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Religion and Education
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Gracienne Lauwers
EduLAw; Vrije Universiteit Brussel; Vytautas Magnus University; Vilnius University; UFS; Trento University
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Gracienne Lauwers and Jan De Groof (eds.)
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Gracienne Lauwers and Jan De Groof (eds.)
ISBN: 978-94-6240-131-0
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Education and Law Alliances - Studies in Human Rights in Education
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Table of Contents
Introduction
Part I
International and European framework
Religious Conflicts and the Principle of State Neutrality 1

Juliane Kokott
The State in the Face of Religious Conflicts and Intolerance in Society 15
Michael Stathopoulos
A Religious Canon for Europe:
Policy, Education, and the Post-Secular Challenge 27
Hent de Vries
Balancing Non-discrimination & Equality and the (Right to)
Identity of Non-governmental Schools in Dutch Law 59
B.P. Vermeulen
Values and Religion.
The Transmission of Values and Interreligious Dialogue Today 73
Hans Joas
Schooling in Post-secular Europe 83
Charles L. Glenn
What About Teaching about Religions in Europe? 95
Luce Pépin
Religious Symbols in Public Schools – some legal remarks on crosses in
classrooms 105
Rainer Palmstorfer
An Educational Right: Teaching and Learning about Controversial Issues 113
Thomas Misco
Part II
Country Reports and Questionnaires
Muslim Schools in the Nordic Countries 135

Jenny Berglund
Parental Rights and Educational Freedom 151
Svein Egil Vestre
The four main issues of religion in Egypt 155
Tayseir M. Mandour
Islam and Democracy in Morocco and Algeria What can we do? 163
Fouad Laroui
Respect for philosophical and religious convictions of parents in Education
‘Real pluralism and real democracy require real choices for parents’ 173
Michael P. Donnelly
From confessionalism to positive secularity?
The ambiguous case of teaching religion in Spain 189
Diana Zavala Rojas & Camil Ungureanu
The Presence of Religious Symbology in Contemporary
Brazil - Ethical-Moral and Constitutional Aspects 215
Rubens Becak
Religion in Education and Respect for Parental Convictions in Education 225
Johan Beckmann
Public Funding of Religious Education in Finland 241
Päivi Gynther
Issues Regarding Relations Between Religion and the State
in the Framework of the Right to Education. Albania’s Case 253
Juliana Latifi
‘The Islamic school makes me strong’ 275
Identity Development and Integration: Report on a qualitative survey
amongst seven ex-pupils of an Islamic primary school in the Netherlands 275
Bahaeddin Budak and Ina ter Avest
The Place of Religion Under Education Law – Country reports 287
The Place of Religion in Education in Albania 291
Juliana Latifi and Nikoleta Mita
The Place of Religion in Education in Austria 305
Walter Berkaand Claudia Wernig
Constitutional and Legal Aspects of Teaching about Religion
in the Bulgarian School 331
Jenia Peteva
The Place of Religion In Education In Cyprus 341
Achilles Emilianides
The place of religion in education in Estonia 347
Merilin Kiviorg
The Place of Religion in Education in Finland 365
Päivi Gynther
The Place of Religion in Education in France 371
André Legrand
The Place of Religion in Education in Germany 375
Introduction by Hermann Avenarius on the constitutional and political context
Questionnaire by Hans-Peter Füssel
The Place of Religion in Education in Greece 383
Theodore Fortsakis with the collaboration of Nikolas Avgouleas
The place of religion in state-funded educational institutions in Hungary 391
Balázs Schanda
The Place of Religion in Education in Ireland 399
Oliver Mahon
Religious education – Israeli Perspectives 415
Asher Maoz
The Place of Religion in Education in Italy 427
Roberto Toniatti 427
The Place of Religion in Education in Latvia 433
Ringolds Balodis
Teaching of Religion in Lithuania 445
Birutė Pranevičienė and Agnė Margevičiūtė
The Place of Religion in Education in Luxembourg 453
Siggy Koenig
The Place of Religion in Education in The Netherlands 461
Anneke de Wolff and Pieter Huisman
The Place of Religion in Education in Norway 475
Svein Egil Vestre
The Place of Religion in Education in Poland 479
Katarzyna Górak-Sosnowska
The Place of Religion in Education in Portugal 491
Maria Manuela Pinto Soares Pastor Fernandes Arraios Faria
The Place of Religion in Education in Romania 495
Liviu Andreescu
The Place of Religion in Education in the Russian Federation 511
Maria Smirnova
The Place of Religion in Education in Slovakia 521
Daniela Drobna
The Place of Religion in Education in Slovenia 527
Blaž Ivanc
The Place of Religion in Education in South Africa 539
Johan Beckmann and Rika Joubert and Chaya Herman
The Place of Religion in Education in Sweden 549
Lars Friedner
The Place of Religion Under Education Law in England 553
Neville Harris 3
Part III
Schematic Comparative Analysis of the Answers to the Questionnaire 573
Introduction
This collection contains the essays and answers to questionnaires on

