowledge of the issue, confidence, fear of community or administrative reprisal, and conviction (Hess, 2002; Lee, 2004; Reis & Galvao, 2008). Teachers’ perceptions of compromised academic freedom results in avoiding controversies, which minimizes opportunities for students to examine or overhaul their beliefs and assumptions, as well as analyze those of their society. Content coverage for the purposes of testing, the difficulties of engaging students, lack of pedagogical confidence, and feeling they are too emotionally invested in the issue also undermine time spent on controversial issues in classrooms (Hess, 2002; 2005). If teachers do broach controversial issues, they tend towards local issues or those with low-sensitivity (Asimeng-Boahene, 2007; Gayford, 2002; McKernan, 1982; Oulton, Dillon, & Grace, 2004; Wilson, Hass, Laughlin, & Sunal, 2002). Teachers generally believe students want to engage controversial issues (Byford, Lennon, & Russell, 2009), but they often lack confidence to respond to divisive issues and therefore avoid them or divert them from the present (Barton & McCully, 2005), want to avoid indoctrinating students into a particular viewpoint (Hess, 2008), or defer to the school context and culture for determining whether they will broach controversial issues (Misco & Patterson, 2007). The milieu therefore shapes what teachers view as appropriate and controversial, leaving teachers with many disincentives, including fear of isolation, censure, and recrimination (King, 2009; McCully, 2006). When located within a fidelity paradigm of curriculum implementation, the milieu serves as a powerful factor in minimizing opportunities for teachers to engage students in controversial issue discussions (Misco, 2010b). Although teaching controversial issues needs to be carefully planned and executed, being mindful of student views and feelings, the community environment, and current political debates (Marcus & Stoddard, 2009), these considerations need to be balanced with the normative mandate of the publics school to create a widening and enlarging experience (Hlebowitsh, 2005). Because no classroom exists sui generis, with each teacher and student an aggregation of a new permutation, the particular is of great concern rather than a nomothetic implementation. Teachers are critical levers, for they act as gatekeepers to student interests and curricular choices (Graseck, 2009; Thornton, 2003) and their ideologies can determine curricular and pedagogical decisions (Stoddard, 2009). But these decisions and ideologies are situated and located within larger group ideologies and contexts (Apple, 2004). They are therefore somewhat epiphenominal to the characteristics surrounding the controversial issue as situated and embedded within particular subcultures. Teachers often consider controversial issue instruction to be counterproductive, yet they do view them as important so long as their professional career is not endangered (Byford, Lennon, & Russell, 2009), due to their “subversive hew” (McCully, 2006, p. 58). Theoretically and holistically teachers see value of controversial issue instruction, but pragmatically problems and obstacles undermine their effective instruction (Byford, Lennon, & Russell, 2009) and other teachers are more “pragmatic and resilient to institutional buffeting” and more prepared to work with and challenge irrational thinking from any quarter (McCully, 2006, p. 63).

A chief consideration for broaching controversial issues is the strong emotional response that results in those societies experiencing religious, cultural, or ethnic conflict. This emotion is critical for understanding how teachers can engage students effectively within the issue (McCully, 2006). The prior exposure to controversial issues in their educational background also influences teacher attitudes about involvement of controversial issues in their teaching (Ersoy, 2010). Teachers therefore need a sound rationale for their role with controversial issue discussions for it is the teacher that plays a pivotal role in treatment including points of view, time, sides, plurality, student discussion and they need the confidences of the milieus, a support network, and a flexible curriculum in order to take these risks (Barton & McCully, 2007; Lockwood, 1996).

5. INSTRUCTIONAL PRACTICES

Engaging controversial issues does not fit well within classrooms that emphasize a producer-consumer model employing direct instruction and teacher as curricular fountainhead. Rather, controversial issues are best broached within democratic classrooms that emphasize student-centered learning and constructivist pedagogy consistent with reflective inquiry. For example, Structured Academic Controversies (Hess, 2009; Johnson & Johnson, 1988; 1993; King, 2009) offer students the opportunity to reconceptualize their own position and perspective through authentic multiple perspective taking. Although the practice of discussion is highly nuanced, it broadly interlocks with democratic education and both small group and large group discussions are well-suited for exploring controversial issues (Hahn & Tocci, 1990; Hess, 2002; 2009; Oulton, et al., 2004; Waterson, 2009). The use of documentary film (Marcus & Stoddard, 2009; Stoddard, 2009), Socratic seminars (Mangrum, 2010; Polite & Adams, 1997), and deliberation (Cohen, 1999; Dewey, 1922; Parker, 2003) also provide well-positioned platforms to foster multi-perspective, openminded, and rational educational experiences with controversial issues.

Employing these strategies responds to the suggestions and caveats about controversial issues instruction. For example, teachers should not limit impartiality towards alternative viewpoints (Hess, 2002; Lockwood, 1996; Oulton et al., 2004; Stoddard, 2009; Waterson, 2009). Because teachers may have trouble restraining from becoming overly involved in the discussion and stating their own opinions (Byford, Lennon, & Russell, 2009) they should use “cognitive distancing” and form respectful relationships to reduce students’ perception of the risk associated with addressing controversy (King, 2009, p. 215). Within these instructional strategies, discussing controversial issues is most effective when the classroom is diverse, with students holding differing perspectives (Barton & McCully, 2007). Yet, attempting to maintain a balance of perspectives is ineffective and virtually impossible and students will not participate in discussion if they fear ridicule or penalization for their comments (Leib, 1998; Oulton et al., 2004). The seminal categorization of teacher stances toward controversial issues (Kelly, 1986) includes involves exclusive neutrality, whereby the teacher does not introduce topics that the broader community might consider to be controversial. This position aims to construct a neutral and value-free classroom, though this method lends itself as a pure conduit to prescribed content and embedded values within curriculum. Exclusive partiality suggests that

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a correct position on any number of controversial issues exists. Not unlike a citizenship transmission orientation (Barr, Barth, & Shermis, 1977), exclusive partiality attempts to limit contestation, alternative points of view, and the gray areas associated with multiple interpretations and put forth the “correct” and uncomplicated interpretations and conclusions. Neutral impartiality, asserts that teachers should engage students in discussions on controversial issues, but their own views should not enter into the conversation. Within this orientation, the teacher becomes one of many inquirers who does not reveal or promote their beliefs, but rather focuses their attention on helping students problematize and refine theirs. The fourth and final stance of committed impartiality is akin to explicit subjectivity, as it involves the interjection of teacher beliefs and an explication of their thinking on the issue. This stance claims that if teachers subsume their beliefs and opinions as citizens and legitimate participants of society, the result is a disingenuous classroom experience (Misco & Patterson, 2007).

6. STUDENTS

Students generally have positive attitudes toward controversial issue discussions and think that they are important (Hess & Posslet, 2002). Yet, few students enjoy the opportunity for discussions within diverse ideological settings and there is a virtual absence of opportunities for students to engage controversial issues discussions (Hess, 2009; Kahne et al., 2000). Although students of the majority group typically enjoy more freedom to express their opinions (Leib, 1998) and views of members of non-dominant groups are more easily discredited in student minds (Lusk & Weinberg, 1994), many students are reluctant to discuss controversial issues as they presume an underlying assumption that they will suffer negative repercussions outside of the classroom. Student inhibitions include general discomfort about conflict and concerns about peer perception if they hold a position outside of moderation, as well as expectations of lower grades if in disagreement with the teacher (Lusk & Weinberg, 1994). Students are often reluctant to “say anything in class which might jeopardize their peer relationships” (Lusk & Weinberg, 1994, p. 306). Instead, they tend toward preserving the legitimacy of currently held beliefs and minimize any interrogative self-reflection (King, 2009). Students not only have only rare opportunities to confront controversial issues in schools (King, 2009; Rossi, 2006; Waterson, 2009) but also generally develop democratic habits of mind, such as deliberation and consideration of opposing perspectives (Shaver, Davis, & Helburn, 1979; Goodlad, 1984; Sizer, 1984; McNeil, 1986). Students need a safe environment for expression ideas and perspectives about controversial issues and there is an expectation for alternative perspectives among students, especially to those understood outside of the school, which are often limiting or one-sided (Barton & McCully, 2007). Given variation of viewpoint about seemingly subjective issues, multiple perspectives are critical features of introducing and teaching about controversial issues (Oulton, Dillon, & Grace, 2004). We should not ignore nor discount emotions students bring to these discussions, which if ill-considered can provide outlets for students to “retreat into defensive, ‘tribal’ positions” (McCully, 2006, p. 53).Necessary ConditionsParadoxically, although teachers and students often report social studies classes as containing a surfeit of controversial issue discussions, researchers rarely find any attention

to controversy (Hess, 2008). To combat these perceived divergent realities, teachers must deliberately select a clear and appropriate role to play in the discussion of controversial issues (Ersoy, 2010; Lockwood, 1996; Waterson, 2009) including actively and “directly challenge students’ pre-existing assumptions,” (King, 2009, p. 219). Each student and teacher discussing controversial issues must be equally willing to allow all views to be heard and all participants to express their perspective (King, 2009; Levinson, 2008) within a classroom environment of mutual respect and trust that encourages the free release of ideas between students (Graseck, 2009; Hahn & Tocci, 1990; King, 2009; Levinson, 2008; Lusk & Weinberg, 1994; McCully, 2006; Waterson, 2009). Teachers should spend time preparing students for discussion of controversial issues, as well as debrief the discussion afterwards in order to improve the quality and the equality of the discussion (Ersoy, 2010; Hess, 2002; Oulton et al., 2004). Teachers also need to attend to emotions in the classroom, admitting uncertainties, allowing extreme views, and providing a chance to regroup at the end of class to create a secure environment (Barton & McCully, 2007). Teachers should be flexible and responsive to changing contexts (Barnett & Hodson, 2001; McCully, 2006) and they need detailed knowledge of the subject matter, a clear understanding of the aims of education, and a familiarity with useful strategies to be able to successfully implement a discussion of controversial issues in the classroom (Reis & Galvao, 2009). Given the prominence of state-promoted values and beliefs in some societies, teachers also require some degree of academic freedom for the teaching of controversy, as well a disposition of doubt and uncertainty (Mitchell, et al. 1997; Nelson, 2003; Parmenter, 2004). Multiple sources of relevant materials and evidence that will aid on uncovering various perspectives on the controversial issue are also essential (Evans, et al., 2000). In teacher education programs, pervasive and conscious treatment of controversial issues is needed so that teachers new to the field understand the breadth of research that demonstrates the salubrious effects that teaching controversy has for citizens in a democracy. Beginning teachers should be able to clearly articulate why teaching about controversy is a normative mandate, regardless of the school, administrators, community, and other contextual features. A good deal of time ought to be spent helping pre-service teachers find ways to undermine the spurious dichotomy of “required content” and controversial issues. This perception of a crowded curriculum coincides with the ongoing schism of public and private benefits derived from education. By framing controversial issues that are predominantly public, private, contemporary, or historic, in terms that demonstrate how they are all of these things, preservice teachers can deflate some of the controversy while remaining in alignment with content objectives. Teachers also need more opportunities to master controversial issues. As teacher education programs become increasingly generalist-oriented, whereby few have disciplinary expertise, spending more time providing content-rich experiences that address knowledge gaps of prominent, and often ongoing, controversial issues can better prepare educators for introducing controversial issues in their teaching (Misco & Patterson, 2007).

7. CONCLUSION

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If we think of democracy not in terms of governmental structures but Dewey’s (1916) “mode of associated living, of conjoint communicated experience” (p. 87), citizenship is predicated on foundational ideas of free participation and communication. But democracy is only sustainable in societies where a significant portion of the population enacts democratic skills, values, and behaviors (Almond & Verba, 1963). An essential characteristic of these societies is the ability of citizens to discuss controversial issues in order to celebrate diversity, respect individuals and groups, extend equal rights to all human beings, respect evidence in the formation of beliefs, and be open to changing one’s mind within a criticality informed by rational inquiry (Chikoko, Gilmour, Harber, & Serf, 2011).

Teaching and learning about controversial issues constitutes a fundamental educational right. The manifold salubrious benefits associated with addressing controversial issues, and the pernicious outcomes of doing otherwise, reveals an obligation for departments and ministries of education, educational policy-makers, preservice teacher training institutions, school leaders, and practicing teachers. Their obligation squarely lies on privileging controversial issues in curriculum, assisting teachers with pedagogical development, and developing context-based rationales for doing so. The end result of these efforts is the enjoyment of an educational right that all students deserve, which prepares them to be free and active thinkers who make informed and reasoned decisions that improve their communities and societies.

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McGowan, T., McGowan, M., & Lombard, R. (1994). Promoting global perspective. ! Social Studies and the Young Learner, 6(4), 19-22, 29.

McKernan, J. (1982). Constraints on the handling of controversial issues in Northern !Ireland post-primary schools. British Educational Journal, 8, 57-71.

McMillan, L. K. (2010). What's in a right? Two variations for interpreting the right to! education. International Review of Education, 56, 531-545.

McNeil, L. M. (1986). Contradictions of control: School structure and school knowledge. !London: Routledge Press.

Misco, T. (2007). Using curriculum deliberation to address controversial issues: Teaching! ! the Holocaust in Latvian schools. International Journal of Education Policy and ! ! ! Leadership, 2(8), 1-12.

Misco, T. (2010a). Responding to the thin veneers of controversial issues: The promises

! and challenges of curriculum implementation in post-communist schools. !International Journal for Education, Law, and Policy, 6(1), 77-87.

Misco, T. (2010b). Moving beyond fidelity expectations: Rethinking curriculum reform for controversial topics in post-communist settings. Theory and Research in Social Education, 38(2), 182-216.

Misco, T. (2011a). Teaching about controversial issues: Rationale, practice, and need for ! inquiry. International Journal for Education, Law, and Policy, 7(1), 7-18.

Misco, T. (2011b). “We don’t talk about these. We just focus on studying Marx” Theproblems and challenges of reflective thinking and controversial issue discussions in Chinese high schools.” Paper presented at the College and University Faculty Assembly within the National Council for the Social Studies Annual Convention, Washington, D.C.

Misco, T., & Castañeda, M. (2009). “Now, what should I do for English language! learners?” Reconceptualizing social studies curriculum design for ELL/ESOL. !Educational Horizons, 87(3), 182-189.

Misco, T., & Patterson, N. C. (2007). A study of pre-service teachers' conceptualizations! of academic freedom and controversial issues. Theory and Research in Social !Education, 35(4).

Mitchell, G., Evans, S., Daly, J., & Roach, P. (1997). Academic freedom and the ! preparation of social studies teachers. Theory and Research in Social !Education, 25(1).

Nelson, J. L. (2003). Academic freedom, institutional integrity, and teacher ! education. Teacher Education Quarterly, Winter 2003.

Newman, A. (2012). A democratic framework for educational rights. Educational! Theory, 62(1), 7-23.

Ochoa-Becker, A. (2007). Democratic education for social studies: An issues-! centered decision making curriculum. Greenwich, CT: Information Age.

Oliver, D., & Shaver, J. P. (1966). Teaching public issues in the high school. Boston: !Houghton-Mufflin.

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Oulton, C., Dillon, J., & Grace, M. (2004). Controversial issues teachers attitudes and !practice in the context of citizenship education. Oxford Review of Education, 30, !489-507.

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Parker, W. C. (2003). The deliberative approach to education for democracy: ! Problems and possibilities. In J. J. Patrick, G. E. Hamot, & R. S. Leming, (Eds.), ! Civic learning in teacher education (pp.99-115). Bloomington, IN: ERIC ! Clearinghouse for Social Studies/Social Science Education. (ERIC Document ! Reproduction Service No. ED475824)

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Endnotes

1. Ph.D., Associate Professor of Social Studies Education, School of Education, Health, & Society, Miami University (USA)

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3 Rainer Palmstorfer

Religious Symbols in Public Schools - Some Legal Remarks on Crosses in Classrooms

Religious Symbols in Public Schools - Some Legal Remarks on Crosses in Classrooms

Rainer Palmstorfer

For more than two decades the issue of crosses in classrooms has been preoccupying European and national courts alike.1 It would be misleading to analyse all of these rulings in one go, for the different outcomes are also due to the peculiar constitutional national frameworks. In other words, the issue of crosses is not only one of fundamental rights. Last year another two Court decisions were handed down on this issue. On 9 March 2011, the Austrian Constitutional Court (‘Verfassungsgerichtshof’) had to decide upon the legality of Section 12 para 2 of the Kindergarten Act of Lower Austria, according to which a cross was to be displaced in all rooms if the majority of children attending the kindergarten has a Christian denomination.2 An atheist father challenged this provision, claiming that the provision infringed Article 2 of Prot No 1 and Art 9 ECHR. Measuring this rule primarily against the freedom from religion as enshrined in Article 9 ECHR, the Court held that Section 12 para 2 Kindergarten Act did not violate the said fundamental right.3Some days later, the Grand Chamber of the European Court of Human Rights (ECtHR) handed down its long-awaited decision in Lautsi II4 on the compatibility of an Italian provision which provided for the mandatory display of crosses in Italian schools with Article 2 of Prot No 1 (parental right of education). Unlike the Chamber which had found a violation,5 the Grand Chamber held the Italian norm to be compatible with Article 2 of Prot No 1. Thus both the Verfassungsgerichtshof and the Grand Chamber arrive at the same conclusion: the respective rule on the mandatory display of crosses was not illegal. However, the ways how the Courts came to this conclusion were different, for while the Verfassungsgerichtshof used Article 9 ECHR as yardstick for its examination, the Grand Chamber resorted to Art 2 of Prot No 1. However, as the Grand Chamber interpreted Article 2 of Prot No 1 in the light of Article 9 ECHR,6 the legal test ultimately boiled down to the issues caught by the latter provision. In the following some aspects of these rulings shall be discussed in more detail.

1. THE SCOPE OF PROTECTION OF ARTICLE 9 ECHR AND ARTICLE 2 OF PROT NO 1

In both cases, the applicants claimed that the mere presence of the cross in the classroom would be tantamount to a violation of the said fundamental rights. Before having a closer look at how the Courts dealt with this plea, let us begin with what is protected by these rights in general. According to settled case law, Article 9 protects also the ‘freedom to hold or not to hold religious beliefs and to practise or not to practise a religion’.7 In brief, also the freedom from religion is protected. Having described what is protected, we furthermore need to consider against what the freedom from religion is protected. Apart from the obvious constellation that a person is compelled to hold or practise a religion, the Court held that non-believers cannot be ‘required to reveal their faith or religious beliefs and [cannot] be compelled to assume a stance from which it may be inferred whether or not they have such beliefs’,8 for example by being forced to take an oath on the Gospels.9 Thus it is the element of compulsion that seems to be the common feature of the possible infringements of Article 9 ECHR: compulsion to hold or practise a religion or to declare one’s stance on religion.

Pursuant to Article 2 of Prot No 1, ‘the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions’. In its

landmark ruling Kjeldsen (1976), the Court held that this right does not prevent the State from teaching information of a religious or philosophical kind.10 However, there is a line the State is not allowed to cross. This is the line of indoctrination, which means that the State ‘must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner’.11 The following cases on the parental right predominantly were about deciding in a given case whether or not the limit of indoctrination was reached.12 Similarly, being compelled to take part in denominational religious instruction also qualifies as a violation of Article 2 of Prot No 1.13

2. THE MERE SIGHT OF A CROSS – A VIOLATION OF FUNDAMENTAL RIGHTS?

The Austrian Constitutional Court’s reasoning was explicit: An encroachment was denied and, even if Section 12 para 2 of the Kindergarten Act encroached upon Article 9, it would be justified by the fact that the norm serves to protect the freedom of religion of Christian children and their parents alike.14 By contrast, the Grand Chamber’s reasoning is not that clear, for it does not explicitly state whether Article 2 of Prot No 1 was encroached upon. Instead the Court starts with the margin of appreciation,15 which met with criticism.16 However, the Court’s method becomes more comprehensible, if one considers the involved fundamental right. For unlike Article 9, the text of Article 2 of Prot No 1 contains no grounds of justification. What is more, the case-law on indoctrination boils down to the question whether or not the ‘limit’ of indoctrination broken.17 Put differently, indoctrination is not a matter of degree in this context – either there is or there is not an instance of indoctrination.18 Thus it is the structure of Article 2 of Prot No 1 that accounts for the Court’s approach in Lautsi II. But how does the Court assess whether this limit is broken in the context of school crosses? This question leads to the crux of the matter: the issue of perspective.

The decisive question is what perspective has to be applied when deciding on a possible violation. And this seems also to be the point which accounts the different outcomes in the various school-cross rulings. It seems clear that one has to apply the pupil’s perspective,19 but this is where the problem starts. One could argue that the subjective perception of the individual pupil alone decides on the existence of a violation. Consequently, the display of a cross would be tantamount to indoctrination if a respective pupil feels indoctrinated or, better, if the parents think that their child gets indoctrinated. For example, the Swiss Federal Court in Swiss school crosses20 as well as the Chamber in Lautsi I argued in this manner, holding that the possibility of religious influence suffices for a violation. 21 The Grand Chamber, however, did not follow these approaches. Instead, it argued that it lacks evidence ‘that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed’ and, more importantly, it points out that ‘the applicant’s subjective perception is not in itself sufficient to establish a breach of Article 2 of Protocol No 1’.22 Instead it broadens the perspective, also looking at the respective school environment, in particular at the behaviour of teachers.23 Therefore the Grand Chamber, albeit implicitly, applies an objective test. That is not to say, the perspective of the applicant is not important. It just means that the Grand Chamber does not primarily examine the relationship between the school cross and the respective pupil but the relationship between the latter and other humans acting in school (in particular teachers). This is also expressed by the qualification of the school cross as an ‘essentially passive symbol’.24 This seems more convincing than the German Constitutional Court’s qualification of the cross as having an ‘appellative character’25 and also in line with the scope of protection of the involved fundamentals rights. They do not protect the individual from the perception of religious symbols, they protect against religious compulsion (to be understood as being compelled to practice a religion or to declare one’s stance to religion) or, in the context of education, indoctrination. Measured against this scope of protection, the outcome of Lautsi II is convincing. In other words, the feeling of being

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offended alone does not necessarily mean that either Article 9 or Article 2 of Prot No 1 is violated, for the actions resulting in this feeling have to reach the level of religious compulsion or indoctrination.26 May we therefore conclude that the mandatory display of crosses in classrooms is compatible with the Convention? This would be a premature conclusion, for so far we have neglected one aspect: the aspect of neutrality and impartiality.

3. THE NEUTRALITY OF THE STATE

Both the Italian and the Austrian act require that the cross, and only the cross, has to be displayed in classrooms. This does not mean that other religious symbols, for example the headscarf, are banned from the classroom. Indeed, it was particularly the fact that pupils were allowed to wear Islamic headscarves from which the Court concluded that there was no indoctrination,27 or, put differently, that the school environment was marked by pluralism. But that is half the story, for only the display of the cross, and not the display of other religious symbols that could also be attached to the walls was mandatory. This raises the question whether this qualifies as a discrimination pursuant to Article 14 of the Convention,28 which is given ‘where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention’.29

Interestingly enough, the applicant in Lautsi II also invoked the said Article 14. However, the Court did not elaborate on this plea, stating that ‘that little argument has been presented in support of this complaint’.30 Consequently, the ruling lacks a deeper analysis of this point in law. But the Court’s finding that Article 14 has ‘no independent existence, since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols’31 misses the point, for, according to the Court’s case law, an infringement of Article 14 does not require that a Convention right is infringed. For example, ‘a measure which itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature’.32 In other words, even if the school-cross rule may not infringe Article 9, it may be discriminatory under Article 14. For example, in Abdulaziz a British provision which allowed foreign wives to join their British husbands and live in the UK was held to be discriminating against foreign husbands, who – in contrast to foreign wives – were not allowed to join their British wives in the UK under the same conditions. The Court held that ‘[a]lthough the application of Article 14 does not necessarily presuppose a breach of [a right or freedom safeguarded by the Convention] (...) there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (...) the Court (...) did not find a violation of Article 8 taken alone (...) the facts at issue nevertheless fall within the ambit of that Article’.33 In other words, the British provision on foreign husbands did not infringe Article 8 of the Convention, but it infringed Article 14.34 Thus a treatment can fall within the relevant substantive provision, thereby making Article 14 applicable, while not breaching the substantive provision.35 If Article 14 is applicable, a different treatment needs an objective and reasonable justification, it needs a legitimate aim and there has to be a proportionate means to achieve this aim.36 In the following, the elements developed by the Court shall be applied to the school crosses.

As has been shown above, the mandatory school cross infringes neither Article 9 nor Article 2 of Protocol No 1. However, as has just been mentioned, this does not mean that the rule does not infringe Article 14. We need to clarify whether the mandatory cross falls within the ambit of another substantive right or freedom under the Convention, that is to say, a norm different from Article 14. The question has to be answered in the affirmative. Although the school cross is not attached upon the will

of Christian pupils or their parents, it falls within the ambit of Article 2 of Protocol No 1, for one may argue that it can be regarded as the State’s respect for the right of Christian parents to ensure education and teaching in conformity with their own religious and philosophical convictions. This does not mean that Christian parents have a right under Article 2 of Protocol No 1 to have their children taught in a classroom having a school cross inside.37 In a nutshell, the State does more for Christian parents than required under the parental right. Finding that school crosses fall within the ambit of Article 2 of Protocol No 1, Article 14 has to be applied, for the State gives preferential treatment to a group of people (ie Christian parents) in the ambit of the said parental right. Here also the notion of neutrality comes into play. When adopting regulations on religious affairs and its relations to religious groups, the State has a duty to be neutral and impartial.38 This difference of treatment is discriminatory, unless it has an objective and reasonable justification, which means that it pursues a legitimate aim and is proportionate.39 But how can one justify that only the cross has to be displayed? The problem with the school cross is that there are hardly any grounds other than historic reasons that can be brought forward to justify it. One could argue that Christianity is the religion of the majority of Italian parents and thus the State is allowed to promote it. But why should the State only promote the majority of its citizens? The aim of the measure thus seems to be doubtful. What is more, we may also have doubts as to the proportionality of the rule, as it requires that ‘each classroom must have a crucifix’.40 In other words, even in situations in which none of the pupils in a certain classroom has a Christian denomination, a cross has to be displayed. To sum up, it seems highly doubtful whether the cross rule meets the requirements under Article 14.41 This reasoning would not necessarily mean that the cross has to be removed from the classroom, but it would require the mandatory display also of other religious symbols in the classroom. This being said, the only possible justification for the current cross rule would be found in the margin-of-appreciation doctrine.

Endnotes

1. See the overview in ECtHR (Grand Chamber) 18 March 2011, 30814/06, Lautsi v Italy (hereafter: ‘Lautsi II’) para 28.

2. Austrian Constitutional Court 9 March 2011, G 287/09 (hereafter: ‘Kindergartencross’).3. Kindergartencross (n 2) V para 2.5 et seq. 4. Lautsi II (n 1). 5. ECtHR (Chamber) 3 November 2009, 30814/06, Lautsi v Italy (hereafter: ‘Lautsi I’). 6. Lautsi II (n 1) para 60. 7. ECtHR 25 May 1993, 14307/88, Kokkinakis v Greece, para 31; 18 February 1999, 24645/94,

Buscarini v San Marino, para 34.8. ECtHR 15 June 2010, 7710/02, Grzelak v Poland, para 87. 9. Buscarini v San Marino (n 7) para 34. 10.ECtHR 7 December 1976, 5095/71, Kjeldsen and others v Denmark, para 53. 11.Kjeldsen (n 10) para 53; Lautsi II (n 1) para 62.12.See for example ECtHR 18 December 1996, 24095/94, Efstratiou v Greece; 25 May 2000,

51188/99, Jimenez Alonso und Jimenez Merino v Spain; 29 June 2007, 15472/02, Folgerø v Norway; 9 October 2007, 1448/04, Zengin v Turkey; 6 October 2009, 45216/07, Appel-Irrgang v Germany.

13.Appel-Irrgang v Germany (n 12). 14.Kindergartencross (n 2) V paras 2.5 et seq.15.Lautsi II (n 1) paras 67-70.

27

16.Christian Walter, ‘Religiöse Symbole in der öffentlichen Schule – Bermekungen zum Urteil der Großen Kammer des Europäischen Gerichtshofs für Menschenrechte im Fall Lautsi’ (2011) 38 EuGRZ 673, 676.

17.See the cases in Footnote 12. 18.Lautsi II (n 2) para 62: ‘The State is forbidden to pursue an aim of indoctrination that might be

considered as not respecting parents' religious and philosophical convictions. That is the limit that the States must not exceed (…).’

19.Although Article 2 of Prot No 1 protects the parents, it is their children that may be influenced or even be indoctrinated by their perception of the cross, so that the parents cannot educate them according to their own religious beliefs.

20.Swiss Federal Court 26 September 1990, 1P 675/1989, Gemeinde Cadro v Guido Bernasconi (hereafter: ‘Swiss school crosses’) E 7 b ‘It cannot be ruled out that some persons feel religiously offended if the symbol of a religion they do not belong to is permanently displayed in school.’ (my translation, emphasis added).

21.Lautsi I (n 5) para 55: ‘The presence of the crucifix may easily be interpreted by pupils of all ages as a religious sign, and they will feel that they have been brought up in a school environment marked by a particular religion. What may be encouraging for some religious pupils may be emotionally disturbing for pupils of other religions or those who profess no religion.’ (emphasis added).

22.Lautsi II (n 2) para 6623.Lautsi II (n 2) paras 72-74. 24.Lautsi II (n 2) para 72.25.German Constitutional Court 16 May 1995, 1 BvR 1087/91 (‘Kruzifixbeschluss’).26.Also see 18 December 1996, 24095/94, Efstratiou v Greece, para 32: ‘Nevertheless, it can discern

nothing, either in the purpose of the parade or in the arrangements for it, which could offend the applicants’ pacifist convictions to an extent prohibited by the second sentence of Article 2 of Protocol No. 1 (P1-2)’ (emphasis added).

27.Lautsi II (n 2) para 74. 28.Article 14 reads as follows: ‘The enjoyment of the rights and freedoms set forth in [the] Convention

shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’

29.ECtHR 28 May 1985, Abdulaziz v UK, 7 EHRR 471, para 82. 30.Lautsi II (n 2) para 81. 31.Lautsi II (n 2) para 81. 32.ECtHR 23 July 1968, Belgian Linguistic Case, 1 EHRR 252, para 9. 33.Abdulaziz (n 29) para 71 (emphasis added). 34.See also ECtHR 11 October 2001, Sahin v Germany, 36 EHRR 43.35.Mark Janis, Richard S Kay and Anthony W Bradley, European Human Rights and Law (3rd edn,

OUP 2008) 470 referring to ECtHR 27 March 1998, Petrovic v Austria, 33 EHRR 14; 23 November 1983, Van der Mussele v Belgium, 6 EHRR 163.

36.Abdulaziz (n 29) para 72; see for the context of Article 9 ECtHR 12 March 2009, 49686/99, Gütl v Austria, paras 33 et seq.

37.Thus States having no school crosses do not infringe Article 2 of Protocol No 1. 38.ECtHR 31 July 2008, 40825/98, Jehova’s witnesses v Austria, para 97: ‘[T]he State has a duty to

remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs’; also see ECtHR 26 October 2000, 30985/96, Hasan and Chaush v Bulgaria, para 78; 13 October 2001, 45701/99, Metroplitan Church of Bessarabia v Moldavia, para 116. Also see Roland Pierik and Wibren van der Burg, ‘The

Neutral State and the Mandatory Crucifix, Religion and Human Rights’ [2011] Religion and Human Rights 267, 268.

39.Abdulaziz (n 29) para 72; 12 March 2009, 49686/99, Gütl v Austria, para 34.40.Article 118 of decree no. 965 of 30 April 1924 provides: ‘Each school must have the national flag

and each classroom must have a crucifix and a portrait of the King.’41.Pierik and Burg (n 38) 271.

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4 Rainer Palmstorfer

Homeschooling in Austria: A Fundamental Right

Homeschooling in Austria: A Fundamental Right

Rainer Palmstorfer1

1. INTRODUCTION

As in many other European countries, in Austria homeschooling is legal.2 What is more, there is even a fundamental right to this form of teaching enshrined in the Austrian constitution. Statistically speaking, the number of homeschooled pupils is very small, comprising considerably less than 0.5 % of the pupils at compulsory school age (ie 6-15) in Austria.3 There is a variety of reasons for homeschooling: Some parents do not want their children – who have reached compulsory school age (ie 6) but not school readiness – to attend pre-school being mandatory in such situations. Alternatively, they resort to homeschooling which enables them to keep their children another year in kindergarten.4 Thus these parents use homeschooling only transitionally till their children have reached school readiness allowing them to attend primary school. Strictly speaking, therefore, these parents do not teach their children at home, as the latter usually attend kindergarten.Besides, there are, of course, also parents who decide on homeschooling, because they reject schooling as a matter of principle.5 By the same token, religious reasons seem to be of minor importance.6 Unfortunately, we do not have reliable empirical data on the reasons for homeschooling in Austria, for parents do not have to inform the authorities about them.

2. ARTICLE 17(3) STGG: THE LEGAL BASE OF HOMESCHOOLING IN AUSTRIA

2.1. The historical background of Article 17(3) StGG

The main Austrian constitutional document is the Federal Constitutional Act (Bundesverfassungsgesetz, hereafter: B-VG), the first version of which was adopted in 1920, that is, two years after the establishment of the First Austrian Republic. The B-VG, however, referred to a number of acts that had been adopted before its coming into force as constitutional law. In this manner, also the Basic Act on the General Rights of Nationals (Staatsgrundgesetz vom 21. Dezember 1867 über die allgemeinen Rechte der Staatsbürger für die im Reichsrate vertretenen Königreiche und Länder, hereafter: StGG)7 was recognized as constitutional law under the B-VG. The StGG contained a number of fundamental rights. This was done because then no consensus on a new catalogue of fundamental rights could be reached. Therefore, the StGG was and still is one of the most important sources of fundamental rights in the Austrian legal order. The reason for this brief excursion into Austria constitutional history is that the StGG also contains the provision from which the right to homeschooling can be derived, for in Article 17 StGG reads as follows:

Knowledge and its teaching are free.Every national who has furnished in legally acceptable manner proof of his qualification has the right to found establishments for instruction and education.

Instruction at home is subject to no such restriction.The Church or religious society concerned shall see to religious instruction in schools.The right to supreme direction and supervision over the whole instructional and educational system lies with the state.8

This being said, the fundamental right to homeschooling finds its expression in Article 17(3) StGG. However, the drafters of this Article did not have parents teaching their children in mind. Rather they thought of home tutors. This explains why Article 17(3) StGG is drafted as exception to Article 17(2) StGG, for the latter paragraph makes the founding of establishments for instruction and education dependent upon qualification certificates. Thus there is a close relationship between these two paragraphs.9 In short, not anyone can establish a school. Tellingly, in the first half of the 19th century, home tutors were required to have qualification certificates.10 In 1850, the Provisional Act on Private Instruction (Provisorisches Gesetz über den Privatunterricht)11 exempt home tutors from these requirements (cf § 16 leg cit) and this step found its way into the sphere of fundamental rights (ie Article 17(3) StGG). More impor tant ly, the newly adopted Act on Pr imary Schoo ls o f 1869 (Reichsvolksschulgesetz)12 conceptualized homeschooling as surrogate for mandatory schooling. Under this act, parents were obliged to safeguard that their children got teaching comparable to the one in primary schools. Thus schooling was not compulsory, but tuition was. In 1905, a regulation (Definitive Schul- und Unterrichtsordnung für allgemeine Volksschulen und für Bürgerschulen)13 was adopted that elaborated on this mandatory tuition. For example, homeschooled children had to take exams in public schools in order to prove that they were taught sufficiently and there was the possibility of mandatory schooling if these exams were failed. As we will see below, the legal framework of present-day homeschooling strongly resembles the one in the last years of the Habsburg Empire. However, there is a marked difference. Back then, homeschooled pupils were primarily taught by a home tutor and not by their parents.

2.2. The scope of protection of Article 17(3) StGG

Though Article 17(3) StGG belongs to the oldest parts of Austrian constitutional law, there is hardly any case law on it. The right enshrined in it is clearly a constitutional one. However, its scope of protection is still being disputed.14 This is because the provision allows for two possible readings. One could argue that the right under Article 17(3) StGG is a narrow one, only entitling to teach pupils without exempting them from mandatory schooling. On this view, Article 17(3) StGG would just mean that nobody needs a qualification to teach at home. Alternatively, it can be argued that the provision has to be interpreted in a much broader sense, that is, as safeguarding instruction at home being understood as surrogate of mandatory schooling. Therefore this discussion ultimately boils down to the following question: What is meant by ‘instruction at home’? Going back to the historical background of Article 17(3) StGG, we see that then instruction at home was clearly conceptualized as surrogate for instruction at school. As shown above, Article 17(3) StGG can be regarded as a response to the situation at the beginning of the

30

19th century, when also home tutors were required to have certain qualifications. Then the main question was how to organize instruction and, as nowadays, three ways alternatives were recognized: instruction at state schools, instruction at private schools and instruction at home, the latter concept being now referred to as ‘homeschooling’. This structure also found its expression in above school acts:15 Pupils could be taught at home and, therefore, they were not required to attend a school provided that it was established – by means of exams – that these pupils met the teaching objectives defined by state curricula.16 Moreover, instruction at home does not require that the pupils belong to the same family.17

Interestingly enough, above approach has been followed up to now. Mandatory schooling is enshrined both in the Austrian constitution (Article 14(7a) B-VG) and in the Mandatory Schooling Act (Schulpflichtgesetz, hereafter: SchPflG).18 Under Sections 2, 3 SchPflG, children having turned 6 are obliged to attend school for 9 years. However, pursuant to Section 11(2) SchPflG, for most school types this obligation can be met by means of instruction at home (‘häuslicher Unterricht’) if the latter is at least equivalent to instruction at schools competent for mandatory schooling. If one decides upon this possibility, one has to inform the district school councillor (Bezirksschulrat) at the start of the school year (Section 11(3) SchPflG). Within one month, the district school councillor may prohibit the participation in such instruction if it is highly likely that above equivalence is not met. In other words, it is the objectives of the respective state curriculum that have to be achieved. This thought also underlies Section 11(4) SchPflG, which requires pupils instructed at home to sit annual exams at schools competent for mandatory schooling. These exams have to be taken before the end of the school year. If pupils fail these exams, which can be repeated, they have to attend school and repeat the respective school year. Therefore schooling becomes compulsory. Consequently, instruction at home does not lead to a certificate recognized by the State.19 This recognition is achieved only by means of above exams20 and the vast majority of pupils (2010: 98. 9 %) pass these.21 Let us now come back to above question: What is covered by Article 17(3) StGG or, put differently, could the Austrian legislator abolish homeschooling without amending constitutional law (ie Article 17(3) StGG)? The answer to the last question is ‘no’, for, as has been shown above, a historical and systematic interpretation of the said provision shows that ‘instruction at home’ was and is conceptualized as surrogate for instruction at mandatory schools. Thus this kind of instruction is protected by Austrian constitutional law and, more importantly, there is even a fundamental right to it.22 We may thus speak of an institutional guarantee of home schooling in Austria. However, this does not mean that the legislator cannot impose any limits on homeschooling. Statements of the Austrian Constitutional Court according to which instruction at home is not restricted,23 are to be interpreted in a sense that anyone may give this kind of instruction. This reading may be also supported by the structure of Article 17 StGG, with paragraph 3 thereof being drafted as en exemption to paragraph 2. The legislator’s possibility to adopt requirements for homeschooling is also expressed by 17(5) StGG, according to which ‘[t]he right to supreme direction and supervision over the whole instructional and educational system lies with the state.’ Consequently, the protection of home schooling does not cover subject matters. Thus it is the state that sets the curricula and the respective teaching objectives. Homeschooling is only protected in so far as these objectives can be achieved, which has to be established by above exams.

This being said, there are nevertheless other constitutional concerns regarding homeschooling. The approach to homeschooling, first and foremost, equates schooling with the teaching of knowledge in certain subjects (eg mathematics). However, schooling is also considered to aim at the integration of the individual into society.24 This idea also finds its expression in the B-VG, which determines much broader teaching objectives of schooling, for Article 14(5a) B-VG provides for the following:

‘Democracy, Humanity, solidarity, peace and justice as well as openness and tolerance towards people are the elementary values of the school, based on which it secures for the whole population, independent from origin, social situation and financial background a maximum of educational level, permanently safeguarding and developing optimal quality. In a partnership - like cooperation between pupils, parents and teachers, children and juveniles are to be allowed the optimal intellectual, mental and physical development to let them become healthy, selfconfident, happy, performance - oriented, dutiful, talented and creative humans capable to take over responsibility for themselves, fellow human beings, environment and following generations, oriented in social, religious and moral values. Any juvenile shall in accordance with his development and educational course be led to independent judgement and social understanding, be open to political, religious and ideological thinking of others and become capable to participate in the cultural and economic life of Austria, Europe and the world and participate in the common tasks of mankind, in love for freedom and peace.’

According to this Article, which was introduced in 2005, schooling also has to aim at what we may refer to as ‘social skills’. Compared with Article 17(3) StGG, Article 14(5a) B-VG follows a more recent pedagogic approach, under which the objectives of schooling cannot be reduced to the obtainment of formal qualifications. In short, between 1867 and 2005 pedagogy has considerably changed. It is doubtful whether the objectives of Article 14(5a) B-VG can be reached by homeschooling. Let us think of a pupil taught by parents who think that the democratic society is evil and harmful to their child. Thus they isolate their child in order to protect it.25 Once a year this child takes its exams and passes them without any problems. From the perspective of Article 17(3) StGG and Section 11 SchPflG, this case poses no problems. But what about Article 14(5a) B-VG? This question cannot be answered easily, for there are still many open points as to the legal nature and the scope of application of Article 14(5a) B-VG. Therefore in how far homeschooling has to meet above requirements shall be analysed in more detail in a further article, as this question would undoubtedly go beyond the scope of this contribution.

3. HOMESCHOOLING IN THE LIGHT OF THE ECHR

So far we have only been talking about Article 17(3) StGG. However, Austria has ratified the ECHR and, more importantly, the Convention is also a part of Austrian constitutional law. This raises the question whether or not homeschooling is protected by the Convention. In Konrad, the Court has already dealt with this issue. Parents whose children were obliged to attend primary school under German law rejected this attendance for religious reasons,

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invoking Articles 8 and 9 of the Convention as well as Article 2 of Protocol No. 1. The Court declared the application as inadmissible and held as follows: The right to education as enshrined in Article 2 of Protocol No. 1 by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals (...). Therefore, Article 2 of Protocol No. 1 implies the possibility for the State to establish compulsory schooling, be it in State schools or private tuition of a satisfactory standard (...). The Court observes in this respect that there appears to be no consensus among the Contracting States with regard to compulsory attendance of primary schools. While some countries permit home education, other States provide for compulsory attendance of its State or private schools.26

Thus the ECtHR followed the German courts’ reasoning that education also involves the acquisition of social competence and the latter aim cannot be achieved by homeschooling. Consequently, the right of parents under the second sentence of Article 2 of Protocol No. 1 does not trump the child’s right under the first sentence thereof. To sum up, according to the Court, compulsory schooling is – in principle – compatible with the Convention and, more importantly, a parental right to homeschooling cannot be derived from the Convention.27

4. CONCLUSION

The fact that there is hardly any cases relating to instruction at home as enshrined in Article 17(3) StGG and Section 11 SchPflG suggests that this issue seems to unproblematic from a legal point of view. Homeschooling is made use of in a small number of cases, the vast majority of which clearly fulfils the requirements of Section 11 SchPflG. This being said, homeschooling is nevertheless a controversial political topic in Austria.

Endnotes

1. Dr Rainer Palmstorfer (rainer.palmstorfer@sbg.ac.at) has made a doctorate in the field of European Union and Austrian Constitutional Law. Since December 2010 he has been working as a research fellow for the Department of Public Law at Salzburg University. His areas of special interests are Austrian and European constitutional law, fundamental rights, educational law and international economic law.

2. The following contribution is based on Palmstorfer, R. (2011), ‘Häuslicher Unterricht in Österreich:Das Grundrecht auf Homeschooling’, Recht der Jugend und des Bildungswesens, pp.115-22.

3. Cf the statistical data of the Austrian Ministery for Eductation <http://www.parlament.gv.at/PAKT/VHG/XXIV/AB/AB_07837/fname_218766.pdf> accessed 27 August 2012.

4. Stanzel-Tischler, E. (2007), Teilnahme am häuslichen Unterricht und Befreiung von der allgemeinen Schulpflicht wegen Schulunfähigkeit in der Schuleingangsphase, ZSE Report 72/2007 <http://pubshop.bmukk.gv.at/download.aspx?id=245> accessed 27 August 2012; Stöger, K. (2012), ‘Homeschooling: Rechtslage und Rechtspraxis in Österreich – ein Modell für Deutschland?’ in: Reimer F. (ed), Homeschooling: bedrohung oder Bewährung des freiheitlichen Rechtsstaats?, Nomos, Baden-Baden, pp. 109-26 (p. 121).

5. Doringer, G. (27 May 2011), ‘Eine Klasse für sich’, Salzburger Nachrichten, p. 3. 6. Stöger (n 4) p. 125.7. Imperial Law Gazette (Reichsgesetzblatt) 142/1867.

8. Article 17 StGG as translated by Kessler, C. (1972), The Austrian Federal Constitution, Manz, Wien, p. 133.

9. Austrian Constitutional Court, VfSlg. 4.990/1965.10.Palmstorfer (n 2) p. 116. 11. Imperial Law Gazette (Reichsgesetzblatt) 309/1850.12. Imperial Law Gazette (Reichsgesetzblatt) 62/1869. 13. Imperial Law Gazette (Reichsgesetzblatt) 159/1905.14.Assuming such a broad scope of protection Wieser, B. (2010), Handbuch des österreichischen

Schulrechts I, NWV, Graz, p.48; construing Article 17(3) StGG in a narrow sense Spielbüchler, K. (1985), ‘Das Grundrecht auf Bildung in Österreich’, Europäische Grundrechte-Zeitschrift, pp. 437-46 (p. 444).

15.See 2.a. 16.See Section 23, Reichsvolksschulgesetz 186917.Stöger (n 4) p. 113. However, as the law differentiates between private schools and instruction at

home, these two concepts need to be demarcated from each other, the main difference being that private schools show a higher degree of organization, see Cf Matzka, M. (1980), ‘Schulrecht und „freier Unterricht“: Zur Abgrenzung von häuslichem Unterricht und Privatschule’, Recht der Schule, pp.4 et seq.

18.Federal Law Gazette (Bundesgesetzblatt) 76/198519.Ermacora, F. (1963), Handbuch der Grundfreiheiten und der Menschenrechte, Manz, Vienna,

paragraph 829. 20.Cf Wieser (n 14) p. 49.21.Doringer (n 5).22.Cf Berka, W. (1999), Die Grundrechte, Springer, Vienna, paragraph 690; Stöger (n 4) p. 117.23.Austrian Constitutional Court, VfSlg 2.670/1954.24.Cf the views held by German courts in Konrad et al v Germany App. no. 35504/03 (ECHR, 11

September 2006).25.This constellation is comparable to the one in Konrad (n 24). 26.Konrad (n 24). 27.This being said, some authors consider homeschooling to be exceptionally protected by the

Convention see Thurn, J.P. and Reimer, F. (2008), ‘Homeschooling als Option?’, neue Zeitschrift für Verwaltungsrecht, pp. 718-22 (p. 722); Marauhn, T. (2012), ‘Hausunterricht zwischen Bildungsrecht und Elternrecht: “Homeschooling” im Lichte der EMRK’, in Reimer (n 4) pp. 99-108 (p. 108).

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5 Rubens Becak

The Presence of Religious Symbology in Contemporary Brazil - Ethical- Moral and Constitutional Aspects

The Presence of Religious Symbology in Contemporary Brazil - Ethical- Moral and Constitutional Aspects

Rubens Becak*

1. ABSTRACT

For a long time, jurists have been worrying with the ethical-moral field and its relation with the Law. Which is the actual influence of this field, mostly when we consider the legal-constitutional area, seems to be a current and highly topical issue, which we have seen the object of heated arguments.

This discussion only increases when it is seen that in a Constitution norms coexist that arise originally from this field. Some questions are made: are those norms there really because they represent ethical-moral convictions of that majority that wrote down the constitutional text? Or, we may ask, they ended there because they were imagined as traditional and thus “rooted” in the collective imagination? Or further, will the generations that follow that of those who wrote the constitution grant them the same level? So, these are some of the questions raised.

These problems are certainly present in all the occasions in which we pick legal norms from the constitutional text that came from that field. However, if the problem here brought up is interesting and perhaps imminent to the discussion of what a Constitution is, our focus has been narrowed in the sense of checking a situation in which the subject is the same but, because of an apparently opposite reason. Domestic customs which are merely present in the ethical-moral dimension, but which – for reasons that are outside this abstract – are not treated with such imposition by the State and its agents, which seem to have penetrated the constitutional area.

Our main interest is to discuss the matter still poorly explored by the Brazilian doctrine about the utilization by the people of religious symbols which, in theory, would go against the secular character of the Brazilian State. This discussion takes even more importance when we observe that, besides their use by the people in several Brazilian public offices, the symbology is present – more specifically in this case the Catholic crucifix.

We shall try to discuss the matter from the point of view of the current opportunity and importance without forgetting to discuss possibility that the custom acquires imperative force even in a country with Roman-Germanic legal tradition.It seems to us, above all, convenient to discuss this matter in view of the current concerns all over the world, where the subject has produced vivid arguments in other countries, in particular in France and the United Kingdom.

Keywords: ethical-moral field and the Law; influence; existence of constitutional norms originating from the ethical-moral field; inverse case; possible imposition; question of symbology; current events.

2. INTRODUCTION

The relation of the so-called ethical-moral field and the Law is something that has been considered by jurists for a long time.Any connections, interrelations, superpositions and conflicts form this field of work.

In a certain way, the subject seems to have recovered a lively interest after the decline of the positivist interpretation of the Law, most of all with the application of criteria of interpretation different from the mere established norm.Thus, the ethical-moral dimension started to be valuated as an important criterion to explain the intentions of the writers of the constitution, mostly in what concerns the principle-based norm not always easy to check by the interpreter.From this point of view, it is obvious that the ethical-moral aspect has an extremely important function to fix certain standards that the writers of the constitution may take to give the Law its maximum mandatory power.This premise1 considered, it is necessary to see if there is an equal but opposite premise.We are not referring here to those principles that may be present in the ethical-moral system, but which have not become statutory law in the constitution. As far as these are concerned, another study would be necessary.What we intend to focus on precisely here is if ethical-moral “commands” not constitutionally stated by the original writers of the constitution could influence – perhaps even change – agreed constitutional norms.Our more specific interest is with regard to the religious symbology.If it is obvious, on the one hand, that the constitution has made explicit (since our first republican Constitution) the secularism of the Brazilian State, on the other hand, it is extremely clear that this secular condition is diminished by the constant – not to say almost absolute – presence of Catholic religious symbols in the Brazilian public offices.Following the paths of GALDINO2, we do not intend to have an argument about religion, let alone on the Jewish-Christian influence in the building of the western heritage, or more precisely the Brazilian one.What we intend here is an investigation of this constant. Why is the Roman Catholic Apostolic symbology ostensive in the Brazilian public offices, and this is not considered – as it allegedly should be – a violation against the republican principle of secularity of the Brazilian State.

