Comparing Veil Freedom for Female Students in Italian and French Public Schools - Prof. Fr, Appunti di Diritto Pubblico Comparato

Scarica Comparing Veil Freedom for Female Students in Italian and French Public Schools - Prof. Fr e più Appunti in PDF di Diritto Pubblico Comparato solo su Docsity! The Veil at School in Italy and in France Ennio Codini Abstract This article focuses on the freedom for female students from the Islamic tradition to attend public schools wearing a veil in Italy and in France. Moreover, it addresses the various aspects in which the presence of religious signs and symbols can be manifested at school, including in particular the possibility for teachers to wear a veil and the lawfulness of displaying a crucifix in classrooms. Italy and France have come up with contrasting solutions in this regard. This article highlights that underlying these solutions are two different legal-official intepretations of the meaning of the veil and in general of religious signs and symbols in the school environment in connection with the adoption or otherwise of an intercultural pedagogy. I. Introduction In Italy as in France the issue of the presence in public schools of religious signs and symbols has arisen and the similarities between the two contexts are evident. Italy and France are two countries of a Catholic tradition, where however for centuries there have also been many people of other faiths and where both atheism and anticlericalism have a certain following. Moreover, in recent decades, initially in France – in connection with the colonial and postcolonial experience – and later in Italy, Islam has rapidly increased due to immigration,1 causing some tension. Furthermore, if the legal context is also taken into account, the similarities between Italy and France are so evident and well known that they do not require particular underlining. Not only in general are constitutional law and administrative law similar, but in Italy as in France human rights are recognised at constitutional level and in particular religious freedom is guaranteed in both  Associate Professor of Public Law, Catholic University of Milan. 1 According to estimates made by the Pew Research Center Muslims in France numbered about three million six hundred thousand in 2010 and five million seven hundred thousand in 2016 whereas in Italy the corresponding figures were one million five hundred thousand in 2010 and almost three million in 2016. However, it would be a mistake to suppose that all those people fit the mainstream image of being devout. Moreover, not all women somehow linked to Islam actually wear a veil. For example, in France before the enactment of the 2004 law about which more will be said later, ‘the Ministry of the Interior had reported only 1,254 girls wearing headscarves in French schools in 2003 – a fraction of 1 percent of all Muslim girls’: J. Laurence and J. Vaisse, Integrating Islam: Political and Religious Challenges in Contemporary France (Washington: Brookings Institution Press, 2006), 165. 2019] The Veil at School 72 countries, endorsed also by Art 9, para 1, of the European Convention on Human Rights (ECHR). Moreover, they are two secular states2 and the role played by public schools in both countries is essentially the same. It is therefore striking that Italy and France have come up with contrasting solutions regarding the presence of religious signs and symbols in public schools. This article proposes a reflection on that issue. Indeed, a topic like this could be addressed through an analysis of how the secular state is a value common to Italy and France but has developed historically in a significantly different way in the two countries. But here we will pursue an approach more in tune with a reflection that is short and to the point, simply highlighting the different solutions employed in relation to the presence of religious signs and symbols in public schools while at the same time also seeking to explain the rationale for the solutions that have been adopted. This article will focus on the issue of the freedom or not for female students from the Islamic tradition to attend schools wearing a veil, also because, at least in France, in recent years this has emerged as the most hotly debated topic and even beyond France has become an important component of the conflict that is going on in Europe about the place to be given to religions in public space in connection with immigration. Moreover, this article will seek to engage in a systematic reflection that methodically considers the various aspects in which the presence of religious signs and symbols can be manifested at school, including in particular the possibility for teachers to wear religious signs and the lawfulness of displaying a crucifix in classrooms, an issue that has been debated at length in Italy. In fact, scholars have mostly considered the issue of female students’ freedom to wear the veil separately from other issues but by contrast this article will seek