the legal framework underpinning policy making in the area of religious
instruction in schools and religious rights in education.
Characterized by rationalization, functionalism, and individualism, the

European public sphere offers space for religious demands although to a
different degree and with variations in each member state, as reflected in the
so-called ‘margin of appreciation’ doctrine of the European courts.
Apart from the Government, one can distinguish a number of other

important players in education.
There are the traditional Christian churches. However secular European

politicians may be in their outlook, they have often regarded faith and
religious institutions as pillars of public order. Notwithstanding the fact that
many churches have lost influence on social life, they often offer religious
instruction in public and state funded schools as a means for inculcating
moral principles and historical traditions. Denominational schools have
in many cases been brought under the influence or even the control of
government through public funding and requirements, emulating many of
the organizational and curricular standards of public schools, but continue
to play a significant role in education in some countries. To what extent
denominational schools may continue to exercise a distinctive mission is
a question for public policy; to what extent they seek to do so is an equally
interesting question in sociology.
There are also communal frameworks with a religious character developed

by migrants, particularly those from predominantly Muslim countries. A
question of vital importance is to what extent the religious institutions which
migrants create sustain community life and nurture youth but also isolate
them from the host society. In the West, they have the right to practice their
faith, but not as the basis of exemptions from the principles of the secular
state. Like all the other citizens, migrants and their children born in Europe
are compelled to accept European values, legislation and administrative
structures. For many, the norms of Western secular culture based on
individual rights and freedoms are in conflict with deeply-held communal
values.
This tension is also reflected in legal doctrines. European institutions and

courts have accommodated national identities resulting from national
histories based on the doctrine of the ‘margin of appreciation’. Did they
succeed to accommodate ‘denationalised identities’ defined by culture and
religion that are not part of a country’s history?
Europe has come to understand its public life as functioning in a secularized

sphere. The presence of communities that define their identity in religious
terms and seek to make this the basis of their participation in public life, often
invoking human rights principles of freedom of conscience and of culture,
offers a fundamental challenge to European policy-makers, educators, and
legal experts.
This publication addresses the treatment of these demands in education and
thereby hope to shed light on the corresponding legal framework adopted by
Governments in European and non-European countries.
Gracienne Lauwers*2
Belgium, February 2015 (reprint)
* Vrije Universiteit Brussel/ Università Di Trento/Vilnius University/Vytautas

Magnus university, University of the Free State
Part I
International and European
framework
Religious Conflicts and
the Principle of State Neutrality
Juliane Kokott*
I. Introduction
‘Religion is a matter which lies solely between a man and his God’, Thomas
Jefferson wrote in 1802, and that the American people therefore ‘declared that
their legislature should “make no law respecting an establishment of religion,
or prohibiting [its] free exercise …”, thus building a wall of separation between
church and State.’1 This is the principle we call state neutrality in the form
of Laïcité. Under another principle, the principle of ‘friendly cooperation’,
Jefferson’s wall of separation is much more porous. The principle of friendly
cooperation, or active state neutrality one might say, had already been
described by Frederick II of Prussia in 1740. When he was asked, whether
Catholic schools should be abolished in Protestant Prussia, Frederick replied:
‘Religions must all be tolerated and the state has to keep an eye on them, that
none shall derogate the other, because here everyone must find salvation in his
own way.’2 Another expression coined by Frederick II is that ‘[a]ll Religions are
equal and good, […]; and if Turks and heathens came and wanted to live here in
this country, we would build them mosques and churches’3, a statement which
was also made by Pope Benedict XVI on 20 November 2010 in a very similar
way. He then said: ‘Christians are tolerant, and in that respect they also allow
others to have their self-image. […] It is therefore only natural that Muslims
can assemble for prayer in a mosque [in Europe].’4
Both, Thomas Jefferson’s and Frederick’s approach converge insofar as