3. RELIGIOUS FREEDOM AND SECULARITY OF THE STATE

Since the emergence of constitutionalism, the religious freedom has been seen as one of the most fundamental freedoms, acknowledged as essential to the human being.Actually, to speak of religious freedom requires that we discuss four specific freedoms, namely: freedom of conscience, belief, worship and religious organization.

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This because, in the end and at least formally, there is no religious freedom. What exists is a freedom of conscience which, driven in the sense of the faith (or its absence), shall be understood as religious freedom, i.e., freedom of (general, broad) religious conscience.However, this religious freedom, most commonly known as freedom of belief, when it is exteriorized, will result in the formation of another freedom, the so-called freedom of worship.And, finally, to organize and make the worship feasible, the need appears for a last freedom in this field, which is the freedom of religious organization.Who discusses in depth this subject is GALDINO3, bringing up the classification proposed by Soriano.The freedoms referred to above are traditionally ensured by the Brazilian constitution.

AFONSO DA SILVA4, discussing the religious freedom, states:

“(...)

It is included among the spiritual freedoms. Its exteriorization is a form to state a way of thinking. But, no doubt, it has a more complex content because of its implications. It includes three kinds of expression (three freedoms): (a) the freedom of belief; (b) the freedom of worship; and (c) the freedom of religious organization. All are guaranteed in the Constitution.

(...)”

It must be observed that there are even those authors that understand religious freedom as the first, the most fundamental of freedoms, precisely because in the context of religious struggles and the many objections of conscience that arose during them, the existence of an individual freedom of conscience became obvious, at the time more focused on the issue of faith.In this line, MACHADO5:“(...)

The doctrine and the case law constantly stress the close relation established between freedom of conscience, religion and worship, and the dignity of the human being, and at the same time they stress that this is the highest value of the fundamental rights system. It is based on the dignity of the individual as a subject with moral-practical competence that cannot be treated as a simple means to reach an end.(...)”

Thus, the first Declarations of Rights and the first constitutional texts, already stressed the religious freedom above all other rights. There were even those that saw it as the origin of the other freedoms.ROBLES6 is vehement in this sense:

“(...)

The religious freedom which is, not only harmless to the State, but further an actual bastion against the Church, becomes even a model on which the political freedoms are built. These

– and human rights, in general – represent, as a consequence, historical progress conquests against power.(...)”

Still, as appropriate, the statement of John Paul II, quoted by GALDINO7:

“The religious freedom is the core of the human rights. It is so inviolable that it requires that people are acknowledged the freedom to change of religion according to their conscience. Every one, indeed, is compelled to follow one’s conscience under all circumstances and may not be forced to act against it. Because of this inalienable right, nobody can be compelled to accept by force a certain religion, whatever the circumstances or the motivations.”

No matter the importance of the laws, it immediately becomes clear that it was not enough that this freedom was written and ensured in them. It is also necessary to ensure the nonintervention of the State in these matters, and this shall be attained when the principle of absolute separation between Religion and the State, the so-called principle of secularity of the State, is applied everywhere.As it is known, this principle has been continuously included in the Brazilian constitutional texts since 1891.The role of secularization must be understood as including in the statutory law the need of complete separation of the religious and political fields, with the purpose even of making possible their full development.MACHADO, quoting Hanna Arendt, correctly states8:

“(...)

The secularization, far from implying the hostility of the state as regards of the religious phenomenon, can even be seen as something natural and desirable. This was stressed by Hanna Arendt when she stated that secularization, as a concrete historical fact, is nothing else than the separation of the Church from the State, of religion from politics, and this, from the religious point of view, evokes a return to the primitive Christianity – give to Caesar what belongs to Caesar and to God what belongs to God – more than a loss of faith and transcendence or a reinforced passion for the worldly things. As such understood, the idea of secularization may and can be made compatible with the constitutional requirements in religious matters.

(...)”

4. THE PRESENCE OF THE CATHOLIC SYMBOLOGY AND ITS MEANING FOR THE LAW

If everything what is stated above stresses the fact that all the Brazilian constitutions to this date have sanctioned the religious freedom9, as well as its logical consequence of the need of secularity, it is also true that the empirical observation shows the survival of the Christian

35

symbology, in particular the Roman Catholic Apostolic one in a great part, if not all, the Brazilian public offices10.Now, how to see, without a natural surprise, the obvious contradiction between the secularity stated in the constitution and that repeated practice?The most evident possibility, if not the only one, is that in the everyday reality many times ethical-moral provisions coexist with the legal ones and many times contradict them, and even oppose them.This happens because the reality of the existence of an ethical-moral dimension shows that, many times, this dimension is adopted by the Law, other times it coexists in fields that do not touch each other, and sometimes they alternate, and may contradict themselves.Evidence of these possible conflicts are easy to find as, for instance, the apparent conflict between the ethical-moral right to life (of an absolute character) and the constitutional norm that indirectly allows the death penalty in case of war or, further, in the field of the statutory law which allows abortion under certain circumstances11.For those that understand the Law – most of all the constitution – as an ethical-moral minimum accepted by the writers of the constitution at the specific moment the constitution was drawn up, the secularity appears obviously as a value to be protected.This is how we prefer to see the ethics and morals as regards the Law.Vieira asserts12:“(...)

The constitutions have also become depositories of ethical values, whether expressly or implicitly, adopted by the community. The charts of rights, the organization of space for public argument, the provisions that regulate public freedoms, are the ethical bases and govern the principles of justice that should guide the social living-together. For that reason, we refer to the constitutions as paradigms of justice, based on which all the political processes should develop.

(...)”

As far as we are concerned, we think that the Constitution is the level to which converge the norms, that as we said :13

“(...)

(Constitutional Norms) are to be understood as the set of norms that, although prima facie belong to the legal world, the writers of the Constitution wished as primary elements of the State about to be organized. Thus, we understand that a constitution creates not only a pyramid legal norms, but also – let us call it also a pyramid – of ethical-moral values to be protected in that State as primary values.In other words, the establishment of values with constitutional primacy adds a force of transformation to what – perhaps originally – was present only in the Ethical-Moral Field.(...)Explaining this further, and taking the concept of mediation zone to which Elías Diaz refers in his Ética contra Política (1998:31), when he discusses legitimacy and justice, we think that, prior to the establishment of the distinction (already traditional in the doctrine) between

principles and rules, it is necessary to imagine that, in a Constitution, ETHICAL-legal and LEGAL-ethical norms converge.The first ones are understood by the writers of the constitution as values of the ethical-moral world that, because of the most different factors, even because of their significance in that particular historical moment, they intend to raise to the Constitution level.They acquire, thus, as a consequence, normative binding force insofar as the constitutional principles have this characteristic.The others, as important as the first, because they also take part of the constitution, have the characteristic of originating aprioristically from the legal order (which is not necessarily the ethical-moral one, see, for instance the rule of art. 14 of the Brazilian Federal Constitution, which sets forth the obligation to vote of those more than 18 years old) and, thus, acquire a force of ethical commandments insofar as the compliance with the Constitution, besides being a legal commandment, is the ultimate ethical attitude.In other words, the first ones reach the legal value when raised to the constitutional level by the will of the writers of the constitution, and they acquire the legal force necessary to their implementation.The second ones, we can say, acquire their ethical value as a direct consequence of the legal norms that, provided they are raised to the constitutional level, acquire an undoubtful ethical value resulting from the need of the compliance therewith, in view of the imperative character of the Constitution.

(...)”

Thus, starting from this premise, from where should the constitutional commandments related to secularity originate?Obviously, from the ethical-moral level, because this is one of the essential republican values, for some even the starting point from which all other rights would result.And which is, by the way, present in our constitution since 1891.14

So, as obvious conclusion, all the presence of Roman Catholic Apostolic symbolity in the Brazilian public offices cannot be construed in a way that does not lead to its obvious unconstitutionality.Perhaps resulting from the accommodation to allegedly traditional standards, perhaps resulting from misinformation, the fact is that the practice remains and is well known.The Brazilian courts, when questioned on the matter, have repeatedly understood that the secular character of the State is an absolute constitutional principle which admits no contradiction.15

Although this fact has always existed, it is only some time ago that it has been the subject of more minute attention.Perhaps it is a sign of the current times where the intensification of religious positions around the world has led to the insistence on the necessaary separation between the Religion and the State here in Brazil and in other places.It is outside the limits of this article to make an investigation of the reasons of this intensification of the discussion or even to examine if it is it that that has led to the intensification of the arguments about the reinforcement of the secular character of the State.

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We shall also not enter into the involving argument that the radicalism that is rising in this first years of the XXI century will inevitably lead to the abandonment of the multicultural view prevailing in the past century, in particular in its second half.However, there is no way how to ignore that the subject occupies the daily attention of the French and Britons since some time.One way or the other, the logical iter of our approach must not be forgotten. The presence of said symbology in the public bodies and buildings is a kind of “negative” influence of the ethical-moral on the Law. That is to say, it is not a certain commandment originating from the ethical-moral view that has risen to the constitutional level and acquired the significance of the Constitutional Law. It is precisely the opposite. It is an ethic-moral custom that is tolerated, as if it were not an aggression against the republican principle of secularity.

5. FINAL CONSIDERATIONS

In this article, we have tried to make some considerations about the subject of religious symbology in Brazil, mostly that related to the Roman Catholic Apostolic Church.It is hard to find a public office where there is no crucifix, buildings that are not inaugurated or consecrated through a mass, blessings, etc.Not to mention the existence of an official holiday dedicated to the Patroness of Brazil (October 12)!Right from the start, we see that the principle of secularity of the State is traditional in Brazil since the Proclamation of the Republic – indeed in the republican path of being the principle that guarantees the actual religious freedom – on the other hand, it is also true that this practice has not disappeared.In the development of the subject, we observe that the doctrine acknowledges a prevailing role to the principle of secularity, but does not discuss the issue of tolerance towards the presence of a religious symbology. What is the nature of this tolerance? This because our attention was called to the fact that an ethical-moral custom is tolerated with such indifference and for so much time.Finally, we understand that this custom originates in the ethical-moral field and exercises a “negative” influence on the Law, because without being an ethical-moral norm that was raised to the constitutional level, it has similar cogent force.Considering the renewed interest which the subject has caused nowadays, in particular in some European countries, the presentation of this subject for future necessary in-depth consideration seems timely.

6. BIBLIOGRAPHIC REFERENCES

AFONSO DA SILVA, José. Curso de direito constitucional positivo. 27. ed. reviewed and updated, São Paulo: Malheiros, 2006.

BECAK, Rubens. A Dimensão Ético-Moral e o Direito. In: Revista Brasileira de Direito Constitucional - RBDC, published by the Escola Superior de Direito Constitucional, n. 9., jan-jun, 2007., p. 307-320.

BROCHADO, Maria. Direito & Ética: a eticidade do fenómeno jurídico. São Paulo: Landy, 2006.

GALDINO, Elza. Estado sem Deus: a obrigação da laicidade na Constituição. Belo Horizonte: Del Rey, 2006.

HEYMANN-DOAT, Artette. Libertés publiques et droits de l’homme. 7. ed. Paris: L.G.D.J.. 2002.

ISRAEL, Jean-Jacques. Droit des libertés fondamentales. Paris: LG.D.J., 1998.

MACHADO, Jonatas Eduardo Mendes. Liberdade religiosa numa comunidade constitucional inclusiva: dos direitos da verdade aos direitos dos cidadãos. Coimbra: Coimbra Editora, 1996 (Bulletin of the School of Law of the University of Coimbra – STVDIA IVRIDICA, 18).

ROBLES, Gregorio. Os Direitos fundamentais e a ética na sociedade atual. Barueri: Manole, 2005.

VIEIRA, Oscar Vilhena. A Moralidade da Constituição e os Limites da Empreitada Interpretativa, ou entre Beethoven e Bernstein. In: SILVA, Virgílio Afonso da (Org.). A Interpretação Constitucional: teoria e direito público. São Paulo: Malheiros, 2005.

Endnotes

✴ Master’s Degree and PhD in Constitutional Law. Professor of the University of Sao Paulo - USP in the Law School of Ribeirao Preto and the Law School. Secretary-General of the University of Sao Paulo.

1. We refer the reader to our work A Dimensão Ético-Moral e o Direito. In: Revista Brasileira de Direito Constitucional, a publication of the Escola Superior de Direito Constitucional, n. 9., jan-jun, 2007.

2. GALDINO, Elza. Estado sem Deus: a obrigação da laicidade na Constituição. Belo Horizonte: Del Rey, 2006, p.2.

3. GALDINO, Elza. Estado sem Deus: a obrigação da laicidade na Constituição. Belo Horizonte: Del Rey, 2006, p. 10.

4. AFONSO DA SILVA, José. Curso de direito constitucional positivo. 27. ed., reviewed and updated, São Paulo: Malheiros, 2006, p. 248 and f.f.

5. MACHADO, Jonatas Eduardo Mendes. Liberdade religiosa numa comunidade constitucional inclusiva: dos direitos da verdade aos direitos dos cidadãos. Coimbra: Coimbra Editora, 1996 (Bulletin of the School of Law of the University of Coimbra – STVDIA IVRIDICA, 18), p. 192.

6. ROBLES, Gregorio. Os Direitos fundamentais e a ética na sociedade atual. Barueri: Manole, 2005, p. 90-91.

7. GALDINO, Elza. Estado sem Deus: a obrigação da laicidade na Constituição. Belo Horizonte: Del Rey, 2006, p. 14.

8. MACHADO, Jonatas Eduardo Mendes. Liberdade religiosa numa comunidade constitucional inclusiva: dos direitos da verdade aos direitos dos cidadãos. Coimbra: Coimbra Editora, 1996 (Bulletin of the School of Law of the University of Coimbra – STVDIA IVRIDICA, 18), p. 97.

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9. It is clear that with differences of treatment but, one way or the other, they always sanctioned it. In order to see the constitutional texts, we refer once again to GALDINO, Elza. Estado sem Deus: a obrigação da laicidade na Constituição. Belo Horizonte: Del Rey, 2005, p. 128.

10.According to the special subject of the present work, we do not bring forward any more inquiring data of this subject, and we base here on the premise of clear evidence.

11.Obviously, here the example is valid for those that admit the presence of life in the fetus.12.VIEIRA, Oscar Vilhena. “A Moralidade da Constituição e os Limites da Empreitada Interpretativa,

ou entre Beethoven e Bernstein”. In: SILVA, Virgílio Afonso da (Org.). A Interpretação Constitucional: teoria e direito público. São Paulo: Malheiros, 2005, p. 225-226.

13.BECAK, Rubens. A Dimensão Ético-Moral e o Direito. In : Revista Brasileira de Direito Constitucional, a publication from the Escola Superior de Direito Constitucional, n. 9., jan-jun, 2007, p. 13-14.

14. In our statutory laws even before. Decree 119-A of 1890 already ensured the secularity in the Brazilian statutory Law.

15.As appropriate, see GALDINO, Elza. “Estado sem Deus: a obrigação da laicidade na Constituição”. Belo Horizonte: Del Rey, 2006, p. 62-66, where it mentions specific cases including the famous MS 13.405-0 of Sao Paulo.

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6 Tayseir M. Mandour

Religion in Education in Egypt

Religion in Education in Egypt

Tayseir M. Mandour

1. INTRODUCTION

As President Obama said in his historic speech at Cairo University, the United States seeks a "new beginning" with Muslim communities around the world based on the shared principles of justice, progress, tolerance, and the dignity of all human beings. Obama also said, "[I am] firm in my belief that the interests we share' as human beings are far more powerful than the forces that drive us apart.”

This message is maintained in the Qur'an, which was revealed more than fourteen centuries ago. It provides, "O mankind! We have created you from a male and a female, and made you into nations and tribes, that you may know one another.” The premises of our gatherings' should therefore be to foster peace and eliminate the tension and conflicts that dominate many regions of our world.

This Article addresses four main issues; first, the background of the problem; second, the stand of Islam toward religious freedom; third, the essential role of interreligious dialogue in connecting communities of discourse on the international, regional, and national level; and fourth, the Egyptian role in promoting interfaith dialogue on the international, regional, and national level.

2. THE BACKGROUND OF THE PROBLEM

In the shadow of the September 11, 2001 attacks, "interest in interfaith dialogue boomed" as an essential tool for bridging the ideological divide in modern societies, especially those with multiple identities and religious pluralism, deeply shaped by globalization.

The time is now at hand for those who support and understand the importance of a peaceful coexistence between' believers of different faiths, and those who recognize such coexistence as being a cornerstone to global peace and justice. They must now take the initiative to support those who are working desperately to prevent fanaticism, conflict, and violence.

But fulfillment of this goal will be accomplished one step at a time, through the behavior of people who belong to different religions and cultures as they speak with and get to know each other, discovering their commonalities while respecting their differences and individual rights to privacy.

This goal will not be achieved by declarations and recommendations only, particularly at the elite level, but primarily through institutional work of the international organizations, the civil societies, and governments. This work must include and reach out to politicians, decision makers, community leaders, and-most importantly-people at the grassroots level.

3. THE STAND OF ISLAM TOWARDS RELIGIOUS FREEDOM

This section addresses the question of whether Islam is opposed to the freedom of belief. Islam guarantees freedom of religion. This is verified in the following Qur'anic verse: "There is no compulsion in religion." Accordingly, no one is forced to renounce his religion in favor of another faith.

One's freedom to adhere to the religion of one's choice establishes the base of his belief, and this is emphasized through the following Qur'anic verse: "whosoever wills, let him believe, and whosoever wills, let him disbelieve." This verse demonstrates that Islam accepts that there is more than one religion. The prophet stressed this in the first constitution of the Islamic state in Al-Medina when he acknowledged Judaism and declared that the Jews and Muslims in Al-Medina formed one nation.

An example of Islam's granting religious freedom is Omar Ibn Al-Khattab's treatment of the Christians of Jerusalem. Omar Ibn Al-Khattab guaranteed the safety of their lives, their churches, and their crosses, assuring that none of them would be harmed on account of his or her religion.

Islam also grants freedom of thought and opinion, provided that discussions on religion are of an objective nature and are not a pretext for abuse and ridicule. This is stated in the following Qur'anic verse: "Invite [all mankind] to the Way of your Lord with wisdom and fair preaching, and argue with them in a way that is better.”

In light of this tolerance, discussions may take place between Muslims and non-Muslims. The Qur'an invites Muslims to discuss religious matters with the people of the Book in the following Qur'anic verse:

a people of the Scripture: Come to a word that is just between us and you, that we worship none but Allah, and that we associate no partners with Him, and that none of us shall take others as lords besides Allah .. Then, if they turn away, say: "Bear witness that we are Muslims.” [bowing to the will of God].

This verifies that each person is entitled to adhere to the faith in which he believes, should the discussion between both parties fail to accomplish its aim.

The following Qur'anic verse expressed the same idea with the prophet Mohammed's final remarks to the pagans of Makkah: "To you be your religion, and to me my religion.”

4. IMPORTANCE OF INTERFAITH DIALOGUE IN PEACEFUL COEXISTENCE

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We must consider two important questions concerning interreligious dialogue. First, how can interreligious dialogue regain trust between the Islamic world and the West? Second, how can interreligious dialogue connect communities through discourse?

Establishing trust between any two human communities is" generally based on several conditions, which may be summed up in the following points.

A. Recognition and Basis of Equality

There must be recognition of the other community and interaction based on equality. This is a fundamental prerequisite that cannot be overlooked, otherwise recognition and trust would be eliminated and the other communities' existence would be seen as nonexistent. Consequently, there would be no recognition among parties, but rather one dominant party giving orders to be obeyed by the other party, enforcing its will on the other party, and rejecting any opposition to its positions. In this situation, there could be no way to establish trust between the two parties concerned.

B. Mutual Respect

The mere recognition of others outside of one's religious community is not sufficient. Rather, each party should respect the other, along with his religion, faith, beliefs, customs, traditions, civilization and cultural characteristics, and-in general-his human rights. Such mutual respect is the first true basis for any dialogue, understanding, or cooperation between the two parties.

It must be taken into consideration here that mutual respect does not necessarily mean agreeing with others, but it means the willingness of each party to listen to the other and to accept in a constructive way his ideas or criticism.

C. Dialogue Between the Two Parties

Dialogue between the two parties is the natural outcome of the recognition of others outside one's religious community and of mutual respect and understanding between the two parties. Through dialogue, each party may understand others' positions, circumstances, beliefs, and the characteristics of others' civilization. Moreover, dialogue corrects many preconceived ideas and misunderstandings of each party towards others. Dialogue likewise makes it possible for both parties to identify common ground in their civilizations, cultures, and histories that may be utilized for the interests of both.

D. Tolerance

Dialogue, as mentioned above, is not an end in itself but it is a means to achieve tolerance, which in turn promotes culture exchange, common understanding, and positive and peaceful coexistence, and consolidates the roots of mutual cooperation in all spheres and at alllevels.

E. Joint Cooperation

There is no doubt that such a tolerant atmosphere paves the way for establishing trnst and promoting cooperation between the two parties. Such an atmosphere could ultimately lead to the expansion of the scope of cooperation not only between those specific two parties, but with others as well, so that all may cooperate in laying down the foundation for peace and stability across the world. Our ultimate goal should be global peace.

5. THE ROLE OF EGYPT IN PROMOTING INTERFAITH DIALOGUE

Creating a meaningful and constructive dialogue can help to attain a better coexistence among followers of different religions and cultures. Egypt has earnestly attempted for the last twenty years to sponsor events designed to foster dialogue. This is mainly for the sake of promoting better understanding and cooperation among peoples and nations in a closely interrelated world, where relations among those nations and individuals depend on accelerated improvements in technology, communication, information flow, and the immense mutual influence of global events. These developments require an attitude of tolerance and peaceful coexistence.

Egypt believes that intellectuals must play a critical role in establishing this type of meaningful interfaith dialogue. As cooperation and understanding increase among the scholarly, this progress will spread to their nations and peoples. These individuals bear the burden of delivering the message of tolerance by promoting justice and equity. Therefore, pursuing and establishing avenues of communication inevitably becomes the basis for productive dialogue.

As communities establish and support these dialogues, mutual understanding among world religions, cultures, and civilizations will increase. Each will gain a greater understanding of the others core beliefs. Over the last twenty years, Egypt has sought to establish communication between world religions, cultures, and civilizations. To promote this kind of dialogue, Egypt has hosted, participated in, and promoted many conferences and events. These events range from local meetings fostering harmony in Egypt to widespread efforts among the nations of the world.

A. Interfaith Dialogue on the International Level

The last dozen years have seen numerous accounts of Egypt engaging in dialogue at the international level. In 1998, Egypt signed an interfaith dialogue agreement between Al-Azhar and the Vatican, and entered into a similar agreement in 2002, when Egypt signed an interfaith dialogue agreement between Al-Azhar and the Church of England.

Also in 2002, Egypt participated in the World Economic Forum Davos conference, held in New York, discussing "Dialogue Between Civilization.” Egypt again participated in the World Economic Forum Davos conference held in Switzerland in 2003, where forum participants discussed interfaith dialogue among monotheistic religions.

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Egypt also participated in the interfaith dialogue events held in conjunction with the Olympic Games in Athens in 2004. Egypt took an active role in 2006 and 2007, by hosting the World Economic Forum Davos conference in Sharm El Sheikh.

In 2008, Egypt participated in a conference with Saudi Arabia, held in Madrid, discussing “Dialogue Among Civilizations”. In addition, in 2008, Egypt participated in a conference with Saudi Arabia, held in New York, discussing dialogue among cultures and civilizations.

B. Interfaith Dialogue on the Regional Level

Egypt participated in all regional conferences and meetings held in Jordan and other Arab countries, which were organized by The Arab Thought Forum and headed by Prince EI Hassan bin Talal.

In 2007, Egypt participated in an interreligious dialogue conference in Makkah, Saudi Arabia. This conference later became the model for conferences in Madrid and New York discussing "Dialogue Between Cultures and Civilizations."

C. Interfaith Dialogue on the National Level

Over the last five years, the Supreme Council for Islamic Affairs has conducted roundtable discussions concerning interfaith dialogue. The most recent conference, held in March, 2009, was centered on peace, justice, and fighting extremism.

In addition, over the last six years, Egypt has hosted and participated in roundtable discussions with the Middle East Council of Churches, discussing mutual respect, tolerance, and coexistence. Several activities and working papers have been produced concerning implementation of a dialogue culture at the grassroots level, with cooperation between government and civil society. An example of this can be found in the Anna Lindh Foundation for Dialogue Between Cultures, which was established over ten years ago in Alexandria.

6. CONCLUSION

In order to attain a global environment of peace and justice, it is necessary for different faith groups to have mutual respect for each other, even if they disagree with each other, opinions. Islamic organizations support this effort, and Egypt has engaged in and encouraged many activities to improve respect and dialogue between faith groups. Egypt, as well as other countries of the world, must continue these efforts.

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7 Johan Beckmann

Religion in Education and Respect for Parental Convictions in Education

Religion in Education and Respect for Parental Convictions in Education

Johan Beckmann, University of Pretoria

1. INTRODUCTION

South Africa is a multi-religious country distinct from many other multi-religious countries in the sense that there is one numerically-dominant religion (Christianity 79.8%) and that all world religions are present in the country although not in large numbers (Islam 1.5%, Hinduism 1.2%, Judaism .2%, other beliefs .6%, no religion or undetermined 17.4%).1 This picture might be misleading and suggest that there is no friction or tension in this regard.

In light of the points made in the paragraph above I will in the rest of the contribution discuss the following documents and issues regarding religion and education and respect for parental religious convictions –Relevant provisions of the Constitution of 1996 (the Constitution)regarding religion, opinion and beliefThe White Paper on Education and Training of 1995 (White Paper)Relevant provisions in the South African Schools Act, 84 of 1996 (SASA)The Policy on Religion in Education (“the Policy”)An incidentAssessment of the state of religion in education and recognition of the voice of parents

2. RELEVANT PROVISIONS OF THE CONSTITUTION OF 1996 REGARDING RELIGION, OPINION AND BELIEF

2.1. SECTION 1

Section 1 of the Constitution of South Africa provides that the Republic of South Africa is one, sovereign, democratic state founded on the following values:

a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.

b) …c) Supremacy of the constitution and the rule of law. d) Universal adult suffrage, a national common voters roll, regular elections and a multi-

party system of democratic government, to ensure accountability, responsiveness and openness

The above provisions protect members of all religions against the following regarding their religious beliefs as they are manifested in schools –Impairment of a teacher, child or parent’s dignity should he or she not belong to the dominant religion in a school or choose not to be associated with a religion. Such impairment could

foreseeably result from exclusion from religious observances or coercion to attend observances whose attendance should be free and voluntary2

The rule of law could be infringed if a child’s rights regarding freedom of religion, belief or opinion are restricted in a manner that is not in agreement with the rule of law for instance by unlawful refusal of admission to a public school which adopted a vision, mission and ethos which may be openly or indirectly in support of a particular religion3

The state through its schools needs to be open and responsive to the needs and aspirations of various religious dominations and can, by definition, not ignore them or pretend that they do not exist – the latter is a temptation that exists in direct proportion to the presence of a particular religion in a school: the fewer the number of subscribers to a particular religion, the greater the temptation to exclude then form policy and decisions regarding religion In this regard the state organs owe accountability not lonely to the members of the minority religion but also to the entire population as the way in which minorities are treated often determinism the degree of peace and prosperity in the state in question4

2.2. SECTION 15

Section 15 deals with freedom of religion, belief and opinion provides among others that –(1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion. (2) Religious observances may be conducted at state or state-aided institutions,

provided that -a) those observances follow rules made by the appropriate public authorities;b) they are conducted on an equitable basis; andc) attendance at them is free and voluntary.

It is evident that Section 15 (1) provides for a general right to freedom of religion applicable to all spheres of life5 and that section 15 (2) focuses on only one aspect of the right to freedom of religion namely the conducting of religious observances6 and limits it in the following manners:Section 15 (2) of the Constitution only deals with the conducting of religious observances at state or state-aided institutions. Public schools would seem to fall within the ambit of this subsection as they established / provided out of funds appropriated for this purpose by the provincial legislature7

In terms of Section 15 (2) (a) of the Constitution such observances must “follow rules” made by “the appropriate public authorities”. In terms of Section 7 of SASA it seems clear that the school governing bodies are intended to be the “appropriate public authorities.” For the purposes of this contribution it is important to note that the number of parent members of a school governing body must comprise one more than the combined total of other members of a governing body who have voting rights.8 This effectively makes the governing body the voice of the parents in religious and other matters.The rules not only need to be “made” but also need to be obeyed and published to all concerned in appropriate ways. It follows that the rules need to comply with letter and the spirit of section 15 in its entirety as well as with other relevant Constitutional and other provisions. Observances that deviate from the rules laid down by the governing bodies could expose schools to charges of among others unfair discrimination and favouring a particular religion, thus constructing the goal of national unity.9

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3. Section 15 (2) (b) deals with a concept which is to say the least contentious. It provides that religious observances must be conducted on an “equitable basis”. The words equality and equity are both elusive concepts that defy need formulation. If the words “equal basis” were used, that would incur a relatively simple mathematical calculation to which a simple roster or timetable could give concrete expression. “Equitable”, on the other hand, does not seem to suggest equal treatment in the sense of for example the number of opportunities afforded to religious groups to conduct religious observances per semester or year. Giving one group more opportunities to conduct observances based on its representation in the schools than another group could be justified and protect a school against a charge of unfair discrimination. Totally ignoring a group with an established presence in the schools (no matter how small) might not be defendable. To summarise, not to treat people equitably would involve treating them in a manner that would injure their inherent human dignity.10

Section 15 (2) (c) of the Constitution makes it abundantly clear that attendance at religious observances at schools should be free and voluntary. The use of two words that are almost synonymous seems to emphasise the fact that no coercion in this regard is permissible while SASA adds that this principle applies to both learners and educators.11

However, allowing learners and educators not to attend observances is relatively easy. By not organising programmes for such learners might open the school up to legal attack on the basis of unfair discrimination and creating the impression that associating with a specific religion is in a sense better than not doing so. School must plan the nature of the programme for those who do not attend in such a manner that will protect them from possible legal action.There is nothing in the provisions on religious observances that prevent them form being held in school time and as part of the official school programme and curriculum.

2.3. SECTION 29(3)

This Section provides that – Everyone has the right to establish and maintain, at their own expense, independent educational institutions that -do not discriminate on the basis of race; are registered with the state; and maintain standards that are not inferior to standards at comparable public educational institutions.(4)! Subsection (3) does not preclude state subsidies for independent educational institutions.The interim Constitution of 1993, Act 200 of 1993 provided as follows in Section 32 (c) –Every person shall have the right- …(b)…(c) to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race.In In re Gauteng School Education Bill of 1995 (CCT39/95) [1996] ZACC 4; 1996 (4) BCLR 537; 1996 (3) SA 165 (4 April 1996) the constitutionality of parts of this bill was challenged by petitioners from the ranks of the the Gauteng provincial legislature while the South African Foundation for Education and Training was admitted as an amicus curiae.

Clause 21 of the Bill read as follows:21.!(1)! The religious policy of a public school shall be made by the governing body of the school concerned after consultation with the department, and subject to the approval of the Member of the Executive Council.(2) ! The religious policy of a public school shall be developed within the framework of the following principles:(a) ! The education process should aim at the development of a national, democratic culture of respect for our country’s diverse cultural and religious traditions.(b) ! Freedom of conscience and of religion shall be respected at all public schools.(3) ! If, at any time, the Member of the Executive Council has reason to believe that the religious policy of a public school does not comply with the principles set out in subsection (2) or the requirements of the Constitution, the Member of the Executive Council may, after consultation with the governing body of the school concerned, direct that the religious policy of the school shall be reformulated in accordance with subsections (1) and (2).Both the Foundation and the petitioners submitted that that section 32(c) of the Constitution creates a positive obligation on the state to accord to every person the right to require the state to establish, where practicable, educational institutions based on a common culture, language or religion as long as there is no discrimination on the grounds of race. Mahomed DP found that the submission that every person can demand from the state the right to have established schools based on a common culture, language or religion is not supported by the language of section 32(c).. What it provides, according to Mohamed DP, is that every person shall have the right to establish such educational institutions. Linguistically and grammatically it provides a defensive right to a person who seeks to establish such educational institutions and it protects that right from invasion by the state, without conferring on the state an obligation to establish such educational institutions.It is because of the judgment above that the Constitution of 1996 contains the quoted Section 29 (3) which allows persons (including juristic persons) to establish independent schools based on a particular religious persuasion. Although Section 29 (3) is silent about the right to establish a denominational school, the Constitutional Court12 judgment in In re Gauteng School Education Bill leaves no doubt that it is only through the establishment of an independent school that a denominational school can be established. It cannot be established at the state’s cost although state subsidies are possible and do indeed happen.In paragraph 4 below we will show, in our discussion of SASA, that the relationship between the state and religion in public schools is not an acrimonious and adversarial one and that, short of the state establishing denominational schools, there is significant accommodation of parents’ religious convictions.

2.4. SECTION 31

Section 31 of the Constitution provides the following in regard to cultural, religious and linguistic communities:Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community - to enjoy their culture, practise their religion and use their language; and

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to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

It would seem clear that this right does not create an automatic right to practise their religion and form religious associations at schools. However, the fact that school governing bodies may develop the mission statement of the school13 probably gives such governing bodies the freedom to recognise such bodies formed for and by learners provided that there is clear compliance with Section 31 (2) of the Constitution.Next we will turn our attention to the White Paper on Education and Training of 1995 (White Paper 1).

3. THE WHITE PAPER ON EDUCATION AND TRAINING OF 1995 (WHITE PAPER 1)14

It should be noted that, except for the parts of the policy that may have been changed by legislation, this White Paper is still the most comprehensive articulation of the government’s policy on education in schools and of its respect for parents’ convictions. .It contains a number of crucial policy statements on parents and religion that still obtain. The most prominent of these is probably Chapter 4 par 3 which reads as follows:Parents or guardians have the primary responsibility for the education of their children, and have the right to be consulted by the state authorities with respect to the form that education should take and to take part in its governance. Parents have an inalienable right to choose the form of education which is best for their children, particularly in the early years of schooling, whether provided by the state or not, subject to reasonable safeguards which may be required by law. The parents' right to choose includes choice of the language, cultural or religious basis of the child's education, with due regard for the rights of others and the rights of choice of the growing child.This paragraph is quoted in full and will be related to various instances of legislation that give expression to the intention of this paragraph although one has to recognise that the principles enunciated in this paragraph are not always uncontested and could seem to be contradicted by other policies and practices. Two aspects of this paragraph are of special importance in the context of this contribution:Parents and guardians have primary responsibility for the education of their children and have the right to be consulted by the state regarding the form of their children’s education should take and how it is governed. This prevents the state from not respecting the parents’ convictions regarding their children’s education.Parents have a right to choose the religious basis of their children. The South African state has chosen “religion education”15 as a part of the curriculum and it may not be religion specific but religious observances may still be religion specific and school governing bodies may choose to subscribe to a particular religious ethos in determining the vision of the school.16

4. RELEVANT PROVISIONS IN THE SOUTH AFRICAN SCHOOLS ACT, 84 OF 1996 (SASA)

The long title of SASA provides that it has among others three purposes:To provide for the organisation of schoolsTo provide for the governance of schoolsTo provide for the funding of schoolsSome of the Constitutional provisions regarding religion and education are fleshed out and more particularised in SASA. I will discuss the provisions in the order in which they appear in SASA.Section 5(b) provides that no learner may be refused admission to a public school on the grounds that his or her parent does not subscribe to the mission statement of the school. This Section protects the learner (and his parents) against possible unfair discrimination resulting from abuse by an SGB of its function in terms of Section 20 (1) (c) of SASA to develop the mission statement of the school that is generally in line with the major tenets of a religion. Moreover, Sections 9 (3) and (4) of the Constitution of 1996 forbid direct or indirect unfair discrimination by the state and any person against any one among others on the grounds of religion. Nevertheless Section 5 (5) of SASA assigns the function to determine the admission policy of a public school to the governing body (SGB) and it is a function that courts have confirmed in a number of cases among others the Mikro17 and Ermelo18 cases.Section 7 is virtually repeat of Section 15 of the Constitution in that it allows religious observances at a public school but it specifies that the governing boy must issue the rules under which such observances must be conducted and under rules issued by the governing body if such observances are conducted and it determines that attendance is free and voluntary for both learners and members of staff. However, In the Wittmann19 case Van Dijkhorst J dismissed the prayer20 by a mother of a learner at the German School in Pretoria for a declaratory order declaring the actions of the defendants (the Deutscher Schulverein) in compelling her child to attend religious instruction classes at the German School to be unconstitutional, unlawful and invalid. From 1987 there had been a policy at the German School that a personal view regarding religion and non-affiliation to a denomination were not valid reasons for the exemption of children from attendance at religious instruction classes.21

Section 10 of SASA provides that no person may administer corporal punishment at a school22 to a learner23 and that any person who contravenes subsection (1) is guilty of an offence and liable on conviction to a sentence which could be imposed for assault.24 It is well-known that in some religions parents are enjoined to use corporal punishment to correct the child lest he or she be spoilt. In a case heard in the Constitutional Court25 the appellant (Christian Education South Africa, a group representing Christian independent schools) the question was whether Parliament when it enacted the South African Schools Act 84 of 1996 “wherein it had prohibited corporal punishment in schools, … had violated the rights of parents of children at independent schools who, in line with their religious convictions, had consented to its use. The appellant averred that corporal correction was an integral part of the active Christian ethos which it sought to provide its learners attending its member schools and that the blanket prohibition of its use in those schools invaded individual, parental and community rights to practise religion freely.”26 The Court held that, “when all the factors were weighed together, the scales

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came down firmly in favour of upholding the generality of the law in the face of the appellant's claim for a constitutionally compelled exemption” and dismissed the appeal.27

Section 10 (A) (1) of SASA provides that a (any) person may not conduct or participate in an initiation practices (sic) against a learner at a school or in a hostel accommodating learners of a school. Section 10 (A) (2) (a) provides that any person who contravenes subsection (1) is guilty of misconduct and disciplinary action must be instituted against such a person in accordance with the applicable code of conduct [for learners], prescribed in sections 8 and 18A of this Act and Schedule 2 to the Employment of Educators Act, 1998 (Act No. 76 of 1998) [providing a disciplinary code and procedures for educators]. Section 10 (A) 92) (b) provides that, in addition to paragraph (a), a learner may institute civil action against a person or a group who manipulated and forced that learner to conduct or participate in any initiation practices. Section 10 (A) (3) defines “initiation practices” as any act which in the process of initiation, admission into, or affiliation with, or as condition for continued membership of, a school, a group,28 intramural or extramural activities, inter schools sports team, or organisation … (d) undermines the fundamental rights and values that underpin the Constitution.The definition seems broad enough to cover “initiation” activities by a religious grouping operating in a school but undermining (intentionally or unintentionally) the fundamental rights and values that underpin the Constitution. The possibility of a contravention of this prohibition in SASA is made all the more likely by the intimate relationship between culture and value and religion. Be it as it may, it seems that the CESA case29 would rule out any successful appeal to allow school-based “religious initiation practices”.Contraventions of the provisions of SASA is this regard carry severe sanctions but cultural initiation practices in South Africa (which annually lead to the deaths of significant numbers of boys and take them away from senior school (educational) opportunities for protracted times seem to be excluded from the ambit of section 10 (A). Cultural initiation practices, which do not form part of the school programme and which do take place on school premises, seem to have such serious implications that the absence of or law in this regard would seem to be difficult to conciliate with the values and principles Constitution of 1994.30

Section 20 (1) (c) of SASA is a peremptory provision that compels the governing body of a school to develop the mission statement of the school. Even if such a mission statement may contain elements or overtones of a religious position and even though parents must form the majority of the members of a governing body,31 such policy cannot overrule or override the Constitution or SASA.In its transitional “provisions relating to schools other than private schools” SASA provides that any school which was established or was deemed to have been established in terms of any law governing school education in the Republic of South Africa and which existed immediately prior to the commencement of this Act [1 January 1997], other than a private school referred to in section 53 is deemed to be a public school.32

Section 56 provides further that, if an agreement contemplated in section 14 does not exist at the commencement of this Act in respect of a school, standing on private property and which is deemed to be a public school in terms of section 52 (1), the Member of the Executive Council must take reasonable measures to conclude such an agreement within six months of the commencement of this Act. Section 57 adds that, if the owner of the private property referred to in section 56 is a religious organisation, such owner may require that the agreement contemplated in section 14 must recognise, in an appropriate manner consistent

with this Act, the distinctive religious character of the school. Section 14 provides that a public school may be provided on private property only in terms of an agreement between the Member of the Executive Council and the owner of the private property.33

The schools contemplated in Sections 52, 56 and 57 are predominantly public schools that exist on property of the Roman-Catholic, Uniting Reformed and Anglican churches.34 Although I have argued that all schools whether public or independent are, in principle, allowed to pursue a particular religious ethos as provided for in section 20 (1) (c) of SASA, this specific group enjoys unambiguous protection and recognition of their “distinctive religious character” (and consequently also of the parents’ convictions) as articulated in Section 57.

5. THE POLICY ON RELIGION IN EDUCATION (“THE POLICY”)35

The Policy assumes that the public school has an educational responsibility for teaching and learning about religion and religions, and for promoting these, but that it should do so in ways that are different from the religious instruction and religious nurture provided by the home, family, and religious community.36 The Policy avers that there have been instances in which public education institutions have discriminated on the grounds of religious belief and that, in many cases, pupils of one religion are subjected to religious observances in another, without any real choice in the matter.37

The Policy discusses three crucial concepts: Religion Education, Religious Instruction and Religious Observances.Religion Education is a compulsory curricular programme with clear and age-appropriate educational aims and objectives, for teaching and learning about religion, religions, and religious diversity in South Africa and the world. It is part of various learning areas and subjects, especially Life Orientation, in both General and Further Education and Training.38 It is compulsory for all learners and, there is no choice of non-attendance – as is the case regarding religious observances.39

Religious Instruction40 includes instruction in a particular faith or belief, with a view to the inculcation of adherence to that faith or belief. It may not be part of the formal school programme, as constituted by the National Curriculum Statement.Religious Observances.41 58. In accordance with the Constitution, the South African Schools Act, and rules made by the appropriate authorities, the Governing Bodies of public schools may make their facilities available for religious observances, in the context of free and voluntary association, and provided that facilities are made available on an equitable basis. School Governing Bodies are required to determine the nature and content of religious observances for teachers and pupils,42 The Policy provides that, where a religious observance is organised as an official part of the school day, it must accommodate and reflect the multi-religious nature of the country in an appropriate manner.There has been widespread of the Policy and its constitutionality has been called questioned. Malherbe43 provides an example of a critical analysis of the Policy, highlighting among others parents’ lack of the power to withdraw their children from religion instruction if they don’t agree with the material or the manner of teaching it.

AN INCIDENT

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The CESA and Wittmann cases have been discussed.44 A survey of the literature reveals that there is only significant incident to be discussed.

5.1. Newcastle High School

In an article in The Natal Witness of 28 February 2008 Alec Hogg45 writes about tensions at Newcastle High School in the Northern part of the KwaZulu-Natal province of South Africa. Hogg relates what happened at the school since June 2006:! … the Christian-dominated school … has become an ideological battleground since a relatively small group of Indian parents seized control of the school governing body (SGB) in June 2006. ! Apathy among parents meant the first election [for the governing body] did not attract enough votes for a quorum. So, as the rules stipulate, a second meeting was called at which simple majority ruled.! As usual, many people in the sleepy KwaZulu-Natal town ignored the event. This opened the door for 60 motivated Indian parents cohesively led by local optometrist Paul Remission. Although they are little more than a splinter within the 1 000 pupil-strong school, the five-dozen activists dominated the meeting, voting as a block to seize control of the school’s governing body by winning six of the seven elected positions.46

! Conflict erupted at the first meeting of the new SGB when new chairman Ramkissoon instructed long-serving principal Jan du Toit to stop the traditional praise and worship at the morning assemblies and replace it with a minute of silence.47 Du Toit refused. The community rallied to his side and an alarmed parent body quickly formed the Concerned Christian Parents Initiative. After studying the Department of Education’s rules, they called a special general meeting. This time 556 parents packed out the school hall. … The parents called for a vote of no confidence in Ramkissoon’s SGB. Despite its own rules which state that this is the process to be followed, after some caucusing Education Department officials simply informed the meeting that there would be no vote. ! Appalled at the outcome, the Concerned Christian Parents Initiative launched a twin attack through the court of law and the court of public opinion. Both efforts failed. An expensive legal challenge faltered and was abandoned. And after a brief flurry of articles in the local media and assurances to journalists by Ramkissoon that an inclusive policy would be followed reporters lost interest. ! The most public casualty was the long-serving and respected headmaster Du Toit. Tiring of continuous friction … his resignation was accepted and he left the school during the course of last year to flip burgers at a Wimpy in the Free State. ! His deputy, Miggie Liebenberg, seemed an excellent replacement, calming troubled waters and guiding the school to academic success in the 2007 exams. ! Now she, too, has been cast aside, replaced by someone more to the racial liking of those controlling the SGB. ! Where parent action failed to evoke change, pupils have started taking matters into their own hands. They are opening a Pandora’s box the consequences of which could go far beyond anything those currently involved might imagine. The town’s newspaper, the Newcastle Advertiser, reports that pupils jeered Ramkissoon when he came to the school

last Monday to introduce his new principal, Manual Govender. The pupils spontaneously cheered Liebenberg when she was thanked for her contribution as acting principal. ! For his part, the new principal, Govender, responded disastrously. ! During the open meeting, the secretary of the Representative Council of Learners raised the latest flashpoint by asking why the school’s annual magazine had not been published. After conferring briefly, Govender told assembled pupils that the matter was not open for discussion. The Newcastle Advertiser, which ran the story over three pages under the banner headline Pupils revolt, reported that Ramkissoon’s group had stopped the publication: The magazine, which was to have commemorated the school’s 125th anniversary, was according to the SGB predominantly white and Christian orientated. The events illustrate how religious differences can cause turmoil in a school and a society. South Africa is been fortunate not to have more cases like this. In this case the parents were partly to blame if an unrepresentative SGB was elected they did not attend the elections in sufficient numbers.

6. SUMMARY AND EVALUATION

Law and policy makers in South Africa makers seem to have been aware of the problems that can be caused by ignoring parental convictions (non-religious schools) in this regard and have chosen to steer a course between total separation of religion and school and having schools that have distinct religious characters. Although there are doubts about the legality of some policies and the implementation of policies have not been monitored or verified, it seems that in general peace has been created and that role-players like SGBs and principals are handling issues of religion with sensitivity and good judgement.

Endnotes

1. Census 20012. Cf Section 15 (2) of the Constitution of 1996.3. Cf Section 20(1)(c) of the South African Schools Act, 84 of 1996 and Section 1 (c) of the

Constitution4. Section 1 (d) of the Constitution.5. This right can be limited as contemplated in Section 36 of the Constitution.6. Religious observances need to be distinguished from religious instruction. Religious observances

includes aspects of religious expression such as reading from holy scriptures, singing, prayers, and the wearing of religious dress and symbols.

7. Section 12 (1) of SASA.8. Section 23 (9) of SASA.9. With the exception of the Newcastle “episode” to which I will refer below, there have not been other

overt or reported problems in this regard. The relevant case law which will also be discussed below has also not dealt with issues of religious observances.

10.This idea is captured in the judgment of Ackermann J, O’Regan J and Sachs in their judgment in Prinsloo v Van der Linde and Another (CCT4/96) [1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997): “In our view unfair discrimination, when used in this second form in section 8(2), in the context of section 8 as a whole, principally means treating persons differently in a way

48

which impairs their fundamental dignity as human beings, who are inherently equal in dignity.” Unfair discrimination can also be viewed as inequitable treatment of people.

11.Section 7 of SASA.12.The court of final instance in South Africa.13.Section 20 (1) (c) of SASA.14.Notice 196 of 1995. Department of Education. Parliament of the Republic of South Africa. Cape

Town, 15 March 1995. WPJ/199515.National Policy on Religion and Education, Department of Education, Pretoria, 2003.16.SASA, S 20 (1) (c).17.Western Cape Minister of Education v Governing Body of Mikro Primary School 2005 10 BCLR

973 (SCA).18.Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo &

Others Case CCT 40/09 [2009] ZACC 32.19.Wittmann v Deutscher Schulverein, Pretoria and Others 1998 (4) SA 423 (T)20.P 456.21.P 424.22.Because the word “school” is not qualified as publish or independent, this Section applies to both

types of schools.23.Subsection 1.24.Subsection 2.25.Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC)26.P 758.27.P 761.28.Author’s emphasis.29.Supra.30.At the time of the insertion of section 10 (A) into SASA an investigation in cultural initiation

practices was announced but, as far as my knowledge goes, no report has ever seen the light.31.Section 23 (9) of SASA.32.Section 52 (i).33.Author’s emphasis.34.Beckmann, Johan, Joubert, Rika and Herman, Chaya. The place of religion in education in South

Africa. In Lauwers, Gracienne, de Groof, Jan and de Hert, Paul. Islam (Instruction) in State-Funded Schools. iBooks Author First Edition. Country Reports, pages 318 – 325.

35.Pretoria: Department of Education. Approved by the Council of Education Ministers on 4 August 2003.

36.Par 1 of the Policy.37.Par 2 of the Policy.38.Par 17 of the Policy.39.See below.40.Paragraphs 54 and 54 of the Policy.41.Paragraphs 58 and 61 of the Policy.42.This seems to be in conflict with Section 16 of SASA which assigns the governance of schools to

governing bodies and the professional management of school to the principal under the authority of the specific provincial educational head.

43.Malherbe, Rassie. The right to freedom of religion in South African schools: recent disturbing developments. 2004 International Journal for Education Law and Policy, 248-257.

44.Supra.45.Religion at the root of Newcastle High School tensions.

46.One should remember that a governing body is effectively controlled by the parents as they always have to be in the majority of the membership of the governing body in terms of Section 23 (9) of SASA.

47.This implies a revision of the school policy on religion but there is no indication here as to whether the law in this regard was followed by the new XGB.