to join up the dots, so to speak, between the various solutions adopted in the field of religious signs and symbols in the search for a common thread.3 Moreover, also the European Court of Human Rights (ECtHR), in the famous Lautsi v Italy case of 20114 (more about which below), when assessing the lawfulness of displaying a crucifix in the classroom, took account among other things of the 2 Art 2 of the French Constitution defines France as an indivisible, secular, democratic and social Republic. In Italy, after the 1984-1985 revision of the Lateran Pact between the State and the Catholic Church, all reference to Catholicism as the official religion were removed and the Constitutional Court would later rule that ‘secularism is one of the supreme principles of the Constitutional order’ (Corte Costituzionale 12 April 1989 no 203, Foro italiano, I, 1333 (1989)). 3 There are studies that in one way or another have sought to establish a link between the different topics. See amongst others S. Ferrari, ‘The Strasbourg Court and Article 9 of the European Convention of Human Rights: A Quantitative Analysis of the Case Law’, in J. Temperman ed, The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom (Leiden-Boston: Martinus Nijhoff, 2012), 13-34; C. Joppke, ‘Double Standards? Veils and Crucifixes in the European Legal Order’ 54(1) European Journal of Sociology, 97-123 (2013). 4 Eur. Court H. R., Lautsi v Italy App no 20814/06, Judgment of 18 March 2011, available at www.hudoc.echr.coe.it. 75 The Italian Law Journal [Vol. 05 – No. 01 down regulations of individual schools that by contrast introduced a general ban.12 The opinion of the Conseil d’État represented a break with the more intransigent interpretations of the French tradition of laïcité-séparation according to which religion must be confined to the private sphere and therefore necessarily outside school, a public sphere par excellence given its educational goals for the citizenry and thus also students are obliged to leave their religious convictions à la porte de l’école (at the school door). Rather what was established was a laïcité- neutralité that afforded priority to religious freedom over the logic of separation- exclusion.13 Consistent with this break is the approach that can be found in the Debray Report of 2002 on the teaching of fait religieux (religious facts) in secular schools,14 where it is hoped there would be a move from a laïcité d’incompétence, whereby the latter by definition must be foreign to the institution, to a laïcité d’intelligence whereby the institution must instead consider and understand it.15 The approach mandated by the Conseil d’État16 would be short-lived as a change was triggered by the Stasi Commission.17 In its final report of 200318 it took the view that the presence per se of female students wearing a veil was a serious obstacle to the mission of the school, because the presence at school of one or more students wearing some conspicuous sign of religious affiliation, which could be a kippah or indeed a veil, ‘is sufficient in itself to disturb the quiet of school life’.19 Hence the Commission’s proposal to prohibit such forms of attire in general. Shortly before that, another report on secularism commissioned by the government, the Baroin Report,20 had expressly criticised the approach of the Conseil d’État by talking about an error committed in 1989: ‘that of believing that the Islamic veil was a (mere) sign of religious affiliation when in fact it is a characteristic trait of fundamentalists that adhere to a model of society founded on the logic of the ghetto and hostile to democracy’.21 12 See the decision in the Kherouaa case (Conseil d’État, 2 November 1992, no 130394, available at www.legifrance.gouv.fr) and in the Yilmaz case (Conseil d’État, 14 March 1994, no 145656, available at www.conseil-etat.fr). 13 That is how the development was seen by B. Massignon, ‘Laïcité et Gestion de la Diversité Religeuse à l’École Publique en France’ 47(3) Social Compass, 353-366 (2000); for his juxtaposition referring back to M. Barbier, Laïcité (Paris: L’Harmattan, 1995). 14 Rapport à Monsieur le Ministre de l’Éducation Nationale: L’Enseignement du Fait Religieux Dans l’École Laïque, February 2002. 15 Debray Report (Ministère de l’Éducation Nationale, 2002), 22. 16 See N. Deffains, ‘Le Principe de Laicité de l’Enseignement Public à l’Épreuve du Foulard Islamique’ 34 Revue Trimestrielle des Droit de l’Homme, 203-250 (1998). 17 Commission de Reflexion sur l’Application du Principe de Laïcité Dans la Republique. 18 Rapport au President de la Republique submitted on 11 December 2003. 19 Debray Report (Ministère de l’Éducation Nationale, 2002), 42. 20 F. Baroin, Pour Une Nouvelle Laïcité, Report for the Prime Minister of France submitted in Spring 2003. 