religion is – and has to remain – something private. And while they also
agree that the state should remain neutral in religious matters, they differ in
* Advocate General at the Court of Justice of the European Union, Luxembourg,

Visiting senior Professor at the University of St. Gallen, Switzerland. The author is
indebted to Martin Kaspar, M.A. for his assistance in preparing this article.
1
Thomas Jefferson, letter to Danbury Baptist Association, 1 January 1802, reproduced
in: Library of Congress Information Bulletin (1998) 57/6, available at www.loc.gov/
loc/lcib/9806/index.html (02.05.2011).
2
Frederick II of Prussia (Frederick the Great) on 22 June 1740 (own translation).
3
Frederick II of Prussia in a letter of 15 June 1740, reproduced in: Hastings, J. (1922),
Encyclopaedia of Religion and Ethics Part 23, Charles Scribner’s sons, New York, p.363.
4
Seewald, Peter (2010), Licht der Welt, Ein Gespräch mit Papst Benedikt XVI., Herder,
Freiburg (own translation).
1
Juliane Kokott
their evaluation of the specific kind of state neutrality. Thomas Jefferson’s

wall of separation opts for passive neutrality in religious conflicts, in which
the state should play no role at all. Frederick II, on the other hand opts for
active neutrality in religious conflicts, in which the state should also be
neutral, but nevertheless involved. Both the conference’s topic and President
van Rompuy’s contribution are titled: ‘from passive toleration to active
appreciation of diversity’. This motto is much more in line with the kind of
state neutrality Frederick II had in mind.
Religious conflicts clearly are challenges of our time. One must also
keep in mind that these conflicts are not limited to terrorism or religious
fundamentalism, but arise on questions closely related to our daily lives, for
instance: Are teachers allowed to wear religious symbols in class? Are state
schools allowed to display a crucifix? Should the ritual Islamic prayer be
allowed in school? May or even should the EU and / or some of its Member
States have a ban on headscarves – burqas and niqabs – in schools or in
general? And is the Swiss constitutional referendum against the construction
of minarets compatible with European values?
II. What model of state-church relations in a modern society?
Addressing this multitude of religious conflicts, one may ask whether the
easiest and most adequate approach is not just to ban religion altogether from
the public sphere and thus to adhere to laicism. Such ban would affect all
religions equally; there would be no problem of preferring majority religions
over minority beliefs. However, as I am going to show, laicism may favour
atheism over religions. Moreover, a laicistic approach risks to ignore social
reality, since religious conflicts are of a great variety and of a great importance,
even in a modern society. Societies and their elected representatives cannot
simply ignore these problems, but have to deal with them. When doing so,
they should not focus exclusively on how to deal best with or integrate Islam
in Europe. Questions on the use of genetically modified crops, abortion, stem-
cell research or medically assisted suicide, to name but a few, are also questions
of our modern society, questions determined and influenced by religion, belief
and philosophical convictions. Simply put: Religion still plays an important
role in our modern society, giving us enough reasons to seek an open dialogue
and cooperation. A study by the German Jurists’ Forum came to the conclusion
that the system of ‘friendly cooperation’ between church and state still remains
a good basis for addressing current problems. Its strength lies in its confidence
that religious matters can – and perhaps ought to be – handled in public.5
5
Waldhoff, Christian (2010), Gutachten D zum 68. Deutschen Juristentag – Neue
Religionskonflikte und Staatliche Neutralität – Erfordern weltanschauliche und religiöse
Entwicklungen Antworten des Staates? C.H. Beck, Munich.
2
Religious Conflicts and the Principle of State Neutrality
But what is the European answer to the question of how to accommodate

state and religion, in particular in the field of education? And is there a
common European answer at all?
III. The European Dimension in religious conflicts and State