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8 Charles L. Glenn

Schooling in Post-secular Europe

Schooling in Post-secular Europe

Charles L. Glenn*

Twenty years ago, when I was researching my book on the education of immigrant children in twelve (mostly-European) countries, the prevailing discussion was about language and culture, with virtually no mention of religion. That topic almost never came up in my visits to dozens of schools and discussions with dozens of experts, except with respect to the hijab (foulard islamique), which was generally dismissed as a sign of resistance to European norms rather than an expression of religious conviction. Searching some 1,500 items in the book’s bibliography, I have found only three with ‘religion’ in the title. Today, by contrast, religion is prominent on the agenda for policy- makers and researchers concerned with the integration and success of millions of new Europeans whose family origins lie outside the EU.The policy climate has changed in another way as well. Two decades ago, most countries in Western Europe, as well as North America and Australia, provided support in the languages and cultures of immigrant pupils and defined their societies as ‘multicultural.’ Today it has become evident that the aspects of immigrant culture that gave new flavor to European life–the countless kebab shops, for example–were diverting attention from aspects of culture that, as sociologists put it, “go all the way down,” rooted in fundamental life-orientations. Policy discussions were overlooking the presence of comprehensive worldviews that might be irreconcilable with the norms upon which public and private life rest in the host societies. Cultural diversity is increasingly seen as a source of conflict, a problem, not a cause for celebration. Germany is not the only country where “Muslim communities have to put up with a widely felt distrust regarding their ability to be loyal to the state.”1

At the same time, the immigrant communities themselves have developed leadership capable of functioning at a high level within the European context and asserting with increasing confidence the right to freedom of expression and to respect. It is no longer possible, as it was several decades ago, simply to talk about the situation of cultural and religious minorities; it is necessary now to talk with them, as illustrated by the rich discussions in Antwerp. “Religiously-informed actors, including Christian fundamentalists in America and Islamists in Europe, matter so much in contemporary political life that we endanger the future of the democratic polity if we cannot integrate them into the workings of public reason.”2

To do so requires taking seriously the religious basis of their positions on a whole range of issues, especially the education of children. “Islamic schooling in the United Kingdom represents a situation in which education has emerged as a primary space in which fundamental questions about the societal inclusion and belonging of minority communities are negotiated.” Almost all European countries have made provision in3 law and policy for schooling on the basis of the religious convictions of parents, whether through public funding of schools with a religious character, or through optional religious instruction in neutral government-owned schools. Whether these arrangements continue to meet the requirements of the new situation was the primary focus of our recent discussions.There are two primary reasons why the issue of religion and education has emerged as a high priority for policy discussions in Europe at this time. The first is that language is no longer so central an issue for the younger generation derived from immigration and to a

considerable extent they have exchanged the cultures of the homelands of the older generations for the insistent Western culture all around them. This has left religion as the major potential non-physical marker of difference. In their desire to find a basis for solidarity in the face of host societies seen as uncertainly welcoming if not actively hostile, some of the second generation have become more actively religious than their parents were in Turkey or Morocco.The other reason for this policy discussion is that there are signs that the ‘indigenous’ population of Europe is becoming somewhat more open to Christianity. The vigor of lay movements like Communion and Liberation within Catholicism, and the spread of evangelical and pentecostal Protestant groups, while by no means matching the vigor of similar developments in the Global South or in China, suggest that secularization of society may have passed its apogee. While religious belief and practice have undoubtedly declined, [s]ome 60 million to 70 million west European Christians [still] assert that religion plays a very important part of their lives, and many of those attend church regularly. If commentators worry that the presence of some 15 million Muslims in the same nations portends the imminent conquest of Europe, it is curious that more attention is not paid to a Christian phalanx several times larger.4Some of the revised interest in Christianity may be a reaction to the presence of Muslim neighbors and a consequent concern to rediscover elements of distinctive European identity. While in general European elites seem baffled by the persistence of religion under conditions of post-modernity, “[f]rom a grassroots level . . . the immense attention paid to religious concerns and Europe’s heritage in the past few years probably will drive more Europeans to take a renewed interest in their Christian roots, to rediscover what it is that so many academic experts seem to be consigning to oblivion.”5

Paradoxically, this revival of interest in religion may also result in part from the continued weakening of the official status of the Christian churches; José Casanova has argued that “consistently throughout Europe, nonestablished churches and sects in most countries have been able to survive the secularizing trends better than has the established church.” Two British journalists, senior staff of The Economist, have gone6 so far as to suggest that, with respect to religious practice,[p]erhaps for the first time since the dawn of the modern era, the world seems to be moving decisively in the American rather than the European direction. The American model of religion–one that is based on choice rather than state fiat–is winning. America has succeeded in putting God back into modernity partly because it put modernity, or at least choice and competition, back into God.7While this worldwide development has not yet manifested itself so strongly in Europe, it is fair to say that religion is once again a topic for discussion even in elite circles, as evidenced by the interest shown in the recent work of philosopher Jürgen Habermas (a self-proclaimed agnostic) and his dialogues with Cardinal Ratzinger (now Pope Benedict XVI) and others. The recognition by Habermas that religion possesses8 resources for ethical insight and community formation that are needed by the secular polity is consistent with the conclusion of many sociologists that participation in groups organized around shared religious convictions can play an essential role in the formation of character and social competence.9The arrangements for accommodation (or non-accommodation) of religion by education law and policy differ so greatly from country to country, based upon historical and contextual factors, that it is impossible to generalize about their present adequacy. It is possible, however,

51

to make some general remarks about considerations to take into account as policymakers grapple with these unavoidable issues.It is important to keep in mind that the labels that we attach to population groups are often unhelpful. Despite the interesting arguments of Marcello Pera, it is clear that10 when we refer to the majority of citizens of the EU as “Christians,” we are not making a statement about their beliefs, much less their religious practices. As sociologist Peter Berger and his colleagues have pointed out, “it is fair to say that western and central Europe is the most secularized area in the world.” The label “Muslim” may be equally11 misleading when applied to immigrants from predominantly-Muslim countries and their descendants in Europe. Philip Jenkins reminds us thatthe nonobservant “cultural Muslim” is a familiar type: In France presently, just 5 percent of Muslims attend mosques with any degree of regularity, and a third of Muslims report praying every day, figures that suggest almost Anglican detachment from formal religious commitment.12

It is a fundamental principle of free societies, amply protected by European and international law, that individuals have a right to choose to what law-abiding groups they will belong. Policymakers should beware of assuming that all Muslim parents, for example, want the same sort of education for their children. Stephen Macedo reminds us that “Positive stereotypes are still stereotypes that will not suit the aspirations of many individuals. . . . approaching individuals as members of groups–even with thebest of intentions–could lead us to saddle them with cultural baggage that they have no wish to carry.”13

Having said that, it is also the case that policies based upon a strict individualism often refuse to recognize the role of associations and institutions in making it possible for individuals to choose to live by norms that differ from those promoted by the dominant consumer-oriented culture. It is in fact a bias of extreme liberalism to see individuals as self-shapers detached from communities of tradition and shared behavioral expectations. Political philosopher Michael Sandel has defined the role that these inherited communities play in the development of a stable identity and character: most people “conceive their identity–the subject and not just the object of their feelings and aspirations–as defined to some extent by the community of which they are a part. For them, community describes not just what they have as fellow-citizens but also what they are, not a relationship they choose (as in a voluntary association) but an attachment they discover, not merely an attribute but a constituent of their identity.”14 Choosing to remain loyal to such a community and to the norms which it imposes is as much a human right as is choosing to reject an “inherited” group, and deserves the same level of protection.A central goal of such communities (and this includes non-religious groups organized around ecology and similar perspectives) is to socialize the children of members into becoming themselves loyal to the beliefs and norms of the group, “ to provide a child with an identity, sense of purpose, and orientation to life strong enough to tie him to that life and identity throughout adulthood.” While much prevailing liberal theory deplores15 the influence of such nurturing on children subjected to it, when it is by conservative religious groups,16

[i]t may be an advantage in a large society to be raised within a particular community. People raised in a community are given values and a way of life that they can reject or revise when they are older. . . . It may mean that a child has an idea of what it means to live a life guided by deep-seated values. . . . As a teenager and adult the person can look at

other ways of life and compare them to his or her own. A child who is given many different options about how to live and often chooses differently, however, will not experience any way of life deeply enough to have a basis for comparison.17

Some liberal theorists like Amy Gutmann insist that it is the responsibility of the State to liberate children from these inherited worldviews and help them to become self-defining autonomous individuals. “As philosophical conclusions,” William Galston points out,18

these commitments have much to recommend them. The question, though, is whether the liberal state is justified in building them into its system of public education. The answer is that it cannot do so without throwing its weight behind a conception of the human good unrelated to the functional needs of the sociopolitical institutions and at odds with the deep beliefs of many of its loyal citizens. As a political matter, liberal freedom entails the right to live unexamined as well as examined lives–a right the effective exercise of which may require parental bulwarks against the corrosive influence of modernist skepticism. I might add that in practice there is today a wide-spread perception that our system of public education already embodies a bias against authority and faith.19

Galston goes on to point out that there is in fact little danger that a child can grow up in contemporary societies without being exposed to alternative systems of value and belief or unbelief; after all,the simple fact that authority is divided means that from an early age every child will see that he or she is answerable to institutions other than the family–institutions whose substantive requirements may well cut across the grain of parental wishes and beliefs. Some measure of reflection, or at least critical distance, is likely to result. Second, the basic features of liberal society make it virtually impossible for parents to seal their children off from knowledge of other ways of life. . . . The greatest threat to children in modern liberal societies is not that they will believe insomething too deeply, but that they will believe in nothing very deeply at all. . . . Rational deliberation among ways of life is far more meaningful if (and I am tempted to say only if) the stakes are meaningful, that is, if the deliberator has strong convictions against which competing claims can be weighed. The role of parents in fostering such convictions should be welcomed, not feared.20

Thus even if not all “Muslims”–or even a majority of them–in Europe want to have their lives shaped by Islamic rules and tradition, it is profoundly unjust for public policy to make it difficult for those who do make that choice to live it out and communicate it to their children.If a state is really to cherish its minority cultures then it will have to offer them moral and material support; without this, their advancement in educational and economic life, for example, will be advancement in educational and economic life, at the cost of an assimilationist loss of identity. . . . By making different groups less embattled, it may also be the way to facilitate within each group a greater measure of critical reflection, tolerance of dissent, and openness to outside influence.21

This last point is of particular significance: pushing a group to the margins of society is more likely to lead to a reciprocal rejection than an openness to find a basis for sharing in the common life of the society.3. It is necessary also to remember that Muslim parents enjoy the right to determine the worldview character of the education that their children receive, a right over which many political struggles have occurred in Europe since 1830 and which has of course been incorporated into international as well as national law. There has been much hesitation, in a

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number of countries, about applying this right to immigrant families, on the grounds that their children require an especially deliberate acculturation in order to have a successful future in the host society. This is certainly the case, but the Dutch solution seems wise: providing full public funding for schools with an Islamic character for those who choose them, while requiring them to meet all curriculum and staff standards of other public and private schools. That the achievement levels at these schools is unsatisfactory certainly indicates need for intervention and support, but the fundamental strategy is sound.It is equally wise that these schools have not been made the ‘default option’ for children from Muslim families, most of whom have not chosen this option but instead enrolled their children in Catholic, Protestant, or municipal schools. It seems likely that, in fact, most Muslim parents are primarily concerned that their children make a success of their education and subsequent participation in Dutch society, just as in Spain “the demand for Islamic religious education in the schools is not a priority for the communities of immigrant origin despite the fact that there is concern for maintaining community ties through socialisation of the younger generation.” It is a characteristic common to all22immigrations that the second and third generations make a wide range of choices about their relationship with the host society. Public policy should support the exercise of23 such choice as a basic characteristic of democratic citizenship.4. A brief comment on religious symbols in public schools: it seems to me that for pupils to express their religious identities and beliefs in any non-disruptive way should be protected; as the US Supreme Court noted, “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The prohibition of wearing the hijab has prevented many24

girls from Muslim families from receiving the benefits of a general education, and I believe has been unwise as policy and a violation of their rights. On the other hand, public school teachers, as representatives of a State that must remain neutral among religious and non-religious worldviews, enjoy less freedom than to their pupils to express religious (or political) views, lest they exercise unjust influence. It is thus reasonable to forbid them to wear ostentatiously religious garb, as in some German Länder.Crucifixes on classroom walls (as in Italy) seem to me to violate the neutrality of the public school, though that would perhaps not be the case were they accompanied by symbols of other religious and non-religious traditions in a celebration of the diversity of worldviews that enjoy respect in a pluralistic democracy. Simply banning religious symbols altogether, as occurs in most American public schools (where, however, Muslim girls are free to wear the hijab) conveys the message that religion is marginal or of no interest, and that is in itself a violation of the neutrality required of public schools.5. It is important to avoid the assumption that immigrant Muslims or adherents to Islam in general are particularly prone to reject the host society and its culture. In this regard it can be instructive to consider the situation of several million Muslims in the United States, most of them present as a result of immigration. While a handful have become involved in terrorist activities, the overwhelming majority are entering the American middle class without difficulty, and showing a level of religious observance strikingly similar to that of non-Muslim Americans.By a margin of nearly two to one (63 to 32 percent) they saw no conflict between being a devout Muslim and living in a modern society. . . . American Muslims are a little more likely than Christians to say religion is “very important” in their lives (72 versus 60 percent). But

they are a little less likely to say that they pray every day (61 versus 70 percent). The two communities are about equally likely to attend religious services at least once a week (40 percent of Muslims versus 45 percent of Christians). Muslims are thus mainstream members of a pluralist religious society.25

In fact, they tend to align themselves with conservative Christians and Jews on a whole range of cultural and life-style issues.While there are demographic and economic factors that make the situation of Muslims more favorable in the United States, it seems possible that at least one cause of the relative alienation of Muslims in Western Europe is that their religion is perceived as an unwelcome and threatening incursion into societies that see religion as a relic of the unenlightened past. As philosopher Charles Taylor notes sardonically, “[e]ven French atheists are a little horrified when religion doesn’t take the standard Catholic form that they love to hate.” This attitude, especially among European elites, helps explain why26 the enthusiasm for multiculturalism in the 1980s paid so little attention to religion; surely one “reason why many liberals and multiculturalists don’t discuss religion enough, at least not the conservative kind, is that they have little sympathy for the reasons why people are religious.”! In the United States, by contrast, imams are now routinely27 included along with rabbis, priests, and ministers in all sorts of public occasions.6. This brings us to the issue of relative social standing. In Western Europe, Muslims in general occupy the lowest positions in society, deriving from an immigration promoted to provide manual labor for the post-war economies; thus “two-thirds of British Muslims live in low-income households. In Holland . . . as many as 60 percent of Moroccans and Turks above the age of forty are unemployed. . . . In Germany, only 3 percent of young Muslims make it to university.” Muslim immigrants to the United States, by contrast,28 often came for university studies or having trained for a professional career, while the lowest positions in society continue to be occupied by African-Americans (though there is now a large black middle class) and immigrants from Latin America. This makes the challenge faced by European policymakers much more difficult, but it also reminds us that our concern about respect and support for the religious concerns of Muslim immigrants should not be a distraction from addressing their need for effective participation in economic life.

7. Finally we come to the issue of religion in ‘neutral’ public schools. It seems to me evident that the curriculum for all pupils should include–though not necessarily as a separate course–impartially-conveyed information about major world religions and some respectful discussion of religious belief and practices. Schools in a number of European countries–I admire especially the English policy of developing an agreed syllabus at the local level through discussion among representatives of religious groups–are in this respect well ahead of most American schools, which tend to be characterized by panic at the idea of teaching about religion. I see no grounds for exemption from such instruction, and I believe that non-neutral religious schools could also be expected to include information about world religions as part of their course of study, separate from explicit religious instruction intended to build loyalty toward and understanding of a particular religious tradition.8. The issue of whether public schools should offer religious instruction intended to build loyalty toward and understanding of a particular religious tradition, even on a voluntary basis, seems to me much more difficult, and it is here that I might disagree with much current European practice. My reasons are more practical than legal. I question the ability of

53

schools to counter the effects of peer pressure for or against participating in such classes, and the wisdom of using religion (any more than race or ethnicity) as a basis for separating pupils for part of their school program.I also question the wisdom of these classes from the perspective of the religious communities themselves. Comparing the low level of religious belief and participation in England, which has long required religious observances as well as instruction in public schools, with the considerably higher level of interest in religion in the United States, where even a breath of religion has been banished from public schools for the last half-century, makes me wonder whether adolescents are not more likely to be favorable to religious perspectives when they are an alternative to what they experience in school. Are the elements of religion in English schools like a mild case of some disease, which confers a subsequent immunity? Do religious youth groups and religious popular media flourish in the United States because they offer youth a sort of rebellion against the blandness of the public school curriculum, with its avoidance of any summons to a life of commitment and even sacrifice? I don’t know the answer, but I do wonder whether religion in Europe would be more dynamic if it severed its lastdependencies on the State.

Endnotes

* Boston University1. Jonker, Gerdien. 2002. “Muslim Emancipation? Germany’s Struggle over Religious

Pluralism.”Religious Freedom and the Neutrality of the State:The Position of Islam in the European Union.Edited by W.A.R. Shadid and P.S. van Koningsveld. Leuven: Peeters, 37.

2. Calhoun, Craig. 2011. “Afterword: Religion’s Many Powers.” In The Power of Religion in the Public Sphere. Edited by Eduardo Mend ieta and Jonathan Vanantwerpen. New York: Columbia University Press, 127.

3. Mandaville, Peter. 2007.”Islamic Education in Britain: Approaches to Religious Knowledge in a Pluralistic Society.” In Schooling Islam: The Culture and Politics of Modern Muslim Education, edited by Robert W. Hefner and Muhammad Qasim Zaman, Princeton University Press, 226.

4. Jenkins, Philip. 2007. God’s Continent: Christianity, Islam, and Europe’s Religious Crisis. Oxford,56.5. Jenkins, 287.6. Casanova, José. 1994. Public Religions in the Modern World, Chicago: University of Chicago Press,

29.7. Micklethwait, John and Adrian Wooldridge. 2009. God Is Back: How the Global Revival Of Faith Is

Changing the World. New York: Penguin Press, 25.8. For example, Habermas, Jürgen. 2006. “Pre-political Foundations of the Democratic Constitutional

State?” In Joseph Cardinal Ratzinger and Jürgen Habermas. Dialectics of Secularization: On Reason and Religion. Edited by Brian McNeil. San Francisco: Ignatius Press; 2010. “An Awareness of What is Missing.” In An Awareness of What is Missing: Faith and Reason in a Post-Secular Age. Translated by Ciaran Cronin. Cambridge (UK): Polity Press; 2011. “‘The Political’: The Rational Meaning of a Questionable Inheritance of Political Theology.” In The Power of Religion in the Public Sphere. Edited by Eduardo Mendieta and Jonathan Vanantwerpen. New York: Columbia University Press.

9. See, for example, Putnam, Robert D.. 2000. Bowling Alone: The Collapse and Revival of American Community, New York: Simon & Schuster, 66-7; Clark, Reginald M.. 1983. Family Life and School Achievement: Why Poor Black Children Succeed or Fail, Chicago: University of Chicago Press, 120;

Cnaan, Ram A. with Robert J. Wineburg and Stephanie C. Boddie. 1999. The Newer Deal: Social Work and Religion in Partnership. New York: Columbia University Press, 139-41.

10.Pera, Marcello. 2011. Why We Should Call Ourselves Christians: The Religious Roots of Free Societies. Encounter Books.

11.Berger, Peter, Grace Davie, and Effie Fokas. 2008. Religious America, Secular Europe? Farnham, Surrey: Ashgate Publishing, 11.

12.Jenkins, 122.13.Macedo, Stephen. 2003. “Liberalism and Group Identities.” In Citizenship and Education in Liberal-

Democratic Societies. Edited by Kevin McDonough and Walter Feinberg. Oxford University Press, 422.

14.Sandel, Michael J. 1982. Liberalism and the Limits of Justice. Cambridge University Press, 150.15.Burtt, Shelley. 2003. “Comprehensive Education and the Liberal Understanding of Autonomy.” In

Citizenship and Education in Liberal-Democratic Societies. Edited by Kevin McDonough and Walter Feinberg. Oxford University Press, 179.

16.See, for example, Dwyer, James G. 1998. Religious Schools v. Children’s Rights, Ithaca, NY: Cornell University Press.

17.Spinner-Halev, Jeff. 2000. Surviving Diversity: Religion and Democratic Citizenship. Baltimore: Johns Hopkins University Press, 65.

18.Gutmann, Amy. 1987. Democratic Education, Princeton University Press.19.Galston, William A. 1991. Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State.

Cambidge University Press, 253-4.20.Galston, 255.21.Dunne, Joseph. 2003. “Between State and Civil Society: European Contexts for Education.” In

Citizenship and Education in Liberal-Democratic Societies. Edited by Kevin McDonough and Walter Feinberg. Oxford University Press. Pp. 96-120. 108.

22.Moreras, Jordi. 2002. “Limits and Contradictions in the Legal Recognition of Muslims in Spain.” In Religious Freedom and the Neutrality of the State:The Position of Islam in the European Union. Edited by W.A.R. Shadid and P.S. van Koningsveld. Leuven: Peeters, 59.

23.See Glenn, Charles L. with Ester J. De Jong. 1996. Educating Immigrant Children: Schools and Language Minorities in Twelve Nations. New York: Garland, chapter 4.

24.Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).25.Micklethwait and Wooldridge, 295.26.Taylor, Charles. 2007. A Secular Age. Cambridge: The Belknap Press of Harvard University Press,

529.27.Spinner-Halev, 213.28.Micklethwait and Wooldridge, 285.

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9 Asher Maoz

Religious Education in Israel

Religious Education in Israel

Asher Maoz

• PROOF TEXT •The Routledge International Handbook of Religious Education

Edited by Derek H. Davis and Elena Miroshnikova

The interrelation between state and religion in Israel does not easily lend itself to traditional classification.1 Israel is not a religious state yet it is certainly not secular. There is no separation between religion and state. The state supports the various religions; central parts of individual and public life—such as marriage and divorce—are governed by religious law and religious institutions; religious institutions are officially recognized by the state and carry out state functions; they are budgeted by the state; the state moreover intervenes in the establishment and composition of these institutions. The extent of state intervention varies. It is more extensive with the Jewish, Muslim, and Druze communities, while Christian communities, save for the Greek Orthodox community, are largely autonomous. This set-up has its historical roots dating back to the Ottoman Empire. It should be emphasized, however, that, although Israel was established as a Jewish state, there is no state religion in Israel. Moreover, the jurisdiction of Sharia (Muslim) religious courts is substantially wider than that of Rabbinical (Jewish) courts. The same goes for Muslim religious law.

1. NATIONAL AND RELIGIOUS AFFILIATION

On the eve of its sixty-third Independence Day (May 2011) the population of the State of Israel consisted of 7,746,000 people: 75.3 percent (5,837,000) Jews; 20.5 percent (1,587,000) Arabs; 4.2 percent (322,000) “other people.”2 At the end of 2009 the population of Israel included 7,552,000 people. By religious affiliation: 72.53 percent (5,703,700) were Jews; 17.04 percent (1,286,500) Moslems; 2.01 percent (151,700) Christians; and 1.66 percent (125,300) Druze.3 In spite of the substantial Jewish immigration to Israel, the percentage of Arabs grew from 18 percent at the establishment of the State of Israel to 20.4 percent. This may be due to several reasons, such as the annexation of East Jerusalem in 1967 and the Golan Heights in 1981 and the influx of Palestinians into Israel. A major source of this growth is the difference in birth rate.While the total growth of the Israeli population in 2009 was 1.8 percent, the growth of the Jewish population was 1.7 percent, including Jewish immigration. On the other hand, Arab growth was at the rate of 2.4 percent. There is a distinction also within the Arab population.While Moslem growth was at the rate of 2.8 percent, the growth of the Christian population was merely 1 percent. This tendency is expected to continue. It is expected that by the year 2030 the Jewish population will drop by 0.53 percent–1.23 percent and constitute 71.3 percent–72.2 percent of the total population. At the same time, the Arabs will constitute 23.7 percent–24.3 percent of the population. Within the Arab population the Moslem population

will grow to 20.4 percent–21.1 percent of the population while the Christian Arabs will decrease to 1.4 percent– 1.6 percent. The Druze population will grow to 1.7 percent–1.8 percent of the total population.4

2. RELIGIOUS EDUCATION5

2.1. Jewish studies in state schools

Israel recognizes the status of religious schools at all levels, from kindergarten to high school, as well as institutions for the training of school and kindergarten teachers. The education system includes both religious and non-religious state schools as well as private schools. Judaic texts, such as the Bible, as well as Jewish history and Jewish holidays, are taught in all schools, including those that are not religious, though the Bible is taught from a critical view and not as a divine book.This is natural considering that those texts constitute part of Jewish culture and history beyond their religious manifestations. Indeed, State Education Law outlines the objects of state education, inter alia, as educating the students to respect their heritage, their cultural identity, and their language. The law specifically provides that these objects include “teaching the Torah of Israel, the history of the Jewish people, Israel’s heritage and Jewish tradition.”

2.2. State religious education

Religious education is defined as “State education, yet its institutions are religious according to their way of life, their curricula, their teachers and inspectors,” which educate to a life of Torah and mitzvoth (religious commandments) according to the religious tradition and in the spirit of religious Zionism. The law provides for the religious way of life of the educators and enables schools to disqualify a principal, inspector, or teacher “on religious grounds.” No restrictions relating to secular background or lifestyle apply to students and their families, save for the schools’ right to insist on the students not infringing, in their appearance and conduct, the religious way of life within school. Indeed, a substantial portion of the student body of the schools comes from non-religious homes.The religious state education system experienced in recent years a withdrawal of students to ultra-Orthodox institutions and came under pressure from parents to enrich its religious curricula and introduce a more Orthodox atmosphere in school. This led to the establishment of networks that put more emphasis on religious studies. Critics of these schools point out the fact that they tend to be elitist and frustrate one of the main targets to enhance integration of various socio-economic sectors.

2.3. Arab, Druze, and Circassian state schools

Arab state schools operate in Arab towns and villages and in city quarters with large Arab populations. The same goes for Druze and Circassian villages. Students belonging to these ethnic groups may choose to attend these schools or a general (“Jewish” or “Arab”) school where available.

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The Arab schools are part of the general state schools and are not regarded as religious schools; however the law provides for a curriculum that will fit “their special conditions.” In practice the curriculum is adapted to the religion of the student body, whether Muslim or Israel Christian. The same goes for the Druze and Circassian schools. The main language of instruction in these schools is Arabic, and Arab culture is taught. The use of Arabic represents a characteristic of cultural autonomy, the language being related to cultural, historical, and religious attributes of the Arab minority in Israel.In 2000, the State Education Law was amended to state that “the objective of state education is “to educate people to love others, their nation, and their country, to be loyal citizens of the State of Israel, to respect their parents and family, their heritage, their cultural identity, and their language.” Recently some binational and bilingual schools have been established.

2.4. State schools with reinforced Judaic studies

State Education Law charges the Minister of Education with establishing a “supplementary program” upon the demand of parents of three-quarters of the students. Under this aegis, parents join to create schools with an enhanced program of Jewish studies, yet not Orthodox oriented, named Tali (Hebrew acronym for “reinforced Judaic studies”). These schools operate with the sponsorship of the Schechter Institute for Jewish Studies, which provides pedagogical and educational support with a Conservative Judaism orientation. In the 1980s the Reform Movement joined the Tali network in opening schools within state schools and a chain of kindergartens. It also established an independent school and provides religious enrichment in regular state schools.There are other state schools that do not belong to the official religious stream but reinforce Judaic studies.In 2008 the State Education Law was amended and a new category of state schools was created—the combining state school. This is a state school which “combines in its curriculum intensified Judaic studies and emphasizes Jewish identity teaching.” The supplementary curriculum for such a school includes comprehensive study of Judaic sources emphasizing Jewish identity and values of tolerance in Jewish heritance and “the coexistence and common destiny and fate of all parts of the nation in Israel and in the Diaspora.” An official school may be declared as a combining state school if parents of at least two-thirds of the student body have so requested.

3. RECOGNIZED NON-OFFICIAL SCHOOLS AND NON-RECOGNIZED SCHOOLS6

Alongside the state schools there operate schools that are recognized by the state yet are “nonofficial.”Under this provision various types of “non-official” schools have been established; most of them are religious, both Jewish and Christian. The latter include schools that are operated by the Greek-Catholic Malachite Church, the Latin Patriarch, and the Anglican Church. Muslim and Druze students also study in these schools, and at times they form a substantial proportion of the student body. There is also a Druze network of recognized schools.

Most of the recognized religious Jewish schools are ultra-Orthodox. There are at least 15 variants of these schools’ networks, belonging to various religious communities. The main networks are the Independent Education Network and the Sephardic Centre of Fountain of Religious Education in Israel, known as “The Fountain of Religious Education.” The first network is the former Agudat Yisrael network that was official yet declined to integrate into religious state education. The latter was founded in 1984 by the Sephardic (oriental) religious new political party Shas. While the Independent Education Network caters exclusively to the ultra-Orthodox population, the Fountain of Religious Education includes students from various backgrounds, most of them of non-Orthodox but rather traditional or even non-religious background. The Independent Education Network established in the late 1990s a network for students that come from non-religious families called Shuva (repent). There is a strict sexual division among the students in these networks. Such division exists also in many religious state education schools. The educational system for male students within the Independent Education Network is divided into four age groups: Talmudei Torah (verb. Torah Studies) for ages 5–13; Yeshiva (Academy of Torah) divided between a “Small Yeshiva” for ages 13–16 and “High Yeshiva” from the age of 17. Girls are educated in a separate network.The number of students in the ultra-Orthodox schools has increased significantly and this increase seems ongoing. At the same time, the proportional numbers of students, both in state schools and in religious state schools, dropped substantially.A further category includes “exempt schools” that are neither state nor recognized schools, but regarding which the Minister of Education has decreed that parents and children attending them are exempt from the obligation “to ensure that such child or adolescent attends a recognized educational institute.” These institutions belong to ultra-Orthodox Judaism and are run as old fashioned education such as prevailed in the Diaspora.The autonomy of private schools, especially religious schools, and the extent of state supervision that may be exercised over them, varies. Generally speaking, the autonomy of exempt institutions is much wider than that of recognized schools. Christian Religious Communities’ schools operating under the rules of the Education Ordinance, 1933, enjoy the widest autonomy and the Ministry of Education is not entitled “to demand any change in the curriculum or internal administration of the school” its supervision being limited to preserving public order and proper management.According to State Education Law the Minister of Education may regulate the basic curriculum of recognized schools, as well as their administration and inspection. The minister issued regulations, according to which no institution will be recognized, unless it fulfills “the basic curriculum,” which “will consist 75% of the total curriculum hours in an official education institution.” However, “the basic curriculum” is defined as “the number of hours according to the subjects that are compulsory on each educational institute.” There are no provisions as to the content of this curriculum, nor provisions that the curriculum is subject to the approval of the minister. The result was that these schools enjoyed vast independence in calculating their educational system. In 1969 the Knesset enacted the Inspection of Schools Law. The Law introduced an important innovation in the subjection of schools to state control and subjected the curriculum and textbooks to the inspection of the minister. It also empowered the minister to ensure that their education is based on the principles set out in the State Education Law.

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The law does not apply, however, to Yeshivas, or seminaries for the training of clergy. Nor does it apply to religious studies in high-school Yeshivas. In the same vein, it does not apply to institutions of higher education.The Ministry of Education pursued a stated policy of “broad discretion and freedom of choice for schools, consistent with the special needs of each community served by the school,” especially “for private schools serving a recognized religious community in Israel.” In this respect the Supreme Court upheld the refusal of a Greek-Catholic school to enroll a female Muslim student unless she agreed to attend school bare-headed and to participate in co-gender physical education activities wearing a gym suit.7

4. STATE FUNDING AND SCHOOL CURRICULUM

State schools are fully funded by the state and local authorities. Recognized schools, on the otherhand, are not automatically entitled to state funding. However, under provisions of the law, theMinister of Education may fix in regulations the state’s participation in the budget of non-officialschools. From the very first days, the state supported recognized non-official schools, including church schools, though the scope of supported institutions, as well as the amount of support, varied over the years. “Exempt” schools managed to receive state funding as well.In 1992 the Budgetary Principles Law was amended and it mandates equitable tests for the disbursement of the amount allocated in the budget for the support of public institutions.However, the law provides that the Independent Education Network and the Centre of Fountain of Religious Education in Israel should be funded “according to uniform and equal criteria like all Israeli children.”School funding in Israel generates heated political as well as legal controversy. In 1999 the founder of a secular N.G.O. petitioned the Supreme Court, arguing that the Minister of Education failed in his duty to set a basic curriculum for recognized education institutions. He argued that State Education Law was meant to ensure that every student will study core subjects in order to equip them with the necessary knowledge and tools that will enable them to become part of society. In his response the minister undertook to prepare and publish a basic curriculum as required “within 30 days.” This undertaking became part of the Court’s decision.8 Following the decision the Minister of Education established a Commission for Examining the System of Budgeting. The Commission submitted its recommendations that were endorsed by the minister. Thereafter, the Ministry of Education adopted a core curriculum that must be taught at all primary educational institutions in order to make them eligible for state funding. The Director General of the Ministry of Education issued a circular that implemented the decision. The circular established what is known as “the Core Curriculum Scheme” for primary education in Israel (grades 1–6). It stated “the common denominator, consisting of substances, skills and values that are obligatory to all the students in the Israeli education network.” The subjects included in the scheme have been defined as “the obligatory basis in the entire education network,” to which the various schools may add complementary subjects. The core curriculum is comprised of four compulsory and two recommended clusters of subjects.The compulsory clusters are: heritage (including Bible and history) and social studies (including civic studies); language and literature (Hebrew language and literature for Jewish

schools; Arab language and literature for Arab schools; and English language and literature for all schools); mathematics and sciences; and physical education. The recommended clusters include fine arts and school culture. It was stated that teaching the core curriculum is a prerequisite for obtaining state funding. State schools must teach the whole of the curriculum, while recognized schools must teach 75 percent of the curriculum and exempt schools 55 percent only.In 2002 the Union of Teachers in High Schools, Seminaries and Colleges petitioned the Supreme Court to suspend the funding of Haredi (ultra-Orthodox) high schools that do not teach the basic curriculum including “the basic pedagogical knowledge that each boy and girl in the State of Israel must obtain.” In a statement submitted to the Court, the Ministry of Education declared that it had adopted a policy to be implemented gradually in primary schools.According to this policy, recognized schools that teach the set core curriculum and, on top of that, admit students on an integrative basis and take part in the Growth and Effectiveness Measures for Schools (G.EM.S.) including feedback tests, will obtain 75 percent of the budget of state schools. Recognized schools that do not admit students on an integrative basis will receive 65 percent and will have to teach 65 percent only of the curriculum. Exempt schools will not be subject to these requirements and will obtain 55 percent of the budget. The Independent Education Network and the Sephardic Centre of Fountain of Religious Education in Israel will continue to obtain full funding, provided they teach the whole core curriculum. The Ministry stated that teaching the core curriculum is a precondition for obtaining a permit for opening new schools and that, in some cases, permits of existing schools that do not teach it might be suspended. As for intermediate schools and high schools, declared the minister, completion of the budgetary reform will need to be spread over several years. This is so since the Ministry will have to prepare a core curriculum, prepare materials, train teachers, build a proper system of inspection and implementation, and obtain the necessary funding. The minister declared, moreover, that she wishes to come to terms with the ultra-Orthodox community in view of the fact that it is being required to change its way of life in an area that is of utmost sensitivity.The Court accepted the petition and declared that funding of institutions that do not apply the core curriculum and do not fulfill the objects of state education is illegal. The Court added that the authority conferred upon the minister to set conditions for recognizing a non-official school is subject to the objects of state education, including values of tolerance and respect for the other. The Court added: “Funding of institutions that do not fulfill the conditions set by law, and do not carry out the objects of State Education Law, is done without legal authority.” The Court accepted, however, the minister’s argument that the implementation will have to last for several years and that immediate revoking of funding for ultra-Orthodox education will shatter the entire sector. The Court was of the opinion that, in view of the long period that the present situation had existed and the school’s reliance on it, considerable steps must be taken in order to amend the illegal allocation of funds. In conclusion, the Court accepted the petition and ordered that no funds be allocated to schools that do not fulfill the conditions and criteria set by law for the recognition of Haredi schools. The Court decided, however, that the order would come into effect in the school year 2007–08.The adoption of a compulsory core curriculum was met with fierce criticism by the Orthodox community. Its leaders regarded the plan as an infringement of their autonomy and freedom of belief, and declared that they will never succumb to the dictate. Not only do their spiritual

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leaders regard secular studies as a waste of precious time that may be dedicated to religious studies, but they are also concerned about exposing their children to a different culture. It is interesting to note that in ultra- Orthodox girls’ schools more time is being allocated to the teaching of general subjects. This is a result of two main factors. First, according to Jewish religion girls are not obliged to study Torah; there even exist statements in classical Judaic sources objecting to it. Second, since in the ultra-Orthodox community men are expected to devote their time to the study of Torah even at a mature age, the women support their families and need therefore to obtain a minimal general education that would enable them to acquire a profession.A further source of concern for ultra-Orthodox institutions was the implementation of the recommendations of the Commission regarding school budgeting. Generally speaking, the Commission advocated a transition from a system of budgeting schools on the basis of the number of classrooms to a system of budgeting based on the socio-economic make-up of the students. Towards this end the Commission suggested a model based on the level of neediness index of the students. This system works in opposite directions as far as the ultra-Orthodox network is concerned. On the one hand, it should benefit from the new system, since a large proportion of its student body comes from underprivileged families. On the other hand, due to the fact that their students are spread all over the country and due to the wide range of schools, their classes are small, and therefore they might lose funding.In May 2006, the Ministry of Education stated that the Independent Education Network and the Sephardic Centre of Fountain of Religious Education in Israel fully apply the core curriculum.Some doubt this statement and attribute it to lack of supervision. Moreover, this statement does not refer to other schools that constitute a substantial proportion of ultra-Orthodox education.The issue of failing to implement the Court order in the Union of Teachers in High Schools case came before the Supreme Court in a petition brought by the Reform Movement.9 The case revealed a gloomy picture. Not only did the Ministry of Education fail to implement the core curriculum in Small Yeshivas, as ordered in HCJ 10296/02, it did not have any concrete plans to do so. Moreover, the Ministry came up with the idea of changing the status of these institutions from recognized non-official schools to exempt schools, thus avoiding the duty to teach the core curriculum. The Court declared that, although the specific order of the Court referred to recognized non-official schools, its reasoning applies to all kind of schools including exempt schools and prohibits state funding for schools that do not implement the targets of public education by avoiding teaching the core curriculum. The Court clarified that the core curriculum creates a balance between the privilege of the parents to educate their children according to their viewpoint and beliefs and the state’s duty to provide basic common educational values to all students, prepare them for life, and enable them to take part in society. The Court emphasized that this is of special significance in Israeli society, which consists of a mosaic of cultures and beliefs.At the end of its decision the Court was going to order the Ministry to implement without any delay the core curriculum in all recognized non-official high schools and withhold any financial support from both these schools as well as from exempt schools that do not teach the core curriculum. However, four days before the decision was handed down, the Knesset enacted the Unique Cultural Education Institutions Law in 2008. This statute created “unique cultural education institutions” defined as “an education institution where … systematic

education stemming from the compulsory way of life of the unique cultural group is provided in accordance with its unique characteristic” designated for students in grades 9–12. The legislature spelled out which “unique cultural group” it had in mind. This is either “the Haredi group whose students study religious studies according to Jewish Halakha in a Yeshiva” or “another group which has been recognized by the Minister’s order.” The statute does not intervene in the curriculum taught at the unique cultural education institutions and satisfies itself with the requirement that “the curriculum and activities” of the said institutions “do not negate the values of the State of Israel as a Jewish and democratic state.” Moreover, it provides that the Education Ordinance and the Inspection of Schools Law will not apply to these institutions.Finally, the statute provides that the said institutions will receive state budget in the amount of 60 percent of the budget allocated per student in state schools. This amount is higher than the amount allocated originally for exempt schools though lower than the budget for recognized non-official school that teach at least 75 percent of the core curriculum.In the explanatory notes to the statute bill it was expressly stated that the motive for this statute was to overcome the court decision in HCJ 10296/02 and enable state financial support to these institutions contrary to said decision. It was also mentioned that the statute is needed in view of “other petitions, which are pending in the Supreme Court.” This reference referred directly to HCJ 4805/07. Indeed, in view of the statute the Court refrained from making specific orders and mentioned that the impact of this legislation will be examined “in another legal framework.”The constitutionality of the Unique Cultural Education Institutions Law has recently been challenged. In a petition submitted to the Supreme Court,10 the petitioners argue that the statute infringes the autonomy of Yeshiva students, which is part of human dignity, by preventing them from developing their self and choosing a way of life since they are being exposed only to religious studies. Thus their ability to integrate into society and to develop a sense of belonging is being negated. Moreover, by preventing them from acquiring basic knowledge their ability to acquire higher education and prestigious professions is severely hampered.

In 2008 the State Education Law (Recognized Institutions) Regulations, 1953 were amended. According to the amendment, recognized schools, up to grade 9, that teach the required core curriculum and on top of that carry on an integrative registration policy and whose students’ socio-economic status is similar to that of other schools within a local municipality will receive 75 percent of the state budget allocated to similar official schools.

5. RECOGNIZED SCHOOLS

that fulfill only one of the latter requirements will receive 70 percent of the budget. If it fails tofulfill both requirements the school will receive 65 percent of the budget. In any case the school must teach the required core curriculum, which is a prerequisite for granting recognition to the school. Under the new Section 11 of the State Education Law the school is entitled to the same budget from the local authority. The regulations do not apply to the Independent Education Network and the Sephardic Centre of Fountain of Religious Education in Israel who receive the full budget under the provisions of the Budgetary

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Principles Law. No provisions were made regarding exempt institutions. While grades 9–12 of these institutions may come under the Unique Cultural Education Institutions Law, lower grades are left out and their financial assistance is left to the policy of the minister.

6. CONCLUSION

The struggle between the melting pot policy, advocating educational uniformity, and the demand for religious autonomy in the area of education ended with a salient triumph for the latter. Israel’s educational system appears as a convincing example of educational autonomy, particularly religious autonomy, and as a model of multicultural education.In the sphere of ultra-Orthodox education there is another basic deficiency. As one researcher put it, it is multicultural only on the “macro-level,” while unicultural on the “microlevel.”This is so since each educational sub-system is “closed, uniform and unicultural.” As a result, children who are enrolled in an ultra-Orthodox sub-system are exposed to “particularistic subgroup culture and norms at the expense of the appreciation of diversity and the tolerance of other cultures and norms.”11 On top of that, the educational and cultural segregation withholds the development of a creed that would be common to all segments of Israeli society.Moreover, in granting large autonomy to these sub-systems the state fails to ensure that the youngsters are being equipped with the necessary tools to become fruitful and successful members of society. By doing so the state abstains from fulfilling its duties both under Israeli law and under international established norms.The State of Israel must pave its way between two seemingly contradictory covenants: the International Covenant on Economic, Social and Cultural Rights from 1966 and the Convention on the Rights of the Child from 1989. While the first document affords the parents the right “to choose for their children schools, other than those established by the public authorities … and to ensure the religious and moral education of their children in conformity with their own convictions,” the latter obliges the state to direct the education of the child “to [t]he development of the child’s personality, talents and mental and physical abilities to their fullest potential” and to “[t]he preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin.” The discrepancy between both conventions may be the result of the development of the doctrine of childrens’ rights in international law. The gap between these documents might be, however, smaller than appears at firstsight. Thus, the Covenant on Economic, Social and Cultural Rights subjects the parents’ rightto choose the education for their children to the state’s right to impose on the chosen school“minimum educational standards.” At the same time, the Convention on the Rights of the Child imposes on the state a duty to supply the child with the education that will be directed“to. . . [t]he development of respect for the child’s parents, his or her own cultural identity,language and values.” Israel must find a way to compromise between these two ends.

Endnotes

1. See Asher Maoz, “Religious Human Rights in the State of Israel,” in Religious Human Rights in Global Perspective—Legal Perspectives, eds. J.D. van der Vyver and J. Witte Jr. (The Hague: Martinus Nijhoff, 1995), 349–89; ibid., “State and Religion in Israel,” in International Perspectives on Church and State, M. Mor ed. (Omaha: Creighton University Press and Fordham University Press, 1993), 239–48.

2. This figure includes new immigrants from the former Soviet Union whose religious affiliation is not registered and those who are non-Arab Christians. Foreign workers, who numbered 220,000 at the end of 2009, are not included in these statistics. On the other hand, Israeli settlers in the Occupied Territories are included. These are estimated figures based on the 2008 census; Central Bureau of Statistics (CBS), Press Release May 8, 2011, <www1.cbs.gov.il/reader/newhodaot/hodaa_template. html?hodaa = 201111101>.

3. Central Bureau of Statistics, Statistical Abstract of Israel 2010 No.61, <www1.cbs.gov.il/population/ demo_prop09.pdf>. It is easy to get data of national and religious affiliation of the Israeli population as, under the provisions of the Population Registry Law, 1965, both religion and ethnic affiliation of residents are recorded.

4. Central Bureau of Statistics, Population in Base Year 2005 and Projection for 2015 and 2030, by Variant, Population Group and Religion, <www1.cbs.gov.il/www/hodaot2008n/01_08_056t4.pdf. Some challenge this forecast pointing out the constant growth in the Jewish birthrate combined with a sharp drop in the Arab birthrate; Yaakov Faitelson, Demographic Trends and their Influence on Israeli Education (Jerusalem: The Institute for Zionist Strategies, 2011), 44–45, <http://izsvideo.org/papers/Education%20Demography-Full.pdf>. For an English abstract see: <http://izsvideo.org/papers/Education%20Demography%20English%20Abstract.pdf.

5. See Asher Maoz, “Religious Education in Israel,” 83 University of Detroit Mercy Law Review (2005–06): 679–728; ibid, “Religious Education in Israel,” with an Addendum, in Religión en la Educación Pública.Análisis comparativo de su regulación jurídica en las Américas, Europa e Israel, ed., Carmen Asiaín Pereira (Madrid: Asia in Fundación Universitaria Española, 2010), 495–548.

6. See Leslie Sebba and Varda Shiffer, Tradition and Rights to Education: The Case of the Ultra-Orthodox Community in Israel, in Children’s Rights and Traditional Values, eds. Gillian Douglas and Leslie Sebba (Aldershot: Ashgate 1998), 160.

7. HCJ 4298/93 Jabareen v. Minister of Education, [1994] IsrSC [Official Hebrew reports of the Supreme Court] 48(5) 199.

8. HCJ 2751/99 Paritzky v. Minister of Education [2000], <http://elyon1.court.gov.il/files/99/510/027/a02/99027510.a02.pdf>.

9. HCJ 4805/07 The Center for Jewish Pluralism High Schools, Seminaries and Colleges v. Ministry of Education [2008], <http://elyon1.court.gov.il/files_eng/07/050/048/r28/07048050.r28.htm>.

10.HCJ 3752/10 Rubinstein v. The Knesset.11.Stephen Goldstein, Multiculturalism, Parental Choice and Traditional Values: A Comment on

Religious Education in Israel, in Children’s Rights and Traditional Values, eds. G. Douglas and L. Sebba (Aldershot: Ashgate, 1998), 118–33, 127–28.

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10 Diana Zavala RojasCamil Ungureanu

From Confessionalism to Positive Secularity?The Ambiguous Case of Teaching Religion in Spain

From Confessionalism to Positive Secularity?The Ambiguous Case of Teaching Religion in Spain

Diana Zavala Rojas & Camil Ungureanu1

1. INTRODUCTION

Pedro Almodóvar’s Mala educación (“Bad Education”, 2004) famously portrays an authoritarian type of education established by the Catholic Church during Franco’s dictatorship. Almodóvar’s cinematic re-presentation is, by and large, a far cry from the reality of the educational processes in today´s democratic Spain – a country where there is no official Church, teaching religion is not compulsory, and homosexual marriage is legally recognized. Nonetheless, the arrival of democracy has not brought about transparent solutions with respect to the place of religion in the Spanish educational system and society. Instead, new tensions have emerged given. Spain has made important steps in implementing the principles of state neutrality and separation between State and Church in addition to recognizing the “fact of pluralism”.2 But the Spanish democracy is characterized by forces pulling in different directions – forces that have been played out differently by the main political parties, socialist and popular.3 First, even if there is no official religion, the Catholic Church retains a special if not privileged relation with the State, and an advantaged role in education.4 The Catholic Church has a huge impact on the private and public sphere, and it has been a factor of resistance to the recognition of pluralism. Second, there is a significant secularizing movement in Spain that can take on radical anti-Catholic forms. This radicalism has deep historical roots in Spain, and – in most recent times – has been nourished by the Catholic Church’s collaboration with Franco’s dictatorship.5 More broadly, the number of non-believers, agnostics and secularists has grown and has become politically significant in the past decades, with the result of challenging elements of the privileged status of the majority Church. This has caused significant tensions and polemics: it is telling that, in his November 2010 visit to Barcelona, Pope Benedict XVI complained about the “aggressive secularism” of the Spanish socialist government in power. In a controversial analogy, the Pope went as far as to compare the current government’s stand with what “we saw in the 1930s”.6 Third, the Spanish “landscape” is rendered even more complex by growing religious and spiritual pluralism. This pluralism is largely due to processes of transformation of religious search through individualization,7 and to the constitution of new religious communities resulted from immigration.8 For instance, although Islamic communities enjoy a fundamental place in Spanish history, they have re-entered in the limelight after the recent waves of immigration, and have naturally required more recognition in the educational process (see below).9 The tension between these forces is reflected by the Spanish “model” to teaching religion. Spain has moved away from the state religion model and its standard upshot – a full-fledged confessional approach of education.10 However, we will argue that the current Spanish

“approach” is mixed: it it combines traits of different models (confessionalism, positive secularity), and has a remarkably variable geometry, as it is substantially decentralized.11 From our perspective, teaching religion could be instrumental to the constitution of a society made of persons who are tolerant, informed and capable to enjoy flourishing lives based on (non)religious values, open dialogue, and mutual learning. The current Spanish approach has the merit of taking stock of the importance that religion can have for identity-building and democratic practice, and of having institutionalized dialogue with an increasing number of religious communities. Yet the extent in which the Spanish educational “model” fosters pluralism and the realization of freedom of religion on an egalitarian basis remains a controversial matter.12

In this article, we will proceed as follows. In order to situate and assess the merits of the Spanish approach, we will outline five approaches to the question of teaching religion – confessionalism, secularism, exclusive laicism, multiculturalism, and positive secularity13. Then we will analyse the elements of the Spanish case, and argue that it is situated half-way between the confessional model and a model of positive secularity that grants equal recognition to religions in public sphere and education as a way of fostering a culture of tolerance and learning.

2. MODELS OF TEACHING RELIGION

For the purpose of our discussion, we distinguish five types of religious education.

2.1. The Confessional Model

Confessionalism is rooted in a political theology that has been dominant for a large part of European and Spanish history, and that is based on the belief in harmony and mutual support between State and Church. According to this political theology, the members of the Spanish political community are essentially Christian or, more precisely, Catholic. It follows that Catholicism should be central to the educational curriculum. The objective of confessional education is instilling Christian values, practices and dogmas. Teachers are priests and there is no opt-out possibility.