21 That viewpoint has since become characteristic of French society and underpins support 2019] The Veil at School 76 There then followed loi 15 March 2004 no 228, which – taking its cue from what had been recommended by the Stasi Commission, whose report is expressly cited in the report accompanying the legislation22 – amended the Education Code by introducing a provision (still in force today) that prohibits students in public schools from using signs through which they ‘overtly (ostensiblement) manifest religious affiliation’. In 1998 Italy also tackled not specifically the issue of religious signs at school but more in general the issue of cultural differences, which naturally encompass religion in this context. However, the approach differs not only from that espoused in the Conseil d’État opinion but the philosophy that would soon inform French legislation. Art 38 of decreto legislativo 25 July 1998 no 286 (Immigration Code), still in force, provides that ‘the school community embraces cultural (…) differences as a value’. And right from the beginning it was assumed that religion was a cultural difference to be accepted as a value in general and without exception, including where expressed through one’s attire and hence also through wearing a veil. Significantly in the guidelines periodically published in these years by the Ministry of Public Education in order to better manage the acceptance of foreign students, the issue of veils is not even mentioned because it is taken for granted that female students are free to attend school wearing a veil.23 Indeed, in the Charter of Values, Citizenship and Integration – approved by decreto ministeriale 23 April 2007 and which since 2009 has been legally binding in as much as incorporated into the integration agreement which, like the French contrat d’intégration, binds the State and new immigrants – the section on secularism and religious freedom peremptorily states that as long as one’s face is not covered, ‘in Italy there are no restrictions on people’s attire’. And in note 39 to the official text of the Charter it is expressly stated that ‘Italy does not ban the wearing of a veil’ if it does not hinder the identification of the person, and specifically makes the point that in this regard Italy ‘does not follow the path adopted by other European countries, in particular by France’. The story of a school principal24 who tried in Italy to follow the model for the ban under the 2004 law (see J.R. Bowen, Why the French Don’t Like Headscarves. Islam, the State, and Public Space (Princeton: Princeton University Press, 2007)), a ban that would receive quite a lot of criticism also in academic circles (see C. Laborde, Critical Republicanism (Oxford/New York: Oxford University Press, 2008)). 22 The close connection between the 2004 law and the Stasi Commission’s report is widely known: ‘The law implements one of the recommendations of a special commission on religion in France, appointed by the government and headed by Bernard Stasi’ (J. Laurence and J. Vaisse, n 1 above). 23 See the most recent Guidelines for the Acceptance and Integration of Foreign Students of February 2014 (Ministero della Pubblica Istruzione, 2014). Likewise in a ministerial document from October 2007 called The Italian Way for Intercultural Schooling and the Integration of Foreign Students (Ministero della Pubblica Istruzione, 2007) that specifically refers to cultural differences, the issue of the veil is not mentioned in the slightest. 24 ‘Preside vieta il velo in classe, tolleranza zero verso comportamenti razzisti’, available at 77 The Italian Law Journal [Vol. 05 – No. 01 enshrined in the 2004 French law made the headlines a few years ago. A directive dated 11 February 2015 issued by the principal of a high school in Friuli stated that the school would ‘not accept (…) a display (...) of the outward signs of one’s own religious beliefs (...) for example, the scarf or veil’ because ‘it can be perceived as a provocation and cause a reaction’. Regarding veils, female students are ‘free to wear them outside of school but not in the classroom’. A few days later a circular issued by the regional education authority criticised that directive maintaining that in general in Italian schools ‘there are no reasons (…) to oppose (…) the use of signs of expression of one’s cultural and religious affiliation’, in the wake of which the school principal promptly withdrew the directive. The episode confirms that in Italy female students are in general and without exception free to wear a veil. The same can also be said for teachers. In general, it can be concluded that as long as one’s face is not concealed, in Italy ‘the use of the Islamic veil (…) in schools (…) is not banned by the legal system’.25 The picture of the divergence between Italy and France as regards the possible presence of religious signs and symbols in public schools is completed, so to speak, by a diametrically opposite solution adopted as regards the presence of the crucifix in classrooms. Banned for well over a century now in France (further to a provision contained in a law dating back to 9 December 1905 on the separation of church and state),26 it is traditional for