Neutrality
Although we are all aware of the complex legal status of the European Union,
the question of ‘state neutrality’ arises all the same. Should the European
Union follow the laicistic approach of Thomas Jefferson and the United
States or France or the one of ‘friendly cooperation’ and active appreciation
of Frederick II and Germany?
Article 10 of the Charter of Fundamental Rights6 guarantees the free

exercise of religion by stating that ‘[e]veryone has the right to freedom of
thought, conscience and religion … and [the] freedom, either alone or
in community with others and in public or in private, to manifest religion
or belief, in worship, teaching, practice and observance’. This provision is
identical to the one used in the ECHR.7
Before the Charter came into effect, the European Court of Justice (ECJ)
derived fundamental rights from the ‘constitutional traditions common to the
Member States’ as ‘general principles of the Union’s law’; a principle also set
forth in Article 6 of the EU-Treaty. To determine such common constitutional
traditions, the ECJ uses the method of constitutional comparison thereby
also taking into account how the national (constitutional) courts interpret
the fundamental rights.
When dealing with freedom of religion and state neutrality in Europe, we

are therefore faced with a multitude of national constitutions and judicial
interpretations. Thus, national (constitutional) courts and two European
Courts are charged with interpreting the freedom of religion in Europe.
Does this amount to too many courts? Do we risk a multitude of diverging
judicial interpretations?
In December 2009, the Treaty of Lisbon came into effect. Since then, the
very same Article 6 of the EU-Treaty also states that the European Union
shall accede to the ECHR. This will most certainly strengthen the European
Court of Human Rights (ECtHR) in Strasbourg. It is therefore prudent to
6
Charter of Fundamental Rights of the European Union, OJ 30 March 2010 C 83/389.
7
ECHR, Rome, 4 November 1950. The explanations to the Charter of Fundamental
Rights of the European Union make it very clear that the identical wording is not just
incidental, but intended.
3
Juliane Kokott
take a closer look at the case-law of this Court when dealing with religious
conflicts and state neutrality.
A. Laicism/Passive Toleration – The crucifix-ruling of the Strasbourg

Court (Lautsi v Italy)
One of the most important and certainly one of the most debated cases of the
European Court of Human Rights is the Lautsi-case8; the Grand Chamber
recently reversed the chamber-judgement of November 2009. In its chamber
judgment, the Court initially ruled that the display of crucifixes in public
schools was contrary to the convention rights of freedom of religion and
freedom of religious education. It furthermore stated that ‘[n]egative
freedom of religion […] extends to practices and symbols expressing,
in particular or in general, a belief, a religion or atheism.’9 The Court
questioned whether the display of a symbol, which can easily be associated
with the majority religion in Italy, could serve educational pluralism in
classrooms. The chamber judgment therefore followed a laicistic approach
of state neutrality.10 The judgement of the Grand Chamber to the contrary
viewed the crucifix as a passive symbol, which results in the Court not having
to decide between one of the two major approaches to freedom of religion.11
The case sheds light on the most difficult question of the relationship between
positive and negative freedom of religion. True neutrality would require a
state to give no preferential treatment at all to any religion or ideology – any
ideology, including atheism! But isn’t the absence of any religious symbol a
symbol in itself – a symbol in favour of atheism? Is the state therefore forced
to promote atheism, and would this again be in line with state neutrality?
This dilemma between positive and negative freedom of religion makes true
state-neutrality almost impossible.
B. Accommodating Religions/Active Appreciation