The confessional model is not entirely adequate for a pluralist democracy that is based on the protection of (non)religious minorities and freedom of religion. It is significant that, in an ever more diverse Europe, the full-fledged model of confessional education has been in relative decline.14 2.2. The Secularist model

The “secularist model”15 is rooted in an influential Enlightenment tradition that goes from d’Holbach and Marx to Dennett and Dawkins, and that opposes modernity and religion, reason and faith. At the political level, the ideology of secularism has led to the attempt to banish religion from the public sphere and, in certain cases, from society altogether. In France or Spain, for instance, anti-Catholic anarchists and republicans led acts of political violence against the Church.16 However, militant secularism was most systematically

62

pursued by the atheist communist regimes, and most often led to ousting completely religion from public education (e.g. Soviet Union, Romania, Bulgaria, etc). In its soft version, the secularist model aims only at privatizing religious belief. According to it, one’s religious belief is not a state’s concern, but a personal preference. This entails that religion should not be part of the public education system.

The secularist model is questionable even in its soft version. First, from A. de Tocqueville to R. Bellah, social scientists have demonstrated that religious education can be useful in fostering democratic participation and relations of mutual toleration.17 Second, the state´s lack of involvement in religious education may entail that certain groups learn only about their religious tradition, and are indoctrinated in stereotypes of other (non)religious citizens. Third, the absence of religion from the curriculum may lead to the impoverishment of the contexts of choice in a democratic society. Individual choices become meaningful when taken in substantial value contexts, and not in a social vacuum. ! ! ! ! !2.3. Exclusive laicism (laïcité)

The French model of laïcité emerges from the French Revolution – as does the conflict between the state and the Catholic Church.18 As Gauchet notes, in the clash with the Church, the newly born laic state adopted the paraphernalia of its enemy in order to remove its spell over people’s imagination and feelings.19 Laïcité becomes a “civil religion” - a “religion” of citizens united in the pursuit of public good (res publica) and virtue. At the level of education, laïcité aims to cultivate republican values and virtues so that pupils gradually convert into true citizens.20 The “republican catechism” replaces the Catholic one: upon entering the school gate, pupils are supposed to strip off their religious differences in order to be able to assimilate into the unitary political body of republic.

Nonetheless, exclusive laicism is a paternalistic model in so far as it imposes values and virtues without room for genuine dissent or recognition of difference. This model is at loggerheads with the recognition of religious minorities and their right to express their views in public sphere. It is also excessively rigid as it does not admit of reasonable exceptions, and it assumes that everyone will abide by a set of values that is not unanimously shared. Religious pluralism remains a thorn in the "flesh" of laïcité: pluralism is, for it, either a problem to be overcome, or a threat to be kept under control.21

2.4. Multiculturalism

Multiculturalism regards society as constituted of different cultural-religious communities that express their values in public sphere, and are able to live peacefully side-by-side.22 Multiculturalism advocates public recognition of cultural-religious communities under the form of collective rights, including under the form of multiple jurisdictions. Concerning education, the multicultural approach is radically pluralist, and it fosters the formation of faith-schools. The multicultural model is currently under strain. Especially in its more radical versions, the multicultural model fails to provide standards in case of conflicts between religious claims and general policies and laws. Multiculturalism has also turned out to be over-optimistic as to

the possibility of avoiding segregation and integrating newcomers and their differences. This model is insufficiently concerned with a certain degree of commonality and political integration, including through educational policies.23

!2.5. Positive secularity (laicidad positiva)

Positive secularity aims at merging the positive side of the models of laïcité and multiculturalism, and at avoiding their failures. It takes from the former model a concern with state neutrality, autonomy and integration, and from the latter a concern with recognition and pluralism. Concerning education, positive secularity entails that, in a pluralistic democracy, public schools should be neutral with regard to the choices children might make and, at once, provide them with a broad array of cultural-religious “materials” for developing individual moral ideas and life plans.24 This approach has important merits: first, it is better equipped to take stock of the fact of the increasing pluralization of contemporary democracies since it provides for protecting religious and nonreligious minorities from a majoritarianism. Second, it supports the idea that “religious education” can be useful to citizenship-building, given religion´s role in present-day societies. third, it is premised on the idea that learning about the religious beliefs of others may be a foundation for promoting a culture of toleration and learning by fighting ignorance and prejudice amongst pupils. Increasing awareness and knowledge of a range of religious beliefs may, help to reduce mutual intolerance and, on the other hand, help to validate and integrate as citizens pupils from minority religious groups. By the same token, religious education can contribute to maintaining rich value contexts wherein meaningful choices and decisions can be made. Positive secularity is not inimical to the idea of a special relationship between state and majority religion: the acknowledgment that, in specific contexts, a religious tradition has played a crucial role in the identity-formation and history of a people is not incompatible with the recognition of pluralism. In contrast to French laicism, for positive secularity the state can engage in relations of recognition, cooperation and dialogue with the relevant religious communities. However, positive secularity is distinct from confessionalism: the latter is based on imposition, indoctrination, lack of real opt-out solutions, and an unilateral cooperation between state and one privileged religious group. In contrast to positively secular model, confessionalism is thus founded on a biased relationship with the majority religion to the detriment of the pluralism of (non)religious opinions, values and attitudes.

3. THE SPANISH APPROACH TO TEACHING RELIGION (1)

3.1. Elements of the historical-legal context The Spanish “model” of education is mixed: in the past decades it has made decisive steps in the direction of positive secularity, but elements of the previous confessionalism are still in place.25 Historically speaking, Spain´s trajectory has been dominated by the close relation between Catholicism and the Spanish State: to be a proper Spaniard meant, for a long time, to be a good Catholic. Before the democratic transition in the 70s, the established status of Catholicism was rarely interrupted, most recently between 1931-1939, when it was adopted a Constitution hostile to Catholicism.26 This hostility is part of a strong Catholic/anti-Catholic

63

cleavage deeply rooted in Spanish history: protests against centralist or absolutist authority have often been linked to anti-clerical and anti-religious liberal, anarchist or republican movements.

The Spanish transition to democracy was based on negotiations and compromises between the regime and the opposition elites. These negotiations and compromises had the merit of avoiding violence, and of producing a "pacted transition" that J. Linz and A. Stepan famously characterized as "reforma-pactada, ruptura-pactada".27 The place of religion in the new democratic configuration is largely due to this consensual type of transition from authoritarianism to democracy. In contrast to the Constitution of 1931, the newly adopted Constitution in 1978 adopted a moderate solution: it abandoned the state religion model but acknowledged the role of Catholic Church in the Spanish society. More specifically, according to the Spanish Constitution, there is no official religion.28 With respect to the religious issues, the Spanish Constitution rests on the laicist principles of religious freedom, non-discrimination, and state neutrality. Religious freedom refers to the right of choosing, manifesting or changing one´s religion. Non-discrimination means that citizens cannot be disadvantaged on religious grounds. Neutrality means that the state is agnostic as to the value of specific religions.29 However, the new democratic State did not adopt an exclusive laicism based on a rigid interpretation of freedom of religion and neutrality. The democratic Spanish Constitution did not aim at building a “wall of separation” with respect to religion. In contrast, the Constitution advances, next to the principles of neutrality, freedom of religion and non-discrimination, the principle of cooperation with the Catholic Church and other religious communities. According to article 16 (3): “public authorities shall take the beliefs of Spanish society into account and shall in consequence maintain appropriate relationships of cooperation with the Catholic Church and the other religious denominations”. This article establishes two crucial things: first, it singles out the Catholic Church due to its importance for the history and identity of the Spaniards; second, it opens up the possibility that the State cooperates with a plurality of other religious communities. Thereby, the Constitution establishes the basis for the Agreements with the Catholic Church and other religious communities.30 The Constitution provides that fundamental rights and liberties, such as education and religious freedom, should be translated in Organic Laws approved by absolute majority in the Parliament (Section 81). The legal framework of the Spanish educational “system” is further complemented by the Concordat between the Spanish State and the Holy See on Education and Cultural Affairs (AEAC)31, the Organic Law on Religious Freedom (LOLR)32 and the Organic Law in Education (LOE).33 Immediately after the ratification of the Constitution, the Spanish State and the Holy See signed four Agreements establishing a new Concordat between them. The Agreement on Education and Cultural Affairs configures a substantial part of the Spanish model of religious education in public schools. First, it states that the Spanish educational system will be respectful to Christian principles (Article 1). There is no similar statement regarding other religious principles. Second, it introduces courses on Catholicism in public-funded schools at all levels of basic education. Third, it gives autonomy to schools to design alternative activities for pupils who do not participate in courses on Catholicism. Finally, it allows ecclesiastical hierarchy to organize complementary religious activities in schools (Article 2). It also sets the principles for financing (Article 7) and

appointing teachers (Article 3): the religious hierarchy proposes teachers and the State finances them.34

If the Concordat ensures the continuity in terms of the influence of Catholicism in the Spanish “system” of education, the LORL translates the secular constitutional principles into a regulatory framework. The LORL protects the right of receiving and giving religious instruction within and outside the sphere of school (Article 2.1). It allows the Spanish State to establish cooperation Agreements with well-rooted religions in Spain (Article 7.1). Furthermore, the LOE implements the right of receiving religious education in public funded schools, and it establishes that courses on religious education will be organized according to the Concordat with the Holy See and the Agreements signed with well-rooted religious communities (Second Additional Provision). The LOE also organizes the appointment and financing of teachers (Third Additional Provision).Organic Laws are implemented by norms with the rank of laws decreed by the government. Such norms constitute the Royal Decrees on the Minimum Contents of Education in Primary and Secondary School35, the Agreements with three minority religious communities: Islamic, Jewish and Protestants36 (1992) and the Provisions37 and Resolutions38 derived from the Agreements on the contents of religious instruction and financing of teachers. The 1992 Agreements represent an important step forward in acknowledging the increasing pluralism of the Spanish society. The three Agreements were signed between the Spain State and representatives of the Protestant, Islamic and Jewish communities.39 The timing for the definition of the Agreements between the State and the minority religious communities was different. The State required that the religious communities would organize themselves so that each generated a single and valid partner of dialogue. However, while the Protestant and Jewish communities started the negotiations in 1987, the negotiation of the Islamic Agreement started only in 1992.40 This was in part due to the division of the Islamic community into two associational bodies, the Spanish Union of Islamic Communities (UCIDE)41 and the Spanish Federation of Islamic Religious Entities (FEERI)42. The Agreement was finally signed by Spanish Islamic Commission (CIE) created by the association of the UCIDE and FEERI. However, the internal differences within the Islamic communities affected the later implementation of many aspects of the Agreements, including that of teaching religion43 (see below).The Agreements recognized the right to receive religious education in public-funded schools. The Agreements adopted the model of the Concordat for the regulation of teachers. The religious representatives of the minority have the right to propose teachers and the State would finance them. Nonetheless, there were two important differences between the Concordat with the Holy See and the Agreements with the minority religious communities. First, the Concordat was comparable to an international treaty. Second, the Concordat was negotiated before the Constitution was approved; its aim is different than that of the Agreements with minority religious communities. The Concordat was aimed at ensuring a consensual transition to democracy; to this end, by institutionalizing a privileged relationship between the Catholic Church and the State, it had a reassuring impact on the Catholic elites. In contrast, the Agreements are meant to build a relationship of recognition between the State and the “well-rooted” religious communities (see below).

3.2. Organizing and financing education

64

According to current legal framework, the coverage of education is universal and free for Spaniards. Compulsory education starts at the age of six and lasts until the child is sixteen. Private schools can offer services and receive public financing through a legal arrangement named “consortium”. The consortium allows a public-private partnership to run public services. The State pays the services to providers, citizens have free access but the ownership of the facilities and the management of the services can be private, a mix of public-private, or a mix of public agencies in different levels of government.There are three types of schools in Spain: public-owned, private-owned under consortia and private-owned out of consortia. On average, for the course 2008-2009 they have enrolled respectively 67%, 29% and the 4% of the pupils in primary school, and 66%, 31% and 4% of secondary school44. Regardless of their main source of financing, private schools can be confessional or secular. The State finances denominational schools once they are under consortium. It is common that concerted schools initiate their activities without public financing; then, according to the demand of students, and by fulfilling specific quality criteria demanded by the educational authorities, they can opt for applying to participate in the network of schools under consortium. The Catholic Church runs the vast majority of concerted schools at the level of basic education. Approximate data for 2008-2010 indicate that 70% of the pupils enrolled in concerted primary schools attended Catholic schools. The proportion was 74% for pupils enrolled in secondary level.45 The numeric importance of State-funded Catholic schools varies from region to region. Some Autonomous Communities (A.A. C.C.)46 deviate from the mean. In Aragon, Asturias, La Rioja and Castile and Leon above 93% pupils enrolled in primary education attend Catholic schools. In Canary Islands, Murcia, Ceuta and Melilla enrolled students in Catholic public-funded schools are around 50%. Children attending private schools out of consortia are around 4%. Approximately 7% of pupils who enrolled in a non-public funded school during 2008-2009 attend a Catholic school. The majority of non-state funded denominational schools in Spain are also Catholic. Minority religions own a very small number of schools. There is one Jewish institute in Barcelona and few Protestant schools in Madrid and Barcelona47. There are no Islamic schools funded by the State or depending on the official representatives of Muslim communities,48 although there is a project to open the first Islamic primary school in Granada.49 There are three private Islamic schools authorized in Spain.50

Table 1 (“Distribution of Pupils in Primary Education in Spain”) shows the percentage of pupils enrolled in primary schools by Autonomous Community divided in private schools under consortia, private out of consortia and public-owned schools. Table 1. Distribution of Pupils in Primary Education in SpainTable 1. Distribution of Pupils in Primary Education in SpainTable 1. Distribution of Pupils in Primary Education in SpainTable 1. Distribution of Pupils in Primary Education in SpainTable 1. Distribution of Pupils in Primary Education in SpainTable 1. Distribution of Pupils in Primary Education in SpainTable 1. Distribution of Pupils in Primary Education in SpainTable 1. Distribution of Pupils in Primary Education in SpainTable 1. Distribution of Pupils in Primary Education in SpainTable 1. Distribution of Pupils in Primary Education in SpainTable 1. Distribution of Pupils in Primary Education in SpainTable 1. Distribution of Pupils in Primary Education in Spain

Primary

education

Primary

education

Public owned-

schools

Public owned-

schools

Public-funded

private schools

Public-funded

private schools

Pupils in catholic

public-funded

schools

Pupils in catholic

public-funded

schools

Pupils in Catholic

public-funded

schools over all

pupils in public-

funded private

schools

Pupils in Catholic

public-funded

schools over all

pupils in public-

funded private

schools

non-public funded

private schools

non-public funded

private schoolsTOTAL 67,1967,19 28,8928,89 20,3020,30 70,2870,28 3,933,93

Table 2 (“Distribution of Pupils in Secondary Education in Spain”) shows the percentage of pupils enrolled in primary schools by Autonomous Community divided in private schools under consortia, private out of consortia and public-owned schools.

Table 2. Distribution of Pupils in Secondary Education in SpainTable 2. Distribution of Pupils in Secondary Education in SpainTable 2. Distribution of Pupils in Secondary Education in SpainTable 2. Distribution of Pupils in Secondary Education in SpainTable 2. Distribution of Pupils in Secondary Education in Spain

Secondary

education

Public owned-

schools

Public-funded

private schools

Pupils in Catholic

public-funded

schools

Pupils in Catholic

public-funded

schools over all

pupils in public-

funded private

schools

Non-public funded

private schoolsTOTAL 65,89 30,52 22,55 73,89 3,59Andalusia 75,35 21,73 17,66 81,29 2,92Aragon 63,70 33,88 32,49 95,89 2,42Asturias 64,98 32,67 30,37 92,96 2,35Balears 61,13 35,83 30,79 85,95 3,05Canary Isl. 75,54 20,31 11,21 55,20 4,15Cantabria 62,24 35,88 31,01 86,42 1,88Castile &

Leon 63,33 36,04 34,20 94,90 0,63Castile-La

Mancha 80,52 18,21 16,19 88,87 1,27Catalonia 59,62 38,22 23,03 60,24 2,16Valencia 66,17 30,10 24,61 81,74 3,72Extremadur

a 76,89 22,61 19,22 85,03 0,50Galice 69,38 28,09 20,10 71,57 2,54Madrid 52,05 36,20 24,56 67,85 11,75Murcia 71,66 26,93 14,60 54,22 1,40Navarra 60,70 39,30 28,71 73,06 0,00Basque

Country 44,60 54,52 35,42 64,96 0,87Rioja 64,32 35,68 34,72 97,31 0,00Ceuta &

Melilla 1,61 38,72 12,66 66,41 0,00Source: Own calculations based on Ministry of Education (2010) “Estadística de la Enseñanza en España

niveles no universitarios: Educación Secundaria Curso 2008-2009” (Statistics on Teaching in Spain in non-

University Levels. Secondary Education 2008-2009) and data published by the General Council on

Catholic Education (Servicio de Estadística y Archivos del Consejo General de la Educación Católica) on

pupils enrolled in Catholic schools in 2009-2010.

Source: Own calculations based on Ministry of Education (2010) “Estadística de la Enseñanza en España

niveles no universitarios: Educación Secundaria Curso 2008-2009” (Statistics on Teaching in Spain in non-

University Levels. Secondary Education 2008-2009) and data published by the General Council on

Catholic Education (Servicio de Estadística y Archivos del Consejo General de la Educación Católica) on

pupils enrolled in Catholic schools in 2009-2010.

Source: Own calculations based on Ministry of Education (2010) “Estadística de la Enseñanza en España

niveles no universitarios: Educación Secundaria Curso 2008-2009” (Statistics on Teaching in Spain in non-

University Levels. Secondary Education 2008-2009) and data published by the General Council on

Catholic Education (Servicio de Estadística y Archivos del Consejo General de la Educación Católica) on

pupils enrolled in Catholic schools in 2009-2010.

Source: Own calculations based on Ministry of Education (2010) “Estadística de la Enseñanza en España

niveles no universitarios: Educación Secundaria Curso 2008-2009” (Statistics on Teaching in Spain in non-

University Levels. Secondary Education 2008-2009) and data published by the General Council on

Catholic Education (Servicio de Estadística y Archivos del Consejo General de la Educación Católica) on

pupils enrolled in Catholic schools in 2009-2010.

Source: Own calculations based on Ministry of Education (2010) “Estadística de la Enseñanza en España

niveles no universitarios: Educación Secundaria Curso 2008-2009” (Statistics on Teaching in Spain in non-

University Levels. Secondary Education 2008-2009) and data published by the General Council on

Catholic Education (Servicio de Estadística y Archivos del Consejo General de la Educación Católica) on

pupils enrolled in Catholic schools in 2009-2010.

Source: Own calculations based on Ministry of Education (2010) “Estadística de la Enseñanza en España

niveles no universitarios: Educación Secundaria Curso 2008-2009” (Statistics on Teaching in Spain in non-

University Levels. Secondary Education 2008-2009) and data published by the General Council on

Catholic Education (Servicio de Estadística y Archivos del Consejo General de la Educación Católica) on

pupils enrolled in Catholic schools in 2009-2010.

65

3.3. Offer of religious instruction

In the current educational system, four religion courses are offered at the primary level in public-funded schools: Catholicism, Judaism, Protestantism and Islam.51 Secondary schools must also offer an alternative course in “History and Culture of Religions” for those pupils who wish to attend a “religious course” that is not centred on a specific religion. The curriculum of this alternative course depends on the Educational Departments of the A.A. C.C.52 Pupils have the right of exemption from “religious courses” at all levels of compulsory education. Those pupils who do not wish to attend any “religious course” can opt for alternative activities defined as “educational assistance” which are organized by different schools. These activities do not amount to alternative courses.53 Schools have interpreted “educational assistance” in many different ways: given the absence of any guideline from the central State, school authorities design the content of activities. The range of interpretation is wide: in a number of schools, students spend time with no assigned activities, while in others local folklore activities are organized. The 2008/2009 Report on Education published by the Spanish Ministry of Education admits that there is a lack of guidelines in the legal framework for evaluating and designing alternative activities for those students who opt out from religious instruction. These activities depend entirely on individual schools.54

Table 3 shows the number of students attending religious courses at each level of basic compulsory schooling by type of school.

PRIMARY EDUCATION Catholic Protestant Islamic Jewish

Hist. &

Cult. of

Rel. Opt outALL SCHOOLS 75,48% 0,31% 0,40% 0,01% -- 23,80%PUBLIC OWNED-SCHOOLS 70,25% 0,41% 0,58% 0,01% -- 28,76%PRIVATE SCHOOLS 86,37% 0,09% 0,03% 0,03% -- 13,47%PUBLIC-FUNDED PRIVATE

SCHOOLS 88,37% 0,10% 0,02% 0,02% -- 11,49%NON-PUBLIC FUNDED PRIVATE

SCHOOLS 69,19% 0,05% 0,14% 0,13% -- 30,49%

SECUNDARY EDUCATION Catholic Protestant Islamic Jewish

Hist. &

Cult of Rel.Opt outALL SCHOOLS 55,29% 0,09% 0,03% 0,01% 3,60% 40,99%PUBLIC OWNED-SCHOOLS 41,41% 0,09% 0,03% 0,00% 3,96% 54,50%PRIVATE SCHOOLS 82,56% 0,07% 0,03% 0,02% 2,89% 14,43%PUBLIC-FUNDED PRIVATE

SCHOOLS 84,71% 0,06% 0,02% 0,02% 2,17% 13,03%NON-PUBLIC FUNDED PRIVATE

SCHOOLS 61,09% 0,26% 0,15% 0,03% 10,02% 28,45%

4. THE SPANISH APPROACH TO TEACHING RELIGION (2)

The teaching of Catholicism is prevalent, and is organized at all levels of basic education. Offering courses on Catholicism is compulsory for schools but pupils’ attendance is optional. Teachers are nominated by the Church, appointed by school authority and financed by state.55 The Spanish Episcopal Commission establishes the curriculum, and the courses have to be offered in the same conditions as other fundamental subjects of the curriculum.56 The courses on Catholicism are evaluated in the same terms as other courses, but the grades are not taken into account for admission into higher levels of education. In turn, courses on other religions are established in accordance with the Agreements; none of them provides guidelines for the evaluation of courses.57

Articles 120 and 121 of the LOE give administrative and “ideological” autonomy to schools for developing an educational project.58 Therefore, denominational schools receiving public financing have autonomy to form their educational model under a religious “doctrine”. In the A.A. C.C. where the number of public-owned schools is historically low, children attend confessional schools regardless of their affiliation to Catholicism. Members of minority religions, as well as non-confessional families, attend public or private schools financed by the State. Surely, in principle, pupils belonging to other religions or non-confessional at all have access to confessional public-funded schools. In practice, the confessional character of the majority of schools under consortium results in a widespread presence of Catholicism beyond the “religious courses” proper. These schools can organize or co-organize services such as masses, first Holy Communions, etc.59

The LOE provides that enrolling a child in a school implies accepting its educational project (Article 84.9)60. But a State-funded denominational school does not have the right to limit the number of pupils from other religious beliefs in order to support a specific project. The LOE specifies that it is not possible to discriminate pupils due to their origin, race, sex, religion, etc. However, there are some priority criteria for selecting students when places are less than demanded are: 1) sibling attendance, or parents/ tutors working in the school; 2) proximity to the household or to parents’ work place; 3) annual income (poorer and larger families have priority); 4) pupil’s or sibling’s disability. The school’s Council61, namely the highest body for decision-making of each school, has also an important influence on admission (Article 84.1-2). The Agreements are distinct from the Concordat in at least three fundamental aspects concerning religious instruction. First, in the Concordat the only course that is explicitly mentioned as compulsory is on Catholicism62. Second, the Agreements with minority religious communities do not explicitly regulate the financing of teachers, while the Concordat is explicit in providing that teachers of Catholicism should be financed by the State and appointed by the Spanish Episcopal Commission.63 Third, the Agreements do not provide that religious instruction of minority communities would be designed in comparable terms with other fundamental courses.64 However, after the Agreements, the minority religious communities entered further negotiations in order to demand courses on religious instruction in comparable terms with the courses on Catholicism. The curriculum was one important part of the negotiations. The Jewish representatives already designed the contents of a curriculum in 1981.65 The representatives of the Protestant community presented them

66

in 1993 - one year after signing the Agreements.66 In turn, the CIE did not agree on the contents of a curriculum of the course on Islam until 1996.67 The second negotiated issue regards the procedure of appointment and financing the teachers. The educational authorities and religious communities adopted a model similar to that applied in the case of Catholicism: religious representatives appoint teachers in public schools, and educational authorities finance them.68 Nonetheless, one difference with respect to the Catholic instruction is that the organization of a course on a minority religion requires at least ten parents demanding it.69 Given Spain´s decentralized model, the implementation of courses on minority religions has been different for each religious community. Until 2004 few schools offered other religious courses than Catholicism – and these were on Protestantism and Judaism. When demanded, courses on Protestantism and Judaism have been made available without any controversy.70 Even if the Muslim population is the largest minority religious community in Spain, 71 the implementation of courses on Islam has been the most delayed. There are no entirely accurate estimates as to the number of Muslim pupils in the primary educational system. However, scholars have attempted to determine their number by taking into account the origin of the pupils.

Table 4. “Muslim pupils in primary and secondary school” shows the number of pupils in the Spanish educational system for the academic year 2007/2008 from a country of origin where more than the 50% of the population is Muslim.

Table 4. “Muslim pupils in primary and secondary school”Table 4. “Muslim pupils in primary and secondary school”Table 4. “Muslim pupils in primary and secondary school”Table 4. “Muslim pupils in primary and secondary school”

  TOTAL Primary Secondary

Total 495,025 295,477 199,548

Algeria 3,342 2,050 1,292

Morocco 73,815 48,568 25,247

Senegal 1,780 1,056 724

Pakistan 2,686 1,600 1,086Source: Bravo, F. (2010), Islam in Spain: Euro-Islam: News and Analysis on Islam in Europe and North

America.

Source: Bravo, F. (2010), Islam in Spain: Euro-Islam: News and Analysis on Islam in Europe and North

America.

Source: Bravo, F. (2010), Islam in Spain: Euro-Islam: News and Analysis on Islam in Europe and North

America.

Source: Bravo, F. (2010), Islam in Spain: Euro-Islam: News and Analysis on Islam in Europe and North

America.

After the publication of the curriculum of Islamic instruction, the first regions where Islam started to be taught were Ceuta and Melilla. By 2003-2004 four schools in Madrid and twenty in Ceuta and Melilla taught a course on Islam. Furthermore, by 2005 three other communities started to offer Islamic instruction in about 50 schools (Andalusia, Aragon and Basque Country). Overall, around 119,994 pupils have asked the option of Islamic instruction in 2009. 72 However, one of the main difficulties that religious parents and children have had in receiving Islamic education is the inability of the CIE to reach an agreement on the teachers to be nominated. The two associational bodies of the CIE have, in general, conflicting views as to the profiles of the teachers. They have frequently presented two lists of teachers, in spite of the State´s repeatedly asking for a single list. This problem has delayed the implementation of courses in various A.A. C.C where the demand is sizeable.73

The Agreements signed with minority religious communities do not require private schools receiving public funding to offer courses on Islam, Protestantism or Judaism, if this is at odds with their educational project.74 If there is a strong tension between parents’ requirements and the school’s “philosophy”, the educational authorities reallocate the student.75 Denominational Catholic schools teach minority religions’ courses at their own initiative, as the Spanish Episcopal Commission does not define any uniform school guidelines. Negotiation to offer courses on minority religions is possible through the school’s Council. The Council “system” has large influence on defining schools policies, for example it can support a one-gender school or decide on the admission of students if places are less than demanded. Since the Council has competences on the approval of changes in the organization of the school, it can also decide if implementing courses on minority religions favour or not the coexistence in the school. As the Agreements with minority religious communities do not oblige confessional schools to implement courses on minority religions when they contradict the schools´ educational project, there have emerged important differences across regions and schools. Traditionally, a good part of the conservative and well-to-do sector of the Catholic members attends private schools that do not receive public financing. In turn, public-funded confessional schools are progressively adopting a more laic and plural character: first, because there are few available options of other public-funded schools and, second, because the density of migrant population has been increasing for specific communities.

5. RELIGIOUS SYMBOLS IN PUBLIC SCHOOLS: THE QUESTION OF SCHOOL ENVIRONMENT

!The issue of religious symbols in schools is relevant as a marker of the model of “religious education”. According to the European Court of Human Rights, the state “is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical conviction”.76 From this perspective, the state should avoid religious indoctrination at two levels - the curriculum and the school environment. First, the state must take care that “information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner”.77 Second, the “school environment”, to which symbols pertain, should not lead to indoctrination, but foster a culture of respect and pluralism.78

The Spanish approach to this issue has been, so far, relatively flexible. There are two types of contentious symbols relevant for the school environment: minority symbols (e.g. headscarf) and “majority symbols” (e.g. crucifix). a. With respect to the headscarf, Spain has managed to avoid the black-and-white treatment. In Spain, the dressing code in schools is not regulated from the centre. The decision concerning the dressing code pertains, as a general rule, to the sphere of school autonomy. At the level of A.A. C.C, the educational authorities deal with the conflicts between school authorities, pupils and their parents. In some cases, they have reallocated students in other schools where there is no prohibition of the Islamic headscarf; in some other cases, the pupil was expelled from the school; still, in other cases, the school´s autonomy has been restricted. The first such controversy benefitting from media coverage surfaced in Madrid in

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2002. Fatima Ledrisse´s school in Madrid did not demand any specific uniform, yet it did not allow wearing garments such as the Islamic headscarf. The pupil was relocated into a public-owned school, but a debate emerged as to whether the headscarf discriminate women, and whether pupils and parents should respect the school autonomy in establishing the dressing code 79 Starting with this highly publicized case, other similar cases have emerged in different regions of Spain. The most recent one occurred in 2010, and concerned Najwa Malha – a girl from Madrid who was expelled for wearing the Islamic veil in a public secondary school.80 The educational authorities reallocated her into a Catholic school under consortia. Before the girl started classes again, the school Council voted to change the norms on dressing code, banning pupils who wanted to cover their heads. Najwa Malha was reallocated into a third school. In the aftermath of Najwa’s case, the Spanish Ministry of Education declared that Spain would not regulate the dress code in schools; this decision would fall within the autonomy of the school. Similar cases have been reported in other A.A. C. C. such as Galicia, where the school denied access to a girl wearing the headscarf. Interestingly, in Catalonia the educational authorities obliged a school to readmit the wearing the headscarf, arguing that the protection of the right of education was more important than the internal norms of individual schools.81

b. Concerning the crucifix as a “majority symbol”, so far it has not been turned into a major contentious issue. One case concerning the crucifix was decided by the High Court of Justice in Castile and Leon (TSJCL) where a group of parents appealing to Article 9 of the ECHR demanded a public-funded Catholic school to withdraw crucifixes.82 The Court argued that Lautsi (2009) needed to be interpreted within the Spanish constitutional context, which precluded its mere “linear or literal extrapolation”.83 The Spanish constitutional framework is constituted, next to the principles of neutrality, freedom of religion and non-discrimination, the principle of cooperation with the Catholic Church and other religious communities (art 16, 3). By developing this collaborative approach between state and religion, the Spanish Constitutional Court adopted the concept of laicidad positiva (positive secularity) as part of its constitutional doctrine.84 As the TSJCL underscores, according to this doctrine, “non-denominationally” (aconfesionalidad), secularity (laicidad) and secularism (laicismo) should not be confused. The non-denominational state is a “State without religion”.85 Secularism (laicismo) is defined as an “ideological current” characterized by its “rejection of the religious fact in all its public manifestations”.86 In turn, a state that is positively secular87 interconnects the principles of religious freedom, neutrality and cooperation as recognition of a pluralism of (non)religious options.

The TSJCL agreed with some of the main tenets of Lautsi 2009: since the presence of the crucifix as a religious symbol may have had an influence on vulnerable pupils, it followed that it undermined the parents’ right to educate their children according to their beliefs. Yet this did not entail the general ban of the crucifix in all classrooms. The Catholic Church should be acknowledged as having a special role in the Spanish history and society. In addition, the Court pointed out that there is no principled conflict between the presence of the crucifix and the current constitutional framework unless parents make a petition to remove the crucifix. The legitimate removal of the crucifix should be conditional upon the existence of a “request of withdrawal of the religious symbols” from the part of the parents, and for a determined period.

The debate about religious symbols in public schools is thriving in all corners of Europe. The decentralized and flexible Spanish “system” is not a panacea. Decentralized decisions can be exclusionary, and domination is often exercised in implicit ways. Yet the merits of the Spanish “approach” become relevant in particular when we compare it to the ECtHR´s one-sided treatment of Islamic symbols88 and, even worse, to the “othering” of Muslims currently taking place in long-established democracies like Switzerland or France.

6. INSTEAD OF CONCLUSION: THE SPANISH CASE IN THE EUROPEAN CONTEXT

Spain has made major albeit incomplete steps from transforming a full-fledged confessional model into a model of positive secularity. Spain has enhanced the basic laic principles of freedom of religion and neutrality and has developed the cooperation with various religious minorities. The recent developments towards positive secularity in Spain are in tune with the emerging European “approach” to teaching religion. It is beyond the aim of this article to reconstruct the complexities of the European “approach”.89 However, there is a relative convergence90 in terms of advancing a “neutrality-and-cooperation” approach.91 Different European institutions have combined the principles of principles of freedom of religion, neutrality, pluralism and cooperation (or dialogue). Despite their differences, this perspective is neither based on an ideology of secularism inimical to religion in general, nor has it attempted to construct a “wall of separation” between state and religion, nor it rules out the possibility of a special relation with the majority religion. First illustration: from the perspective of the ECtHR´s jurisprudence (namely of the main instance of judicial review dealing with religious matters in Europe), the state is not purely neutral and separate, but has the positive obligation to protect and enhance a culture of mutual tolerance and learning. This inclusive-pluralist perspective has at times been linked to the claim that religious and non-religious diversity represents a positive contribution to identity-building and democratic life. For instance, in Gorzelik v Poland, the Court argued that, “proclaiming or teaching religion... are also important to the proper functioning of democracy. For pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs ...”. 92 This standpoint has lead the ECtHR to question biases of the traditional bond between majority religion and nation-state (e.g. its support of opt-out solutions and pluralistic curricula),93 while it has acknowledged that a state can have good reasons to develop a special relationship with a majority religion that is central for its history and identity.

Second illustration: at the level of the European Union, the support for the principles of freedom of religion, non-discrimination and neutrality has, most recently, been interlinked to that of the legal principle of dialogue. In article 17, The Treaty of Lisbon adds to the basic principles of constitutionalism the notion of cooperation and dialogue between European institutions and religions, churches and communities of conviction: “Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations."94

While the Spanish approach is in tune with this European neutrality-and-cooperation “model”, there is a major difference between the two. In Spain, the Catholic Church still

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maintains a disproportionally asymmetric position with respect to the other religious communities. From our perspective, so far the Catholic Church has often interpreted the principle of cooperation in its favour, as a way to preserve the status quo, and resist the increasing pluralism of the Spanish society.95 For instance, an initiative to reform the Law on Religious Liberty was initiated in 2004 so that to move closer the Spanish “system” to a positive secularist model that takes stock of the increasing pluralism of society.96 This initiative was meant to facilitate the cooperation process with more religious communities, and provide recognition to Buddhism, Jehova’s Witnesses Christian Orthodox and Mormons as “well-rooted” religious communities. It also aimed at establishing clear guidelines to define a religious community as “well-rooted”, i.e. number of members, number of worship places, and duration in Spain, etcetera.97 The reform initiative was not against the Catholic Church per se, but purported to balance some of the benefits of the Catholic Church and increase the prerogatives of other religious communities. Unfortunately, the Catholic Church and the Popular Party stopped this initiative, blocking the Spanish system in an intermediary space between confessionalism and positive secularity.98

There are no panacea for reaching a balance between recognizing at once Catholicism as a majority religion and the increasing pluralism, between justified forms of special treatment and egalitarian dialogue, between decentralization and coordination. Disagreements about how much each religious community should be represented in the educational process will not disappear any time soon. How Spain and its autonomous communities will combine state neutrality, the acknowledgment of a special relationship with Catholicism, and the recognition of religious diversity through cooperative agreements, remains an open issue in need for a more egalitarian solution.

Endnotes

1. Camil Ungureanu is Lecturer in Political Theory at the Department of Social and Political Science (Universitat Pompeu Fabra) and Diana Zavala Rojas is Junior researcher at RECSM Research and Expertise Centre for Survey Methodology (Universitat Pompeu Fabra)

2. See Martínez-Torrón, (2005) J., “School and Religion in Spain”, Journal of Church and State, 47, pp. 133-150; Martínez-Torrón (2006), “Religious Freedom and Democratic Change in Spain”, Brigham Young University Law Review, 3, pp. 777-810; Seglers, Gomez-Quintero A., (2004) “Religious Education in the Spanish School System”, Journal of Church & State, 46, pp. 561-573; Ibán, I., State and Church in Spain, in Robbers, G., (ed.), State and Church in the European Union, 2nd. ed., Nomos, Baden-Baden, 2005, pp. 139-155. These writings provide also useful guidance into the relevant bibliography in Spanish.

3. The main political parties in Spain are the Socialist Party and the Popular Party. The former has had a much more secularizing stand than the later. For an analysis of the relation between Church and party politics in Spain, see the Montero, J. R., Gunther, R., Botella, J. (2004), Democracy in Modern Spain, Yale University Press and, in an updated and shorter version, Gunther, R. and Montero, J. R. (2009), The Politics of Spain, Cambridge University Press.

4. Ibid. and Martínez-Torrón (2006), op. cit. 5. The relation of the Catholic Church with Franco´s regime was, especially after the Vatican Council

II, ambivalent. See for instance, Casanovas, J. (1996) Public Religions in the Modern World, University of Chicago Press.

6. The Christian Monitor, (7 November, 2010), available at: http://www.csmonitor.com/World/Europe/2010/1107/In-Spain-Pope-Benedict-XVI-lambasts-aggressive-secularism. The Pope´s analogy is questionable. The violent conflicts characteristic of the beginning of the XXth century are, by and large, overcome in to-day Spain.

7. Davie, G. (2002), Europe: The Exceptional Case. Parameters of Faith in the Modern World, Darton, Longman and Todd Ltd.; Taylor, Ch. (2007), A Secular Age, Harvard University Press.

8. González-Ferrer, A. & Cebolla-Boado, H. (2008), La Política de Inmigración en España (2000-2007). De la gestión de flujos a la integración de los inmigrantes, Centro de Estudios Políticos y Constitucionales, Madrid.

9. Cortés, V. (2009) “Hacia el primer colegio musulmán de España”, El Pais.10.A state religion model is not always accompanied by a confessional model of education. Consider

the United Kingdom, where the educational model is, by and large, multicultural. 11.Alternatively, Torreblanca defines Spain as semi-confessional, in Torreblanca, J. “Laicidad y

religión en el sistema educativo español.” Revista Internacional de Filosofía Política (2004): 47–60. However, this does neither account for the processual character of the Spanish “approach” nor for the other “half” of it.

12.Martínez-Torrón argues that “religion has ceased to be, for the first time in many centuries, a source of social and political conflict”, in ´School and Religion in Spain´ (2005), op. cit., p. 134. If we interpret “conflict” restrictively, namely as violent conflict, then Martínez-Torrón is right. However, one of our aims is to convey the idea that the Spanish “constellation” is not devoid of meaningful tensions and conflicts with respect to the proper role of religion in the public sphere and educational system.

13.For an alternative classification, see Evans, C. (2008), ´Religious education in public schools: an International Human Rights Perspective´, Human Rights Law Review, 8 (3): 449-473.

14.S. Ferrari (2008), “State regulation of religion in the European democracies: the decline of the old pattern”, in G. Motzkin and Y. Fischer (eds.), Religion and Democracy in Contemporary Europe, Alliance Publishing Trust, p. 109

15.We distinguish between secularism as an ideology and secularization as an historical movement: the former is a view inimical to religion, while the latter refers to a process whereby religion loses its hold over politics and law, without being anti-religious per se.

16.Manuel, P. (2002) “Religion and Politics in Iberia: Clericalism, Anticlericalism and Democratization in Portugal and Spain” in Jelen, T. G. and Wilcox, C. (2006) (eds) Religion and politics in comparative perspective: the one, the few, and the many, Cambridge University Press, pp. 123-125.

17.See also Glenn, C. L. (1999) “Character-building and freedom in education”, European Journal for Education Law and Policy 2, pp. 125–144.

18.On laïcité, see especially Roy, O. (2005), La laïcité face à l’islam, Paris, Stock; Laborde, C. (2008) Critical Republicanism: The Hijab Controversy and Political Philosophy, Oxford University Press; Laborde, C. (2010), Français, encore un effort pour être républicains, Seuil.

19.Gauchet, M. (2001) La réligion dans la démocratie: parcours de la laicité (Romanian translation), Humanitas.

20.Laïcité refers to a specific version of civic republicanism. We can distinguish it from civil liberalism which puts more emphasis on individual liberty. For civic liberalism, see Levison, M. (1999), The Demands of Liberal Education, Oxford University Press.

21.The place of religion in the educational process in France is currently under reform. See Debray, R. (2002), ‘L'enseignement du fait religieux dans l'école laïque’, a report ordered by the ministry of national education, F. Lang, available at: http://lesrapports.ladocumentationfrancaise.fr/BRP/024000544/0000.pdf.

22.Parekh, B. (2000), Rethinking Multiculturalism: Cultural Diversity and Political Theory, Macmillan; Kymlicka, W. (1995) Multicultural Citizenship, Oxford University Press; Modood, T. (2005),

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Multicultural Politics: Racism, Ethnicity and Muslims in Britain, Edinburgh University Press; Tully, J. (1995), Strange Multiplicity: Constitutionalism In An Age of Diversity, Cambridge University Press.

23.For a critique of multiculturalism from the perspective of education, see Macedo S. (2000), Diversity and Distrust; Civic Education in a Multicultural Democracy, Harvard University Press; Joppke, C. (2004) ‘The retreat of multiculturalism in the liberal state: theory and policy’, British Journal of Sociology, 55(2), pp. 237–257.

24.On positive secularity in the Spanish context, see inter alia R. Díaz-Salazar, (2008) España laica: ciudadanía plural y convivencia nacional Madrid: Espasa, and the interesting debate contained in Navarro-Valls, R. And Ruiz Miguel, A. (2008), Laicismo y Constitución, Ed. Fundación Coloquio Jurídico Europeo, Madrid. See Ungureanu, C. (2008) ´The Contested Relation between Religion and Democracy: towards a “discursive” approach?´, European Journal of Political Theory, 7, 2009, pp. 405-429

25.Democragraphically, the membership to the Catholic Church is approximately 73% (Cf. Centre of Sociological Investigations, October Barometer, 2010 available at: http://datos.cis.es/pdf/Es2847mar_A.pdf, 2010). Around 28% Spaniards declare that they do not belong to any religious community, 2.3% declare themselves Protestants, Christian Orthodoxies or belonging to other Christian denominations; 2.2% declare themselves as Muslims, and 0.4 to Eastern religions or other non-Christian denominations. From those declaring themselves Catholic, 37.2% attend to religious services only on special holidays or less often and 28.3 never attend religious services (cf. ESS, 2008). 7% of the population living in Spain is Muslim (but they are not necessarily nationals) (see Bravo, F. (2010) “Islam in Spain : Euro-Islam: News and Analysis on Islam in Europe and North America”, available at http://www.euro-islam.info/2010/03/08/islam-in-spain/)

26.Martínez-Torrón, “Religious Freedom and Democratic Change in Spain”, op. cit.; Cuenca Toribio, J. M. (1985), Relaciones Iglesia-Estado en la España contemporánea: 1833-1985, Madrid; Díaz-Salazar, R., (2008) España laica: ciudadanía plural y convivencia nacional, Madrid: Espasa.

27.Linz, J. and Stepan, A., Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe, The Johns Hopkins University Press, pp. 61, 87-115.

28.The Spanish Constitution (official translation) is available at: http://www.senado.es/constitu_i/index.html. Art 16 states: (1) Freedom of ideology, religion and worship of individuals and communities is guaranteed, with no other restriction on their expression than may be necessary to maintain public order as protected by law(2) No one may be compelled to make statements regarding his or her ideology, religion or beliefs(3) No religion shall have a state character.” Furthermore, art. 14 provides: “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance”.

29.For more comprehensive analysis of these principles, see Martínez-Torrón, “Religious Freedom and Democratic Change in Spain”, op. cit.; Amoros, J.J. (1984), La libertad religiosa en la Constitucion española de 1978, Madrid.

30.Spain has also subscribed the International Convent on Civil and Political Rights (Article 18.4), the ECHR (Protocol Article 9 and 1.2) and the International Convent on Economic, Social and Cultural Rights (Article 13.3) which protect religious freedom and parents´ right to educate children according to their religious or non-religious convictions

31.“Instrumento de Ratificación del Acuerdo entre el Estado español y la Santa Sede sobre Enseñanza y Asuntos Culturales, firmado en la Ciudad del Vaticano el 3 de enero de 1979. Boletín Oficial del Estado (BOE) núm, 300; Ibán, I. (2003) “Concordats in the European Union: a Relic From the Past or a Valid Instrument for the XXI Century?”, in Canon Law Consultation and Consotalation. Monsignor W. Onclin Chair 2003, Faculteit Kerkelijk Recht Katholic Universiteit Leuven, Vitgverij Peeters, Leuven, pp. 99-157.

32. (1980b), Ley Orgánica 7/1980, de 5 de julio, de Libertad Religiosa. Boletín Oficial del Estado (BOE) núm, 177 (LOLR)

33.(2006b), Ley Orgánica 2/2006, de 3 de mayo, de Educación. Boletín Oficial del Estado (BOE) núm, 106. (LOE). Other Ordinary Laws and Royal Decrees related to the educational system are “derived” from the LOE.

34.Section 27.3 of the Constitution guarantees the right of the parents to educate their children according to their moral and religious convictions. The Spanish Constitutional Court decided in 1981 that Section 27.3 should be implemented in two ways: 1) through the right of choosing the school and 2) through confessional religious instruction in public-funded schools. See Tribunal Constitucional de España (Constitutional Court of Spain) Sentencia núm. 5/1981 of 13 February. Boletín Oficial del Estado (BOE) supplement to num 47. This decision was strongly contested on the basis of the argument that the Constitution did not necessarily support confessional religious teaching in public-funded schools. The critics further argued that the confessional character of religious instruction in the educational system was derived from the Concordat with the Holy See, which was negotiated before the adoption of the Constitution. The Concordat remains up to this day a bone of contention between the main political forces in Spain.

35.Real Decreto 1631/2006, de 29 de diciembre, Boletín Oficial del Estado (BOE) núm, 5.; (2006a), Real Decreto 1513/2006, de 7 de diciembre, Boletín Oficial del Estado (BOE) núm, 293.

36. (1992a), Ley 26/1992, Boletín Oficial del Estado (BOE) núm, 272; (1992b), Ley 25/1992, Boletín Oficial del Estado (BOE) núm, 272; (1992c), Ley 24/1992, Boletín Oficial del Estado (BOE) núm, 272.

37.Orden de 9 de abril de 1981, Boletín Oficial del Estado (BOE) núm, 95; (1993b), ´Orden de 28 de junio de 1993´, Boletín Oficial del Estado (BOE) núm, 160; (1996b), Orden de 11 de Enero de 1996, Boletín Oficial del Estado (BOE) núm, 16.

38. (1996a), Resolución de 23 de Abril de 1996, Boletín Oficial del Estado (BOE) núm, 10839.Martínez-Torrón, Separatismo y cooperación en los acuerdos del Estado con las minorías re-

ligiosas, Ed. Comares, Compares, Granda, 1994; Estado y religión en la Constitución Española y en la Constitución Europea (ed.), Ed. Comares, Granada 2006.; Rodríguez-Moya, A. (2009), ‘Libertad religiosa y enseñanza de la religión: Especial atención al caso islámico’, Revista General de Derecho Canónico y Derecho Eclesiástico del Estado, 20, pp. 1-20; Lorenzo, P., and Peña, M. T. (2004), ‘La Enseñanza Religiosa Islámica’, in: Motilla A. (ed.), Los Musulmanes en España: libertad religiosa e identidad cultural, Trotta, Madrid, pp. 249-79.

40.Jiménez-Aibar, I. (2004), El Islam en España: aspectos institucionales de su estatuto jurídico. Berrizoar, Navarra Gráfica, Navarra.

41.Unión de Comunidades Islámicas de España42.Federación Española de Entidades Religiosas Islámicas43.Fernández-Coronado, A. (1995), Estado y Confesiones Religiosas: Un Nuevo Modelo de Relación

(Los Pactos con Las Confesiones: Leyes 24, 25 y 26) (1st ed.), Civitas Ediciones, S.L., Madrid; Jiménez-Aibar, op.cit.

44.Own calculation based on data from Oficina de Estadística del Ministerio de Educación (Statistics Office of the Ministry of Education) (2011), Las cifras de la Educación en España. Estadísticas e indicadores (2008-2009), Ministerio de Educación y Ciencia, Madrid.

45.This estimation is illustrative and not completely precise. We combined official data from the Statistics Office of the Ministry of Education on pupils attending public, private concerted and private-non concerted schools for academic year 2008-2009 and data published by the General Council on Catholic Education (Servicio de Estadística y Archivos del Consejo General de la Educación Católica) on pupils enrolled in Catholic schools in 2009-2010.

46.Spain is divided politically in 17 self-governed regions called Autonomous Communities. 47.According to data from the Spanish Federation of Islamic Religious Entities (Federación Española

de Entidades Religiosas Islámicas, FEERI) URL: http://feeri.eu/; the Spanish Union of Islamic

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Communities (Unión de Comunidades Islámicas de España, UCIDE) URL: http://es.ucide.org/home/; the Spanish Federation of Jewish Communities (Federación de Comunidades Judías de España, FCJE) URL: http://www.fcje.org/; and the Spanish Federation of Protestant Religious Entities (Federación Española de Entidades Religiosas Evangélicas, FEERE) URL: http://www.ferede.org

48.Spanish Islamic Commission (Comisión Islámica de España, CIE)49.Cortés, V. (2009), ´Hacia el primer colegio musulmán de España´, El País50.Royal decree 806/1993 May 28 (Real Decreto 806/1993 de 28 mayo) regulates foreign schools

established in Spain. Lorenzo and Peña, op. cit.51.The Royal Decrees 1513/2006 and 1631/2006 establishes a minimum of criteria for the contents of

primary and secondary education. The Ministry of Education rules 55% of the schooling schedule in the A.A. C.C. with a co-official language and 65% in those without a co-official language. The minimum hours of religious instruction for each level is 105 hours in primary education; 140 in the first three courses of secondary school and, 35 in the fourth course of secondary school. Parents should declare at the beginning of each period if they wish or not their children attend the different religious courses on offer at the school. See 2006a, 2007, op. cit.

