CAN A PUBLIC SCHOOL GENERALLY PLACE A BAN ON THE WEARING OF A HEADSCARF AT SCHOOL BY FEMALE MUSLIM STUDENTS WHO ARE 14 YEARS OR OLDER?
Summarized: A public school may not prohibit a Muslim schoolgirl from wearing a headscarf at school as a general rule.
A general headscarf ban at a public school would unjustifiably restrict a female Muslim student’s fundamental right to freedom of religion pursuant to Article 4 of the German Constitution and would therefore be unlawful. Having said that, headscarf bans at private schools belong to a different legal category.
Wearing a headscarf out of religious (not, however, because of politics or fashion) reasons is included by freedom of religion under Article 4 of the German Constitution and is therefore permissible at first.1 To restrict this right, a legal basis is always required by parliament approval.2 This means that when a teacher or director of a public-school desires to prohibit Muslim students from wearing a headscarf, they would not be allowed to issue such a prohibition based on their own arbitrary decision. They must support such a prohibition on the basis of a law which would generally prohibit the wearing of a headscarf at public schools. Such a law has yet to be passed. Consequently, an order by a teacher/director to forbid the wearing of a headscarf would be unlawful.
Aside from that, one could think about whether the state’s commandment of neutrality and therefore could also justify a headscarf ban at school. The state must remain neutral towards religion and is not allowed to be partial towards or discriminate against any particular religion (principle of parity).3 Only a religiously and ideologically neutral state can be a ”home for all citizens”.4 A ruling which would only affect Muslims would therefore be impermissible due to this very reason.5 The state’s duty of neutrality also doesn’t justify a headscarf ban because a headscarf-wearing student doesn’t represent the state, as is sometimes assumed in the case of teachers. The neutrality obligation is furthermore not to be understood as an obligation to distance itself from, rather as an obligation to promote and ”ensure space for the active practice of religious conviction and the realization of the autonomous personality in the ideological-religious space”.6 A school is not a ”religion-free space” and it also does not have the obligation to create a space without any ”influencing symbols”.7
As a result, a law which would prohibit Muslim students from wearing a headscarf on a general basis would be unlawful.
1 Federal Constitutional Court, case from 24.09.2003, 2 1436/02, margin 40.
2 Previous case, margins 41 and 67.
3 Federal Constitutional Court, case from 16.05.1995, 1 108/91, margin 35.
4 Morlok in H. Dreier (publisher), Grundgesetz-Kommentar., Band III, 3. Ed. 2018, Art. 140 margin 36.
5 Wissenschaftlicher Dienst des deutschen Bundestages v. 26.01.2017, Schule u. Religionsfreiheit- Wäre ein Kopftuchverbot für Schülerinnen rechtlich zulässig?, file WD 3 – 3000 – 277/16, page 9.
6 Federal Constitutional Court, case from 18.10.2016, 1 354/11, margin 67.
7 Öztürk in DÖV 2007, page 993.