The same problem may arise when looking at the issue form the other side, when
the state tries to accommodate the different religions: Active state neutrality
in a religiously diverse context may command a state to put up symbols of all
different faiths, or at least those faiths present in a classroom. But today, in some
8
ECtHR, Lautsi v Italy, Application No 30814/06, chamber judgment of 3 November
2009, Grand chamber judgement of 18 March 2011. It should be kept in mind that
the speech, upon which this article is based, was given in December 2010, before a
judgement by the grand chamber was reached and publicised.
9
2009, N° 55.
10
Arguing in favour of this judgement, cf. the article by M. Stathopoulos, The state in
the face of religious conflicts and intolerance in society.
11
ECtHR, Lautsi v Italy, Application No 30814/06, Grand chamber judgement of 18
March 2011, N° 72.
4
multi-cultural and multi-religious contexts, a school wall may not suffice to

display the great variety of religious symbols. Moreover, such solution may not
leave sufficient room for negative freedom of religion, since a classroom filled
with religious symbols could hardly accommodate atheist belief.
A case pending before the German Federal Administrative Court exemplifies

this problem. The case deals with the question of whether a school in Berlin needs
to fulfil the request of a pupil of Muslim faith to practise ritual prayer in school.
The rulings of both inferior courts, in citing the German Federal Constitutional
Court, agreed that state schools are not a place free from religion.12 However,
they reached different results. The lower administrative Court [VG] quoted the
Berlin school statute according to which pupils must be educated to understand
the different cultures and to communicate with people from other origins
and with different religions, without any prejudices and to contribute to the
peaceful social interaction of all cultures and the development of intercultural
competencies and thus to stand up for the dignity of all human beings. This is an
important and demanding educational goal, especially at a school like the one in
question attended by pupils of 29 different nationalities with all world-religions
present. The lower administrative Court indeed placed great demands on the
state to actively accommodate the different religions present at the school in
question, so that the particular pupil of Muslim faith and his group could practice
their ritual prayer at school. It ruled that possible conflicts between different
faiths should and could be handled by using separate classrooms during breaks.
The approach of the lower administrative court is an illustrative example of a
state’s duty to actively appreciate religions.13
The administrative court of appeals [OVG], to the contrary, considered that

the great number of religious faiths would make it practically impossible
for the school to allow each and everyone to pursue their respective
faith in school.14 According to the Court of Appeals the duty to actively
accommodate religions does not go this far. Thus, under the circumstances
of the case, there was no constitutional right to the organizational measures
necessary to render possible the ritual prayers at school. Freedom of religion
only requires ‘reasonable accommodation’, a concept also described in this
publication by Justice Albie Sachs. It remains to be seen whether the Federal
Administrative Court will adopt this concept, and if so, how it might develop
in practice.
12
VG Berlin NVwZ-RR 2010, p. 189 (191) and OVG Berlin-Brandenburg, NVwZ
2010, p. 1310 (1312).
13
VG Berlin (above, p. 192).
14
OVG Berlin-Brandenburg (above, p. 1310).
5
Juliane Kokott
IV. European Constitutions Compared
The ‘Berlin prayer room’ example – as an example for the German model
– stands for active appreciation. But there are 27 member states in the
European Union and much variety with regard to the accommodation of
state and religion:
A. Constitutional Diversity
Some Member States’ constitutions establish a state church or state religion,
or at least provide for a special relationship with one or few religions. The
Church of England – as the name already suggests – is the official state church
of England. The Queen as Head of State is at the same time Head of the Church
bearing the title ‘Supreme Governor of the Church of England’ and ‘defender
of the faith’. Some Anglican bishops are ex officio members of the ‘House of
Lords’ as Lords Spiritual – even after the Upper House reforms of the last
decade.15 Paragraph 4 of the Danish Constitution establishes that the Danish
Lutheran Church is Denmark’s official church, and as such is supported by the
state.16 Article 2 of the Maltese Constitution provides that ‘[t]he religion of
Malta is Roman Catholic Apostolic’17. Paragraph 2 of this Article even states
that ‘[t]he authorities of the Roman Catholic Apostolic Church have the duty
and the right to teach which principles are right and which are wrong’. The
Greek Constitution provides in its Article 3 that ‘[t]he prevailing religion
in Greece is that of the Eastern Orthodox Church of Christ’18. Also other
European countries such as Iceland19, Norway20, Andorra21, Liechtenstein22,
15
The Lords Spiritual usually refrain from voting on legislation.
16
§ 4 of the Danish Constitution.
17
Article 2 of the Maltese Constitution.
18
Article 3 (1) first sentence of the Constitution of the Hellenic Republic.
19
Article 62 of the Constitution of Iceland: ‘The Evangelical Lutheran Church shall be
the State Church in Iceland and, as such, it shall be supported and protected by the
State. This may be amended by law.’
20
§2 of the Constitution of Norway ‘The Evangelical-Lutheran religion shall remain
the official religion of the State. The inhabitants professing it are bound to bring up
their children in the same.’
21
Article 11 (3) of the Constitution of Andorra: ‘The Constitution guarantees the
Roman Catholic Church free and public exercise of its activities and the preservation
of the relations of special co-operation with the State in accordance with the
Andorran tradition. The Constitution recognises the full legal capacity of the bodies
of the Roman Catholic Church which have legal status in accordance with their own
rules.’
22
Article 37 (2) of the Constitution of Liechtenstein: ‘The Roman Catholic Church is
the State Church and as such enjoys the full protection of the State; other confessions
shall be entitled to practise their creeds and to hold religious services to the extent
consistent with morality and public order.’
6
Monaco23, or San Marino24 have a state church or at least a state religion.