52.Royal Decree 1631/2006, Second additional provision. Teachings of religion. Art. 6 b) Ibid.53.Royal Decree 1513/2006, First Additional Provision and Royal Decree 1631/2006, Second

additional provision. 54.Consejo Escolar del Estado (Nacional School Council) (2010), Informe sobre el Estado y Situación

del Sistema Educativo. Curso 2007/2008, Ministerio de Educación, Madrid.55.1979, op. cit; LOE Second Additional Order 2006, op. cit. 56.Royal Decree 1513/2006, First Additional Provision, and Royal Decree 1631/2006 57.Consejo Escolar del Estado (State’s School Council), op, cit.58. Ibid. 59.However, parents decide if children participate in additional religious activities or not. 60.Cf. Art. 84.9. The enrolment of a pupil in a public or a public funded private school will imply

respect to its educational project, without prejudice to the rights granted to students and their families in the laws (…) Ibid; Consejo Escolar del Estado (National School Council) (2010), ‘La Enseñanza de la Religión’, in: Consejo Escolar del Estado, Informe sobre el Estado y Situación del Sistema Educativo. Curso 2007/2008, Ministerio de Educación, Madrid

61.The composition of the school’s Council is plural. It is made of the school’s director, a representative from the municipality, a group of teachers’ representatives, a group of parents’ representatives, a representative of the administrative staff of the school, etc.

62.1979, op.cit.63. Ibid, Art. 7.64. Ibid; Lorenzo and Peña, op. cit.65. In 1980 the government approved a provision with “experimental character" to regulate teaching of

“several Churches, denominations or religious communities”. See the introductory text of (1980a), Orden de 16 de julio de 1980 sobre la enseñanza de la Religión y Moral de diversas Iglesias, confesiones o comunidades en Educación Preescolar y Educación General Básica. Boletín Oficial del Estado (BOE) núm, 173. In this context, the Jewish community published the curriculum of Jewish instruction for basic education in 1981. See 1981, op. cit.

66. (1993b), op.cit.67. (1996a), op.cit; see also Planet, A. I. (2005), ´Islam y Escuela´, in García, B. and M. Berriane, M.

(eds.), Atlas de la inmigración marroquí en España. Taller de Estudios Internacionales Mediterráneos, Madrid.

68.1996a, 1996b, op.cit.

69.LOE Second Additional Order 2006, op. cit.; Laws 24/1992, 25/1992 and 26/1992 op. cit. Royal Decree 1513/2006, First Additional Provision, Royal Decree 1631/2006, Second additional provision (Teachings of religion. Art. 4. and 5)

70. “Pluralismo y Convivencia” (2010), Recursos didácticos por confesiones, Pluralismo y Convivencia, available at: http://www.pluralismoyconvivencia.es/recursos_didacticos/confesiones/evangelicos

71.Bravo, F. (2010), ´Islam in Spain: Euro-Islam: News and Analysis on Islam in Europe and North America´ available at: http://www.euro-islam.info/2010/03/08/islam-in-spain/

72.Rodríguez-Moya, op.cit. p. 1673.Planet, op. cit.74.Laws 24/1992, 25/1992 and 26/1992 Art. 10.1., and 1992a, 1992b, 1992c, op. cit.75.See section below on religious symbols in public schools76. Ibidem77. Ibidem. See also note 11, supra78. Introduce note 79.Motilla, A. (2004a), ‘La Libertad de Vestimenta. El Velo Islámico’, in: Motilla A. (Ed.), Los

Musulmanes en España: libertad religiosa e identidad cultural, Trotta, Madrid, pp. 107-35.80.Alvarez, P., ´Najwa vuelve a clase en un instituto cercano al que no la admitió con “hiyab”´, El

País, 28 April 201081.Obelleiro, P., ´La Xunta respalda al colegio que sanciona a una niña por usar velo´, El País, 10

February 2011; Jimenez Barca, A., La polémica en un pañuelo´ El País, 10 February 2008.82.Tribunal Superior de Justicia de Castilla y León (High Court of Castile and Leon). (2009).

Sentence number. 3250 of December 14. Centro de Documentación Judicial. 83. Ibid, para 4.6. 84.Para 4.485. Ibidem86. Ibidem87.Cf. the Spanish Constitutional Court Ruling, STC 46/2001, of 15 February (e.g. para 4). The

concept of positive secularism has been a constant of the jurisprudence of the Constitutional Court. Most recently, see STC 51/2011, of 14 April (BOE n. 111, 10 May 2011).

88.McGoldrick, D. (2006), Human Rights and Religion: The Islamic Headscarf Debate in Europe Hart Publications: Oxford University Press. We do not want to suggest that the stand of the Court in cases involving Islam is completely one-sided or problematic. For instance, in Eur. Ct. H. R. (2d section), Ahmet Arslan and Others v. Turkey, 23 February 2010 (not final), the Court upheld the right of women to wear the headscarf in the street.

89.The European “approach”, as conveyed by the jurisprudence of the ECtHR, the 2007 Toledo Guiding Principles or the European Union “system” does not aim to a full-fledged model of “religious education”, but it is by definition minimal. Part of the “grammar” of the European “approach” is the recognition of the legitimacy of the European plurality of models (of “religious education”).

90.See also S. Ferrari´s parallel argument with respect to the state models in Europe: for him, we assist at a “convergence from extreme positions towards the center is taking place in Europe, where the extremes are church-of-state systems on the one hand and rigid separation on the other.” S. Ferrari, ‘State regulation of religion in the European democracies: the decline of the old pattern’, in G. Motzkin and Y. Fischer (eds.) (2008), Religion and Democracy in Contemporary Europe, (Alliance Publishing Trust, p. 109.

91.See Ungureanu, C. ´Toward a European “approach” to religion?´ in Zucca, L. and Ungureanu, C. Law, Religion and State in the New Europe: Debates and Dilemmas, Cambridge University Press, 2011 (forthcoming). The "Toledo Guiding Principles on Teaching about Religion and Beliefs in Public Schools" are available at: http://www.osce.org/odihr/29154. See Martínez-Torrón Principios

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de la OSCE para la enseñanza sobre las religiones y creencias en las escuelas públicas, en “Revista General de Derecho Canónico y Derecho Eclesiástico del Estado” 16 (2008), pp. 1-7 (www.iustel.com).

92.Eur. Ct. H. R. (Grand Chamber), Gorzelik and others v. Poland, 17 February 2004, para. 92. For a broad perspective on religion and education law, see Ahdar, R. and Leigh, I. (2005), Religious Freedom in the Liberal State, Oxford Univ. Press, 2005; Kuyk, E., Jensen, R. Lankshear, D, Löh Manna, E., Schreiner, P. (eds.) (2007), Religious Education in Europe, IKO – ICCS, Oslo, and Jackson, R., S. Miedema, Weisse, W., Willaime, J.-P. (eds.) (2007), Religion and Education in Europe, Waxmann, Münster.

93.See the Eur. Ct. H. R. (Grand Chamber), Folgerø and others v. Norway, 29 June 2007 and Hasan and Eylem Zengin v. Turkey, 9 October 2007.

94.The Lisbon Treaty is available at: http://europa.eu/lisbon_treaty/index_en.htm95.A positive secularist approach does not aim to sever the link to the Catholic Church, given the

importance of Catholicism for the Spanish history and identity. However, it attempts to combine it with an open and hospitable attitude to religious and non-religious pluralism.

96.Martínez-Torrón, J., Navarro-Valls, R. and Mantecón, J. (eds) (2009), La libertad religiosa y su regulación legal. La Ley Orgánica de Libertad Religiosa, Ed. Iustel, Madrid.

97.Currently, establishing a religious community is decided without clear guidelines by the Adviser Commission on Religious Liberty - a collegiate body dependent on the Ministry of Justice. This body has representatives of several Ministries (Treasury, Education, Health, Labour and Security), central government, representatives from already recognized well-rooted religious communities in addition to well-recognized experts on religious issues.

98.Cembrero, I. and Ceberio, M., ´Ni crucifijos ni funerales católicos´, El País, Madrid. 13 June 2010; Garea, F., ´Zapatero se escuda en la falta de consenso para paralizar la ley de libertad religiosa´ El País, 10 November 2010.

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11 Juliana Latifi

Issues Regarding Relations Between Religion and tne State in the Framework of the Right to Education. Albania’s Case

Issues Regarding Relations Between Religion and tne State in the Framework of the Right to Education. Albania’s Case

Juliana Latifi1

1. ABSTRACT

The right to freedom of religion in Albania is not always positioned in clear relation with the right to education detached from religion. In my opinion, the ups and downs of this relation are not the result of religious based pressures exerted by the population, but more likely the result of the space given to the debate on the issue in general by the adoption and implementation of legislation. The secularism of the Albanian state, sanctioned in the Constitution of the Republic of Albania, provides a separation between religion and the state, but this separation is not absolute. Despite the secularism of the state and religious harmony existing in Albania, there is frequent news in written and electronic media on students or teachers wearing the Islamic veil who are not allowed to participate in the education process or to exert their right to employment as teachers. This phenomenon has been accompanied by pro and con opinions and I might say the issue has currently reached some kind of a climax as a result of the draft-law on pre-university education2.This draft law has encouraged a public debate on the limits between religion and state. Article 36, point 4 of the bill states: “The display of religious symbols in education institutions shall be prohibited, except for religious schools.” Starting from this situation, in the viewpoint of the Albanian legal framework on the issue of religion and education and in the viewpoint of the European jurisprudence, I will put forward some opinions regarding the relation between the state and religion when it comes to the right to exert religious belief and right to education.

2. THE ISSUE IN A HISTORICAL POINT OF VIEW

Religion in Albania may represent one of the most special types of institutions in the country, due to the history of relations with the Albanian anthropology in centuries3. Three religions and four religious communities have been established and developed in such a small geographical territory. The four religious communities include the Roman Catholic, Orthodox, and Muslim as well as the Bektashi sect which is a variation of Muslim religion. In fact, the World Headquarters of the Bektashi Community is located in Albania. The first census which also included religion was made in the 30’s of the 20th Century at the time the country was ruled by King Zog4.In general terms, the population religious ratio used to be and still is approximately; 70% Muslims, 20% Orthodox, and some 10% Roman Catholics. It is relevant to point out that the religions are different, but the religious anthropology is Albanian, thus, that is a population that includes more religions than one.

The State of Albania was established as a secular State. Article 4 of the Kingdom’s Statute stated: “The Albanian State shall have no official religion. All religions are honoured and the freedom to practice them shall be guaranteed5.”A decree-law on religious communities was drafted during the monarchy period. It entered into force on 9 January 1930. The decree included 34 articles. It is of interest to quote cite Article 34 which states: “Religious persons are moral persons that enjoy all rights relevant to this personality in compliance with this decree-law and other laws of the state, but these persons cannot be involved in politics directly, or indirectly. Moreover, they cannot exert the right to judging (jurisdiction) for any case.”To sum up, the secularism of the state was related to the fact that religion was separated from the state, education was secular, and religious education could be received only in authentic religious schools. The state respected religious freedom and equality and those religions were under the authority of the state.The king provided his own contribution in the given period of time because he encouraged the presence of women in social life and discouraged the wearing of Islamic veils,6 saying that the holy book of Quran did not seek women to cover themselves with burqas. The wearing of the burqa was prohibited through decree of the king and it was replaced by a headscarf which was traditional of Albanian women7. In the same period of time, the entry into force of the Civil Code (1 April 1929), which was in accordance with the most advanced models of the time, French, Italian, German, and Swiss, sanctioned a new juridical status of Albanian women in marriage and inheritance issues8.It is also important to point out that, at the time, over 90 percent of the population were illiterate and there could arise no religious-civil conflict due to a religious cloth in a civil environment such as the school.

The establishment of the communist regime on the 29th of November 1944 was slowly followed by what can be called “eradication of religion.” During the communist regime, religion was initially allowed while the principles of secularism were preserved and enforced. In the mid 60s, exactly in 1967, under the influence of the Chinese Cultural Revolution, a youth movement for the shutting down of religious institutions arose. It was pretentiously considered as an authentic movement initiated by students, but in fact it was all set up by the ruling Communist Regime based on the Marxist say “Religion is the opiate of the masses.” This action represented the repetition of the nonsense done by the Jacobins in France and the communists of Bela Kun in Hungary following World War I. The shutting down of the religious institutions, the forceful imposition of atheism9, the banning of any religious activity or process, as well as the perception of religious practice as a criminally punishable action10, in the framework of ideological degeneration of the person and the war of classes. Active religious individuals were sent to carry out hard physical work, some were imprisoned in prison facilities where they were obliged to provide hard work and many of them never managed to get out alive. Some of them were also executed by firing squads. Religious institutions suffered horrible consequences. Some of the premises were completely demolished while some others were turned into civil institutions, for example: The big church in Shkodra was turned into a Sports Palace; The Catholic church in Tirana was turned into a Youth Theatre, and there were some cases in villages where the cult buildings were turned into animal food depots. Such kind of humiliation of religious freedom had never been observed before. Crypto-religion arose and many people practiced religion and

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religious rituals secretly at home. This marked the implementation of the major deformation, the banning of the religious freedom which rooted in polytheistic paganism. An atheistic anthropology was established and it was fed only through the moral of ideological propaganda. This ideological condemnation could be also perceived in schools, in slogans and symbols of the totalitarian communist system. Only after the 90s, along with the changes which occurred in post communist countries, people started to freely display their religion and practice it in Albania11.The Constitution of the Republic of Albania reaffirmed the stance of the State of Albania regarding religion. Article 10 of the Constitution stated: “Freedom of conscience and religion shall be guaranteed… The State shall recognize the equality of religious communities. The State and religious communities shall reciprocally respect the independence of each other and cooperate in the benefit of everyone. The relations between the State and religious communities shall be regulated on the basis of agreements reached between their representatives and the Council of Ministers. These agreements shall be ratified in Parliament (Article 10 § 3, 4 and 5).”

Despite the long and dramatic series of suffering, the religious cohabitation and harmony which was and continues to be a crucial feature in Albania’s religious anthropology, because religions are different while nationality is unique, in this case Albanian. Albanian distinguished writer Ismail Kadare has said: “A nation which is not that big in the Balkans, a nation with three religions and four religious communities, in an area famous for quarrel and misery. A nation which is not quiet and I would say inclined towards irritation, as the major part of the citizens of the Balkans. However, although it has three religions, an ideal element for division, during their history, Albanian have never experienced religious conflicts …the harmony among the three religions and four religious communities, in such a narrow country as Albania when it comes to a moral program, an ethical philosophy or Albanian strategy, came across a rough historical reality and it has managed up to this date to remain intact from this clash… This balance among the three main religions, without excluding the fourth religious community, the Bektashi, does not represent an insane desire for reality. Neither does it represent poetic rhetoric or reconciliation psychosis of the type to seek balance and harmony where it does not exist. This balance and legitimacy are a reality, a substance. Albania is a country with three religions. It cannot be identified with either of these religions. If we do not believe in this, we do not believe in our purpose of being, in the purpose of being of Albania itself12.”

3. THE RIGHT TO EDUCATION REGARDLESS OF RELIGIOUS BELONGING. ALBANIAN LEGAL FRAMEWORK

The issue of religion and the right to practice it in Albania is regulated through a complex national legal framework, which is based in the same time on international acts ratified by the Republic of Albania.The Constitution of the Republic of Albania recognizes the secularism of the Albanian State, which for its part does not forbid the right to religion.This proportionality in the relation between the State and religion, which derives from the principle of rule of law, may be limited only by the state power at the amount it is deemed

indispensable for the purpose of protecting the legal public interests. The limitations set regarding religious freedom may be carried out only for the sake of a prevailing interest of the society or for the sake of respecting the interests of third parties, which are protected by the constitutional right13.

In function of this balance and proportionality, the State of Albania offers and guarantees the right to education for each and every individual, regardless of religious belief or belonging, taking “the necessary measures” for the protection of a right or more specifically “adopting reasonable and suitable measures for the protection of the rights of individuals,” in the concrete case, also measures of a juridical character, guaranteeing protection of this right14.The constitutional legal provisions, in combination with each-other, specifically Article 10, points 1 and 2, and article 24 sanction the principles: “The Republic of Albania shall have no official religion. The State shall be impartial regarding issues of religion and conscience, and shall guarantee the freedom to express them in public life,” “Freedom of conscience and religion shall be guaranteed. Each and every citizen shall be free to choose or change religion or belief, as well as to display them individually or collectively, in public or in private life, through cult, education, practices, or rituals.”

The freedom of conscience and religion in this article are considered in their application in the right to education. Thus, Article 51, point 1, of the Constitution states: “Each and every citizen shall enjoy the right to education,” which implies that this right belongs to each and every individual, regardless of belief or religion.This article, in coherence with article 59, point 1, letter ç, considers the right to education also as a social objective, where the state, within the constitutional competences and means it possesses, is aimed at the education and qualification in accordance with the abilities of children and the youth. This implies that: “The Constitution tasks the State with the obligation of education. It does not have just to carry out the task to organize the school system and the self-establishment of schools, but it is also allowed to define the aims in education and education programs15.The constitutional provisions guarantee that the freedom of religion and the right to practice it, as well as the right to education, do not prevail on each-other but they respect each-other in harmony with the secularism of the State of Albania, guaranteeing the constitutional principle: “Fundamental human rights and freedoms are inseparable, unalienable, and inviolable, and they stand in the foundation of the entire constitutional order” (Article 15, point 1). Thus, freedom of religion in Albania is interpreted within the constitutional framework, which implies that it cannot be imposed over the secularism of the state, which for its part, dictates the rules that it respects the private life of the individual and does not intervene in his right to religious belonging16. In this context: “An opposite principle derives from the freedom of religion, which is envisaged in the Constitution. This principle is related to the neutrality of the state towards different religions and beliefs. The state in which believers of different religions and ideologies, which sometimes are opposed to each other, may guarantee a peaceful coexistence, only provided it stays neutral when it comes to issues of religion”17.

The right to education regardless of religious belonging cannot be considered as a reason for the provision of a different treatment among citizens. The constitutional provisions

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provide for and guarantee this right is to be enjoyed collectively and free from discrimination. Law No. 10221, of 04 February 2010, “On protection from discrimination”, defines discrimination as “  …any differentiation, exclusion, limitation, and preference, based on whatever cause envisaged in this law18,which is aimed or results at the prevention or preclusion from exerting, in the same way as others, the fundamental rights and freedoms provided for in the Constitution of the Republic of Albania, international acts ratified by the Republic of Albania, as well as effective legislation (Article 3).

This definition provided by Article 3, point 1, leads to the regulations sanctioned by articles 10, point 1, and 17 as follows: «Discrimination related to the practice of the freedom of religion and conscience shall be prohibited, especially when related to their expression individually or collectively, in public or private life, through cult, education, practices, and rituals” and “Any differentiation, limitation, and exclusion based on the causes stated in Article 1 of this law and that, inter alia, is related to the right of a person or a group of persons to be accepted in a public education institution, shall be prohibited.”

The right to education regardless of religious belonging and its practice in public is conditioned from the secularism of the State of Albania which also dictates the secularism in public education, as a tradition and value inherited through centuries.In this framework, the pre-university sector is also provided with the draft-law “On pre-university education system”. Article 5 of this draft-law which is entitled “Secularism of pre-university education,” sanctions the principles that: the pre-university education shall have a secular character. Religious indoctrination shall be prohibited in education institutions and on the other hand, Article 6, “The right to education,” reconfirms the constitutional principle: “Pre-university education in the Republic of Albania shall be guaranteed to each and everyone on constitutional bases, … they are guaranteed access to education institutions being free from any type of discrimination related to … belief or religious belonging,…”; Each and every child and adult shall be guaranteed the right to equal opportunities to access education institutions.”Sanctioning secularism in education, through this draft-law, the Albanian lawmaker also provides for the rule, according to which: The display of religious symbols in education institutions shall be prohibited, except for the religious schools” (Article 36 point 419 ) .This rule of an imperative character in the proposed bill has created a debate in the public opinion and religious communities, with the Muslim community strongly opposing it20.The issue of religious symbol in the context of this provision is especially focused in the wearing of the Islamic veil from Muslim believers in the premises of public schools.On the other hand, the Albanian lawmaker has not taken the responsibility to provide a definition for “religious symbol,” which would be highly impossible on the legal point of view21.

In a comparative viewpoint in relation to what is currently happening in Europe, the issue of freedom of religion has been and continues to be dealt with at length. Making reference to the jurisprudence of the Federal Constitutional Court of Germany: The guarantee of the freedom of religion from the Constitution, (in this case Article 4, paragraph 1 of the German Constitution) has risen in the same way as all other fundamental human rights, from the image that the Constitution has created for the person, implying a self-responsible

personality, that freely develops within the society. This relation of the individual with the society, which is also recognized by the Constitution, opens certain external limits for those fundamental rights guaranteed without condition. However, the religious freedom limits, ... - can be set only by the Constitution 22. In this point of view, the freedom of religion in Albania, as a right guaranteed by the Constitution, can be limited only by the Constitution, Article 17 of which states: The limitation of rights and freedoms may be achieved only through law and for public interest, or for the protection of the rights of others. The limitation must be in proportion to the state producing it. These limitations cannot violate the essence of freedoms and in no event they can outrun the limitations envisaged in the European Convention on Human Rights.”

In order to give an answer to this issue, the latter should be considered in the Albanian context23, and as writer Ismail Kadare says:  “Religious harmony is both monumental as a building and fragile. Just one first serious fracture, just the radicalization of one of the religions, would be enough to for the building to collapse. In the Albanian case, all three religions, as we could observe, are connected to the nation, to its existence. We are allowed no irresponsible behaviour, no forgetting, no imprudence, when it comes to maintaining this building. The foundation of the foundation of the religious issue in Albania is that the three main religions are equally important and equally legal24.In my opinion, you need a public consensus to prohibit the display of religious symbols in public education institutions. Furthermore, this issue should be considered in its complexity, where the experience of other countries may help Albania to give an answer to this issue, because  : “Even that state which fully guarantees freedom of religion and undertakes the task of being neutral towards religions and mentalities, cannot push aside viewpoints and convictions over the values transmitted by culture and historical roots, on which social cohesion is based and from which its fulfilment of tasks depends on25.” As i also mentioned above, in a historical viewpoint, the issue of religion in Albania shows some features which cannot be found in other countries, and doubtlessly this inheritance has its influence in the reality we are currently living. The Albanian dream to be integrated in the European family stands above everything, in front of the phenomenon of the Islamic veil, which some women practicing Muslim religion wear in public environments such as public schools. In such conditions, western models have an undoubted strong influence in this reality, to which the Albanian state seeks to become part. It is also important in the adoption of the model to point out that tradition, culture and Albania’s national self-awareness, allows us to take in absolute or relative terms the model we like!

On the other hand and above all, freedom of religion is an individual as well as collective issue. Religious freedom in a doctrinal interpretation26, is practically unclassifiable in just one of the groupings of right classified in individual and collective, because on the one hand, it appears as individual freedom of conscience and religion, and on the other hand, it appears as collective freedom when it comes to practicing the religious cult. “The state should neither impose and nor prohibit a given religion to the individual. However, the freedom of religion does not include only the freedom to have a religion, but also the freedom to live and act in compliance with the personal conviction of this religion. The freedom of religion guarantees

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especially the participation in cult actions a religion orders or is expressed. This is added by the freedom to stay away of those cults which are not related to one’s religion. This freedom is also referred to the symbols, through which a religion or belief is displayed27.”

In my opinion, it is difficult to produce a recipe which undoubtedly is to be produced by the legislator in the days to come. The public debate is still on and a part of the population is in favour of the law while the other part is opposed to it. Undoubtedly, the European experience should serve as a model for us to define that the prohibiting of religious symbols in Albania’s public schools justifies: Whether there was an interference; Prescribed by law; Legitimate aim; Necessary in a democratic society28.

The dealing with this issue, which is closely related to Albania’s culture and tradition, should serve Albanians as a starting point in its approach with the practices of European countries. A question naturally, can Albania apply the French case? Or it can apply the German case, or other European countries29?The existence of different religions, the interreligious tolerance, the secular role of the state lead to the conclusion that: The possible limitations regarding the right of religion regulated in paragraph 2 of Article 9 of the European Convention on Human Rights “…belong only to “freedom to display religion or belief”. This represents the expression of the opinion that in the democratic society, where citizens of different religions cohabitate, maybe it is indispensable to define some limitations with the purpose to lead to the conciliation of the interests of different groups and to be guaranteed the respect of the beliefs of each person30”  

4. THE SITUATION IN ALBANIA IN THE FRAMEWORK OF THE PEOPLE’S ADVOCATE RECOMMENDATIONS

For the purpose of making a clear presentation and to reflect an official stance of Albanian institutions regarding the issue of religious symbols, I will make reference to the only institutional documents which deal with this issue, the annual reports of the People’s Advocate31.The People’s Advocate issued its first annual report in 2001 and then it was followed by the annual reports of 2004, 2006, 2007, and 2008.Making reference to these 5 reports issued by the People’s Advocate, the problems related to the issue of religious symbols in Albania’s public schools, including secondary education, pre-university education, and higher education may be classified in two main groups:Wearing of the Islamic veil from Muslim believers, such as pupils, students, and teachers;Distinctive appearance, such as a beard peculiar to Muslim believers.

The first report which dated in 200132, included the complaints of some high school students (girls) from Tirana and Fier who had been banned to follow classes while wearing a headscarf. These girls were not allowed to exercise this practice at school premises by the

Principal’s Offices of their respective schools, taking into consideration the fact that the wearing of the headscarf during the education process went against the regulations on the basis of which high schools operated.These girls and their lawyer addressed to the People’s Advocate and claimed their rights were being violated. They cited point 2 of article 24 of the Constitution of the Republic of Albania according to which “Each and every citizen shall be free to choose or change religion or belief, as well as to display them individually, in public or in private life, through cult, education, practices, or rituals.”

It was the first time an Albanian institution was dealing with such an issue, and the violation of the above mentioned article of the Constitution was being indicated along with article 9 of the European Convention on Human Rights, which stated: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.”

In front of such a setting and in also in front of the constitutional obligation of the Albanian state to sign a special agreement with the religious communities33, which could provide a solution to this issue, the People’s Advocate recommended as follows : even though 3 years have passed from the entry into force of the Constitution and 2 years from the creation of the State Committee on Cults, as a governmental body tasked to follow all issues related to the State-religion relations, the constitutional obligation of the Government to reach the above mentioned agreements34, has not been fulfilled yet.

On the other hand, in the correspondence between the relevant education directorates and the People’s Advocate, the latter considered their actions as right and the 2001 annual report stated: The principals of the above mentioned schools were right to ban those students to follow classes while wearing a headscarf. However, such limitations should not be regulated by principals through school regulations, and not even by the Minister of Education, but the limitations should be regulated in law, which in this case can only be replaced by an agreement which can be made as stated in point 5 of article 10 of the Constitution of the Republic of Albania.

In the 2004 report, the issue of religious symbols is mentioned in distinctive appearance, beard showing Muslim religion, of a student and of a minor.In the first case, citizen P.T. complained over the fact that the Rector of the Polytechnic University of Tirana had not allowed him to receive his diploma because of the picture submitted by the student which showed him with a beard indicating his Muslim religion. The Rector supported his decision saying the diploma had not been given to the student because school is secular.

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The People’s Advocate, again in front of a new setting, made reference in this case to the Code of Administrative Procedures, and produced the argument that administrative violations had been found in the actions of the Rector of the Polytechnic University.In its correspondence with the Rector of the Polytechnic University, the People’s Advocate stated: Given that an administrative body expresses itself through administrative acts, in the current case, the Rector was explained that even when decisions are verbal, they should be justified by the body issuing them. Thus, the explanation for the issuing of an administrative act is a legal obligation, in accordance with article 108/a of the Code of Administrative Procedures. In the meantime, the issuing of an explained decision from the part of the administrative body, gives the complainant the possibility to better produce his complaint in the higher body of the hierarchy rank, the Ministry of Education. Finally, he is given the possibility of judiciary investigation of the administrative activity. Thus, pursuant to article 18 of the Code of Administrative Procedures, in order to protect the constitutional and legal rights of the individual, the latter must be equipped with the actual act issued by the body itself regarding this issue. Thus, the expression “School is secular” in the current case, cannot be considered as the explanation of an administrative act.

Following the recommendation made to the Rector of the Polytechnic University, the issue was positively solved and the complainant was equipped with the diploma and his picture with a beard was accepted.

In the second case, Citizen E. M. was not allowed to register at “Kostandin Kristoforidhi” high school because he had a beard. The school Principal considered this fact as in opposition with the cohabitation rules at school and as an excessive aesthetic appearance.In front of such setting, the People’s Advocate observed that: the rejection of the registration application created the potentials for the violation of certain rights, such as the right to express and practice religion and at the same time the right of the complainant to receive education. The situation was even more sensitive due to the fact that the complainant was a minor.

In its correspondence with the Principal’s Office of the school, the People’s Advocate recommended: In the case in question, there is an infringement of Article 18 and 26 of the Constitution of the Republic of Albania. Furthermore, Article 7 point 1 and 2 of Law No.7952 of 21 June 1995, “On the pre-university education system” states that the school is considered as secular in the event it is not financed through funds of religious organizations, it does not carry out religious propaganda, and does not discriminate the acceptance of students basing on religious belonging. Secularism normally implies the secularism of the institution and not of the individuals as well as it implies secularism in content and not in form.Thus, the Constitution, the European Convention on Human Rights, and the organic laws, do not limit the freedom of religion and religious practices, and as a consequence, an individual cannot be discriminated just for having a certain religion.The freedom to express religion or belief cannot become subject to other limitations, except from the ones envisaged in law and which are considered as indispensable in a democratic society, such as those aimed at backing the interest of public safety, preservation of order, health, and public moral or at protecting the rights and freedom of others.

In the meantime, having a beard cannot be considered as in opposition to the cohabitation norms at school and as an excessive aesthetic appearance, because it doesn’t stand in the way of the education process and it doesn’t violate cohabitation at all.Given that in the case in question the complaint of a minor was being evaluated, in accordance with the Convention “On the rights of the child,” especially articles 28 and 29, failure to provide registration also violates the right of the complainant to receive education.

The registration of the minor in the above mentioned school was enabled due to this recommendation.

The 2006 report, pointed out that the wearing of an Islamic veil by Muslim believers (girls) had expanded not just to the pre-university education but also in higher education.Citizen B.H had been suspended from the education process by the “Aleksander Moisiu” University Rector, Durres, because she accessed the premises of the university wearing an outfit typical of a woman who is a Muslim believer and covered her hair with a headscarf, which is against the Regulation of the University.In this case also, the complainant made reference to Articles 10 and 24 of the Constitution of the Republic of Albania.In its recommendation to the Rector of “Aleksander Moisiu” University in Durres, the People’s Advocate stated: Out of the variety of international acts, it can be mentioned Article 18 of the Universal Declaration on Human Rights which states that: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance,” article 9 of the European Convention on Human Rights, Convention Against Discrimination in Education, Article 26 of the International Covenant on Civil and Political Rights etc.Religious freedom and conscience as well as the freedom to express them in the public life, represent individual rights guaranteed by the Constitution of the Republic of Albania. As such, their limitation may be achieved only through law and for public interest, or for the protection of the rights of others (Article 17/1 of the Constitution). Furthermore, the limitation which might be made in such an event cannot violate the essence of freedoms and in no event it can outrun the limitations envisaged in the European Convention on Human Rights (Article 17/2 of the Constitution).On the other hand, the recommendation of the People’s Advocate made reference to the explanation of the question made by him: Could a subordinate legal act, such as the regulation, limit freedoms guaranteed by the Constitution? The answer is a straight “No.” Moreover, the People’s Advocate stated: “for this issue we should keep in mind the general principle of justice that whatever is not expressively prohibited by law, is allowed.”However, regardless of the recommendation to the Rector of the University, this issue never got a reply.At the same time, this issue was accompanied by a large public debate, both in the written and electronic media, on the secularity of the education in Albania, also making reference to European practices, especially to the echo of the French law35.On the other hand, through a recommendation to the Council of Ministers and the Minister of Education and Science, the People’s Advocate recommended: The need to regulate this issue related to the religious freedom and its exercise or limitation in the education process

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in higher education through law, as expressively envisaged for such events in the Constitution. The possible solution can be achieved through the introduction of a specific law. Such solution can also be generated through a relevant envisagement and amendment to the draft-law “On higher education in the Republic of Albania.”

The 2007 report put forward a new case in which the wearing of an Islamic veil prevented the right to employment. Citizen Z. M. filed a complaint saying that in 2001 she had completed the studies in Maths at the Faculty of Natural Sciences in the University of Tirana. However, despite she had addressed to the Education Office of Pogradec for the purpose of being hired as a teacher, she had been verbally refused this right, with the explanation that the wearing of a headscarf prevented her from being employed.

Following this complaint, the People’s Advocate addressed to the Education Office demanding explanations and information related to: which were the criteria published by the office regarding the employment of education staff and which were the results of the final test.However, despite this request and the legal and constitutional obligation of this public administration body, no official answer was ever delivered. As a result, the People’s Advocate addressed a recommendation to the Education Office of Pogradec, making reference to Articles 10, 17, and 24 of the Constitution on the one hand and to the international acts on the other hand, specifically Article 18 of the Universal Declaration on Human Rights, Article 9 of the European Convention on Human Rights, Convention Against Discrimination in Education, Article 26 of the International Covenant on Civil and Political Rights etc.

On the other hand, for the first time in dealing with this issue, the People’s Advocate made reference also to the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part 36. This agreement, in its Article 100 entitled “Education and Training,” imposes the following obligation to Albania: “ensuring that access to all levels of education and training in Albania is free of discrimination on the grounds of gender, colour, ethnic origin or religion.”

The 2008 report does not focus on specific case or cases but it makes suggestions for the draft-law expected to be introduced, the one “On religion freedom and reciprocal relations with the state37.” The suggestion calls for the addition of an envisagement with the following content to the Article regulating the limitations of religious freedom in public education institutions: “Keeping signs or clothes through which students and teachers display their religious belonging in an obvious way shall be prohibited in the public pre-university education system institutions.”

The presentation of the People’s Advocate 8-year (2001-2008) activity provides a clear reflection of the progress of the religious symbols’ issue in the education institutions of Albania, especially those related to the Muslim religion, such as wearing an Islamic veil or having a beard.

What is characteristic about all these cases is the verbal form of communication among the complainants and institutions where they receive education or exercise the right to employment. There are no official written acts by the heads of public institutions addressed to those persons who for their part made reference to the Constitution of the Republic of Albania as well as international acts ratified by the country. They have explained their religious freedom and the right to exercise it had been violated.

On the other hand, in the coherence of the activity of the People’s Advocate through recommendations proposed in the course of time, it can be said that the treatment of the above mentioned cases was dealt with only in the context of administrative violation or not. The lack of the administrative act in accordance with the requirements of the Code of Administrative Procedure of the Republic of Albania has eventually produced the invalidity of the above mentioned actions. The majority of cases presented as complaint to the people’s Advocate, have not been dealt with comprehensively. The lack of formality served always as the necessary legal basis to consider whether the actions made by state institutions were valid or not. It understandable that in its constitutional position, the People’s Advocate can only make recommendations in the event it observes violations of the fundamental human rights and freedoms (Article 63, point 3, Constitution of the Republic of Albania), but they remain just serve as recommendations and the experience has shown these recommendations have not been considered in time or have not been considered at all38.

5. CONCLUSIONS

The Albanian Society is (or should be) oriented more and more towards the awareness to take responsibilities, for the role of the individual in an already globalized world, towards the opening in a wide spectrum regarding religious issues in education, science, economy, and social justice. Therefore, the attention of public and civil society institutions should focus on efforts to raise dialogue among individuals, groups of different social strata that represent different cultures, religions, and ideologies focusing the attention the multi-dimensional issues between education and intercultural concept.The Albanian society is facing a new phenomenon, the wearing of the Islamic veil from women practicing Muslim religion in the premises of public schools, which should receive an adequate regulation of a legislative form. The issue of the relation between the state and religion, in the viewpoint of the right to education includes in itself and materializes, inter-alia, in the conceptual aspect and in the tangible practical one, of the relation between the individual and collective identity. As such, this issue calls for conclusions of a legal effect with the purpose of avoiding cases indicated in this study which have affected certain individuals who were stripped off their right to education, right to employment, etc, as a consequence of the prevalence of collective identities over individual ones, that homogeneity is not imposed to diversity.The right of religion and its implementation in the right to education should be considered in the context of the Albanian tradition and reality, over which is the tendency when it comes to accepting religious symbols in public schools. The secularism of the state, conditioned by a cultural and spiritual heritage of the past and present, must serve as the starting point of the

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argument whether Albanian public schools will allow or prohibit the wearing of the Islamic veil by Muslim women. The issue of the display of religious symbols in public institutions, in the framework of constitutional provisions, should be considered as closely connected with the fact that the Republic of Albania has no official religion and that the state is neutral when it comes to issues of religion and conscience, but it takes the responsibility to guarantee the expression of religion and conscience in public life, and that its relations with religious communities are regulated through defined respective agreements. In this context, the State of Albania guarantees its neutrality in issues of religion and belief, but at the same time it guarantees its citizens that they are free to express their beliefs and religious belonging even when it is applied in the right to education. In the conditions where the state has guaranteed through juridical means the possibility of the opening of religious schools, it is not obliged to open religious schools itself. Last, in my opinion, Albanian lawmakers, taking into consideration Albania’s tradition and current reality as well as approaches and practices of European countries, have an important role in the transition of the state from a passive neutral role, to that of active secularism, so that the religious harmony as a monumental and fragile building is not damaged as warned by Albanian distinguished writer Ismail Kadare who said: “Just one first serious fracture, just the radicalization of one of the religions, would be enough to for the building to collapse.”

6. LITERATURE

Selected Decisions of the Federal Constitutional Court of Germany. Vinsent-Grafika, Skopje, Macedonia, 2010.Les grandes décisions des cours constitutionnelles européennes. Dalloz, 2008.Olivier Dord. Interdire le port du voile islamique intégral ? Les États européens répondent, en ordre dispersé, selon des logiques nationales. Fondation Robert Schuman / Question d’europe n°183 / 18 Octobre 2010.Arben Puto. Shqipëria Politik 1912-1939 (Politic Albania 1912-1939). Toena Publications, Tirana, 2009.Roberto Morozzo della Rocca. Kombësia dhe feja në Shqipëri ( Nationality and religion in Albania 1920 – 1944). Elena Gjika, Tiranë, 1994.Luan Omari. Parime dhe institucione të së drejtes publike (The principles and institutions of public law). Elena Gjika Publication, Tirana, 1993.Ismail Kadare. Si ta ruajmë harmoninë e çmuar fetare (How to preserve the precious religious harmony). Albanian Magazine XXI, 4/2003.Leyla Sahin v. Turkey (29 June 2004).Handyside v. the United Kingdom (7December 1976).Kokkinakis v. Greqise (25 May 1993).Kushtetuta e Republikës së Shqipërisë. Qendra e Publikimeve Zyrtare. www.qpz.gov.alLaw No.8454 of 04.02.1999 “On the People’s Advocate” (as amended). Avokati i Popullit. www.avokatipopullit.gov.alThe People’s Advocate. Annual reports of 2001, 2004, 2006, 2007, and 2008. Avokati i Popullit. www.avokatipopullit.gov.alCommentary. Code of Administrative Procedure, page 23-27. Institute of public and legal studies. Tirana, 2001.

Jean-Francois Akandji-Kombe, Positive Obligations under the European Convention on Human Rights. A guide to the implementation of the European Convention on Human Rights. Human rights handbooks, No. 7.Albanian Dictionary. Published by the Institute for Linguistics and Literature, Academy of Science of the Socialist People's Republic of Albania, Tirana, 1984.The Stabilization and Association Agreement entered into force on 1 April 2009, following its ratification from the 25 EU Member States, which were part of the community when the SAA was signed and was then adopted by the Albanian Parliament.Ministria e Integrimit. www.mie.gov.alLaw No. 8902, of 23.5.2002 “On the ratification of the agreement between the Republic of Albania and the Holy See on the regulation of reciprocal relations." Qendra e Publikimeve Zyrtare. www.qpz.gov.alLaw No.10 056, of 22.1.2009. “On the ratification of the agreement between the Council of Ministers of the Republic of Albania and the Muslim Community in Albania on the regulation of reciprocal relations.”Qendra e Publikimeve Zyrtare. www.qpz.gov.alLaw No.10 057, of 22.1.2009 “On the ratification of the agreement between the Council of Ministers of the Republic of Albania and the Orthodox Autocephalous Church of Albania on the regulation of reciprocal relations”. Qendra e Publikimeve Zyrtare. www.qpz.gov.alLaw No.10 058, of 22.1.2009 “On the ratification of the agreement between the Council of Ministers of the Republic of Albania and the World Headquarters of the Bektashi Community on the regulation of reciprocal relations”.Qendra e Publikimeve Zyrtare. www.qpz.gov.alLaw No. 10221, of 04 February 2010 “On the protection from discrimination”. Qendra e Publikimeve Zyrtare. www.qpz.gov.alDraft-law « On pre-university education . Ministria e Arsimit dhe Shkences. www.mash.gov.alThe letter of the Muslim Community sent to the Prime Minister, Minister of Education and Science, and the Chair of the State Community of Cults, prot. No. 581 of 27 December 2010. Ministria e Arsimit dhe Shkences. www.mash.gov.al1979 Constitution of the Socialist People's Republic of Albania, adopted in Law No. 5506, of 28 December 1976. Qendra e Publikimeve Zyrtare. www.qpz.gov.alLaw No.5591, of 15 June 1977, Criminal Code of the Socialist People's Republic of Albania. Qendra e Publikimeve Zyrtare. www.qpz.gov.alLaw No.7692, of 31 March 1993 ‘On an annex to Law No.7491, of 29 April 1991 “On the main constitutional provisions. Qendra e Publikimeve Zyrtare. www.qpz.gov.al1929 Civil Code. Papirus Publication, Tirana, 2010

Endnotes

1. Dr. Juliana Latifi. Lecturer in Education Law. Director of the Master School ‘Justicia’ University, Tirana, Albania.

2. This draft-law drafted by the Ministry of Education and Science is being discussed with the groups of interest since December 2010.Official webpage of the Ministry of Education and Science of the Republic of Albania. www.mash.gov.al

3. Ismail Kadare. Si ta ruajmë harmoninë e çmuar fetare (How to preserve the precious religious harmony) Albanian Magazine XXI, 4/2003, page 14. Albanians’ first religion, Catholicism, old almost as the one of Rome, was the only one in this

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country for almost 1000 years. The separation of the Roman Church from that of Byzantium, the borders of which passed almost in Albania, would produce the first conversion of some Albanian Catholics into Orthodox. Some centuries later, the invasion of the Balkans by the Ottoman Empire, would produce, along with the army and administration, a new religion: Islam. Not only had a part of Albanians converted. The conversion phenomenon was broadly observed in the peninsula.

4. Arben Puto. Shqipëria Politik 1912-1939 (Politic Albania 1912-1939). Toena Publications, Tirana, 2009, page 474. The census undertaken in May 1930 provided a comprehensive framework. The total population in the country was 1.000.312: Muslims-688.280, Orthodox -210.313, Catholic -104.184, Greek Minority -37.270…”

5. Arben Puto, quoted material, page 471.6. Roberto Morozzo della Rocca. Kombësia dhe feja në Shqipëri (Nationality and religion in Albania

1920 – 1944). King Zog I Policy “On secularism and modernization of the State of Albania”, Elena Gjika, Tiranë, 1994.

7. Arben Puto, quoted material, page 338.8. See, Civil Code of 1929. Papirus Publication, Tirana, 2010.9. See, the 1979 Constitution of the Socialist People's Republic of Albania, adopted in Law No. 5506,

of 28 December 1976, in Article 37, it stated: The State shall not recognize religion and shall support and develop atheistic propaganda in order to plant the materialist scientific mentality on the citizens. Qendra e Publikimeve Zyrtare (Official Publications Centre). www.qpz.gov.al

10.See, Law No.5591, of 15 June 1977, Criminal Code of the Socialist People's Republic of Albania, Article 55 Agitation and propaganda against the state: Religious agitation and propaganda as well as the preparation, distribution, and preservation of literature with religious content to weaken or undermine the state of the dictatorship of the proletariat, shall be punished with imprisonment from three to ten years. Qendra e Publikimeve Zyrtare (Official Publications Centre). www.qpz.gov.al

11.See, Law No.7692, of 31 March 1993 ‘On an annex to Law No.7491, of 29 April 1991 “On the main constitutional provisions”’. Article 18. Freedom of conscience and religion. Official Gazette No. 4/1993. Qendra e Publikimeve Zyrtare (Official Publications Centre). www.qpz.gov.al

12. Ismail Kadare, in the same material, page 14-16.13.Commentary. Code of Administrative Procedure, page 23-27. Institute of public and legal studies.

Tirana, 2001.14.Jean-Francois Akandji-Kombe, Positive Obligations under the European Convention on Human

Rights. A guide to the implementation of the European Convention on Human Rights. Human rights handbooks, No. 7.

15.BVerfGE 93, 1 (Kruzifix), page 195. Selected Decisions of the Federal Constitutional Court of Germany. Vinsent-Grafika, Skopje, Macedonia, 2010.

16.Attila Harmathy. Les grandes décisions des cours constitutionnelles européennes . Liberté de pensée, de conscience et de relogions et séparation de l’église et l’état. Cour constitutionnelle hongroise . Selon la décision n.4/1993 (II.12, AB, Recueil ABH 1993, 48) l’état doit avoir une position neutre dons la question de conscience et de religion. La liberté de conscience e de religion est protégée par l’état qui garantit la possibilité pour les citoyens de prendre positions librement. Les écoles relevant de l’Etat doivent être neutres sur les questions de religions. L’état doit garantir les possibilités juridiques d’ouvrir des écoles confessionnelles mais l’état n’est pas oblige d’ouvrir de telles écoles. Les grandes décisions des cours constitutionnelles européennes. Dalloz, 2008, page 282.

17.BVerfGE 93, 1 (Kruzifix), page 193. Selected Decisions of the Federal Constitutional Court of Germany. Vinsent-Grafika, Skopje, Macedonia, 2010.

18.See, Law No. 10221, of 04 February 2010 “On the protection from discrimination ,” Article 1, Subject. Official Gazette No. 15/ 2010, page 482-494. Qendra e Publikimeve Zyrtare (Official Publications Centre). www.qpz.gov.al

19.Draft-law « On pre-university education », Article 36, Limitations of some actions in an education institution1. The organization of political and/or religious activities in education institutions, with students or

employees of the institution, shall be prohibited.2. The ideological indoctrination of students in education institutions shall be prohibited.3. The employees of the education institution shall not be allowed to oblige students participate in

political and/or religious activities, which are not included in the institution’s action plan.4. The display of religious symbols in education institutions shall be prohibited, except for religious

schools.Official webpage of the Ministry of Education and Science of the Republic of Albania. www.mash.gov.al

20.The letter of the Muslim Community sent to the Prime Minister, Minister of Education and Science, and the Chair of the State Community of Cults, prot. No. 581 of 27 December 2010. Among other things, the letter states: “In order for this issue to be given a rapid solution, so the interpretation of the Article under question of the draft-law on pre-university education leaves no room for equivocal in the future, so that especially point 4 of Article is clear and easily obvious in its interpretation, in order to imply that in no event this article includes the individual practice of religion by the students and teachers for as long as education is carried out within the adopted curricula limits and education program, and if the article always respects the dignity, individuality, identity, and belonging of others, that it fulfils all criteria that enable the free practice of religious practices and their quiet expression in public and private life. We call for the change of especially point 4, of Article 36 in another linguistic form, addressing it our concerns and receiving reply for them. Concretely, it should be made clear when reading or interpreting the law, that the given norm implies just the prohibiting to put objects of a religious context or symbolic, within the premises of education institutions, such as relics, landscapes, audio or visual objects.” Official webpage of the Ministry of Education and Science of the Republic of Albania. www.mash.gov.al

21.See, Albanian Dictionary, Published by the Institute for Linguistics and Literature, Academy of Science of the Socialist People's Republic of Albania, Tirana, 1984.Making reference to the Albanian dictionary, there is no definition for this expression. The words symbol and religious can be found dealt with separately.

22.BVerfGE 39, 98, page 183. Selected Decisions of the Federal Constitutional Court of Germany. Vinsent-Grafika, Skopje, Macedonia, 2010.

23.Leyla Sahin v. Turkey (29 June 2004) A margin of appreciation is particularly appropriate when it comes to the regulation by the Contracting States of the wearing of religious symbols in teaching institutions, since rules on the subject vary from one country to another depending on national traditions and there is no uniform European conception of the requirements of “the protection of the rights of others” and of “public order”. It should be noted in this connection that the very nature of education makes regulatory powers necessary. That, of course, does not exclude European supervision, especially as such regulations must never entail a breach of the principle of pluralism, conflict with other rights enshrined in the Convention, or entirely negate the freedom to manifest one’s religion or belief.

24. Ismail Kadare, in the same material, page 14.25.BVerfGE 93, 1 (Kruzifix), page 196. Selected Decisions of the Federal Constitutional Court of

Germany. Vinsent-Grafika, Skopje, Macedonia, 2010.26.Luan Omari. Parime dhe institucione të së drejtes publike (The principles and institutions of public

law. Elena Gjika Publication, Tirana, 1993, page 133-137.

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27.BVerfGE 93, 1 (Kruzifix), page 192. Selected Decisions of the Federal Constitutional Court of Germany. Vinsent-Grafika, Skopje, Macedonia, 2010.

28.Handyside v. the United Kingdom (7December 1976).29.Olivier Dord. Interdire le port du voile islamique intégral ? Les États européens répondent, en

ordre dispersé, selon des logiques nationales. Fondation Robert Schuman / Question d’europe n°183 / 18 Octobre 2010.L’interdiction du port du voile intégral peut-elle devenir un trait caractéristique de l’Europe des droits de l’Homme ? L’étude de la situation dans six États membres de l’Union européenne met en lumière la diversité des réponses nationales. Celles-ci reflètent, sauf instrumentalisation du débat, le cadre politico-juridique spécifique qui organise, dans chaque pays, les rapports entre la puissance publique et les religions. Parmi les États qui sont favorables à une interdiction générale du voile intégral, la France est la seule, à ce jour, à s’être dotée d’une telle législation. La Belgique et les Pays-Bas sont sur cette même voie. D’autres pays, en revanche, comme l’Espagne, s’interrogent.Enfin, il est des États qui refusent d’interdire totalement le niqab et la burqa au nom d’une conception particulièrement respectueuse de la liberté religieuse. L’Allemagne, pour des raisons juridiques, et le Royaume-Uni, pour des raisons politiques, partagent cette position.

30.Kokkinakis v. Greqise (25 May 1993) 31.The People’s Advocate, as a constitutional institution was established pursuant to Law No.8454 of

04.02.1999 “On the People’s Advocate” (as amended).Official webpage of The People’s Advocate of the Republic of Albania. www.avokatipopullit.gov.al

32.Official webpage of The People’s Advocate of the Republic of Albania. www.avokatipopullit.gov.al 33.The Constitution of the Republic of Albania, Article 10, point 5 states: The relations between the

state and religious communities shall be regulated on the basis of agreements reached between their representatives and the Council of Ministers. These agreements shall be ratified by the Parliament.