crucifixes to be displayed in Italian schools, in connection with a different history of the secular state and presence of Catholicism in the public space. There is no actual law as such on the matter, it is simply the case that crucifixes are envisioned by regulations on school furnishings. From the above it transpires that there is a sharp difference between the two countries in relation to the presence of religious signs and symbols in public schools: in France female students are not allowed to wear a veil let alone teachers but in Italy both may do so. Furthermore, in Italy a crucifix can be displayed in the classroom but not so in France. One can speak of a general openness in Italian schools to the presence of religious signs and symbols compared to a general reluctance in French schools. https://tinyurl.com/yyxqd8ts (last visited 28 May 2019). 25 S. Carmignani Caridi, ‘Libertà di abbigliamento e velo islamico’, in S. Ferrari ed, Musulmani in Italia (Bologna: il Mulino, 2000), 223-234. Although dating back to 2000 that conclusion is still valid today. News reports mention just one case to the contrary, in 2004 (in Samone, a town near Ivrea), concerning a trainee teacher who was denied the opportunity for an internship at a nursery school due to her veil; however the relevant authorities immediately intervened and the woman was able to complete her internship (although at another location for reasons of expediency). 26 Loi 9 December 1905, Art 28: ‘It is prohibited to affix religious signs or symbols in public places except for places of worship, cemeteries, funeral monuments and museums’. 2019] The Veil at School 80 ‘if it is able to represent (...) civically relevant values’. In fact, in that case ‘even from a secular standpoint it can serve, other than its innate religious function, a highly educational symbolic purpose regardless of the religion professed by the students’. Morever, the Council of State observed that ‘in Italy the crucifix is capable of expressing (...) values of tolerance, mutual respect, personal improvement, affirmation of one’s rights, regard for one’s freedom, independence of moral conscience towards authority, human solidarity and rejection of discrimination, which denote Italian civilisation’. The ECtHR for its part maintained that ‘the presence of the crucifix is not associated with compulsory teaching about Christianity’ and ‘Italy opens up the school environment in parallel to other religions’. It noted that, for example, ‘it was not forbidden for pupils to wear Islamic headscarves’. So ‘in deciding to keep crucifixes in the classrooms (...) the authorities acted within the limits of the margin of appreciation left to the (...) State’. According to those judgments the legally relevant meaning of the crucifix is not necessarily something that is embedded in the artifact, definable by looking to those who created or first used the symbol, meaning that the crucifix would be plainly religious in nature.35 Nor is it necessarily what has prevailed in history or what this or that member of the school community today recognises or could recognise like, for example, the Spanish administrative court of Valladolid held in a famous judgment of 200836 in which the removal of a crucifix was ordered because its display ‘could create (in the students) the impression that the State is closer to (the associated) religious confession (...) than to others’. Nor is the legally relevant meaning in the school where the crucifix hangs necessarily that which emerges at the level of interpretive community based on the idea that is presented in Pierce’s theory of signs and has been robustly articulated and defended by Stanley Fish.37 35 To quote the words of the US Supreme Court in connection with the display in a public school of the Ten Commandments in the 1980 case of Stone v Graham: ‘The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text (…) and no legislative recitation of a supposed secular purpose can blind us to that fact’. 36 Juzgado de lo Contencioso Administrativo no 2, Valladolid, 14 November 2008, 28, available at www.poderjudicial.es. 37 S. Fish, Is There a Text in This Class? The Autority of Interpretive Communities 81 The Italian Law Journal [Vol. 05 – No. 01 Instead, so the Courts say, the legally relevant meaning is the one chosen by the authority that governs the school, provided that this choice is in itself reasonable and fits into an overall ethos of the school coherent with it. In concrete, it can be reasonable to view the crucifix as an indicator of a specific religious orientation of the institution but also for example as a symbol of values that are religious but secularised. And it is in connection with the reasonable meaning chosen by and placed in a coherent context by the authority that one must judge the lawfulness of displaying the crucifix in classrooms. This not only explains why two contrasting solutions can be legitimate but also explains why Italy and France have arrived at opposite