34.Four religious communities, belonging to the Muslim religion (Sunni and Bektashi), catholic religion, and orthodox religion, are currently established in Albania. Their relations to the state are regulated through the following agreements:1. Law No. 8902, of 23.5.2002 “On the ratification of the agreement between the Republic of

Albania and the Holy See on the regulation of reciprocal relations." 2. Law No.10 056, of 22.1.2009. “On the ratification of the agreement between the Council of

Ministers of the Republic of Albania and the Muslim Community in Albania on the regulation of reciprocal relations.”

3. Law No.10 057, of 22.1.2009 “On the ratification of the agreement between the Council of Ministers of the Republic of Albania and the Orthodox Autocephalous Church of Albania on the regulation of reciprocal relations”

4. Law No.10 058, of 22.1.2009 “On the ratification of the agreement between the Council of Ministers of the Republic of Albania and the World Headquarters of the Bektashi Community on the regulation of reciprocal relations”

5. Qendra e Publikimeve Zyrtare (Official Publications Centre). www.qpz.gov.al35.Olivier Dord. Should the full Islamic veil be banned? European States respond in various ways

according to their own national rationale. Foundation Robert Schuman / European Issue n°183 / 18 October 2010.

36.3See, The Stabilization and Association Agreement entered into force on 1 April 2009, following its ratification from the 25 EU Member States, which were part of the community when the SAA was signed and was then adopted by the Albanian Parliament.Official webpage of The Ministry of Integration of the Republic of Albania. www.mie.gov.al

37.The necessity for such a law was discussed and debated by the public opinion. There is no tangible proposal made by the Council of Ministers or other institutions.

38.People’s Advocate 2008 annual report. Recommendation: “On the initiation of issuing a law on the regulation of religious symbols in public schools.” To the Prime Minister and the Minister of Education and Science, 26.04.2001.Recommendations to the Parliament of Albania in the 200-2008 period, on additions or amendments to laws. Official webpage of The People’s Advocate of the Republic of Albania. www.avokatipopullit.gov.al

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12 Bahaeddin BudakIna ter Avest

The Islamic School Makes Me Strong

‘The Islamic School Makes Me Strong’

Identity Development and Integration: Report on a Qualitative Survey Amongst Seven Ex-Pupils of an Islamic Primary School in

the Netherlands

Bahaeddin Budak and Ina ter Avest1

1. INTRODUCTION

It is impossible to imagine life in Europe today without the Islam debate: everyone indeed has an opinion on it (Vanderwaeren, Els; Timmerman, Christiane, 2008, p. 7). Islamic schools in the Netherlands are part of this debate, and are therefore regularly in the picture. Article 23 of the Dutch Constitution provides for the option to establish and arrange for education to children in correspondence with the own view of life. This gave Islamic parents the opportunity to found school on an Islamic basis. During the last decades of the previous century, a fourth socio-political group emerged in the so called pillarized Dutch education system. Apart from public, protestant, and roman-catholic schools, the Netherlands now also has Islamic schools. With regard to those developments, Islamic education is a typically Dutch phenomenon.The first two Islamic primary schools started out during the 1988 school year (Inspectie van het onderwijs [Schools Inspectorate], 1999, pp. 5, 13). From 1990, the amount rapidly increased to thirteen schools in 1992 (Landman, 1992, p. 260). In 2012, there are 43 primary schools on an Islamic basis and 1 school for Secondary Education (ISBO, 2011). In general, municipalities did not behave very cooperative at the start of these schools. The main reason for the opposition at the foundation of these schools was the argument that they would promote isolation and therefore would not be beneficial for the integration of Muslims in the Netherlands. Apart from that, questions were raised about the quality of the Islamic primary education (Landman, 1992, pp. 262-263; see also Shadid & Van Koningsveld, 1992, pp. 157-170). Various ideas about Islamic education appear to exist amongst various stake holders. There seems to be a gap between outsiders and insiders. In this article, we offer a stage for the insiders, namely ex-pupils who have attended an Islamic primary school themselves.In this contribution, we wish to explore ‘the gap’, especially the assumed lack of integration of pupils from Islamic schools. Thereto we will first sketch an image of the genesis of Islamic education in the Netherlands, as well as current developments in Section 1. The second Section is dedicated to the theoretical framework within which our research is situated. In Section 3 we will formulate our research question and sketch the research subject. By means of an example we will provide one ‘portrait’ as we have described from all participants in this survey in Section 4. The analysis of all seven ‘portraits’ will subsequently be presented in the same Section. Finally, our conclusions and recommendations will be presented in Section 5.

2. GENESIS AND CURRENT STATUS OF ISLAMIC EDUCATION IN THE NETHERLANDS

The arrival of Islamic migrant workers in the Netherlands, and especially the arrival of women and children, resulted in the extension of the pillarizedDutch educational system with a new pillar: the Islamic pillar (Ter Avest & Miedema, 2007). Rather soon after the foundation of the first Islamic schools this new pillar caught a lot of attention in the media as well as in popular and professional literature. Currently, 70% of the pupils in the Netherlands attend education at a school belonging to one of the four pillars. Around 30 percent of the pupils attend a public school, 34 percent attend a roman-catholic one, 28 percent a protestant one, and 8 percent a so-called ‘general special school’- schools where a specific pedagogic movement determines the identity of the school. Of those 8 percent, 1 percent attends an Islamic school (Centraal Bureau voor de Statistiek (Dutch Central Bureau of Statistics), 2009, p. 16). Please refer to Figure 1.

Figure 1: division in percentages of pupils among segmented education in the Netherlands.

The education financed by the authorities in the Netherlands is very diverse. The authorities do supervise but are not the owner of an educational institution. Because parents can choose for a certain school type, we could advance that the real owner of the school is the parents themselves. All educational institutions in the Netherlands are managed by boards that are organised around foundations or associations with either a religious background or not. The authorities do not employ staff and do not develop lesson materials – they do set core targets though (SLO 1993, 1998, 2006; Greven and Letschert, 2006). The Inspectorate of the educational

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system provides general guidelines and supervises, whereby the following guidelines apply: freedom of expression, equality, understanding of others, tolerance, intolerance, discrimination (Inspectie van het onderwijs, 2003, pp. 65, 66). In principle, the authorities do not mix in with the contents of religious education (Freedom of Education, Article 23, Sections 2 and 3). Still, because of media pressure in 2002 and 2003, the inspection included religious education of Islamic schools in its survey (Inspectie van het onderwijs, 2002, and Inspectie van het onderwijs, 2003).The new Islamic offspring of the stem of the Dutch educational system is a regularly recurring subject in the social and political debate (Shadid & Van Koningsveld, 1990, p. 106). This debate shows overlapping with the discussion surrounding the integration of Muslims in the Netherlands. The Leiden researchers Shadid and Van Koningsveld have called this "the Myth of the Islamic peril" (Shadid & Van Koningsveld, 1992).In 1999, the developments identified as perils resulted in a survey into the Islamic school by the Dutch Schools Inspectorate (Inspectie van het onderwijs). In this survey, ‘Islamic primary schools in the Netherlands’, 28 schools were investigated on the quality of their education. The Inspectorate concluded on the basis of this survey that the quality of the schools compared to schools with a same population is not worse, and in some regards even better (Inspectie van het onderwijs, 1999, p. 30). In this survey, the Inspectorate furthermore indicates that although indeed it is not the task of the Inspectorate to conduct a survey on the objectives of the schools and whether they have achieved those objectives as far as integration in Dutch society whilst maintaining their own culture and religion is concerned (Inspectie van het onderwijs, 1999, p. 30), it cannot – now that it indeed did do so – draw a different conclusion than that Islamic education does not hinder integration of Muslims in Dutch society. Nevertheless the Dutch Counter Intelligence was assigned in the year 2002 to once again carry out a survey regarding Islamic primary schools with as focus 'the democratic legal order and Islamic education'. In that same year, the Inspectorate carried out its second survey whereby ‘social cohesion’ was at the centre point (Inspectie van het onderwijs, 2002). The final conclusion of the second survey of the Inspectorate was that Islamic schools more or less pay a positive contribution to the enhancement of social cohesion in Dutch society (Inspectie van het onderwijs, 2002, p.42). This conclusion did not dispel the atmosphere of distrust and suspicion, however. In the year 2003, the Inspectorate carried out a subsequent survey on Islamic education and social cohesion: ‘ Islamic school further investigated’ (Inspectie van het onderwijs, 2003). The discussions surrounding integration and Islamic education have resulted in the fact that the Inspectorate has added a new supervision framework 'Active citizenship and social integration' to the existing guidelines as of 1 February 2006. These new guidelines were formulated in order to be able to test all schools on their contribution to social cohesion in society (Inspectie van het onderwijs, 2008, p. 41). Therewith Islamic education – against all odds – has provided an important innovatory impulse to Dutch education.The main reason at all aforementioned surveys is that one suspects and/or fears that Islamic schools constitute a hindrance to the integration of migrant pupils. It is feared that a gap between ‘the Muslim’ and ‘the Dutch’ society emerges. The cultural sociologist Van der Meij distinguishes between conceptualisation by outsiders (image) and the self-image (identity) of Islamic schools (Van der Meij, 2012, p. 16). Ex-pupils of Islamic schools (insiders) are confronted with the images as they are construed in society (by outsiders) – a society of

which they themselves are part as well. How do they look back on and value their education and formation in Islamic primary education, and how do they look at the influence of Islamic religious education on them being integrated in Dutch society or not?Based on the above we have formulated the following research question: What is the image that ex-pupils of an Islamic primary school have of the education that they have enjoyed, and how do they value the contribution of that education to their integration in the Netherlands?By means of qualitative research we expect to find answers to these questions. Before we present the setup and work method of our survey, we will further elaborate on the theoretical framework within which this survey takes place.

3. THEORETICAL FRAMEWORK

Our survey focuses on identity development of Islamic pupils and their being integrated in Dutch society or not. The sociologist John Berry sketches various acculturation strategies in his model, which he bases on the answers of his respondents to two questions. Those questions are displayed in the diagram below.

Figure 2: four acculturation strategies according to Berry

In literature, a lot has been written on the (non)integration of migrant worker in the Netherlands. Three final stages can be distinguished in the process of integration (Van Amersfoort, in: Eldering 2002, p. 28 ff.). The most drastic final stage is absorption (or

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assimilation). In that case the group of migrants has completely merged with the receiving society. Groups of Huguenots who once came to the Netherlands resort under that category. In some cases, in private life characteristics from the culture that was left behind are maintained. For example: the customs regarding marriages or the celebration of religious holidays. This applies for example to groups of East Europeans who came to the Netherlands. A third final stage that is described is that of the minority. A minority is in this case a group of persons who have a low social position in society for several generations. More important than the final stage is, according to Berry, the attitude that the worker migrant has with regard to the own and the receiving culture. He distinguishes between four acculturation strategies (Berry, in: Eldering 2002, p. 30 ff.). If one finds it important to maintain the own cultural identity and at the same time one also finds it important to maintain relations with other groups in society, Berry describes this as a sound integration process. If one does not find it important to maintain the own cultural identity and one maintains relations with other group in society, we speak of assimilation. If one does not find it important to maintain relations with other groups in society but is strongly attached to the own identity, and is also mainly oriented at the own group, according to Berry segregation is concerned. In Figure 2 these acculturation strategies have been displayed schematically. Apart from the own attitude of the migrant, the way in which the receiving society reacts to the arrival of newcomers plays a role as well.

4. RESEARCH DESIGN AND METHOD

The questions like those on which Berry bases his acculturation strategies are translated into interviews for the semi-structured interview with seven ex-pupils from an Islamic primary school in the Netherlands.The Islamic primary school which these ex-pupils attended is located in a medium sized city in the heart of the Netherlands. This school was founded in 1991. The vision of this school is: “the school is a Dutch primary school with Islamic foundations that focuses on integration whilst maintaining the own Islamic standards, values, and culture. Children are educated here in order to be able to successfully attend subsequent education as well as to function properly within Dutch society. This is the school where you become who you are.”Via the snowball method a group of seven respondents was composed. With all these seven respondents a semi-structured interview was conducted; semi-structured in order to provide both interviewer and the interviewee with room to further elaborate on a certain aspect if necessary. All seven respondents have enjoyed at least six years of education at this primary school. Four of the respondents are female and three are male. The age of these respondents was between 17 and 27 by the time the interview took place.For this interview an items list was constructed whereby the focus was on (religious) identity development and integration. Each respondent was interviewed individually, except for two female respondents who indicated that they wanted to be interviewed together. The interviews were recorded with a voice recorder and subsequently transcribed. The interviews took place in an office space in the city the school is situated in. On average, the interviews lasted 15 minutes, with one exception of 11 minutes and one of 20 minutes.

The interview were analysed by means of close reading. Characteristic concepts of one interview were taken along to the next interview. New concepts were introduced in a second round of analysis during the analysis process. In this way, a ‘portrait’ of each respondent emerged. As an example, we described the portrait of one of the respondents below.

Portrait of Selma“I realise that I start to find myself a little bit"The religious lessons have taught Selma how she should behave properly, such as showing respect to the elderly and friends. Selma is of the opinion that the religious lessons have had a major influence on her way of thinking. She observes the rules of Islam since she believes in them, but also consciously chooses fort hem. ‘There are some things that I will absolutely not do, since Islam does not permit them, but I also know that they are bad', she says. Selma regards Islamic education as a hold during puberty for the development of her personality. 'I believe that Islam is a hold for us'. She indicates that Islam has always played in important role for her. According to Selma, integration does not mean that you participate in everything, but that you can make conscious choices. Selma says: 'I attended a secondary school where all sorts of people were represented, so to speak, and you then adapt and start celebrating their holidays, whereas normally you did not do so, and after secondary school – I am currently attending intermediate vocational education – I now have my own rules. I notice that I am finding myself a little bit’. Selma shares a great many things with her classmates, whether they are Muslim or not. When Islam or terrorism is discussed, Selma tries to differentiate the picture: ‘You then end up in defence. Well, I then explain to them that not every Muslim is like that, and that a Muslim should not behave like that’. She makes it clear that one should not brandish Muslims in general. Of other Muslims who did not attend an Islamic school Selma is of the opinion that they are different and are not ‘doing well’. She notices that youngsters are interested in alcohol and show bravura, which she rejects. She tries to correct this by warning them that this is improper. If this doesn’t have any effect, she simply leaves: ‘Often when something like that happens next to me, I simply leave, for that matter I don’t feel at ease in such situations anyway, but I do try to warn them, since it is improper’.Selma is of the opinion that Islamic education should be offered at a fairly early stage. ‘If you teach Islam to a child that is still young, then it will be more effective at an early stage'. By developing a strong personality, the Muslim youngster will get to know him/her self more properly and therefore be better able to participate in society.

5. RESULT OF THE ANALYSIS OF SEVEN ‘PORTRAITS’

In this Section we present the results of the analysis of the ‘portraits’ of seven ex-pupils of an Islamic primary school in the Netherlands. The Islamic religious lessons have contributed for all seven pupils to the realisation of their religious identity. For one, the stress thereby lays more on the life rules that Islam provides, such as respect for parents/the elderly, not drinking alcohol and not smoking: that provides a hold. For another, it is more about general values as being receptive to others, showing

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respect for those who think differently. ‘Being open for others’ is made concrete in wanting to hear and see the news from various sides – including the Al Jazeera side when it comes to the negative reporting on Islam and Muslims in the Dutch media. The rule that was learned during Islamic religious lessons ‘what I do not want for myself, I should not want for someone else either’ has become a slogan for life, according to one of the respondents. Another respondent says that she remembered from the religious lessons that she should be an example ‘for the group, for the community’. Yet another says that the (mono-religious) religious lessons saw to it that 'you are actually stronger at being yourself'; the Islamic school has made this respondent stronger, because of which this respondent according to herself can function better in society. Most respondents stress the importance of early socialisation (at primary school) in the religious tradition; ‘a child learns easily, and then things are left behind stronger’. The baggage of primary school is of great influence during puberty, states one of the respondents. One was provided with knowledge during the Islamic religious lessons and can therefore balance a possibly incorrect view (in the media, with ‘the’ Dutchman). One is, when following the categorisation of Berry, strongly oriented on the Islamic community, and simultaneously active in acquiring an own position in Dutch society.Not having followed any Islamic education means according to some respondents that you are superfluous. Therewith is meant that one cannot think sufficiently about the meaning of being Muslim. These ex-pupils therewith indicate that in that case it can happen that one completely follows Dutch society; Berry would in that case refer to this as an acculturation process towards assimilation. One respondent relates that to language: that you do not know sufficient words to reflect in a differentiated manner on the own belief system and religious tradition and the meaning thereof for everyday life. Another person signals that Muslims who have not enjoyed Islamic religious education could sometimes ‘probably get off the right track and also try to defend that as if it is all not that bad’. According to one of the respondents, integration means studying and working in the Netherlands, combined with visiting the mosque. Herewith one of the acculturation strategies of Berry is clearly described. One of the respondents says that she would be regarded as integrated as far as language is concerned but ‘for the remainder I still know that this is not my own place, although I am happy here’. This sort of contradictory feelings is experienced as difficult by some respondents since ‘they’ assign them with a certain identity (‘the Muslim’ as anti-Western and aggressive) whereto one does not relate oneself. They have the feeling to be perceptible only ‘half’ because of that ‘assigned identity’. Each of the respondents is however prepared to enter into a discussion about Islam and the Muslim identity, although some also state becoming 'a little bit tired' of telling ‘that not every Muslim is like that’ all the time and having to defend themselves. One of the respondents regards being integrated as being adjusted to the society in which you live and ‘that you are considerate’ and ‘take others into account’. Values and rules from Islam prevail above values and standards from Dutch society, states one of the respondents at the same time: ‘I can easier identify myself with the Dutch values and standards than with those of another country; at the same time I am a Dutch Muslim’. Another respondent says: ‘I am well integrated and I may decide for myself whether I do it or not’. By ‘it’ is understood by one person accepting interest, and by another person to address parents by their first name or not. All respondents stress that they want to assume the agreements with ‘the other’ in society.

6. CONCLUSIONS AND RECOMMENDATIONS

Islamic schools in the Netherlands have a relatively short history. Although they fit in with the Dutch pillarized educational structure, they are regularly in the centre of criticism. This not only applies for the schools: the (ex-)pupils of those schools are regularly enforced an identity which ‘they’ in Dutch society are critical towards as well. ‘They’ think and/or fear that Islamic schools isolate and alienate pupils from society; the foundation of these schools would hinder the integration of Muslims in the Netherlands. In short: a negative image prevails. If we were to regard the answers from these ex-pupils according to the new guidelines of the Inspectorate in which freedom of expression, equality, understanding of others, tolerance/intolerance, and (non-)discrimination are mentioned, these seven interviewees would score far above average on all these aspects.Our research question is however not so much focused on the criteria of the Inspectorate, but more on the image that Muslims themselves have created of their Islamic education. Our research question has been formulated by us as follows: What is the image that ex-pupils of an Islamic primary school have of the education that they have enjoyed, and how do they value the contribution of that education to their integration in the Netherlands?The results of the analysis of the interview texts show a differentiated picture from what prevails in Dutch media and with ‘the man in the street’. Opposite of the negative image from the outside world, ex-pupils sketch from the inside a positive image of the Islamic education as they have enjoyed it. The seven pupils that we have interviewed are happy that they have attended an Islamic primary school and experience it as an enrichment what was handed to them during religious lessons. This education has provided a positive contribution to their religious identity development, and has positively influenced the acculturation process towards integration. During the interviews we hear that they are happy, self-confident, and able to adequately reply to critics - thanks to the religious education they enjoyed at the Islamic primary school which made them literate in the religious field. They actively participate in Dutch society, although they sometimes become tired of the attitude of the receiving society.In view of the theoretical framework used by us, we can state based on the interviews that these seven respondents have been properly integrated. They all have a relation with their environment, although they sometimes become tired of having to defend themselves against the stereotype image of ‘the’ Muslim. Each in their own way they state being proud of the own religious identity. For some, these values are higher than Dutch values; others assume that they can choose themselves when they let which values prevail over others – depending on the context in which they are. The latter deserves further research. Which trade-off do Muslims make during situations in which a conflict of values occurs? Which tools do they then have to make that trade-off and – something that is especially important for education – how do we create such instructive environment in the educational field that children and students can develop these tools, so that they become aware of the situation of choice and are sufficiently literate in religion so that they can consciously substantiate their choice as devout Muslim in a Dutch context, with which they can bridge the supposed contradictions in Dutch society or not.

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7. BIBLIOGRAPHY

Avest, I. t. (2011). Stem en tegen stem. doorheen de verwarring van de ontmoeting met de ander. Amstelveen: Hogeschool InHolland.Bakker, C., Ter Avest, I., (2008). Stel je voor; de kunst van het beleven en het ontmoeten. Identiteitsbeleving op de basisschool. In: Meijlink, K., Abram, I., & van den Berg, B. (2008). Utrecht: Marnix Academie Utrecht en het Utrechts Centrum voor de Kunsten.Dutch Central Bureau of Statistics (2009). Jaarboek onderwijs in cijfers. The Hague: CBS.Greven, J. and J. Letschert (2006). Kerndoelen Primair Onderwijs. The Hague: Dutch Ministry of Education, Culture & Science (OC&W).Homepage Dutch Constitution. (2012, January 9). Visited on January 9, 2012, Dutch Constitution: http://www.denederlandsegrondwet.nl/9353000/1/j9vvihlf299q0sr/vi5kn3s122s4IbniSina. (2012). home Visited on January 7, 2012, ibnnisina: http://www.ibnisina.nl/Dutch Schools Inspectorate. (2008). Bestuurlijke praktijken in het islamitisch onderwijs. Utrecht: Dutch Schools Inspectorate.Dutch Schools Inspectorate. (1999). Islamitische basisscholen in Nederland. s.l.: Dutch Schools Inspectorate.Dutch Schools Inspectorate. (2002). Islamitische scholen en sociale cohesie. Utrecht: Dutch Schools Inspectorate.Dutch Schools Inspectorate. (2003). Islamitische scholen nader onderzocht. Utrecht: Dutch Schools Inspectorate.ISBO, D. (2011, June 21). De ISBO. Visited on June 21, 2011, ISBO: http://www.deisbo.nl/?page_id=2376Jeronimus, J. (2002, 11 2). Zalm wil godsdienstonderwijs beperken. Visited on January 24, 2012, pedagogiek.net: http://www.pedagogiek.net/content/artikel.php?contentID=295&sectieNR=ALandman, N. (1992). Van mat tot minaret. De institutionalisering van de islam in Nederland. Amsterdam: VU Uitgeverij.Meij, L. v. (2010, February). Archief visie en missie ISBO. Visited on February 9, 2012, deisbo.nl: http://www.deisbo.nl/wp-content/uploads/2009/03/identiteitislamitischonderwijs.pdfMeij, L. v. (2012). Evolutietheorie en islamitisch onderwijs. The Hague: Paagman.Meijer, A. W. (2006). Traditie en toekomst van het islamitisch onderwijs. Amsterdam: Bulaaq.Shadid, W., & Van Koningsveld, P. (1992). De mythe van het islamitische gevaar. hindernissen bij integratie. Kampen: J.H. Kok.Shadid, W., & Van Koningsveld, P. (1990). Vooroordelen, onbegrip en paternalisme. Utrecht: De Ploeg.SLO (2006). Herziene kerndoelen primair onderwijs. Enschede: Stichting Leerplan Ontwikkeling.Vanderwaeren, Els; Timmerman, Christiane. (2008). Preface. In: E. Vanderwaeren & C. Timmerman, Diversiteit in Islam. Over verschillende belevingen van het moslim zijn (p. 7). Leuven: Acco.

Endnotes

1. In Holland University of Applied Sience, Amstelveen, the Netherlands

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13 Michael P. Donnelly

Respect for Philosophical and Religious Convictions of Parents in Education‘Real Pluralism and Real Democracy Require Real Choices for Parents’

Respect for Philosophical and Religious Convictions of Parents in Education ‘Real Pluralism and Real Democracy Require Real

Choices for Parents’

Dr. Michael P. Donnelly1

! ! ! ! !

1. INTRODUCTION2

In June 2009, seven-year-old Domenic Johansson was seated on an international flight with his parents. The family was moving from Gotland, Sweden to his mother’s home country of India. Annie and Christer Johansson planned to open a ministry to orphanages and to be near family. Minutes before the doors closed and without any warning, armed officers stormed the plane and took a stunned Domenic into state custody. Although subsequent court documents indicate that Domenic had a few cavities and had not received government-recommended vaccinations, local authorities initiated the seizure because he had been cared for and homeschooled by his mother.3 Annie Johansson had two earned university degrees. However, in Sweden, where 90% of 18-month-old children are in state-run daycare and only about one hundred families homeschool, this automatically placed the Johansson’s outside the mainstream of society. Apparently this is reason to seize a child and put him in foster care without any prior notice or hearing. As of October 2012 Domenic has still not been returned to his parents and has not had any contact with them for nearly almost two years!Mrs. Lydia Froehlich of Salzkotten, Germany was imprisoned for ten days in July 2011 because she would not permit her child to participate in an elementary school sexual education program. The program presented to students in the third and fourth grade was a stage project called “My body belongs to me!” The program was characterized as a sexual abuse prevention program. However, applicants Eduard and Rita Wiens and others asserted that the program violated their religious convictions by teaching “to make a child’s own feelings and will the basis of his or her sexual behavior” (ECHR Dojan: 6). After losing in all appeals courts in Germany, the family took their case to the European Court of Human Rights (“ECHR"). In September 2011 the Court dismissed their application, writing that Germany was within its “margin of appreciation” to imprison parents who seek to opt their children out of a few days of government school classes over religiously objectionable content. The Froehlich’s and five other families served jail time ranging from ten days to six weeks (ECHR Dojan: 8).When the Romeike family of Bissingen, Germany followed their religious convictions to homeschool their children in 2007 they were threatened by local authorities. After police forcibly took their children to school and thousands of dollars of fines were imposed, the family moved to the United States in 2008 and applied for political asylum. In January 2010, United States Federal Immigration Judge Lawrence O. Burman granted them asylum. Judge Burman stated that the family was persecuted because of their membership in the “particular social group” known as homeschoolers in Germany. Judge Burman also found that the German government was persecuting them on account of their religious convictions. Attorneys for the family released a press document stating the following:

In his ruling, Burman said that the scariest thing about this case was the motivation of the government. He noted it appeared that rather than being concerned about the welfare of the children, the government was trying to stamp out parallel societies –something the judge called “odd” and just plain “silly.” In his order the judge expressed concern that while Germany is a democratic country and is an ally, he noted that this particular policy of persecuting homeschoolers is “repellent to everything we believe as Americans” (HSLDA:2010).

Such occurrences in nations with otherwise strong commitments to democracy and pluralism raise questions about such society’s willingness to tolerate pluralistic differences and their notions of liberty.In this article we will use selected laws and cases from Germany, Sweden, the United States and the European Court of Human Rights to observe how certain governments protect, or in some cases do not protect, the religious and philosophical convictions of parents in the area of education and measure these protections against international human rights norms. Although these governments are known to respect human rights, democracy and pluralism, the above examples raise questions as to whether Germany and Sweden, in particular, meet their international human rights obligations with respect to accommodating the religious convictions of parents who seek exemptions within or excuses from government-run school systems.

2. DEMOCRACY AND PLURALISM

Diana Eck, a Harvard professor of comparative religion and the director of the Pluralism Project at Harvard University, argues that pluralism is more than “mere tolerance of differences; it requires some knowledge of our differences . . . tolerance is probably too thin a foundation for a society as religiously diverse and complex as that of America . . . pluralism requires the nurturing of constructive dialogue, revealing both common understandings and real differences” (Eck 2011).As liberal democracies German Swedish and governments with similarly restrictive public policy deny parents sufficiently meaningful non-governmental education options. These governments makeit difficult for private schools to exist independent of state control or harshly treatparents who seek to teach their own children privately at home (Ray 2011). Education professors Drs. Charles Glenn and Jan de Groof however, write that the right of parents to guide the development of their children and to choose the appropriate form of education for them is fundamental and that to deny that choice is “unjust and unworthy of a free society” (Glenn and De Groof 2005:1).

3. A DILEMMA

In the opinion of many religious parents, the government school system is hostile to their religious convictions (Shortt 2004:12). The increasing number of court and legislative conflicts between governments and parents over education show this plainly (DeGroff 2009:128-132). Key areas of conflict hinge on issues such as: whether parents may exempt

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students from certain classes with objectionable content; whether citizens or governments may allocate tax monies to the support of private religious schools; to what extent parents may influence content selection in classes; whether prayer is permitted in schools or at school activities; to what extent may religious student groups exist; and others. The existence of private educational institutions is one possible solution to this problem for some parents but in many cases because of cost or geography it is not available to many. Restictive laws in some states that govern private schools is also an obstacle to protecting parental convictions.In the United States one observes that private education is virtually unregulated and widely available. Most state laws permit religious private schools to exist with minimal or no state controls beyond assurance that a minimum education is provided. In most cases, private school teachers need not be state certified, subjects are only generally prescribed, and the administration of the schools is left to private parties. This is not so in Europe, where significant government controls and involvement make it more difficult for private schools to exist. These controls include curriculum approval requirements, waiting periods, and requirements that schools provide a unique or distinguishing feature, have a certain minimum financial capitalization, and other bureaucratic hurdles (ECHR Dojan: 10). Consequently, parents have fewer private schools from which to choose and those that do exist are usually not much different in curriculum and prevailing worldview than the government schools. Such limited private school options make home education an even more important alternative – parents who can not afford private school should have the option of privately educating their own children.In all 50 of the United States homeschooling is legal only following decades of legislative and legal conflicts. In Germany, homeschooling is almost universaly prohibited and parents who attempt it are usually fined heavily, criminally prosecuted, or face threats to or in some cases have actually lost their custody rights to their children. In Sweden, homeschooling is heavily disfavored and denied in many places by local authorities a 2010 law change making it “extraordinarily” more difficult to pursue home education Parents who attempt to homeschool in Germany or Sweden have faced social services investigations, resulting in some cases in the threat of or the actual taking of children from parental custody. Parents in these countries who seek for sincere religious or philosophical convictions, or pedagogical considerations, to homeschool their children face a stark choice: conform or leave. These realities demonstrate the conflict between parents and the state in the area of child rearing.

4. THE HAND THAT ROCKS THE CRADLE RULES THE WORLD4

Until the Middle Ages the state played a minor role in education. The Reformation in Germany initiated the interest in literacy and the interest by ruling authorities both in the church and in government to requiring education (Glenn 2011:1-3). In 1530, Luther delivered a sermon entitled “Keeping children in school” stating:I maintain that the civil authorities are under obligation to compel the people to send their children to school, especially such as are promising… If the government can compel such citizens as are fit for military service to bear spear and rifle, to mount ramparts, and perform other martial duties in times of war, how much more has it a right to compel the people to send their children to school, because in this case we are warring with the devil… (Glenn 2011:5).

Thus the state entered into the area of education asserting a forceful new and competing authority to influence the minds and values of children with the purpose of shaping society (Glenn 2011:8). This intrusion into an area previously reserved for parents and the church has resulted in increasing and continuing conflicts, first between the church and the state and now between the state and parents. The United States Supreme Court has captured the now-predominant view of most civilized nations with respect to the importance of education as a state function:“There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. Providing government schools rank at the very apex of the function of a State” (Wisconsin vs. Yoder: 1972).

However, even if education is an appropriate, perhaps even critical state function, to what extent should a democratic state be permitted under human rights principles to compel parents to subject their children to instruction in the face of religious-based objections or in the absence of legitimate exemptions, to prevent them from exiting the government school system entirely? A survey of key internationally recognized human rights documents demonstrates the fundamental right of parents to control and direct their children’s education; not only that the parents right be recognized but that the parent’s right is superior to the State’s interest in the education of its citizenry.

5. PARENTAL RIGHTS IN EDUCATION ARE HUMAN RIGHTS

The Universal Declaration of Human Rights of 1948 states that “parents have a prior right to choose the kind of education that shall be given to their children” (emphasis added). The use of the word “prior” indicates the hierarchy and primacy of the right of parents in relation to the State. The European Convention for the Protection of Human Rights and Fundamental Freedoms from 1950 further provides in Article 2:In the exercise of any functions which it assumes in relation to education and teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. (Emphasis added.)The UN’s International Covenant on Economic, Social and Cultural Rights entered into force in 1976, stating in Article 13.3:The States Parties to the present covenant undertake to have respect for the liberty of parents […] to choose for their children schools, other than those established by public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure that religious or moral education of their children is in conformity with their own convictions. (Emphasis added.)The International Covenant on Civil and Political Rights, also from 1976, provides in Article 18, paragraph 4 that:The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. (Emphasis added.)

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6. DEMOCRATIC VALUES PRECLUDE EDUCATIONAL MONOPOLIES

But for movements that seek to reshape or transform society, control of or at least influence over the educational policy-making apparatus is a crucial objective. Forces with influence over children’s education are able to steer them because of their tender age. Thus, a state-controlled educational system that is compulsory is a success factor for agents of social change. Leading proponents of secular humanism viewed the government school system as a natural building block in the establishment of their worldview and their vision for future American society. Charles Francis Potter, along with others – including his contemporary and the influential architect of the modern American public school system, John Dewey – wrote and signed the Humanist Manifesto after founding the First Humanist Society of New York. Potter, in 1930, wrote:Education is thus our most powerful ally of humanism, and every public school is a school of humanism. What can the theistic Sunday school, meeting for an hour once a week, and teaching only a fraction of the children, do to stem the tide of a five-day program of humanistic teachings? (Potter 1930)However, the view that government control of education is necessary for the survival of a democratic society is extreme and conflates “society” with “State.” These concepts are not synonymous, and a government’s interest in expanding its power may very well be at odds with the people’s interest in freedom. History reveals ghastly consequences when government commandeers the education system and imposes its values for political purposes. In 1938, Adolph Hitler nationalized the German education system in order to cement his grip on a key institution within society (Spiegler 2009:299). Hitler knew the importance of controlling education as a means for directing society:When an opponent declares, “I will not come over to your side,” I calmly say, “Your child belongs to us already … What are you? You will pass on. Your descendants, however, now stand in the new camp. In a short time they will know nothing else but this new community” (Shirer 1960:343).Yet, incredibly, some legal scholars and even national level courts echo the idea that only the government can or should educate children. Emory University School of Law Professor Martha Albertson-Fineman says it is not enough that children have the opportunity to go to a government school, but that home and private education should be banned.…public education should be mandatory and universal. Parental expressive interest could supplement but never supplant the public institutions where the basic and fundamental lesson would be taught and experienced by all American children: we must struggle together to define ourselves both as a collective and as individuals (Albertson-Fineman 2009:235; emphasis added).A softer but no less extreme view is represented by University of North Carolina law professor Dr. Maxine Eichner who argues that the state’s interest in education is of at least equal importance to that of parents. The values necessary for the survival of “democracy” is not “spontaneous” but rather must be “nurtured” through education – an education that if not monopolized by the state is heavily regulated by it:In a liberal democracy, it is inevitable that there will be conflicts among parents, children, and the state’s interests with respect to education. Given the legitimacy of claims by the community to have a say in how its future citizens should be educated; the equally legitimate claims of parents to have a say in how their own children should be educated; the need for

children to develop the autonomy that liberalism demands; and the needs of the polity to ensure that children come to possess the civic virtues necessary to perpetuate a healthy liberal democracy, none of these interests can be allowed completely to dominate education in public schools (Eichner 2006: abstract; emphasis added).By “legitimizing” the interests of “the community” for its “future citizens” and equating them with the “claims of parents,” Eichner relegates families to mere cogs in the gears of state machinery and raises questions. Is there only one community? Only one spokesperson? Why should children be considered autonomous? Isn’t it the very nature of a child to be dependent and not autonomous until they reach the age of majority? If liberalism requires that children be autonomous in relation to their family, where do they obtain these democratic values that must be nurtured for the good and survival of “polity”? Law professor Eric A. DeGroff sees destructive impact in a government education monopoly:It is difficult to imagine anything more destructive of liberty than a government with the authority to override parental choices concerning the development and values of the next generation – particularly religious or moral values. One of the keys to maintaining American democratic institutions has been the freedom of diverse families to choose for themselves what values to hold and what course to follow. Until the turn of the twentieth century, the courts routinely recognized and vindicated these rights when parental concerns collided with the curricular choices of public school officials (DeGroff 2009: 126-127).The surrogate parent argued for by Albertson-Fineman and Eichner is a government-run education system that indoctrinates (?) its subjects. Law Prof. Bruce Hafen describes the dangers of State-controlled education:Monolithic control of the value transmission system is a hallmark of totalitarianism. Thus, for obvious reasons, the state nursery is the paradigm for a totalitarian society. An essential element in maintaining a system of limited government is to deny state control over child rearing, simply because child rearing has such power. Even if the system remains democratic, massive state involvement with the rearing of children invests the government with the capacity to influence powerfully, through socialization, the future outcomes of democratic political processes (Hafen 1983: 480-481).

7. ECHR EDUCATIONAL JURISPRUDENCE IS WEAKENING DEMOCRACY

Several recent applications to the ECHR, an institution charged with adjudicating the individual rights of European citizens as articulated in the European Convention of Human Rights (“The Convention”), have raised questions about the legitimacy of this international judicial body in the area of adjudicating parental rights in the context of education, especially where there is an issue regarding the protection of religious convictions.Article 2 of Protocol 1 of the Convention states that:No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the state shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.Two cases from Germany are of particular interest demonstrating the problem of banning home education in a pluralistic democracy. German parents face a Hobson’s choice in

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certain instances where they have religious objections to either government schools or government school curriculum.In Konrad and Others v. Germany, the ECHR rejected as inadmissible a challenge to Germany’s ban on homeschooling rendered in the 2003 German Constitutional Court decision (ECHR Konrad 2006: ¶3). The Konrad families had sought to educate their children at home for religious reasons but were fined by the local school authorities. They appealed the fines but were told by German courts that it was appropriate for the state to ban home education in the name of safeguarding pluralism and in defense of democracy (ECHR Konrad ¶1). The ECHR stated that Germany was within its “margin of appreciation” to ban home education. Surprisingly, the court did not challenge the foreboding language used by the German court – that society had an interest in “stamping out parallel societies” and forcibly “integrating minorities.” In 2006 Germany was criticized by the UN Special Rapporteur on education for not permitting home education.In Dojan and Others vs. Germany (2011), the Court dismissed another application from several German parents who had been incarcerated because they kept their children home, rather than sending them to school to attend certain class periods and activities that discussed human sexuality in a way that violated their religious convictions. Deeming the case to be inadmissible the court upheld the German court on the grounds of expediency:However, the setting and planning of the curriculum fall in principle within the competence of the contracting states. This mainly involves questions of expediency, on which it is not for the court to rule and whose solution may legitimately vary according to the country and the era (ECHR Dojan:13).The ECHR adopted the German court’s view of pluralism, quoting the famous Kjeldsen decision explaining that “[t]he second sentence of Article 2 of protocol no. 1 aims at safeguarding the possibility of pluralism in education, a possibility which is essential for the preservation of the ‘democratic society’ as conceived by the Convention. In view of the power of the modern state, it is above all through state teaching this aim must be realized” (ECHR Kjeldsen: ¶50).Instead of protecting individuals from the power of the state, the ECHR agrees it is ok to forcibly “integrate” minorities. The ECHR upheld the power of the state to impose “values” on its citizens. This sounds very much like Albertson-Fineman and Eichner’s arguments that the state must be able to enforce its views. Isn’t this the essence of indoctrination? The court wrote:The convention itself [is] an instrument designed to maintain and promote the ideas and ideals of a Democratic society. This is particularly true in that teaching is an integral part of the process whereby a school seeks to achieve the object for which it was established, including the development and molding of the character and mental abilities of its pupils as well as their personal independence (ECHR Dojan: 14).In Dojan, the Court acknowledges that the Convention imposes a broad duty on the state to respect the religious convictions of parents when the state undertakes to provide education for children. The court cites Folgerø and Others v. Norway, a case that required Norway to allow atheist parents exemptions from compulsory religious instruction in public schools for the idea that “the state is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded” (ECHR Folgero: ¶84). The court continues, “it seems very difficult for many subjects taught at school not to have…philosophical complexions or

implications. The same is true of religious affinities” (ECHR Dojan:14). The Court also reviewed the curriculum standards at issue in the German State of North Rhine Westphalia:… to provide pupils with knowledge biological, ethical, social, cultural aspects of sexuality according to their age and maturity in order to develop their own moral views and independent approach to sexuality (ECHR Dojan:10).But the court goes on to dismiss the application. Didn’t the court just ignore these parents’ religious convictions? Isn’t this inconsistent with the focus of the Convention on individuals’ rights? The court seemed persuaded that the “neutral transmission of knowledge regarding procreation, contraception, pregnancy, and childbirth in accordance with the underlying legal provisions and the ensuing guidelines in the curriculum, which were based on current scientific and educational standards,” is acceptable. But for many individuals, the topic of human sexuality is deeply personal. Many religious traditions prescribe moral teaching about sexuality. Is it therefore even possible for the state to impart such information in a “neutral manner”? When there are so many differing views about how, what and when children should be taught about human sexuality? Does a policy that specifically seeks to “promote [children’s] own moral views and independent approach”, in conflict with parents’ religious convictions, cross the line of indoctrination? Isn’t it the essence of indoctrination when the state encourages children to have different moral views from their parents? However, when evaluated globally the court’s findings in Dojan are not so different from rulings in similar cases from other tribunals in Europe and the United States. There is, however, the one significant difference in the availability of private and home education between Europe and the United States however that ameliorates this similarity.

8. A GLARING DIFFERENCE: EUROPE VS. THE UNITED STATES

In contrast to Germany, Sweden and the European Court of Human Rights, American courts have been far more accommodating to religiously and philosophically motivated parents who seek to remove their children entirely from the government school classroom. Legal outcomes were initially uncertain for American parents in the 1970s and 1980s who sought to homeschool their children, as courts and legislative battles were fought over whether homeschooling was a legitimate exception to the compulsory attendance laws of the 50 states. However, over two decades, virtually every state created laws, regulations, or court precedents to recognize that parents had a protected right to educate their own children. Most states did not explicitly connect homeschooling with religious conviction; however, one of the key victories for homeschoolers came in 1994 in Michigan (Gaither 2008:179). In People v. DeJonge, the Michigan Supreme Court ruled that it was an unconstitutional infringement of religious expression to require teacher certification for parents who homeschool their children for religious reasons (Klicka 1995:65). The Michigan Supreme Court declared:…the historical underpinnings of the First Amendment to the US Constitution and the case law in support of it compels the conclusion that the imposition of the certification requirement upon the DeJonges violates the free exercise clause. We so conclude because we find that the certification requirement is not essential to nor is it the least restrictive means of

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achieving the state’s claimed interest. Thus, we reaffirm that sphere of inviolable conscience and belief which is the mark of a free people. We hold that the teacher certification requirement is an unconstitutional violation of the free exercise clause of the First Amendment as applied to families whose religious convictions prohibit the use of certified teachers. Such families, therefore, are exempt from the dictates of the teacher certification requirements (DeJonge v. Michigan 1993:144).The United States Supreme Court has also recognized that religious convictions are an appropriate factor on which to exempt children from government schools even when compulsory school laws provide otherwise. In the 1972 case of Wisconsin vs. Yoder, the United States Supreme Court ruled that Wisconsin’s compulsory attendance law infringed upon the fundamental rights of Amish parents who wished their children to leave government school after age 14 or the completion of eighth grade. This respect for the role of parents was reaffirmed in 1979 when the United States Supreme Court wrote:Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is “the mere creature of the state” and, on the contrary, asserted that parents generally “have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations”… Surely, this includes a “high duty” to recognize symptoms of illness and to seek and follow medical advice. The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children (Parham v. JR 1979: 602).However, in spite of this homage to parental convictions, United States’ courts have drawn a line at the door of government schools where such parental authority is greatly limited or non-existent. Parents of government school children have lost case after case where they have sought accommodation of their religious convictions. Parents in these cases have sought to exempt children from certain types of content, such as sexual education, condom distribution, and sexually explicit surveys and to require the inclusion of certain types of content, such as the teaching of intelligent design or creation along with the theory of evolution, or requiring sexual education to include an abstinence component (DeGroff 2006, Dahl 2009 & Hodgson 2004). Virtually all rulings are in favor of the government allowing schools to choose curriculum and manage student attendance and schedules, stating that the disruption caused by giving effect to individual parental interests, religious or otherwise, was too great (DeGroff 2009). Sounding very much like the ECHR in Dojan, the United States First Circuit Courts of Appeals wrote 16 years earlier in 1995:The state cannot prevent parents from choosing a specific educational program – whether it be religious instruction at a private school or instruction of foreign language… We do not think, however, that this freedom encompasses a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children… We think it is fundamentally different for the state to say to a parent, you can’t teach your child German or send them to parochial school, than for the parent to say to the state, you can’t teach my child subjects that are morally offensive to me (Brown v. Hot, Sexy and Safer Productions: 533-34).

Thus, parents who place their children in the public school system in the United States face virtually identical challenges that parents in Germany, and much of Europe, regarding exempting their children from religiously objectionable content. However, unlike parents in Germany and other countries, American parents may withdraw their children from the public school and teach them at home in some cases with reasonable oversight. And in no case is the state able to require parents to teach subjects that are objectionable to their religious convictions.

9. CONCLUSION: PARENTAL RIGHTS ARE FUNDAMENTAL TO DEMOCRACY AND PLURALISM

The German Constitutional Court, the Swedish parliament, and American law professors Albertson-Fineman and Eichner argue that it is only possible for values to be taught by the State in government-run or approved institutions. This argument essentially says that in the name of survival, pluralistic societies must be intolerant of pluralism of education.However, parents in the United States enjoy broad discretion and opportunity to educate their children outside of the government school system. Thus, if they encounter irreconcilable differences, they have an option to exercise liberty in accordance with their convictions. While the state may regulate it may not proscribe this practice. The decades-long struggle of the United States’ homeschooling movement in legislatures and courts shows how democracy can work to protect the right of different views without doing violence to the human rights norm that parents are primarily responsible for the education of their children. Although the result in the United States was a patchwork of regulatory schemes representing diverse local views on achieving a balance between the State’s interest in education and the right of parents, all 50 of the United States made it possible for parents to homeschool their children.Countries that protect the right of parents to exempt their children from the government school system arguably demonstrate a greater commitment to liberal democracy and pluralism. Other societies that do not but still claim to be free and democratic might well consider the words of the United States Supreme Court:The fundamental theory of liberty upon which all governments of this Union repose exclude any general power of the state to standardize its children by forcing them to accept teaching from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations (Pierce v. Society of Sisters 1925: 535).

10. REFERENCES

Albertson-Fineman, Martha and Karen Worthington 2009. What is right for children? Burlington: Ashgate Publishing Company.Dahl, Tara 2009. Surveys in America’s classrooms: How much do parents really know? 30 7J.L.& EDUC. 143. DeGroff, Eric A. 2006. Sex education in the public schools and the accommodation of familial rights. 26 Child. Legal Rts J. 21.

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DeGroff, Eric A. 2009. Parental rights and public school curricula: Revisiting Mozart after 20 years. 38 J.L. & Educ. 83.Dunphy, John J. 1983. A Religion for a New Age. The Humanist. January/February, 26.Eck, Diana L., From Diversity to Pluralism, The Pluralism Project: http://pluralism.org/ accessed November 14, 2011.Eichner, Maxine, Who should control children’s education?: Parents, children, and the state,” (bepress Legal Series. Working Paper 1644, August 28, 2006)http://law.bepress.com/expresso/eps/1644.European Court of Human Rights, Fifth Section, Decision as to the Admissibility of Application no. 319/08, Willi, Anna and David DOJAN against Germany and 4 other applications, (September 13, 2011).European Court of Human Rights, Fifth Section, Decision as to the Admissibility of Application no. 35504/03 by Fritz KONRAD and Others against Germany, (September 11, 2006).European Court of Human Rights, Kjeldsen, Busk Madsen and Peterson v. Denmark, (1 E.H.R.R. 737, December 7, 1976).European Court of Human Rights, Grand Chamber, Folgerø and Others v. Norway, no. 15472/02, (June, 29, 2007).Gaither, Milton 2008. Homeschool: An American history. New York: Palgrave Macmillan.Glenn, Charles L. and Jan De Groof 2005. Balancing freedom, autonomy and accountability in education. Nijmegen, Netherlands: Wolf Legal Publishers.Glenn, Charles L. 2011. Contrasting models of state and school. New York, NY: Continuum International Publishing Group.HSLDA, “Homeschooling family granted political asylum,” HSLDA Company website, http://www.hslda.org/hs/international/Germany/201001260.asp, (January 26, 2010, accessed November 2011).Hafen, Bruce C. 1983. The Constitutional status of marriage, kinship, and sexual privacy – balancing the individual and social interests. 81 U. Mich. L. Rev. 463.Hodgson, Crystal V. 2004. Coercion in the classroom: The inherent tension between the free exercise and establishment clauses in the context of evolution. 9 Nexus 171.Klicka, Christopher J. 1995. The right to homeschool: A guide to the law on parents’ rights in education 3rd ed. Durham: Carolina Academic Press.Potter, Charles F. 1930. Humanism: A new religion. New York: Simon and Schuster.Ray, Brian D., Research facts on homeschooling, National Home Education Research Institute website, January 11, 2011, accessed November 14, 2011. http://www.nheri.org/Research-Facts-on-Homeschooling.html.Shirer, William L. 1960. The rise and fall of The Third Reich. New York: Simon and Schuster.Shortt, Bruce N. 2004. The harsh truth about public schools. Vallecito, California: Chalcedon/Ross House Books.Spiegler, Thomas. Why state sanctions fail to deter home education: an analysis of home education in Germany and its implications for home education policies. Theory and Research in Education 2009; volume 7; 297: http://tre.Sagepub.com/CGI/content/abstract/7/3/297. State of Michigan Supreme Court, People v. DeJonge, 501 N.W.2d 127 (Mich. 1993).United States Supreme Court, Wisconsin v. Yoder, 406 U.S. 205, 213 (1972).United States Supreme Court, Parham v. J. R., 442 U.S. 584 (1979)

United States Supreme Court, Pierce v. Society of Sisters, 268 U.S. 510 (1925).United States First Circuit Court of Appeals, Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525, 533-34 (1st Cir. 1995).

Endnotes

1. Michael P Donnelly, esq. (*1967) is the Director for International affairs at the Home School Legal Defense Association (hslda.org), 1 Patrick Henry Cir., Purcellville, VA, 20132. Donnelly earned a J.D. from Boston University School of Law and is a Paul J. Liacos Distinguished Scholar. He is an Adjunct Professor of Government at Patrick Henry College in Purcellville, VA where he teaches constitutional law. Donnelly is a member of four state bars and is an advocate for home education and serves tens of thousands of families in 9 states and 200 countries. Donnelly is a father of seven and, with his wife, is a homeschooling parent. E-mail: miked@hslda.org. For more information visit: http://www.hslda.org/about/staff/attorneys/donnelly.asp.

2. Note: this is an edited version of an article that was published in the International Journal of Religious Freedom in 2011. Readers with an interest in this subject and for more specific discussion of regulatory regimes and approaches are encouraged to read my Homeschooling chapter in Glenn and DeGroof’s new edition of “Balancing Freedom, Autonomy, and Accountability in Education”, volume 1 from Wolf Legal Publishers.

3. The author is an attorney for the family in this matter and has personal knowledge of the court documents and correspondence with local authorities and makes this assertion on the basis of personal information and belief as well as on the basis of statements made by authorities in correspondence with the author and made to the media immediately following the abduction.

4. William Ross Wallace poem, “The Hand That Rocks The Cradle Is The Hand That Rules The World,” 1865.

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14 Masoud Ebrahimnejad

Religious Rights in Education and Respect for Parental Convictions or Beliefs in Norway

Religious Rights in Education and Respect for Parental Convictions or Beliefs in Norway

Masoud Ebrahimnejad1

1. OVERVIEW

Norway is a sparely populated country with a population of 4,5 million, spread on 328.000km2. Norwegian education is related to our historical development as an independent nation. In approximately 500 years Norway was a part of Denmark and of Sweden. Since 1905 Norway has been an autonomous national state.The Norwegian school system is dominated by the Norwegian concept: "enhetsskole tanken" or tool in a welfare-state program for more equality between social groups (Lauglo, 1998).the idea of comprehensive school for all. A school ideology built on equal rights for education, education as an important institution for national cultural integration and education as a In 1997 Norway got a new national curriculum plan for the primary school and lower secondary school It contains 343 pages (Læreplanen, 1997). The plan is ideological based on nationalism, child-orientation and community-orientation, with much effort to project methods and integrative strategies for teaching. But the plan also stresses subject-knowledge and detail demands and information for: "what should be learned".The Norwegian educational history describes a school with much popular influence and a school strongly affected by local community ideology. Today not only public schools but also private schools are almost total financed by the state, and are implemented according to an overall state policy for education

2. NORWAY IS A MULTI- RELIGIOUS SOCIETY

Norway is a multi- religious and multi – cultural society. Many religions and cultures have become part of the country’s cultural diversity as a result of immigration. The country has gone from a homogeneous society to a heterogeneous society, where Christianity alone will not represent the people’s religion and culture. Norwegian schools have become a meeting place for different cultures from every continent. Muslims, humanists, Buddhists, Jews, Hindus, Sikhs, and many other religions are now visible and well- organized minorities. Among these immigrants are Muslims probably the largest immigrant groups in the Norwegian schools. How many Muslims living in Norway, there is clear and right statistics. We know the number of registered members of Muslims communities, but the numbers of practicing Muslims are likely to be higher than this. At the beginning of 2008 there were 84,000 registered members of Muslims communities. At the same time, there were 163,000 immigrants, included persons who were born in Norway with immigrant parents who come from Muslim countries. In 2008, immigrants included persons who were born in Norway with immigrant parents who come from Muslim countries, constituted 2,2 percent of the Norwegian population.

Oslo is the county with the highest proportion of immigrants and persons with immigrant parents who were born in Norway in relation to population. One of four in Oslo has such a background. Those who have a background in Muslims countries, at the beginning of 2008, less than half (46 percent) of all immigrants included persons who were born in Norway with immigrant parents I Oslo, or 11 percent of the population.

3. MUSLIMS IMMIGRANTS ARE NOT A HOMOGENOUS GROUP!

In one of the European Social Survey, the Norwegian people seem to be among the least religious in Europe. Average scores in Norway were 3,5. The corresponding scores were 3,2 in Sweden and 3,9 in Denmark. Cyprus and Poland were among the top European countries, with a score of respectively 6.4 and 5, 9(Tronstad 2008b). The data from this survey will be more interesting when we compare it with survey result among the immigrant groups. The majority of immigrant groups are more religious than the average of Norwegian ethnic. Data from the survey of living conditions among immigrants 2005/2006 shows that the Iranians are the most secular among the groups that participated in the survey. There are wide variations in how important religion is considered by those groups who participated in the survey. Immigrants from Somalia, Pakistan, Turkey and Iraq emerge as the most religious with a mean score of respectively 9,8 and 9,0 , while immigrants from Iran, Bosnia – Herzegovina, Serbia and Montenegro all have a score of 5 or less, and the most secular among the groups that participated in the survey. Those with a background in Iran is almost on the level that the average in Norway. Religion seems to be as important to the young as for the older.

Figure 1(Ranking among immigrants to the question "How important would you say that religion is in your life?" On a scale from 1 (no importance) to 10 (very important), by country of origin and gender. Average scores)

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4. DATA FROM MY QUESTIONNAIRE AMONG MUSLIMS IMMIGRANTS IN OSLO SHOWS SEVERAL DIFFERENT GROUPS OF MUSLIMS

Data from my own research suggests that various factions within the Muslim immigrants in Norway. Based on their country of origin and socio-cultural environment can we divided them in five different following groups. Well – integrated Muslims: this group consists by the immigrant Muslims who prefer Norwegian public school, rather than private Islamic school, home- education and school in their homeland. This group answered positive when they have been asked for more teaching about Islam in the school and their perception of the Quran as a source of increasing knowledge. Immigrants who belongs this group through multiple correlations show to thrive in Norwegian schools. Girls are representative on this group. Critical Islam Muslims who have either directly or indirectly terrible experience under Islamic regimes. Many of them have fled from a country that Islamists are either in government or they have power as a rebel groups. They have been in some way exposed to the Islamists cruelty, and therefore they are strongly opposed to further Islam in the new society. Although this of immigrants is considered Muslims immigrants are the strongest against the Islamic attitudes and the will not have anything to do with Islam anymore. Some of them even have experienced trauma in relation to the Islamists cruelty and thus every religious activities and ceremonies seems strong psychological burden for this group.

This group also presents immigrants who already have qualifications from homeland, before they come to Norway. They are strongly opposed on the issue of more Islam instruction in schools. They prefer all types of alternative schools rather than Norwegian public schools, because they feel alienated and just think it extremely difficult to get a job even they take education. However they are taking distance from the Muslims community, but they have not managed yet to adapt to the new society. Confused identity is a group of second generation of Muslims immigrants who have identity crisis in a western society. These groups of immigrants were generally born in Norway. These youth people going through an identity crisis where they must make a choice between home- culture and school- culture. This group has some value differences with the school. They are going in the Norwegian school and do not prefer any type of alternative schools rather than Norwegian public schools. They want more Islam instruction in school when they respond positively to the question about having more Islam education in Norwegian schools.This group of Muslims immigrants is completely or partially disagreed to home- schooling instead of attending on the Norwegian public school. They also believe that all they learned at home are different than they learn in school. Isolated Muslims are another group who adhere to a closed society in parallel with the host society. They will not have much with the host community to do. This group mainly feels foreign in Norwegian schools. They think that they will have major problems in order to get job even they take education in Norway. They prefer all types of alternative schools rather than Norwegian public schools. They are against all sexual education and they wish more Islam in Norwegian public schools. They believe that it is not easy to be a Muslim in Norwegian schools. They prefer to go to the school in their home- country or a private Islamic school. This group chooses a particular isolation strategy towards the Norwegian society. This group has an extreme view, and relationship to Islamic rules and laws. They are of most practicing followers of Islam. Islamists: People in this group feel a strong value conflict between home- culture and school – culture, while still attending Norwegian schools and want more Islam instruction in Norwegian schools. They are against all teaching about sexuality in school. They choose a confrontation strategy in relation to secular principles in a democratic society and trying to change the host society to their favor. They are strongly influenced by traditionally Islamic home- culture, and they are following the religious doctrine and their actions are influenced by Islamic attitudes. They have an extreme relationship with Islamic rules. Boys are representative for this group. Islamists constitute a minority in Muslim immigrant population in Norway, according to my survey. They have a strong desire to not face up to the Norwegian public school. All types of alternative schools including Islamic private schools and home- schooling are appropriate for this group. Families as these children grow up in, are among the most conservative Muslims. Religious values and attitudes are dominant in this family group and Islam practiced in a conservative way here. They are against any kind of sexuality education in school. They also believe that Norwegian schools are characterized by extreme secularization where religious values and attitudes are absent. However the groups of Islamists and Isolated Muslims are a minority groups inside the Muslims immigrant but they are presenting mostly of the youngest generation.

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5. RELIGIOUS INSTRUCTION IN NORWAY

Via survey among Muslims immigrants in Oslo I tried to show, how is the relationship between Muslims immigrants and Norwegian schools and this immigrant group’s expectation from the Norwegian school and education policy. The majority of participant in my survey, express a wish to have more Islam instruction in school and they feel strong needs to know more about their own religion (Ebrahimnejad, 2009 &2011). In the following text I am trying to give a picture of the Norwegian education policy in the theme of religious instruction in public and private schools: In 2008 after the judgment made by the European Court of Human Rights, the Norwegian primary schools got a new subject named: Religion, Philosophy and Ethic.

According to The Education Act and The National Curriculum, Religion, Philosophies of life and Ethics shall be an ordinary school subject normally attended by all pupils. The teaching in Religion, Philosophies of life and Ethics shall present different world religions and philosophies of life in an objective, critical and pluralistic manner.The teaching in the different topics shall be founded on the same educational principles.The school shall respect the religious and philosophical beliefs of pupils and parents andensure their right to an equal education.(Education Act § 2-3 and §2-4).Religion is a compulsory subject at Norwegian schools.There is no possibility for choices amongst the religious education in public schools. The education is meant to be common for all pupils. But it is possible to opt out if parents ask for that. Following written notification by parents, pupils shall be exempted from attending those parts of the teaching at the individual school that they, on the basis of their own religion or own philosophy of life, perceive as being the practice of another religion or adherence to another philosophy of life, or that they on the same basis find objectionable or offensive (Vestre. S.E. 2011). It is not necessary to give grounds for notification of exemption. (Ed. Act § 2-3a)

6. FREEDOM IN EDUCATION

6.1. Private schools

After a long political conflict, in 1970 we got a law for private schools. The law was renewed i 1985 (Privatskoleloven, 1985). Schools based on religion or based on an alternative pedagogic were allowed, and got financial support from the state, at a rate of 85% of the cost for a state school pupil.Up to the late 1980`s only Christian and Rudolf Steiner schools however were allowed. The state sanctions private school applications. Some years later Montessori schools also were permitted. Today we have 28 Rudolf Steiner schools, ca 40 Christian schools and 8 Montessori schools as an alternative to the 3200 Norwegian public state schools. The first Muslim school is now accepted.

Norway has had a relatively late urbanization. The special geography and history of Norway are important reason for the absence of a historical rooted national upper class. There have been private home-teachers, Christian schools and some other private schools. But we do not have a strong tradition with private upper-class schools.

Education otherwise at the primary and lower secondary level, are build on religious or ideological reasons, for special interested groups. The country has Lutheran state church. Teaching in school is based on the same religion. But this religious hegemony has decreased. Christian groups and others have worked for private schools, based on parents rights and human rights as you find them in international conventions (UNESCO,1960), (UN,1948) (Vestre,1999) and (Habermas,1995). Freedom of speech is determined within the European Human Rights Convection Article 10 The right to alternative education, private school or other forms of alternative education can be rooted in both religion and freedom of speech.

The Convention of Dec.16. 1966 of United Nation about Economic, Social and Cultural Rights ( ØSK. art 13 No. 3 and 4). The Convention says that Contracting Parties is committed to respect the parent’s freedom to choose other schools for their children than those established by public authorities, provided that schools meet any minimum requirements for training approved by the state, and to ensure their children a religious and moral education in conformity with their own convection.

7. RELIGIOUS EDUCATION AND PARENTAL RIGHTS

Freedom of religion in Norway is a constitutional right (Grl.§ 2). This constitutional right should be viewed in accordance with the European Court of Human rights (HCHR), article 9 which explicitly determines that the everybody as well as public or private should have right and opportunity to express their religion or belief, in education. Parent’s right to decide what kind of education children receive and their right to ensure religious and moral education in conformity with their own faith and religion has been central in the Norwegian school tradition for a long time. This has also been central to international human rights conventions: United Nations Convention on Dec. 16. 1966 on Civil and Political Right(ICCPR) Article 18, paragraph 4).According to this Convention, the Contracting Parties commitment to respect the right of parents to ensure their children’s religious and moral education in conformity with their own convictions. The convention of 4. Nov. 1950 of the European Court of Human Right, for protection of human rights and fundamental freedoms (HCHR protocol 1, article 2). Convection says that the functions state commitments in education, must practices respect for the parents right to ensure education in conformity with their own religious and philosophical convections.

A compulsory religious instruction in school creates some problems in relation to the parent’s right.

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It seems that the state chooses a neutral educational concept for a common religion subject. It is in this vase, an ideological choice. State’s right to set scientifically and quality requirements for private schools and home. Education shall follow the public school’s ideology as it is formulated in the curriculum (Ed. Act§§ 2-12 and 2-13) is in my opinion, in violation of parents rights (Vestre, S.E, 2011). Conventions require that the parents are supported in the right… to ensure their children the religious and moral education in conformity with their convictions (ECHR, protocol No. 1, Article 2). The conventions are therefore religious influence seen as a positive right for parents and children. Respect for the parents right, would tell us to involve the parents un choosing the education program that brings a desired effect. The conventions do not have neutrality as a goal, but rather the opposite, to ensure the right attitude formation and an active religious, or philosophy of life influence through education.

8. ISLAMIC EDUCATION DURING THE SCHOOL HOURS IN STATE – FUNDED SCHOOLS COULD SERVE AS A BRIDGE TO PARTICIPATION IN THE SOCIETY!

To clarify this issue, I would like to refer to data from my own questionnaire survey which was done among Muslim immigrants in Oslo (Ebrahimnejad, 2009). According to the definitions of culture, all which human beings learn and practice in everyday life, are perceived as culture. When we talk about culture, we must necessarily look at religion as an important influence. As a group Muslims life is much influenced by religious rituals and traditions. Islam covers all aspect of a Muslim’s life. Islam has clear rules and laws for any daily chore. A Muslim is required to follow the rules contained in the Quran. The most important thing for a Muslim parent is, to give their child- rearing based on their religious beliefs. Muslims immigrants are a relatively new group in Europe and their traditions probably seem more controversial than other immigrant groups. In addition their cultural and religious attitudes are often focused and discussed in the media in a negative way. Muslims children like all children, in western democratic society, have a right to be heard and to be understood. 39% of participants in my survey believe that their culture is foreign, thus they are often misunderstood at school, and 58% think that the teachers do not have knowledge about their culture. When the children are sent to school, their parents trust that their children are in good hands and that they are in a place where their interests and values are safeguarded, but the reality seems to be something else.69% of survey participants want more education about Islam in school. This group of participants says that they need Islamic instruction in state- funded schools. 75% believe that Quran is a source for knowledge thus it is important to learn the Quran to increase their knowledge. 43% wish to go to the private Islamic school and 14% says, “Muslims should be allowed to study at home instead of going to school”(Ebrahimnejad, 2009). There are two types of private schools in Norway: (1) religious schools, (2) Pedagogical alternatives. There is only one private Islamic school in Norway so far. The education Act says that the public school’s mission statement, curriculum and provisions on compulsory religious and ethical education should also apply to private schools and education at home (Ed.Act. §§ 2.12 and 2-13).

According to the National Curriculum there is no possibility for choice amongst the religious education in public schools. The education is meant to be common for all pupils, and the religious subject meant to be a neutral school subject. As I mentioned before, in Islam, culture and religion is woven together. To understand the one, we must have knowledge about the other. Religion is mainly a practical subject where rituals are very important. How could such a practical subject, be useful when it is turned in to a purely theoretical subject? Theory without practice creates distance and an unfortunate distinction between knowledge and morality. Programmatic neutrality is particularly problematic in contexts where knowledge and understanding not only requires a theory, but also participation and experience. Authentic religious understanding requires participation in prayer, songs and rituals (Vestre. S.E. 2011). We may read the explanations about, what prayer is, but do we understand a prayer without participating praying? What will happen to the Muslims parents’ right… to ensure their children the religious and moral education in conformity with their own convictions, and what will happen to the Muslim pupils, who wish and need to learn about their own religion and find out their identity? To learn about one’s own religion and culture is an essential need for every child. Immigrant children who are living and growing up in a country other than their homeland feel this need of course stronger than other children. This could be a way to find out “Who am I?” and “Who do I want to be”? In the absence of the opportunity to learn about their own religion in Stat funded- schools in Norway, Muslim immigrant pupils are forced to search for this knowledge in other places than the schools. They are forced to create their own parallel world and, thus falling out of the Norwegian community!There are hundreds of Quran schools around Norway. They are managed by persons or organizations that are not approved by the Norwegian education authorities. Quran schools are defined as leisure offers. That’s why the government and school authorities have no any control and supervising at these types of schools. To give the children education based on parents own convection, the Muslims parents often choose to send their children either to Quran schools, after school hour in Norway or a school in their home country. We are not sure what Muslim children and youth learn in these schools.

Now the question is: would you not rather have religious instruction by authorized persons in Norwegian schools, so that the parents would know what their children were learning?

9. REFERENCES

Ebeahimnejad, Masoud(2011). I : innesperring eller frisetting? Artikler i samfunnsrettett pedagogikk(Red.) Beck, C.W og S.E. Vestre. (Didakta Norsk Forlag) 2011. Ebrahimnejad, Masoud (2009). Muslimske innvandrer I norsk skole: Kan man gruppere muslimske innvandreres holdninger I forhold til integrering? Masteroppgave i pedagogisk allmenn studieretning. Det utdanningsvitenskapelige fakultet. Pedagogisk forskningsinstitutt, Universitetet i Oslo.

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Habermas J. 1995. Struggles for Recognition in the Democratic Constitutional State.In: Gutman A. (ed): Muticulturialism. Examining the politics of recognition. Univerity Press, Princeton.Lauglo J. 1998. Populism and Education in Norway. In Tjeldvoll A. (ed): Education and the Scandinavian Welfare state in Year 2000. Garland pbl. Inc.Lov om økonomisk tilskott til private skoler. 1985. (The Norwegian private school law).Læreplanen. 1997. (The national curriculum plan in Norway).UN. 1948. FN¨s verdenserklæring om menneskerettigheter av 10. desember 1948.UNESCO. 1960. Konvensjon: Overenskomst mot diskriminering i undervisning. 1960.Tronstad, K. (2008): «Religion», i: S. Blom og K. Henriksen (red): Levekår blant innvandrere 2005/2006, Rapporter 2008/5, Statistisk sentralbyrå.Vestre. S.V. (2011). I : innesperring eller frisetting? Artikler i samfunnsrettett pedagogikk(Red.) Beck, C.W og S.E. Vestre. (Didakta Norsk Forlag) 2011. Vestre S.E. 1999. Foreldrerett og brukerorientering.I Bredal D. (ed): Frihetens kår 1999.Nett address: http://en.wikipedia.org/wiki/Education_in_NorwayNett address2: http://www.regjeringen.no/en/dep/kd/Selected-topics/compulsory-education/the-norwegian-education-system.html?id=445118Nett address3: http://www.european-agency.org/country-information/norway/norwegian-files/Gen_Education_in_Norway.pdf

Endnotes

1. University of Oslo

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15 Marco Iskender Matthijsen

Introduction Comparative Indicators and its Criteria

Introduction Comparative Indicators and its Criteria

Marco Iskender Matthijsen1, LL.M.

1. INTRODUCTION COMPARATIVE NOTES

In this enlarged and revised 2012 edition 66 countries are reviewed. This chapter tries to light up their analogous and differences according the three dimensions of Freedom, Accountability and Autonomy. It gives light on the process towards the indicators and criteria, giving hints of how to interpret them. As well as gives some specific considerations about the relevance of the used indicators with some practical comparative examples as well as suggestions of criteria which have come out of this comparative analyses. For each dimension different main indicators are distinguished. The indicators are used to discriminate the highlights of how countries have tried to find the balance in a ranking of high to low policies, from 5 to 1. It shows us that every country has come up with interesting features to find this balance, and no country is on all the dimensions superbest. Especially in the last 10 years big changes in educational policy are being shaped by rising countries in all continents. This can be of confirmative motivation to learn from others to find the right balance, including the know richer countries. The process to distinguish the indicators presented below was comparative in nature. During the process of taking the comparative notes the following happened:• In 2002 we used group titles to divide characteristics of countries across an indicator.

With 66 instead of 28 countries as in 2002 it is impossible to rank the countries in groups without a qualifying ranking number. We have So we needed a framing to rank the policy of a country on an indicator in a number. We have chosen for 1-5 (or no-, no, limited, yes, yes+) to be able to frame with enough space for difference, but not too much for interpretation variations.

• While analyzing the different countries across the indicators we have tried to further distinguish appropriate criteria by each indicator to make the ranking transparent. These criteria weren’t known up front by the contributors of the country reports. Therefore some notes and its ranking are not comprehensive, function as first sight and may contain errors.

• We have chosen for simple highlights as explanation of a ranking, which may not do justice to the subtlety of the complete policy. The highlights therefore don’t address all the indicators. As a consequence, the ranking is not conclusive and will evolve in the future via further analyses and corrections. Suggestions for correction and improvement are welcome!

• The criteria are related to each other and to other indicators as well, resulting in overlap. So when a country, as part of the structure of schooling, chooses to give the responsibility for education targets to the provinces, it depends on other actions if this is good or bad for finding a right balance on the indicator Accountability of educational targets. Although in general we could value this less positive when it comes to primary education because it gives schools less security about their long time space for development of their curriculum.

• Some criteria make it possible to use limited answers which we could value in a simple yes or no. Others not because they depend on answers on other criteria for their valuation or because the answer possibilities can only estimated in a curtain level of score, and has to be open .

• Cause of the complexity of structure of schooling and legal framework we haven’t used an indicator to rank these.

• Other indicators appeared to be important although they are not all mentioned separately in each report. It became clear that accountability of quality contains too many different aspects which wouldn’t be done justice if valued as once. To give a example: In some countries accountability regarding the targets of education is very detailed, but at the same time accountability of governance is redistributed with participation of representatives of teachers and parents in the board of schools. If you value the first as a 2, and the last as a 4, this would give a 3.We therefore distinguished between 5 different indicators: accountability of educational targets, educational results, quality of teachers, quality of professional space & development, governance of stakeholders and qualification.

• A high problem of assessing the value of 1-5 is between formal regulations and practical accessible requirements and margin of interpretation by authorities.

• As explained below we have assessed the space for public schools as well on different indicators. This makes it sometimes difficult to rate when public schools are obliged per subject of one or more approved textbooks and private schools not.

• In many countries there is a distinction between private but aided schools and pure private schools. The former most time named as independent schools.

2. READ WISELY, READING SUGGESTIONS

• Every indicator ranking is ranked by number of ranking between 5-1, from high balanced to low balanced. Within a ranking countries are visible from A-Z, so now value is connected with the placement within a ranking number.

• The notes per country per indicator are a summary and/or highlight of its policy from the viewpoint of the indicator. To read more you can read in the chapter regarding the country report. The amount of texts differs pro country and its different indicators, mostly because it looked interesting to give more specific details.

• Some answers for an indicator contain policy aspects which are relevant to different indicators. This counts especially for Accountability of targets, - results vs. Distinctive character. As well as Accountability regarding teacher quality vs. Decisions about staff. Leading to overlap in some or more answers. This will be of continuing attention, wherefore we value tips and suggestions.

3. FINDING RIGHT BALANCE: PUBLIC EDUCATION VS. PRIVATE EDUCATION

In the 2002 edition we have given less attention to the level of school autonomy in public schools as well. In this edition, especially in the comparative notes, we have tried to do more justice to the level of school autonomy in all schools, private as well as public, with its

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relevant aspects regarding accountability. Although it isn’t easy to do this, already only for the sum of text that will appear which could make reading less comfortable, as well as using an acceptable measure of inconsistency when the policy around public education is mentioned or not. As a whole this has to do with the relatedness between the space for autonomy in public schools vs. the space for independent schools as such, which would need further research to get the right data. This relatedness has different aspects, to name a few: • There seems to be a trend toward giving more school autonomy to public schools in

countries with more independent/private schools. Which could mean that the existence, and public will, to accept diversity in education as realized with space for independent/private schools gives incentives in the long term to more school autonomy for public schools as well.

• There are different practical reasons for states to increase the level of school autonomy for public schools. Like ability to financial cuts, need for smaller state, financial risk stability/redistribution, quality of education, image of public schools, space for partnerships with parents, diversity of children and thus also schools. Most of these reasons are more existent then before. When public schools get more school autonomy, it could lead to more space for independent/private schools because the legitimacy of barriers for independent schools is lower.

• Different tracks of research do have some coherent points of policy in advice: quality of teachers as well as quality of schools as one of the best predictability factors of good education. both of them are not parse related to input factors. A very qualified teacher can lose his motivation due to work circumstances in less than 6 months. In some research the development contribution to quality from years of experience counts for only the first 2 years. School autonomy is therefore a consistent factor of educational results because a school who have more autonomy to manage the different resources, demands and relations into a school as a bridge to the future can give more quality. In the well known PISA research, school autonomy is therefore a consistent factor of quality and good results of education, whereas the existence of private education is less conclusive for high PISA scores when reanalyzed for SES scores of differences of parents from private and public schools.

• New visions about the place of education and pedagogical views and research request more professionalization of education but especially more flexibility and intrinsic motivation and development of the professionals. Thinking of 21st Century Skills, ict possibilities of learning and cooperation, cooperation of schools with their environment. Public and independent schools have a shared agenda regarding diversity in education with more school autonomy in this regard.

4. DIMENSION FREEDOM

4.1. Legal basis to establish independent schools

With the legal basis we refer to the legal possibility to set up private or independent schools. Schools for expatriate are not at the focus, because most of the time there are not many legal laws around it and if they are their legal opportunity to exist is independent of the legal

opportunity for private/independent schools. On formal level this is guaranteed by the Constitution and or the legal laws about Education. Depending on the structure of education there are separate laws around pure private schools and independent schools, the last sometimes more or less supported by government funding. Pure private schools have to meet minimal standards to comply with the norm of compulsory education. Usually independent schools in most cases have to comply with almost the same requirements as public schools. An important difference is if it is allowed to set up a private or independent school with a religion as inspiration, or only for pedagogically different schools. Although the legal norms can make it possible to establish independent/private schools, it is in the details if there is really space to establish independent schools. Further analyses could maybe better distinguish between private schools sec and private schools with governmental recognition, in much cases in favor of public funding. The different possibilities as we can see in the comparative notes may lead to the following criteria to assess the measure of legal basis to establish independent schools:

1. Level of legal protection to establish independent schools. From constitutional protected, to legal or comparable protection or no legal basis.

2. Yes/no freedom to choose your own form of organization. 1) If it is possible for individuals to set up a school or only legal entities. With the present ict, financial and legal transparency it isn’t necessary any more like in older times to demand a foundation or society. 2) Which judicial forms are legal required to use or is this open. 3) Is it allowed for profit organizations or only for non-profit. 4) If it is only possible for citizens or also for foreigners.

3. Legal basis for private/independent schools even if it is religious grounded, or on a religion other then national religion.

4. The level of clarity of rules to start a school by decision makers to reduce the risk of political decisions.

5. The level of accessibility of rules to start a school. In some countries it is only possible to change from private to independent school if you are already in existence for more than 1 year (b.e. in South Africa), or if you have a certain amount of money, leading to an entrance barrier for independent schools only accessible for initiatives with enough money.

4.2. Legal basis for financing of independent schools

A legal basis for financing of independent schools is of significant importance for different reasons.

• For some countries their constitution means that they cannot fund religious motivated schools because of a specific view about the relation between public and private. Whereas for other secular states Constitutional funding religious schools is no problem.

• A situation which can be seen a lot is the legal mentioned possibility of state funding of independent schools. As a consequence this could mean that if there is funding, and the state has to cut its budget’s, independent schools are one of the first who have to bleed, like in Portugal recently.

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• If there is no legal embedment or obligation to fund, it gives rise to political motivated choices of which independent school gets funding and which one not, and/or protective choices towards funding in relation to independent schools in the neighborhood of public schools. In some laws this protection towards public schools is embedded in the laws regarding funding of independent schools (like in South-Africa), meaning that an independent school gets only funding if it doesn’t operate in the neighborhood of a public school or when the catching area is already loaded.

There are quite a lot of countries with a Constitutional or good legal base for funding private/independent schools. In some countries it is even allowed and stimulated like in South Africa and Singapore that a independent school may become a public school and vice versa to foster diversification! The perspective of legal funding of independent schools contains the following criteria to asses:

1. Yes/no legal/constitutional bases for funding. Especially important in relation to the position of religious motivated schools. In some countries only alternative religious schools are allowed, not pedagogically.

2. Yes/no legal/constitutional duty for funding3. Yes/no legal/constitutional duty for equal funding or the level of funding. 4. Level of clarity and fairness of funding rules regarding access to be a school.

4.1. Regarding operational governance. In some countries existence of more than a year is required. Although comprehendible regarding governance of management of schools it decreases the space for new independent schools a lot, making it only accessible for present private schools with enough parents with enough money.

4.2. Regarding educational program. In Uruguay by example private schools are aided. But in practice it means that they have to follow the national program which contains not much space for proliferation.

4.3. Regarding the educational target group, regarding their background and/or talents. In different countries funding arrangements for private schools are given if private schools admit students from lower income parents, of if they cover special needs kids. Something especially private initiatives can be seen around. In others funding is available for special talents, like sports or vocational education.

4.4. Regarding the procedure. Timetables of admission, involvement of different authorities who have to give their approval.

4.3. Home schooling

Some people think of homeschooling as an exceptionally thing, especially in countries where it is not allowed people who affiliate with homeschooling are treated spastically. To others it is a normal issue because of practical nature when in rural areas schools in the direct neighborhood are absent. Or because of a during illness of the child. Or because of ideology because they are able and willing to educate their child and have their own opinion about how to educate, when, and if allowed also what. Or of mixed nature, by example with parents who are traveling/mobile and willing to educate their children, or by parents who want to let their children follow certain subjects at school, and teach them certain subjects themselves. With the upcoming of ict the last could be of more importance in the future. Homeschooling either is something that in most countries isn’t easy allowed. It seems to really testify our

nature of thinking about the right on learning, as foundational for the legal translation in compulsory free learning. Whereas in most countries homeschooling is allowed for medical reasons, in some countries even that isn’t allowed. Two policies are interesting to mention around homeschooling: • Countries were homeschooling is part of qualification of informal or non-formal learning

like in the Philippines, Czech Republic, Chile, Denmark, Georgia and Norway. Which is really something for the future to think further. On the one hand cause of its logical cohesion. On the other hand because of the need to develop qualification of informal learning for real lifelong learning in an integrative approach, including the ‘developed’ countries.

• Countries were there is not only allowance of the practice, but also support of it with a role of local schools. In quite a lot of countries qualified/local schools have a natural role in supporting parents in homeschooling with training, coaching, learning materials and/or examination. In Estonia it is even allowed for children to follow curtain subjects like arts, manual training). Norway has one of the best balanced regulations of home schooling.

Homeschooling could be assessed via the following criteria: 1. Yes/no right on home schooling on medical grounds, the absolute minimum although

sometimes decreasement of this option can also be of consideration because schools can misuse the option of home schooling to pressure parents of special needs/behavior kids to use homeschooling.

2. Yes/no right on home schooling on pedagogical/religious ground. Sometimes only religious grounds are accepted, whereas pedagogical grounds can be of eminent motivation as well.

3. Yes/no right on homeschooling for motivation of mobility. By example for a world travel of the parents with the kids, or for work of parents. In most cases not allowed, but in present international times no unique entry.

4. Level of intensive inspection of quality. In some countries parents have to get re-approval every year via an extensive educational plan, or children have to follow tests every week (Philippines), use the same textbooks and so on. In others children only have to closure primary home schooling with a final exam, and inspection only at random.

5. Right on financial support/tax reduction/level of facility support if homeschooling is practiced. In some countries financial support is available. Not illogical because it saves tax money to education and home schooling is also part of the right on education.

6. Level of facilities and financial support for support of good learning material or quality of instruction/guidance of home schooling (because of saving tax money to education and right on education).

7. Level of support of experts for support of good learning material or quality of instruction/guidance of home schooling.

8. Level of support and right on recognition of qualifications of homeschooling via examination and others.

9. Level of accessibility of the procedure for the right on homeschooling if present (in some countries parents don’t have to inform anyone, in others youth care have to give

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their approval, parents have to have curtain education and/or get approval for an extensive plan of how to reach the comparable targets.

5. DIMENSION ACCOUNTABILITY FOR EQUITY

Accountability regarding quality and equity can also seen as two sub-dimensions of Accountability. We have used 3 criteria for accountability regarding equity. Level of funding (for schools other then public in order to be accessible by parents), and School choice not limited by family income. As we have explained in the introduction we have split Accountability for quality in more indicators then the country profiles at first impression would contain.

5.1. Level of funding, equity of financing

The level of funding is of utmost importance for a country if it really wants to get more flexibility and choice in schools for the parents. Off course it is appropriate to be careful in this respect towards countries with a low or upcoming GDP. But when there is only the right to establish private schools, without any funding, it stimulates contra-productive issues regarding social cohesion: • Feeds critique on high taxes, because parents pay double. • The right on education isn’t clearly made as a believable right for all, if you only get

education including the funding if it suits the state (by enrolling public financed schools). • Low or no funding of private education makes it easier for higher society to segregate.

Rich kids to private schools, lower income kids to public schools. Which isn’t good for social cohesion, quality of public schools and image of public schools.

A special trend is the stimulation in some countries of the diversification of schools with more school autonomy, including explicit stimulation of public schools transforming to private schools like in South Africa, Singapore, Qatar. Some countries like Qatar chooses to transform all public schools to independent schools. To assess the funding the following criteria could be assessed:

1. Yes/no funding equal to public schools. If not:2. Relation of funding to target groups and ratio of level of funding. 3. Relation of funding to categories of costs and ratio of that category:

3.1. Yes/no funding of teacher salaries3.2. Yes/no funding of housing3.3. Yes/no funding of educational material3.4. Yes/no funding of staffing and administration3.5. Yes/no funding of other costs

4. Indexation rules regarding increasing costs. If a normal indexation is around 2%, and indexation misses, this will lead to defects in the budget of schools.

5.2. School choice not limited by family incoming (charging of not fees allowed)

When parents would like to choose for a school but can’t pay the fee this reduces their school choice. If this topic isn’t addressed properly, the absence of this leads deprives the

system of public schools from addressing the needs of these parents because of their lack of choice. It’s therefore an indicator highly related with the Level of funding indicator. But it isn’t necessarily the same! Because if the level of funding is equal to public schools, but funded private/independent schools are allowed to use fees, the school choice of parents with lower income is still hampered. Other aspects which are related with school choice not limited by family income are admission rules regarding the area, because if parents are only allowed to choose schools according their area of living, their choice is made dependent on their level of income as related to housing. And when funding is related to the budget of the local authority, also to the level of finances in that authority. The topic of compensatory funding for family background regarding language of instruction or bilingual education and compensatory support for low income/education grade of parents is addresses separately. The issue of special needs kids recognition and support is not handled in this bundle. Criteria to assess school choice not limited by family income

1. If funding is (almost) equal to public schools. And if tuitions fees are allowed, is there a tuition fee annual reduction policy?

2. If funding is not equal to public schools, is there tuition fee support for low income families from government?

3. If funding is not equal to public schools, is there fee support for schools regarding significant pupil participation from low income families or fee maximums regarding children of low income families?

4. If housing is not very integrated (which is in most cases). Is it possible for parents to choose independent/public schools outside the catchment area of their local independent/public school?

5. Is admission in primary education on grounds of academic results/ability forbidden (except for special talent schools).

6. If grade retention is possible on academic results in primary education and or lower secondary education: are they well balanced (not leading to grade retention if only 1 or 2 subjects are below minimum b.e.).

7. Is their good information for parents regarding their possibilities of choice. Regarding content of difference schools as well as procedure of admission. Sometimes when admission date is part of the admission procedure, there is an SES bias in date of admission.

5.3. Compensatory support measures and rights

This is a indicator which directs the influence of the background of parents in terms of language, education and income. When children have parents with another language then the language of public schools. They came with a difference of the national language in schools. It this isn’t rightly addresses, leads this to the risk that they are falling behind, although with the right language support they wouldn’t have fall behind. An equal right on education therefore consists of support of home vs. national language learning in relation to each other. From the standpoint of minority protection this is even so supported but also from other perspectives.

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Another important thing is whether outcome of children’s educational career can be predicted because of their minority existence or something else. Ass more and more research has shown the level of education of the parents is by far the best predictable factor. Most of the time minority results in education are overshadowed by lower educational background of the parents, whereas in public opinion the first overshadows the latter. To realize an equal right on education extra support for children with parents from lower educational background is therefore a good opportunity. In countries like the Netherlands shifted in 2003 from an extra funding scheme pro lump sum in relation to ethnic background towards extra funding pro child when it’s parents have received only secondary education. another way countries are dealing with this is extra A third aspect, which also could be used as a indicator on itself is special needs kids support funding. The issue of special needs kids recognition and support is because of its separate complexity not handled in this bundle.In some countries compensatory funding/facilities are offered. In Saudi Arabia secondary school students can get free housing and meals. In South Africa schools in areas with much children from parents with low income receive more money then average, in the Netherlands this was at place regarding ethnic background, and is in 2003 changed towards educational grade of parents. Compensatory rights and supports regarding parents language, education and income could be assessed with the following criteria:

1. When a certain amount of pupils of a different home language are present, they may receive language in their home language, or a good proportion of bilingual education, at least in primary education or their first years of education. To fulfill these rights, as mandatory by international provisions for minority protection, the government has a clear funding.

2. Schools receive extra money if the education level of parents is low, because as a consequence it requires extra efforts to reach to full potential of children.

3. Schools receive extra money if the income level of parents is low. Because parents cannot afford a rich environment for their kids, and schools could give this rich environment to reach the full potential of children. Sometimes specific labeled via the concept of magnet school.

6. DIMENSION ACCOUNTABILITY FOR QUALITY

6.1. Accountability for educational targets

Accountability as we have concluded in the introduction contains a lot of aspects. But it begins with the question as to how far a government takes responsibility of the educational targets, and in this respect how far in a balanced way. Especially around accountability issues it is not easy to see the different criteria leading to one line of low to high answer, but to see them in coherence with each other. For some these criteria could be more normative then others. General trends:• More and more countries develop school and learning standards as reference towards

the educational targets.

• The existence of the trap/funnel of the level of detail of educational targets in relation to their means is still in place, although many countries release mandatory relations between requirements on subject base and how they have to be reached. Others still use mandatory timetables pro subject, subtargets pro year or more detailed as well as obligatory learning material by the subject. As a consequence this leads to a less effective usage of the possibilities of inter-curricular learning which would require international attention and deliberation, especially when due to economic crisis schools tend to abolish more creative/physical subjects. The space for inter-curricular subject learning is also narrowed because of the increase of participation in international comparative analyses, although doesn’t necessarily have to.

• In different countries the last 20 years curricula are enhanced with more targets like citizenship, entrepreneurship, science and moral education. While didactics are changing from more subject orientation towards learner orientation, like in South Korea with the 2002 Vision of Creating a New School Culture and in Qatar. In other countries curriculum are renewed towards more basic skills for every subject, like in South Africa and Norway recently.

• The space for secondary schools to specialize according different talents of children is getting bigger. In more and more countries secondary schools are allowed to specialize or develop special qualifications regarding not only sports, but also arts, science, technology (not only vocational), as enhancement of traditional dichotomy between academic vs. vocational.

Generally spoken it can be said that when the targets are too specific in detail, it makes it difficult to address the diversity of children, the possibilities of the moment and surrounding and coherence with other learning activities in the school, and the talents of the teachers and vision of the school. Criteria to assess the balance of Accountability regarding targets of education:

1. Central accountability regarding educational targets regarding International recognized rights of the child.

2. Level of detail of targets regarding its phases pro subject. If the phases are in such detail, (together with accountability requirements regarding testing and assessing), it could decrease pedagogical professional space regarding the pedagogical vision. This counts also for subject time tables because that limits the possibilities to make educational plans for more learning area oriented education, projectbased learning and thematic learning with almost all subjects included.

3. Level of details of targets regarding the to be used materials. When the scale is wide enough, a to detailed level of targets is present when only approved textbooks are allowed.

4. Protection of the child regarding a to narrow curriculum as a consequence of the vision of the school/parents, especially around religious based curricula or vocational oriented education (in secondary education).

5. Level of vision and development program to make the targets in coherence with the examination, testing and assessing programs at the one side and balanced regarding summative and formative assessment, and development of teachers and professional space in schools at the other side.

6. Implementation balance mechanism of changes. Regarding curricular changes, with pilot programs for big curricular changes to address its child diseases. Regarding

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implementation and the difference between obligatory changes and which obligations are neglectible, or which obligations really need a school (culture) team change in order to be effective.

6.2. Accountability for quality of learning results and school quality

Accountability regarding quality of learning results can be done via input supervision and regulation, throughput supervision and regulation (inspection and subject time tables) and output in terms of knowledge and/or skills/competences regarding the targets of education/subjects. Relevant trends in this respect:• From input towards output. An interesting phenomenon is of countries where output is

central examined like in Finland with only high quality standards of education of teachers (input). But without inspection of throughput, which as a result gives more professional space towards schools because in practice inspection can lead to act according the general vision of inspectors.

• A tension between curricula changes, results and teacher quality. In many countries all over the world learner and competence/skills centered curricula are put in place whereas schools and teachers cannot adopt that fast if obliged (like in Qatar or South Africa) or enough support to change misses.

• A tension between accountability of soft skills vs. core subject skills and its consequences in prioritization. While literacy and numeracy subject hours are rising, partly due to the impact of PISA, this may go of from the possibilities for soft skills/competences, although they are formally even higher valued (like 21st Century Skills like entrepreneurial competence, critical thinking, social competence). Partly this can be seen as a consequence of the lacking behind of appropriate means to assess the value of projects/subjects around these towards these competences as well as involved core subject elements. In some countries physical education is of the menu and in many countries arts/music education is decreasing, science education rising.

• The rising amount of schools who make usage of thematic education. Which is less easy to accountable regarding the different subjects involved.

• The instrument of inspection, in fact supervision of especially throughput (besides input and output) requires even more to the flexible and diversifying demands of the future a balance task according their added value due to the high impact it can have on school operational management. In this time of ‘the post-welfare state’ the call for maintenance rises to close down schools which are making to low results according the used monitoring mechanisms, whereas to much maintenance practices can freeze the developmental power of much more schools.

• Other problems around supervision of throughput are about: What is being made public? And how impeccable the inspection standards are. Because some pedagogical visions tend to be in tension with general norms about timetable of learning, level of not-subject oriented learning or absence of testing cause of specific pedagogical visions.

Accountability for quality of learning results can be assessed with the following criteria: 1. Well equipped balance between different Governmental authorities regarding quality of

education in relation with governance of accountability between stakeholders. This

balance request especially thoughtfulness the matter local authorities are involved regarding independent schools. Local governments by example know their demographic changes better, cooperative possibilities and demands and housing options. But on the other side it can lead to too much involvement in the primary process of schools and too much instability regarding regulations and space of operation due to political changes/behavior.

2. National deliberated balance between input, throughput and output monitoring regarding it’s functions: A: Transparency for different stakeholders for making appropriate dialogue and choices. Including effects on mechanisms of choice among parents and schools. B: Responsibility towards stakeholders, esp. at horizontal (parents) and vertical (government) level with appropriate maintenance. Including effects on mechanisms of public opinion about valuation of educational targets and results. If they are too tight, schools are withdrawn from there managerial capacity to perform and develop. C: Effectivity of education to make the right judgments and interventions. The measure they are less proportional, they hamper educational improvement. D: Efficiency of organization, to operate efficient using or changing the right management of operations. Especially when too much obligations exist at input/throughput level.

3. The government contributes to a wise development and governance of qualification of testing and assessment instruments at subject grade phases without (or with) obligatory usage. Especially regarding a balance in output monitoring instruments between summative vs. formative assessment, in order not to decrease the many ways in wich results can be reached by learners, teachers and schools.

4. Examinations and qualifications have civil effect as a result of meeting meaningful targets. Meaning that the targets, including qualification profiles of (secondary) education are well balanced towards different stakeholders.

5. The government if they do make wise use of here bigger scale opportunities to lift the educational quality. On the part of monitoring results via small scale building up new mechanisms before they are ruled out nationally with all its child diseases. On the part of quality of learning by example with digital enclosure of learning materials, support for (cooperative) development of learning materials or establishment of national qualification of learning materials/textbooks without (or with) obligatory usage for governance in the field.

6. The government has a widespread validation of formal and non-formal/informal learning to secure and value learning instead of only schools as monopolists of learning. In practice in reverse at schools this could also mean that some students may follow subjects on a higher level or lower level, according their abilities and talents.

6.3. Accountability for teacher qualification

Teacher qualification is most countries is directed towards special training and/or higher/academic qualification for teacher education. Due to teacher shortages in many countries regulations exist to start as an outsider in education while training on the job without formal qualification, in rich and poor countries ( like Philippines and Netherlands). A special arrangement is also to require a certain % of academic instead of higher educated qualified teachers at school team level, instead on

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individual level. Accompanying that with more freedom of qualification of not qualified teachers. Especially in talentdirected or vociational directed secondary schools rules are reduced in that respect of qualifications. For the future of getting more teacher shortages, still existing teacher image issues, as well as need to realize more flexible arrangements with ict and flexicurity of other people who could be of meaning for learning of children, this could be an interesting way. Another way of matching the shortage is using other bright students for education. Bright students in secondary education in Cuba are offered such arrangements, in Saudi Arabia all graduates of secondary may be teacher assistants, in Mexico non-pedagogical higher undergraduates as secondary teachers. Possible criteria for assessing quality of teachers

1. Yes/no qualification demands for teacher quality2. Low-high qualification demands for teacher quality, secondary to academic3. Possibility to proof teacher quality without formal education. 4. Existence and level of induction programme for newly teachers to support their first

development after qualification. 5. Possibility for schools to be partner schools of institutes of higher/academic education

regarding in-service learning and training. 6. Level of tuning of educational qualification institutes with schools around qualification

profile development of teachers. 7. Existence or support of possibilities to make smart usage of other people willing to be of

meaning for schools like students. 8. Level of general development, knowledge of different pedagogical approaches and

possibility to specialize in certain pedagogical approaches.

6.4. Accountability for teacher developmental space, professional space

The professional space and support for development has a big overlap for its professional space with the level of support, facilities (not mentioned here), and level of tightness of requirements of input, throughput and output of education. Trends: • A rising problem is the status of teachers relating to their professional image. This is

highly related with other aspects covered by professional space. • Another one is that of career perspective. n most countries only level of education,

years of practice and further qualified training are taken into account and real promotion can be only a leadership function.

• In western countries a gender bias in education has risen. In primary education the teacher corps is for more than 70% female.

• While teachers are of utmost importance as recognized in research, their place in policies regarding lifting quality, other than raising qualification level and training programs, is not very clearly present. A special example in this direction is Jordan. In Jordan Each Directorat is responsible for evaluating performance of schools and teachers. Subject mentors assigned to oversee have a very active role in both evaluating the quality of teachers in practice as well as support for further development and follow up.

Criteria to assess the level of teacher developmental and professional space 1. Level of salary compared to other non-commercial sectors

2. Level of salary increasement future regarding: quality of work, quality of contribution to the school, years of practice, level of education and further training.

3. Balance between lesson hours and preparing lessons hours and other hours (organizational, developmental, accountability).

4. Amount of pupils in the class, safe and useful housing and facilities, especially related to the availability of public or private funding of education.

5. Stakeholder participation at school level and national level. 6. Space for teachers to choose their own methods and learning texts within the margins

of the school. 7. Space for teachers to develop education within their school or between cooperation of

schools.

6.5. Accountability of quality for governance

Accountability of governance refers to the level of involvement of stakeholders in the specific schools. As well as of stakeholders to choose within certain guidelines to choose from the level above secondary for specific qualification profiles with subsequent curricula. According the abilities, interests and talents of children on the one hand, and demands and future developments of society at the other hand. • Interesting developments can be followed in different countries regarding the obligatory

involvement of parents and/or teachers in the boarding of public schools. Which goes beyond the more usual regulation stakeholder commission rights regarding certain approval rights. Changing the landscape of when something is public/independent. Like in the Republic of Korea (creating of autonomous and participatory school communities); South Africa, Georgia, South Korea and South Africa were school boards are elected by parents and or teachers and learners; Qatar (all public schools being transformed to contract/licensed independent school operators).

• A unique example of governance in structure of authorities around education is Uruguay, because instead of a Ministry of Education or Secretary, educational policy is delegated to a self-responsible authority, with 1/3 of its members representatives of the field.

Criteria to assess quality of governance1. Participation of pupils, parents/teachers in school boarding or commissioner advisory/

approval rights. 2. Space for schools to choose a specific specialization regarding certain talents or groups

of children, in secondary especially regarding comprehensive curricula according the talent field. Without favoring only subjects which can be easily tested (knowledge based: language and mathematics).

3. Stakeholders, parents and teachers can get information regarding the quality of different used education materials, books, testing and assessment materials are transparent according to different views about quality, including the scientific points of views.

4. Stakeholders have access to educational results.

7. AUTONOMY

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7.1. School distinctiveness protected by law and policy

The field of distinctiveness is partly addresses via the curricular space in different accountability indicators regarding quality. Trends which can be seen: • Places were schools with a certain quality level of teachers are allowed to do different.

In Malaysia the university are operating a so colled laboratory school, which tries out educational innovations of the institution, has its own curriculum and serves as a school mainly for faculty and staff.

• Process of where housing as traditionally was a responsibility of municipality are transmit to school boards.

• Process whereby specific budget rules are decreased for more space for budgeting. • Governance rules around financial accountability. • Process and rules to stimulate explicit ownership/diversification of school visions. • In general a split between the what and how of education, although in practice the

testing of quality of the how leads to a reduced space to implement the vision in the how to reach the national mandated what.

Criteria which can be used to assess school distinctiveness 1. Curricular freedom to address diversity of people within certain guarantees like the

international children’s rights towards a broad education. . 2. Budgetary freedom to be able to prioritize in terms of objects of financing, sources and

time levels of allowance to spend sources. 3. Clairvoyance of sources of spending. In many cases the regulations are too difficult,

which makes it less manageable for principals to anticipate on. 4. Availability of enough public or private funds for housing and good facilities. 5. Absence of too much specificity in targets, rules regarding learning materials, timetables

pro subject, obligatory presence of teachers for every learning activity in order to be counted as education hour if national minimum education hours are prescribed.

6. Presence of alternative qualification procedures for the usage of alternative curricula, learning books, testing and addressing material.

7. Absence of level of detail in inspection towards learning standards or without maintenance consequences but only as public review, otherwise it interferes with the principle of giving space to more ways to the same target. Or learning standards as a handy tool, without creating a driving force network to use it to the test.

8. Schools have professional autonomy for quality evaluation of learning development of the child.

7.2. Decisions about admitting pupils according to certain criteria

Decisions about admitting pupils are in most times clearly bound by antidiscrimination rules. It differs pro country if and in which measure and on what grounds selection may be done on academic grounds for secondary education. in some countries even primary (private) schools may select on academic grounds. Trends: • Whereas public education was and is in many countries regulated by admission

according the area of living. There is a rising number of countries were pupils are allowed to admit for public schools outside their region, like in Ukraine.