solutions, not only as regards the crucifix but also with regard to the possibility for female students and teachers to wear a veil. If we look back at the opinion of the Conseil d’État in 1989, it is clear that the underlying assumption is that the wearing of a veil by female students does not usually constitute a provocation and, therefore, does not interfere with the normal functioning of the school, thereby meaning that such behaviour is normally acceptable. If, however, in particular circumstances there is provocation, the Conseil d’État permits school authorities to forbid wearing the veil even if that entails a partial sacrifice of freedom. By contrast and as mentioned before, in its report the Stasi Commission maintained that the presence at school of one or more male or female students wearing some manifest (ostensible) sign of religious affiliation, which could be a kippah or indeed a veil, constituted per se provocation or, to use the already quoted words of the Baroin Report, an expression of a logic of the ghetto hostile to democracy. Accordingly, wearing that attire was considered in itself apt to ‘disturb the quiet of school life’, leading to a proposal to introduce a general ban that would then materialise with the above mentioned law of 2004, because on the basis of such an interpretation it is reasonable in general to partially sacrifice religious freedom by forbidding the veil. In Italy, on the other hand, as we have seen, banning the veil in public schools is not permitted. Without doubt, while in France there is ‘a militant secular culture of numerous teachers who, on the basis of a particular interpretation of the legal and ideological work of the Third Republic, advocate the exclusion of religion from school’,38 in Italy teachers appear on the whole more ‘open’ to the presence of religious signs and symbols. That is not to say however that the presence in Italian schools of such signs and symbols is not a ground for conflict. In particular, the veil appears in the eyes of many to be a sign to be tackled with bans because linked to an integralism judged to be dangerous from a security standpoint or because (Cambridge MA: Harvard University Press, 1980). 38 B. Massignon, n 13 above. 2019] The Veil at School 82 emblematic of a rejection of secularity and equality between men and women39 while many see the display of the crucifix as an imposition. Otherwise, how does one explain a directive like the one mentioned above issued by the principal of a high school in Friuli and the lawsuits demanding the removal of crucifixes from the classroom? The difference stems from the different meaning attributed by law to signs and symbols. The previously mentioned Charter of Values reads: ‘No one can feel offended by the signs and symbols of religions other than their own’ (§ 25). It is added that at school the young should be educated not to see religious convictions and manifestations of others as divisive factors. Rather, they are values according to the intercultural approach expressly adopted as its own by the Ministry40 – and by no coincidence difficult to introduce in France.41 It should be noted, precisely in relation to Italian schools,42 that ‘the main aim of an intercultural model is to promote real interaction between different cultures’, everybody must ‘open up to equal dialogue with the other, recognizing and accepting their diversity as an element to be appreciated since it enriches their own identity’. If at this point we also consider the previously mentioned Art 38 of decreto legislativo 25 July 1998 no 286 mandating in categorical terms that the school community embrace cultural differences as a value, what becomes clear is a regulatory stance that – amongst other things as far as we are concerned here – requires everyone to interpret religious signs and symbols consistent with that approach. A veil, borrowing the words of the Conseil d’État, can certainly constitute a ‘provocation’ but nobody in an Italian school must act on the basis of such an interpretation whether it be a female student or even a teacher who is wearing a veil. Once adopted, an intercultural approach has its implications for the meaning of religious signs and symbols. Those implications could well be similar to those of the multicultural approach which, for example, led to Canada permitting a pupil to wear the kirpan in a public school, as established in 2006 by the Supreme Court in the Multani v Commission Scolaire Marguerite-Bourgeoys case, observing that ‘the argument that the wearing of kirpans should be prohibited because 39 As pointed out by S. Regasto, ‘Il velo (islamico) fra pregiudizi e realtà’ Forum Quaderni costituzionali, 11 (2017). 40 See The Italian Way for Intercultural Schooling n 23 above. 41 See H. Zilliacus and G. Holm, ‘Multicultural Education and Intercultural Education: Is There a Difference?’, in G. Holm et al eds, Dialogues on Diversity and Global Education (Bern: Peter Lang, 2009), 11-28. 