• With the possibility of more specialized schools in secondary as well as primary education, admission regarding high skills in the related talent are allowed and practiced.

Possible criteria to assess decisions about admission policies1. Yes/no regarding religious background of the pupil2. Level of admission possibility regarding academic level beyond 14 years of age. 3. Yes/no regarding other behavior assets of the pupil

7.3. Decisions about staff according to certain criteria

In some countries public schools have authority in hiring qualified staff. In still a lot of countries this authority lies at national or regional public level. Sometimes via recommendation of public schools, but also only via central authority via ranking of teachers or via preference of teachers like in Urugay. As a consequence this can lower the ability of public school principles to work and develop as a team because of the instability of the staff. In most countries private schools have authority to select qualified teachers on grounds related to their vision-mission like Uruguay. Possible criteria to assess decision policy regarding hiring and firing staff

1. Yes/no hiring towards pedagogical/religious mission endorsement of the school. 2. Yes/no hiring towards objective behavior assets of endorsement of the mission of the

school in private life. 3. Yes/no dismissal on ground of quality of work of teachers4. Yes/no dismissal on ground of endorsement change of teachers

7.4. Teaching of values

Value education is almost in all countries part of the mandatory curriculum. The content, way it has to be achieved differs and space for differentiation and specialization differs. Value education is part of the Declaration of the Rights of the Child, but may be seen in line with the target of critical thinking. Trends: • In some countries the national religion is central in the curriculum, like in Saudi Arabia,

in others where there is a very dominant religion like Mexico it is officially not present in public schools, although in practice it is.

• More countries choose for an integration strategy of value education, although still in many countries value education is directed towards acquiring of knowledge and behavior. In the Phillipines: Teaching of values had been for decades part of the subject in Good manners and right conduct, now Values Education. In the current curriculum, teaching and development of values as embedded in subject Makabayan, where values are integrated in areas such as social studies, art education etc. Values integration is also encouraged in all other (core) subjects wherever appropriate.

Possible criteria to assess teaching of values 1. Yes/no orientation on different religions in the state curriculum2. Yes/no obligation for public to pay special attention (with facilitary support) when more

than a certain number of pupils identificate with this religion. 3. Yes/no possibility to pay attention to values and religion within a specific subject

directed towards this, or as integrative part of other subjects/projects.

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4. Yes/no possibility for private/independent schools to make specific religious/value education part of their school curriculum, with or without possibility of parents to withdrew their pupils under specific requirements.

Endnotes

1. Marco Iskender Matthijsen1, LL.M. Editor ECNAIS newsletter, European Council of National Associations of Independent SchoolsSenior adviser social and educational innovation at VBS, Dutch Association of Independent Schools. Amsterdam, the Netherlands, mimatthijsen@gmail.com

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16 Hanafi Ali Gebali

Regional Perspectives of the Right to Education with Special Focus on the Higher Education in the Arab Countries

Regional Perspectives of the Right to Education with Special Focus on the Higher Education in the Arab Countries

Hanafi Ali Gebali1

1. ABSTRACT

This research is presented for the Second World Conference on the Right to Education and Rights in Education (8th -10th November 2012) in Brussels (Belgium). It aims at reviewing the achievements of the higher education sector in the Arab States. It is also about current and future challenges facing that sector. Policies and measures by Arab governments over the last decade, and the rising demand for higher education, have led to a significant growth in the number of higher education institutions and considerable diversity in the features of these institutions. There are enormous efforts and many achievements by Arab countries in the last decade. These achievements have changed the features of higher education in the Arab region. The number of students has doubled, the number of higher education institutions has more than doubled, and the share of females in higher education has increased significantly. This has resulted from population growth and the rise in the social demand for higher education; it has also resulted from reforms and amendments carried out by governing authorities in the field of admissions, support, and the spread of state education institutions into remote areas, in order to increase opportunities and provide more equity and justice in securing these opportunities.The types of higher education have become more diverse and non-government institutions have appeared in big numbers, along with foreign universities or partnership programs with foreign universities. In addition to educational opportunities, Arab countries have made achievements in establishing national commissions for accreditation and quality assertion. As for the effects of the recently Arab spring on the religious curricula, the minorities' fears can only be assuaged through a commitment on the part of the Islamists who have now ascended to power to abide by their pre-election pledges and declarations.

Finally, this research sheds light on two important judgments of the Supreme Constitutional Court of Egypt on the Right to Education. One of them concerns Nikab (concealing the girl's face and body) in which the Court decided that prohibiting wearing Nikab in the schools is not against the Constitution. In the other judgment, the Court declared unconstitutional all the undue exceptions regarding students' admission requirements in universities and higher institutions.

2. INTRODUCTION

Definitely, there are wide differences among Arab countries in the grade access to higher education, and these differences are attributable to economic level, population bulk, size of rural areas, historical advantages in higher education and other factors.

Educational reform in the Arab states has become a priority. Ruling elites, civil society, private sector and families, in general, are suffering from the high rates of illiteracy, lack of skills and bad quality of pupils and students. The region has launched various initiatives to deal with a lot of important issues.The Arab countries have made significant progress at all levels of education, but enrolment is still far from being universal and large gender disparities remain, especially in primary education and adult literacy. Notwithstanding legally-guaranteed free education, primary school fees continue to be charged in several Arab countries. Early childhood care and education is still a luxury for the majority of children in the Arab world.Great progress is made in universal primary education, but gender disparities remain, the enrollment rate in females is lower than in males. Nearly 60% of out-of-school children are girls.

As such, eliminating gender disparities in primary and secondary education will involve understanding what holds girls and boys back so that policies can be designed to overcome these obstacles and improve access to and participation in education. The school environment requires equal attention.

Some Arab countries will need to allocate more of their own resources and use them more effectively if they are to eliminate gender disparities while achieving all the other EFA (Education for All) goals. A number of Arab countries regulate admission (and distribution of students) in higher education institutions through a centralized system based on the grade that students obtain for their high school certificate. However, other countries enforce different admission measures, such as open enrollment, entrance exams, or rely on international or national testing. The centralized system provides equality of opportunity because it applies specific criteria to all, without discrimination. However, this does not necessarily secure an equitable distribution of these opportunities whenever students are subject to the same criteria of selection, while they have unequal geographical and social backgrounds. To confront this situation, a number of steps have been taken, leading to an increase in opportunities, the numbers of students, and equity in distribution. The increase in opportunities has also resulted from economic considerations, as higher education institutions have sought to open up new tracks in education, which secure supplementary income for institutions.

3. DEVELOPMENT OF ADMISSION AND SUPPORT SYSTEMS

3.1. Measures to provide equality and equity:

3.1.1. Royal donationIn some countries like Jordan; Royal Donation gives opportunities to students in remote areas for admission in various specializations, at the minimum acceptance level in each specialization. That aims at granting students from these regions further opportunities, to balance for what they lack in educational and geographical profiles compared to more fortunate areas.

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3.1.2. Geographical admissionThe Higher Education Council in Sudan has issued a decision that assigns special concern to admittance in less developed areas, to achieve balanced development in Sudan's various states, known as geographical admission, i.e. admission and competitions take place among the people of a single state.

3.1.3. Scholarships and loansThe Ministry of Education and Higher Education in Palestine established the loan fund scheme for students in higher education institutions, to help cover the financial requirements of students who cannot reimburse their tuition fees. The government awards university scholarships and loans that are based on the annual income of the student’s family; these scholarships and loans are a shape of social integrity. Approximately 35% of students at Tunisian universities receive these scholarships. The scholarships awarded to students in higher education in Morocco covered 31% of the country’s total number of students. The Ministry of Higher Education in Oman provides scholarships to students of families having a limited income to enroll in the Sultanate’s higher education institutions. The ministry has paid attention to this segment of the population since the program began in the 2000 / 2001 academic year, in an attempt to promote its conditions and support it so that families become productive and provide themselves with a decent life, and exiting the umbrella of social security.

3.2. Measures to increase enrollment opportunities:

3.2.1. Parallel educationIt aims at accepting an additional number of students in each specialization at state universities, in exchange of fees covering the total cost of their study.

3.2.2. Education cost systemStudents are accepted at various higher education programs with the exception of medicine, health sciences, engineering and IT, in exchange for a relatively low cost compared to corresponding tutoring.

3.2.3. Domestic scholarshipsIn Kuwait, a domestic scholarship policy and a plan were approved, to compensate the inability of the University of Kuwait and the Public Authority for Applied Education and Training to raise the number of their students. The ministry put forward a scholarship project at non-governmental universities and faculties. These scholarships are offered based on the quality of the students’ educational performance, in addition to reports on institutional and program performance submitted by the National Commission for Academic Accreditation and Assessment on these universities and faculties. In Saudi Arabia, some are full scholarships, while others are partial ones, covering part of the tuition in various specializations required by the employment market. The Ministry of Higher Education provides scholarships to the children of emigrants within Yemen or gives scholarships to some students studying at private universities.

In Oman, the ministry is also making efforts to increase enrollment capacity by offering state scholarships annually for enrollment in private universities and faculties in the Sultanate.

4. THE EGYPTIAN SYSTEM AND THE 4 INDICATORS

Despite the fact that Egypt has been rather successful in implementing universal primary education, there are still a number of impediments that cannot and should not be ignored when analyzing the performance of the 4 indicators of the right to education. According to a UNESCO report on Education Trends and Indicators, overall enrollment rates grew considerably, especially at the primary levels, but universal participation in obligatory education, up to age 13, has not been reached. These indicators are as follows:

4.1. Availability: Fundamentals of Education:

Includes enrollment rates, survival to higher grades, teacher – pupil ratios and repetition rates.Primary Education: In Egypt, a majority of students are enrolled in government-run schools. There are three types of primary schools in Egypt: public schools, subsidized private schools, and unsubsidized private schools. However, for all purposes; public and subsidized primary schools are the same. In 2009, the percentage of enrollment in the private institutions was listed at 8% of total enrollment at the primary level. Availability has been previously described as the government’s obligation to provide adequate facilities that are available to students with buildings, materials, trained teachers receiving satisfactory salaries and if possible, facilities such as libraries, computer labs and information technology. Providing available resources for students and teachers in the context of the right to education is indispensable to fulfilling the right to education. The Ministry of Education in Egypt has made significant and impressive reforms in this direction. However, there are many hurdles that have yet to be resolved. As a result, the problems continue to hinder the full realization of the right to education. Some of these problems include insufficient school buildings, overcrowded classrooms and inadequate teacher training and salaries.Schools – Availability and Infrastructure: There is still a demand for adequate infrastructure for schools and the construction of new schools. In the urban context, schools are often overcrowded and forced to hold sessions in two to three shifts during the day.Working Conditions of Teachers: While it is the main responsibility of the teacher to provide quality and efficient tuition to pupils, it cannot be successfully accomplished without the necessary training, resources and compensation. If there is an absence of these elements then the possibility that the quality of education will suffer is an inevitable certainty. According to the International Labor Organization (ILO), teacher’s salaries should be increased. Teachers in Egypt, in particular at the primary level, are some of the lowest paid and under trained government workforce.

4.2. Accessibility: Obstacles of Education:

Accessibility, which is related to admittance to educational programs, is comprised of some groups of indicators. These indicators are as follows:

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Physical obstacles: Having schools available for pupils is the first step in providing the right to education; however, if it is difficult for children to physically reach schools in a reasonable amount of time and under safe conditions then it is not meeting a major characteristic of that right. According to the Right to Education project, the categorical indicators for physical accessibility include the school-to-house distance, safe access, transportation provision and remoteness education programs. Unfortunately, research on the subject of physical obstacles is not readily available in Egypt. It would be an important contribution towards understanding physical obstacles if there were information that examined transportation within the various areas of Egypt.Economic obstacles: There tends to be large number of economic obstacles for children and their families when it comes to accessing government-run primary education. While it has been stipulated in the Egyptian constitution that education is provided at no cost; however, the indirect costs attached to primary education in Egypt are at the top of the education debate. The indirect costs for primary education often includes the cost of textbooks, teaching materials, uniforms and other monetary obligations to ensure right of entry. The utmost costs for families are rooted in private tutoring, private group tuition, use charges and the high cost of school supplies. The Government of Egypt has been relatively unsuccessful in its ability to eradicate the practice of private tutoring; the government has failed to offer an adequate solution to make it obsolete, but it has pledged to overcome this problem as one of the main targets of the present government.Gender obstacles: The level of progress taken in Egypt towards ensuring female enrollment in basic education has seen great improvement in the area of girls’ access. Much of the gender bias in education in Egypt can be attributed to cultural misunderstanding as related to the importance of educating girls. There are existing campaigns that have and continue to encourage parents and communities to educating their girls. Socio-cultural obstacles: The socio-cultural obstacles tackle the issues related to indigenous peoples, religious groups and racism. The official language in Egypt is Arabic, and while there are some indigenous groups such as the Bedouins and Nubians, they tend to all speak Arabic, some with varying dialects and with the exception of the Nubians who speak a language called Roton. So tuition in any other language for children in Egypt (at the government level) is not an option and private schools tend to teach in English, French or German.Out-of-school children: Out-of-school children in Egypt are typically those children who cannot afford the high costs related with education. Families with lower incomes or the extremely poor can barely afford the fees that come with public school education.

4.3. Acceptability: Relevance and Substance of Education:

Acceptability addresses the relevance of education in terms of substance, quality, methodology and curricula. In meeting the need of the society, the government should provide pertinent education towards the development of the right to education. A large segment of acceptability focuses on the relevance of education that students receive and how it prepares them to think seriously and scrutinize.

4.4. Adaptability: Molding to the Needs of the Child:

The final element focuses on the compliance of education to three specific groups; (1) child labor; (2) minorities; and (3) persons with disabilities. This category requires that education should be flexible in order to meet the constantly changing needs of students in relation to their communities. The density of Egyptian society includes the frequency of child labor, which is one of the largest areas where education has to be customized to meet the needs of these students and their families.

5. ARAB REGIONAL 21ST CENTURY REVIEW

5.1. Arab Regional Review - Tunisia, 2003

The Arab Region officially launched the United Nations Literacy Decade in Tunisia, during the Arab Regional Review held in Hammamet in Tunis. Seventeen (17) Arab countries were present in addition to members of the Arab Network for Adult Education & Literacy and other NGOs and civil society members.Whilst the Arab countries met, the international view was already influenced by one fundamental principle, namely that literacy is a human right and that basic education is the key learning tool to get rid of illiteracy. The Arab Region, which has a literacy rate of 60.1% – 71.7% for men and 47.8% for women, found it essential to improve the situation in this sector, which is crucial to improve the region’s overall human development performance. Action since then has focused on proper strategies to address the importance of the situation. Two global initiatives have framed international efforts to diagnose the problem, find solutions and design action plans. These two initiatives are Education for All (EFA) whose goal is to increase literacy rates by 50% by the year 2015 and the Millennium Development Goals. Both have provided an overall target for development within a context of poverty diminution.

5.2. Arab Report of Non-Governmental Organizations and Civil Society - Hamburg, July 2003

A broad survey conducted by the Arab Network of Literacy and Adult Education (ANLAE) has outlined the main features of NGOs’ and civil societies’ contribution in adult education in the Arab region. These features clear some weaknesses in the interface of civil society with the policy process of educational improvement even though its civil society has been showing some successful commitment and initiative to meet the goals of illiteracy eradication and especially of gender equality.

5.3. Arab Regional Conference on Education for All-Beirut, January 2004

UNESCO held a number of meetings since Dakar 2000, aiming at assisting the Member States in the preparation of their EFA plan through capacity building and technical and financial assistance. The purpose of the meetings was to review the EFA plans and develop strategies for the future. The ministerial meeting in Beirut, 20-23 January 2004, affirmed the commitment to the principles of action adopted by the World Education Forum held in Dakar

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in April 2000, and the Cairo Conference in 2000. Those principles cover the state level, the regional level and the activities level.

5.4. Arab Summit in Tunis- May 2004

During the Arab Summit held in Tunis, May 22-23, 2004, participants focused on quality education and stressed the need to emphasize the paradigm shift towards a commitment to development and education reform in the Arab world.

5.5. Regional Conference on EFA: Arab Vision for the Future- Cairo, June 2004

The meeting held in Cairo 1-3 June 2004, defined the Arab Vision for the Future as an Arab States’ commitment to enhance humanitarian values for all and to break the cycle of poverty through learning and education for all.

Related to educational reform, the meeting identified a need for putting realistic policies to meet the requirements of the 21st century in areas such as dialogue among civilizations and inter-religious dialogue, empowering women, reinforcing community participation and dialogue with minorities based on democracy and universal rights. As an outcome of the conference, the participants adopted the Cairo Declaration 2004. It declared the commitment of the Arab States to the EFA goals and highlighted the role of teacher training, curriculum development, evaluation, early childhood development, ICT in education, inclusive education and community participation. It also stressed the commitment of the Arab States to adopt Quality Education Standards at all levels through networking and creation of centers of excellence.

5.6. Fifth Meeting of the Working Group on EFA- Paris, July 2004

The main message of the 5th Working Group was more convergence and integration between current global initiatives. The meeting considered ways of improving the timeliness and quality of statistics, enhancing external funding for EFA and particularly the Fast Track Initiative (FTI) and the harmonization of the FTI shape, strengthening civil society engagement (through a tripartite collaboration between government, donors and civil society) and promoting partnerships with the private sector on EFA. The key for building joint efforts with the private sector lies in sharing common goals. The business community needs to be considered as ally from the early stages of planning.With regard to achieving the Millennium Development Goals, the Working Group considered adult literacy as crucial and emphasized post-primary education as necessary to ensure useable skills. Transparency in tuition (effective costs, educational contents etc.) will increase parents’ engagement with their children’s schooling.

6. EDUCATION, TRAINING AND LABOR MARKET

In this chapter, I focus on five special areas that require attention on the regional level. These areas deal with training for better educational quality, higher education, linking

education to the market, gender parity, and the development of a knowledge economy and a knowledge society.

6.1. Challenges in Education and Training

Knowledge is essentially transmitted through education, training, and lifelong learning. Therefore, an effective education and training system is the basis of progress. However, the educational system and training in the Arab states suffers from two grave challenges, one relates to language and the other to the internal inefficiencies of education which cause a diminishing rate of return on education.

6.1.1. Linguistic problemsThe Arabization of education is being carried out under conditions that handicap an entire age group, because some countries did not choose language of reference, particularly for the scientific and technical disciplines.

6.1.2. Internal InefficienciesEducation systems aim at mobility and social integration, not at meeting the needs of the economy. In Egypt, researchers call attention to the diminishing rate of return on education

6.2. Higher Education

The prevalence of poverty in Arab countries constantly increases the selectivity of higher education in favor of the prosperous. In this way, higher education is gradually being transformed into a mechanism to bring about social inequality in Arab countries. This means, inter alia, that one of the main future tasks of higher education development in Arab countries should be to restore momentum to the expansion of higher education among all strata of society, if social disparities are not to amplify.

6.3. Linking Education with the Labor Market

The challenging linkages between education and the labor market in the Arab region can be summarized on four levels: one is that of higher education, the other is vocational training, the third is lifelong learning and the fourth is the level of the market, in turn an indication of the weak energy of economic development and competitiveness in most Arab states.

6.3.1. Higher EducationWhile there are some very high-quality technical universities in Arab countries, the global and local economic environments demand many more specialists and workers in science and technology than are currently being trained. In fact, in many Arab states, too few students are being trained at higher levels in science and technology disciplines while there is an oversupply of humanities and social science graduates.

6.3.2. Vocational Training

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Vocational training suffers from a bad image and lacks links to other forms of training. Vocational training is often very centralized, inflexible, and is unsuccessfully adapted to actual market environment.

6.3.3. Life Long LearningMost of Arab countries are still far from offering an effective structure for lifelong learning. It requires awareness rising, professional and social incentives, a diversified and easily accessible network of supply structures that eliminate the separation of schools and firms.

6.3.4. Market WeaknessDevelopment in most Arab economies is insufficient to meet the growing labor supply, and the regions’ economies are not yet sufficiently diversified to offer jobs to all graduates. Although sectors like ICT lack the necessary workers, training/employment mismatches make it difficult to absorb the unemployed. In general, unemployment of young educated people has increased sharply. Furthermore, many employers, mainly in the informal sector which is producing most jobs in Arab markets, prefer to hire unqualified workers and relatives who accept hard working conditions and low salaries.

6.4. Gender

Arab States Regional Report of the UNESCO Institute for Statistics presented the results of a survey on education in 19 countries – among them Egypt, Jordan, Morocco, and Yemen, covering the 1999/2000 school year. One of the findings is that some eight million primary school-age children remain out-of-school in the Arab States and five million of them are girls.

6.5. Knowledge Society

The knowledge revolution presents Arab countries with challenges and opportunities. They need to take advantage of this new source of growth and employment. To date, related investments in education, information infrastructure, research and development (R&D), and innovation have been insufficient in most Arab countries. Moreover, inadequate economic and institutional frameworks prevent these investments from yielding desired results. Hence, action is needed to advance structural reform and to build up and adapt knowledge-related investments.

7. ISLAMISTS AND EDUCATION IN THE ARAB WORLD

The Islamists' ascent to power in parts of the Arab world has stimulated many fears, not only those of minorities and secularists but also of Muslims themselves. A particular cause for concern is the effect this Islamist rise might have on education in the Arab world, with some cautious that Islamic law (sharia) may be introduced into curricula.However, I argue that it is too soon to tell what kind of impact Islamists will have on Arab education systems. Acknowledging the importance of not lumping together all Arab states when looking at these issues, reflects the Islamists’ ideals, modern methods of tuition, and perceived commitment to democratic values.

Education is a very important target for any ideological party that assumes political power, and Islamists are no exception. They will definitely attempt to shape the education curriculum, though not automatically in the sphere of religion. It has not been clearly established whether the main Islamist parties in Tunisia and Egypt intend to change religious education programs in government schools. Vagueness persists for a number of reasons, including the difficulties of dealing with state policies and institutions.

The Islamists must first of all modify the articles of their nations’ constitutions that address educational matters, and that alone is slowed down by a number of obstacles, such as the hinder opposition of more than one political and military force. Moreover, the existing education programs do not primarily conflict with those elements’ political goals: Islam and its values are already promoted in curricula in multiple ways, and each student in Egypt studies his faith with a teacher belonging to that belief thereby ensuring that Muslim students are indoctrinated in Islam. In Tunisia, only Islamic education is offered in public schools.

The key Islamist parties may seek to transfer their educational experiment in private schools into the public schools by influencing teacher training programs as well as through extracurricular activities that reinforce Islamic culture in the schools.

Nevertheless, it is important not to bulge together all the Arab states in which Islamist parties have either risen to power or become major partners in the government. The regimes that once governed these countries possessed vastly different natures before they were replaced or reformed. Moreover, the countries themselves differ from one another on the social and cultural levels, both in terms of their educational systems and their students' educational activities.

Islamists, such as the Muslims Brotherhood in Egypt, have gone so far as to affirm that any legislation they present will be premised on equal citizenship. The parties representing the Muslim Brothers have stated clearly that they will not compel others to adopt the same beliefs or practices that they and their supporters have adopted. The Brotherhood’s program, as represented in Egypt by the Freedom and Justice Party, affirms a number of fundamental political principles that must govern in democratic, pluralistic societies. Along with the most prominent of these are: “guaranteeing freedom for all citizens” in terms of beliefs, expressing one’s opinion, forming political parties, and other areas; “equality and equal opportunity” without discrimination on the basis of religion, gender, or race; and “political pluralism” in addition to promoting the values of dialogue, tolerance, cooperation, responsibility, accountability as well as other democratic tenets.

Religious minorities especially Christians: In Egypt, where minorities have expressed these fears, the curricula that were applied prior to the recent revolution did not take into account the particularities of religious minorities. As an alternative, they imposed Islamic concepts upon all students via the texts used in teaching the Arabic language, history, and the social sciences. The fear of the minorities in post-revolutionary Egypt—just as in Tunisia and Morocco—stems from a lack of trust in the officially declared intentions, programs, and published statements of the Islamist leaderships concerning their commitment to the principles of pluralism and democracy. The minorities' worries can only be assuaged through

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a commitment on the part of the Islamists who have now ascended to power to abide by their pre-election pledges and declarations. If the Islamists’ fulfill their pledges they will have established a stable, civil state. And if not, they will open the door wide to conflict, which may well prevent them from remaining in power for the full length of their terms.

Al-Azhar Mosque and University: Al-Azhar Mosque, "mosque of the most glorious" is a mosque in Islamic Cairo in Egypt. Al-Mu‘izz li-DīnAllāh of the Fatimid Caliphate commissioned its construction for the newly established capital city in 970. Its name is usually thought to allude to the Islamic prophet Muhammad's daughter Fatimah, a revered figure in Islam who was given the title az-Zahrā′ ("the shining one"). Al-Azhar University has long been regarded as the foremost institution in the Islamic world for the study of Sunni theology and sharia, or Islamic law. The University, integrated within the mosque as part of a mosque school since its inception, was nationalized and officially designated an independent university in 1961, following the Egyptian Revolution of 1952. This University concerns itself with the religious curriculum, which pays special attention to the Qur'an sciences and traditions of the Islamic prophet Muhammad, on the one hand, while on the other hand the university teaches all the basic modern fields of science. In 1961, according to Al-Azhar University's legislatory law No. 103, new colleges of applied sciences, such as the faculties of Medicine and Engineering, were introduced to Al-Azhar University. These newly introduced faculties are not duplicates of their counterparts in other universities because they combine the practical sciences with the religious sciences. Alongside the Egyptian students who are studying at Al-Azhar university, there are also many other students from various Islamic and European countries. These foreign Muslim students have exactly the same rights as the Egyptian students

8. THE RIGHT TO EDUCATION IN THE VISION OF THE SUPREME CONSTITUTIONAL COURT OF EGYPT

8.1. Nikab (concealing the girl's face and body)

Prohibiting girls of wearing Nikab in the schools was the subject matter of Case no. 8 of the 18th judicial year, decided on the 18th of May 1996, where the constitutional litigated issue was the invalidity or otherwise of decision taken by the Minister of Education on this concern.The said decision declares that hair cover is the one freely chosen by girls, without concealing her face. It also provides that as to all students, irrespective of their scholar phase, the dress must demonstrate decency, either in appearance or the manner of its arrangement; all to be in line with societal instructions and moralities; otherwise admittance of the respective student to his or her school, shall be withheld.According to the unshaken chain of its jurisprudence precedents, this clearly stated that the principles of Islamic Law represent uncontestable Islamic norms, either in relation to the source from which they derived, or as to the precise meaning attributable thereto. Unlike these Islamic principles which lie beyond any controversial points of view as to their mandatory application, all other Islamic rules are susceptible of being able to different interpretations. Only the area of these rules, may the legislature intervene to regulate

matters of common concern, and achieve attached interests consistent with basic Islamic norms, the aim of which is the preservance of religion, reason, honor, property and the body.Therefore, practical solutions could be drawn to lead forth to variable social needs, since the bulk of Islamic rules are highly developed, intrinsically in harmony with changeable circumstances, repulsive of rigidity, and away from absoluteness and firmness.In no way may be mandated, a fading Islamic rule either due to time, place or pertinent situations. As such, the Supreme Constitutional Court of Egypt reiterated that Islam highly esteemed and praised women, persuaded them to maintain their chastity, and not to be dressed in an insolent way, in order to level themselves beyond indignation and indecencies, in particular if inordinate dresses were used, or the beauties of their bodies revealed, in temptation of others. In view of the foregoing, the Court stressed that woman under Islamic law, has no definite word as to her dresses. Nevertheless, women have to bear their responsibilities in the different aspects of life, taking into consideration that Islamic law has never mandated a particular design or image for their dresses, but left their form and arrangement to different interpretation within a straight-forward criterion of moderation and uprightness, in line with prevailing customs and traditions of the society.The Court pointed out that point of view of Islamic jurists as to the proper construction of the verses of Quran and the confirmed or argued sayings of Mohamed the Prophet, led to different opinions regarding women's dresses. As such, a balance must be struck between the necessities of life and application of valid customs and traditions on the one hand, and the fascination of woman's body and shape. The outcome of this balance; the Court clarified, is that women have to yield to moderation in their dresses, and under no circumstances be entirely wrapped and completely veiled in public. Hence; the Court stressed that the challenged decision does not affect freedom of religion, nor impedes its exercise or denies other fundamental norms in Islam, but simply regulates student's dresses in line with congruities and appropriateness, that decision be regarded as a rightful and permissible construction of Islamic norms. On the other hand, the Court also pointed to what the petitioner (father of two girls wearing Nikab) alleged that the challenged decision violated the personal freedom, claiming that its core lies in the autonomous independence of every individual to finally decide matters closely related to his chosen patterns of life, and the integrated elements of his personal characteristics. Against this argument, the Court stated that a dress worn by someone even reflective of his appearance and demonstrates his will to selectively make his choices as to different methods of conduct, nevertheless choices associated with personal liberty should be confined to a circle in which arise the most intimate relationships of the individual, such as his right to choose his spouse, to form a family and to beget a child. Beyond this narrow circle, a wider one emerges in which – inter alia – student's dresses may be controlled in order to attain their uniformity and suitability.The Supreme Constitutional Court of Egypt concluded that the challenged decision was enacted in order to ensure that student’s dresses in specific educational institutions, are not seducible and vulnerable to others, and that all shall share- in their common features- no appeal either to profane behavior, or to the alleged religious firmness which this Court brands as being inflexible and excessive, and therefore deplorable. Hence the Court decided that the challenged decision does not stand against constitutional provisions or rules.

8.2. Exceptions of students' admission in the Higher Education

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In case no. 41, the 7th judicial year, the Supreme Constitutional Court of Egypt issued its judgment on the 1st of February 1992, in which it had to examine the constitutionality of a decision taken by the Supreme Council of Universities and Higher Institutes. Such decision was questioned upon allegations that it carries out an unjustified discrimination favoring specific categories of students either because of their affiliation with a family whose head occupies a particular job, or assumes the responsibilities of his post in a designated area, or perform his duties on a specific date, or being killed in a combat. Also, shall be beneficiaries of that exception stated by the same decision; students attached to remote areas in Egypt either by birth or residence or due to their obtainment of the high school degree there from.Article 8 of the Egyptian Constitution of 1971 provides that the state shall guarantee equal opportunities to all. The principle of equal protection before the law is spelled out in article 40 thereof, which forbids discrimination based on sex or race or religion or belief or language. In this regard, the Court ruled that the list of factors referred to in that article and upon which arbitrary discrimination may be based, is not exhaustive, but merely indicative. This conclusion is understandable given the fact that unjustified distinctions may rest on other irrational grounds such as birth or wealth or national origin or social status or political opinion or affiliation with a particular minority.The Court also held the opinion that rights and privileges which the equal protection clause safeguards, need not be inserted in constitutional provisions. Suffice to say that the right or privilege in question may either be specifically provided for by the Constitution or initially established by a statute. Consequently, under the equal protection clause, even rights and privileges which are not generated by or based on constitutional provisions, but having their origin in a challenged statute, are to be accorded the constitutional guarantee of that clause.

As for the Higher Education, the Court emphasized that it is deemed to be effective machinery for promoting advanced aspects of any civilized society and a vital vehicle required for the elaboration of specialists, technicians and experts. While education is subject to the State's supervision in order to guarantee the requisite linkage between its objectives and societal necessities including productivity; available opportunities enabling access to higher education, totally depend on attainable resources of the State, and therefore implicates competitive admissions thereto. Only within standardized measures of worthiness, priorities regarding accessibility to that education may be fairly declared.

The court stressed that; either limit the full application of the equal opportunities clause or unduly obstruct equality before the law provided for in articles 8 and 40 of the Constitution respectively, are impressible. Bearing in mind that all exceptions embodied in the challenged decision have no relevance either to the nature of the right to Higher Education or its perceived objectives, or the rational requirements of studies conducted in the respective institutes, that decision which failed to meet limitations spelled out by articles 8 & 40 of the Constitution, must be branded as being invalid. In view of the foregoing, the Court decided that the challenged decision was unconstitutional.

Endnotes

1. Justice Dr Hanafi Ali Gebali is Vice-President of the Supreme Constitutional Court of Egypt, and Secretary- General of the Union of Arab Constitutional Courts & Councils (UACCC)

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17 Cheolung Je

Freedom of Private Secondary Schools in Korea: a Forgotten Myth?

Freedom of Private Secondary Schools in Korea: a Forgotten Myth?

Cheolung Je

1. INTRODUCTION

Koreans have established and run private schools so that young generations educated and enlightened in those schools were, since Japanese colonial occupation, believed to be able to contribute to the independence of Korea from Japan, and, as of independence from Japan, to nation development. Such an educational enthusiasm initiated from private sectors has certainly been major locomotive to Korean economic success even though Korean War in 1950s totally destroyed all the country. As Korean economy has grown, central government and local authorities have established and run national and public schools in order to substitute private schools and meet educational demands from parents, to the extent that private schools at the level of secondary education has gradually decreased. That being said, the proportion of private schools still accounts for more than 20 % of lower secondary schools and for more than 40% of upper secondary schools, as is shown below.

[Private Secondary Schools (2008)], reconstructed from the Education Statistics

DistinctionNumber of SchoolsNumber of Schools Number of PupilsNumber of Pupils Number of TeachersNumber of Teachers

DistinctionTotal P r i v a t e

(%) Total P r i v a t e (%) Total P r i v a t e

(%)

Total 5,267 1,592(30.2) 3,946,589 1,257,905

(31.9) 231,606 73,308(32.1)

L o w e r Secondary 3,077 650

(21.1) 2,038,611 371,403(18.2) 108,700 19,710

(18.1)

UpperSecondary 2,190 941

(43.0) 1,906,978 886,502(46.5) 122,906 54,598

(44.4)

Probably reflecting such a long history and considerable number of private schools, regarding the freedom of private schools the Korean Constitutional Court1 as always rules as follows: “since a private school is established by a private individual or private school foundation with his/her or its own property and willingness for the purpose of realizing individual educational aims and goals, it is indispensible to guarantee the freedom of the establishment and independent running of a private schools to the extent that it cannot be relinquished for anything else. Even though the freedom of private schools itself is not explicitly prescribed in the Korean Constitution unlike German Basic Act Article 7, the freedom of such an establisher of the private school to independently run the school is therefore a fundamental right guaranteed by Article 10 of the Korean Constitution2 as a right of all citizens to the freedom of general activities, which is an expression of the right to pursue happiness guaranteed by that Article, Article 313 (1), which provides for equal rights of all citizens to education corresponding to their abilities, and Article 31 (4), which provides for independence, professionalism and political impartiality of education.” This paper

however arguably holds that despite repeatedly expressed rulings of Korean Constitutional Court, essential contents of the freedom of private schools have been oppressed to the extent that Article 374 (2) is violated. Taking it into account that the freedom of private schools essentially consists of the freedom of parents to send their children to private schools, the freedom of private schools to select pupils in accordance with their educational purposes and distinctiveness, the freedom of private schools to pursue their own distinctive educational purposes, and the freedom of private schools to select their own staffs in accordance with their own educational purposes,5 we can come to a conclusion that the freedom of private schools in Korea is not only restricted so as to realize public interests worthy of protection, but the very essence of such freedoms is denied for the purpose of pursuing uncertain educational policies set by educational authorities in that most parents are denied the right to send their children to private schools, whereas most private schools are denies the right to select pupils, and furthermore the right of denominational private schools to set and practice religion classes within their schools is not respected: in other words, pupils at denominational private schools have the right to attend denominational schools with refusing religion classes.

2. SUBSTANTIAL INFRINGEMENT OF THE FREEDOM OF PRIVATE SCHOOLS

2.1. Denial of parental rights to choose among schools and Denial of the freedom of private schools to select pupils

(1) Article 7 of the Korean Education Act, which was promulgated in 1949 just after Korean independence of Japanese colonial occupation, provided that all pupils graduating from any equivalent schools established in accordance with the Education Act and its Regulation,6 irrespective of national schools, public schools or private schools, have the same qualification. Those times, parents enjoyed the freedom to choose among schools and send children to a private school, whereas private schools enjoyed the freedom to select pupils according to criteria set by themselves in accordance with relevant statutes. In early 1970s, when military dictatorship governed Korea, the government denied such freedoms at the level of lower secondary education so as to standardize and equalize all the lower secondary schools,7 with starting and spreading from megalopolis such as Seoul and Pusan to cities. In mid-1970s, the government widened such a policy to the upper secondary education. At present, Articles 43(2) and 47(2) of the Korean Primary and Secondary Education Act provide that the way and method to admit pupils into a secondary school shall be determined by the Regulation of that Act, as result of which in most cities, the freedom of parents to choose among schools and the freedom of private schools to select pupils are denied. In other words, pupils are allocated by lots to secondary schools within neighboring districts unless few schools as special purposed schools are exceptionally exempt from compulsory allocation of pupils. Such a policy applies to private schools without exceptions.

(2) On the other hand, in 1984 the military dictatorial regime, which seized power by killing more than thousand citizens, extended the principle of compulsory education to the lower secondary education with gradually applying it nationwide. At the same time, Article 12 (3) of the Korean Primary and Secondary Education Act8 provides for the power of educational

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authorities to compulsorily allocate pupils to private schools. One can say that the freedom of private schools is therefore as a principle denied for the compulsory education in Korea. At the time of writing this paper, Korean presidential candidates are considering the extension of compulsory education to upper secondary education, which is worth welcoming. Then, the freedom of private schools to select pupils is likely to be abolished by law (Article 12 (3) of the abovementioned Act) unless the government exceptionally allows such a freedom to special purposed schools.9

(3) In 1995, when military regime already ceased to govern and Korea began to be democratized, the policy of compulsory allocation of pupils to upper secondary schools, irrespective of public or private schools, was dealt with in the Korean Constitutional Court. Some parents argued that such a regulation infringes parental fundamental right guaranteed by the Korean Constitution. The Constitutional Court declined such a claim, holding that “[A]s shown in the parental responsibility to care for and educate their minor children (Article 913 of the Korean Civil Code), parents are entitled to educate minor children who attend primary and secondary schools, as a result of which their right to choose among schools shall be acknowledged, which is for the purpose of effectively securing children’s right to education, which is in turn provided for in Article 31 (1) of the Korean Constitution. …. Considering that the regulation at issue, which allocates pupils to secondary schools by lots within neighboring districts, is one of measures the purpose of which is to prevent harmful side effects arising from excessive competition for entrance to schools, considering that educational environment is not disparate between urban and rural districts, considering that there are considerable measures prepared for so as to resolve problems arising from uniform operation of entrance policy, considering that it is either doubtful that there is the best way that the legislative aim of preventing excessive competition can be achieved with least restriction of parental right to choose schools, or it is not easy to find such a way, we think that under such circumstances, it is legitimate to choose a legislative mean of denying parental right to choose among schools; therefore, the regulation at issue does not infringe parental right to choose schools where their children are to be educated.”10 This ruling applies not only to public schools but also to private schools. The plenary session of the Korean Supreme Court in 2010 applied such a logic to private schools: “the introduction by the Constitution of public education system, educational environment of Korean upper secondary schools, policy aim of standardize and equalize upper secondary schools to prevent excessive competition for entrance examination, and the restriction of fundamental rights arising from such a policy taken into account, compulsory allocation of pupils to upper secondary schools pursuant to the policy of leveling upper secondary schools restricts fundamental rights of not only pupils but also private schools, guaranteed by the Constitution, but not to the extent that the essential contents of such fundamental rights are infringed; it means that such a policy is not unconstitutional.”11 The logic of the Constitutional Court and the Supreme Court is difficult to understand, because the essence of the freedom of private schools means the right of parents to send their children to private schools, the right of private schools to select pupils, and the freedom of private schools to educate pupils in accordance with their own educational methodology or religious way. One can say that the essence of the freedom of private schools is infringed if such rights are denied, but not restricted.

(4) Article 37 (2) provides that the freedoms and rights of citizens may be restricted by law only when necessary for national security, the maintenance of law and order, or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated. The rulings by both the Korean Constitutional Court and Supreme Court seem not to respect this provision. What is more serious is that the policy aim of preventing harmful side effects has little to do with the so-called ‘equalization of schools’ policy, which is evidenced by educational statistics according to which despite the ‘equalization of schools’ policy, more than 18 billion dollars are spent for private tutoring, the purpose of which is to prepare for entrance examination to a few good schools, each parent spends nearly twice annual tuition fees of upper secondary schools. Problem is that good schools to which parents want to send their children are few, leading parents preparing their children for entrance examination. It is very difficult to understand why the Constitutional Court puts the burden of proof on parents who seek and recover their infringed fundamental rights, rather than the government which infringes essential aspect of parental rights. In other words, the government has to evidence that without depriving private schools of their freedom, it is impossible to reduce side effects of competition. Unless the onus of proof is on the government, the government could easily and, sometimes, leniently deprives citizens of their fundamental rights.

2.2. Denial of Distinctiveness of Private Schools

(1) Even each public school should be recommended to have its own distinctiveness, not to mention the distinctiveness of private schools. In this respect, the Korean Constitutional Court held that “the state intervention into and oversight over school education is even greater than any other area in that school education is most fundamental basis for national prosperity and locomotive for the development of the society, and therefore attracts social concerns and attention and influences the state and society. The state guidance and control is rather necessary so as to realize systematic education on the basis of strong finance backup, and education cannot be delegated only to individual responsibility. Private schools are different from public schools only in terms of who establishes a school, but cannot be different from public schools in terms of staffs, curriculum, and textbooks available to pupils. From the perspective of the individual and national importance and influence of education, there cannot be any difference between private schools and public schools.”12 What the Constitutional Court means by acknowledging the freedom of private schools guaranteed by the Constitution is that private individuals are entitled to establish a private school, and only to such an extent. Any other freedom of private schools cannot be acknowledged by the Korean Constitutional Court, which means that in Korea, the freedom of schools is substantially denied. Such an opinion may reflect current situation that the government monopolizes primary and secondary education to the extent of very detailed ways and process of education.

(2) The truth that in Korea the freedom of private schools is denied is well demonstrated in the case where any denominational school sets religion classes for pupils. Such a case was, in 2010, dealt with in the Korean Supreme Court. The fact is like this: the claimant pupil was allocated to the defendant denominational private school where it used to provide pupils with Christian classes; the claimant refused to attend the religion class at issue; the defendant

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school persuaded the claimant pupil to move to other schools unless the claimant pupil was willing to attend the religion class, but in vain, because the claimant pupil required the defendant school to provide an alternative class instead of attending the religion class. The defendant school eventually decided disciplinary punishment, the expulsion of that pupil from the school. In some years, the claimant pupil claimed damages on the basis of torts against both the defendant school and a local educational authority which compulsorily allocated the claimant to the defendant school, but which did not prevent the defendant school expelling the claimant. The plenary session of the Korean Supreme Court decided in favor of the claimant against the defendant school, but declined the claim against the local educational authority, ruling that “considering the ‘equalization of schools’ policy of upper secondary education, the public interests of education and private school, and limits of the right of a denominational private school to religion and operation of the school compared with the fundamental rights of pupils and any other constitutional values, considering that losses caused to pupils by providing pupils with religion classes is not negligible, even though it is not to be overlooked that religion education in denominational schools is necessary and has positive functions, and considering that remedies for losses caused to pupils by religion classes are difficult to get, whereas a denominational school may enjoy the right to religion and to operation of the school within restricted scope, any denominational school may enjoy the right to religion with taking appropriate measures to take into consideration the right of pupils to religion and education as long as such a denominational school in any case enters into the public education system, even though a denominational school has the right to religious education and to operation of the school unlike public schools.” The claim against the local educational authority is declined because it did not violate the duty of care of preventing disciplinary punishment of expulsion by exerting controlling power against that school; such a ruling presupposes the power of local educational authorities to intervene into individual schools’ affairs.

(3) Admitting that compulsory allocation of pupils to private schools without taking individual pupils intent into account is unavoidable in real life in Korea, such a decision of the Supreme Court is very difficult to follow. It is inevitable for pupils who are unwilling to follow disciplinary rules and school aims and purpose to be allocated to the very school which they do not want to attend, because parental right to choose among schools and the right of private schools to select pupils are denied. Then, the least restraint on the right of private schools even under such a harsh educational environment in disfavor of private schools would be to take appropriate measures in order to transfer such pupils to other schools. However, the decision of the Supreme Court inevitably results in total preemption of the remaining last drop of the freedom of private schools

3. ARE PUBLIC INTERESTS REALIZED OR LIKELY TO BE REALIZED BY OPPRESSING THE FREEDOM OF PRIVATE SCHOOLS?

The denial of the freedom of private schools goes paired with the so-called ‘equalization of schools’ policy. Is the policy then successful? No. It cannot be successful in Korea. Korean parents have long since been keen to educate their children in a good educational

environment, which reflects their experience that Korea has achieved astonishing economic growth without any sufficient natural resources except excellent human resources. Korean government has as well been keen to secure excellence of education. It means that there are few good schools at the level of even secondary education as well as at the level of higher education. It would be very natural for parents to send their children to such a good few schools, leading increasingly excessive competition for entrance. The ‘equalization of schools’ policy aims at oppressing such a natural desire of parents; ironically, the higher parents’ social status is, such as higher public officers, who advocate the equalization policy, the more eager they are to send their children to good few schools with success. Interestingly, more than ten of thousand minors go abroad every year with one parent whereas another parent remains in Korea to finance study. Shockingly, teachers in most schools except good few schools experience difficulty in teaching pupils because pupils prefer private tutoring to schooling. Schools are places where pupils make friends and take rest rather than teaching and studying. Parents pay much more fees to private tutoring than to school fees; total expenditure of private tutoring for the preparation of entrance examination amounts to more than 18 billion US dollars. It is the undeniable result of the equalization policy, which has been invoked to justify the substantial denial of the freedom of private schools.On the other hand, the equalization policy cannot be maintained under the democratic regime unless private schools are sufficiently weakened. In other words, the equalization policy can continue to go paired with the oppression of the freedom of private schools. Unlike the military dictatorial regime, democratic governments justify the oppression of the freedom of private schools by strengthening and propagating some distorted concepts about private schools. The most popular way is like this: a private school foundation is privileged to establish a private school; it therefore has to finance the operation of the school; nevertheless, most private schools have been subsidized from local governments; state subsidy can therefore justify the treatment of private schools in the same way as towards public schools, meaning that private schools like public schools must cooperate to the equalization policy. Such an advertisement seems to fall short of ensuring educational authorities so that they take one more step: the new law provides that private school foundations have to contribute to the payment of salaries of teachers and staffs, at least to the extent of paying pension contributions due to employers; otherwise the education authorities may levy some disadvantageous measures on such private schools.13

Approximately speaking, less than 20% of secondary private schools are probably able to fulfill such a requirement. The reason is that tuition fees paid by parents to private schools is not different from those to public schools, meaning that the education authorities regulate and control tuition fees of both private schools and public schools, whereas lower secondary private schools cannot levy tuition fees on parents. It means that expenditures on public education at private schools are less than those at public schools. What is more serious is that local education authorities give priority to public schools regarding subsidy, resulting in discriminating pupils at private schools against those at public schools.

4. CONCLUSION

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The oppression of the freedom of private schools is reminiscence of military dictatorial regime, which is not yet fully recognized. Many people seemingly tend to think that the military regime only lacks democratic justification in terms of political freedom, whereas other social policies do not matter, because during dictatorship Korea had achieved astonishing economic growth. In other words, many people tend to pay less attention to freedom and liberty regarding daily civil lives. Some Koreans might be satisfied and might not care even if the freedom of private schools is deprived of. On the other hand, others may, however, suffer the lack of the freedom of private schools. Denominational private schools, private schools with their own educational direction and methodology, intellectuals who strive for diversity among societies, and parents who want to educate their children in the social environment of respecting diversities belong to the latter group. How does the state, even though it is supported by the majority of population, justify the oppression and deprivation of their fundamental right to freedom of private schools, even if they are weaker in terms of political influence? It is rather the right time to rescue private schools from the long and dark tunnel entrenched by the military dictatorial regime and to restore to private schools at least the legal position in which they were before military dictatorship came in. Unfortunately, there seems to remain the last resort of appealing international concern and awareness, assistance, and cooperation, because resort to Korean Constitutional Court and Supreme Court have been exhausted and Koreans do not have any international tribunal equivalent to European Court of Human Rights.

Endnotes

✴ Professor Cheolung Je, Hanyang University, Korea1. The Korean Constitutional Court, 99hunba63 decided on 18th January 2001. 2. Article 10 provides that “[A]ll citizens shall be assured of human dignity and worth and have the

right to pursue happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals.”

3. Article 31 provides as follows. (1) All citizens shall have an equal right to receive an education corresponding to their abilities.(2) All citizens who have children to support shall be responsible at least for their elementary education and other education as provided by Act.(3) Compulsory education shall be free of charge.(4) Independence, professionalism and political impartiality of education and the autonomy of institutions of higher learning shall be guaranteed under the conditions as prescribed by Act.(5) The State shall promote lifelong education.(6) Fundamental matters pertaining to the educational system, including in-school and lifelong education, administration, finance, and the status of teachers shall be determined by Act.

4. Article 37 provides as follows. (1) Freedoms and rights of citizens shall not be neglected on the grounds that they are not enumerated in the Constitution.(2) The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.

5. Regarding the concept of the freedom of private schools from comparative perspectives, see Charles Glenn/Jan De Groof, Finding the Right Balance, vol. 1, Lemma(2002), pp. 577; regarding German concept of the freedom of private schools, see Avenarius/Füssel, Schulrecht, 8.Aufl., Carl Link (2010), pp. 295.

6. Article 83 of that Act provides that the school established by a private foundation or private individual is private school, which is subject to the control of the educational authority (Article 84).

7. It is called the policy of equalization of schools, whose means is to allocate pupils by lots to schools, irrespective of public schools or private schools.

8. Article 12 (Compulsory Education) provides as follows. (1)The state should provide compulsory education in accordance with Article 8(1) of “the

Framework of Education Act”, and take necessary measures such as securing facilities for it.(2)The local authority should establish and run primary, secondary public schools and special

purposed public schools for primary and secondary education sufficient enough to school all the pupils subject to the compulsory education within its own jurisdiction.

(3)In the case where a local authority suffers difficulties in schooling all the pupils within its own jurisdiction into primary, secondary public schools and special purposed schools, such a local authority may either establish and run public schools in conjunction with neighboring local authorities, or delegate the competence to school pupils under compulsory education either to public primary, secondary or special schools established and run by neighboring authorities or to private primary, secondary or special schools.

(4)Schools which provide pupils with compulsory education may not take any tuition fees from pupils or their parents, irrespective of whether private or public schools provide it.

9. Very exceptionally, lower secondary private schools may be privileged to select pupils. 10.The Korean Constitutional Court, 91hunma204 decided on 23rd February 1995. 11.The plenary session of the Korean Supreme Court, 2008da38288 decided on 22nd April 2010. 12.The Korean Constitutional Court, 99hunba63 decided on 18th January 2001.13.Article 47 of the Private School Teachers and Staffs Pension Act.

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