42 G. Pasquale, ‘Toward a New Model of Intercultural Education into Italian School’ 191 Procedia – Social and Behavioral Sciences, 2674-2677 (2015). 85 The Italian Law Journal [Vol. 05 – No. 01 missions of schooling in Italy like in France – in a context marked by current and potential conflicts linked to cultural and religious differences. IV. Conclusions This article has shown the extent to which in recent years Italy and France have adopted contrasting solutions regarding the presence of religious symbols and signs in schools and has reflected on this. In doing so the article has touched upon issues that are problematic today not only in Italy and France but also in many other countries with similar situations and legal principles. In May 2018, for example, much debate surrounded the ruling of a labour court in Berlin, which rejected the appeal of a teacher dismissed from a public primary school for wearing the hijab by applying the law of that Land that prohibits all public employees from wearing signs that refer to their religious beliefs. It is the latest episode in a series of similar disputes in that country where the laws of some Länder impose a general ban while others do not. In 2015 the Bundesverfassungsgericht adopted a stance in some ways similar to that taken by the Conseil d’État in the aforementioned opinion of 1989, ie, in favour of a general freedom save for the possibility to impose bans in situations marked by specific tension, but at the same time extending the freedom to teachers.49 In Spain, like in Italy, crucifixes are displayed in classrooms and again in that country positions to the contrary have been expressed, for example, in the previously mentioned judgment of the Court of Valladolid. In Austria, the crucifix is by law displayed in classrooms and in April 2018 the government took the first steps towards introducing legislation seeking to deny access to schools to female students who wear a veil. On the other hand, in Switzerland in 1990 the Federal Court banned the display of crucifixes in schools and in September 2018 declared a referendum aimed at banning the veil at school to be inadmissible because it contrasted with a constitutionally guaranteed right. Even in the comparison between Austria and Switzerland, therefore, we see two countries with a similar culture that have adopted an opposite position in relation to religious signs and symbols at school. If we consider also the prohibition for teachers to wear the veil (often disputed but upheld by the Federal Court in 1988 and again in 1997), Switzerland has adopted an approach similar to the pre-2004 French position whereas Austria seems to favour a peculiar combination of allowing crucifixes but not veils. Reflecting on the Italian and French cases enables one to highlight the fact 49 The judgment concerned a 2006 law in Nordrhein-Westfalen forbidding teachers from conveying ‘any outward signs of a political or religious nature or in any event pertaining to a particular conception of the world’ that would call into question the neutrality of the State (§ 57.4 SchulG NW). 2019] The Veil at School 86 that underlying these solutions are two different legal-official interpretations of the meaning of the veil at school and in general religious signs and symbols. In Italy they are considered elements of value: viewed through an intercultural lens they are considered as an element of relationships in the case of the veil or as a basis for relationships in the case of the crucifix. Whereas in France they are considered partisan and, therefore, a provocation in the case of the veil or an imposition in the case of the crucifix, within an overall conception of the school rooted in the idea that the religion should, as much as possible, play no part in relationships. Both models are, as we have seen, considered lawful by national courts and the ECtHR. The fact that the State is afforded such wide power to establish meanings in a given context may not sit well with those who perceive different meanings. Indeed, it was mentioned before that some Italian legal scholars are puzzled by the secular meaning of the crucifix and similarly misgivings could also been voiced about legislation that can define the veil as either provocation or a value that promotes dialogue. However, as this article has sought to highlight, the attributed meaning cannot be arbitrary because it must be intrinsically reasonable and above all consistent with the context as well as the way in which schools are conceived and actually structured. It is at this level in essence that lawfulness must be assessed. It is the school as it is structured overall that must, as regards all of its traits taken together, be respectful of freedom and operate in a manner consistent with its mission in civil society. Although the French model appears to be valid from that standpoint, the Italian one is certainly more attractive, especially from the perspective of civic education due to its ambition to include everything without fear of tensions.