Countries like Italy, Poland and Spain recognise a special relation between the
state and the Catholic Church.25
‘The State acknowledges that the homage of public worship is due to

Almighty God’ says the Irish Constitution, which at the same time provides
that ‘[t]he State guarantees not to endow any religion’.26 Until January 1,
2000 the Lutheran Church was Sweden’s State Church. Separation between
Church and State was implemented with the argument that in a modern day
and age the state had to remain neutral.27 The Slovak Republic, says Article 1
of its Constitution, is not bound to any religion28 and even the Constitution
of Catholic Portugal provides for the separation of church and state.29
B. The Example of Germany

Germany does not have a state church either.30 The system is – similar to
the one in Belgium –, one of friendly cooperation.31 Article 181 (1) of the
Belgian Constitution32 even provides for the financing of both religious
and philosophical institutions, such as the Catholic Church, as well as the
‘central laicist council’ (‘Conseil central laïque’).33 In Germany, the state is
actively involved in the collection and distribution of church taxes. For theses
23
Article 9 of the Constitution of Monaco: ‘The Roman Catholic Apostolic Church is
the State Church.’
24
Article 9 of the Constitution of San Marino: ‘The Roman Catholic Apostolic Religion
is the Religion of the State.’
25
Cf. Articles 7 and 8 of the Italian Constitution; Article 25 of the Polish Constitution;
Article 16 (3) of the Spanish Constitution; cf. also Article 43 of the Constitution
of Lithuania, which refers to ‘traditional Lithuanian churches and religious
organisations’.
26
Article 44 (1) and (2) N° 2 of the Irish Constitution.
27
SOU (Swedish Government Official Reports) 1994:42, Staten och trossamfunden, p.
39-44.
28
Article 1 (1) second sentence of the Constitution of the Slovak Republic.
29
Article 41 (4) of the Portugese Constitution of 1976 (amended in its version of 2005).
30
Article 140 of the German Basic Law read together with Article 137 (1) of the Weimar
Constitution.
31
On the German system and its development, Voßkuhle, A. (2010), ‘Religionsfreiheit
und Religionskritik – Zur Verrechtlichung religiöser Konflikte’, EuGRZ, 18-21, p. 57.
32
Article 181 of the Belgian Constitution: ‘(1) The State awards remuneration and
pensions to religious leaders; those amounts required are included in the budget on
an annual basis. (2) The State awards remuneration and pensions to representatives
of organizations recognized by the law as providing moral assistance according to
a non-religious philosophical concept; those amounts required are included in the
budget on an annual basis.’
33
In Belgium cults can officially be recognized by the Ministry of Justice, if they comply
with certain criteria. The Conseil central laïque (CCL) has been officially recognized
in 1993.
7
Juliane Kokott
services, however, the state is allowed to keep 2-4.4% of the money collected.
The German system of friendly cooperation between Church and State

is currently opening up to non-Christian religions. Islamic religious
instruction at state-schools has been introduced in several German Länder34
and its further introduction to more schools and Länder, its organization
and design are widely discussed.35
On 3 October 2010, when Germany celebrated twenty years of reunification,

German President Christian Wulff gave a speech in which he stated:
‘Christianity is without a doubt part of German identity. Judaism is without
a doubt part of German identity. Such is our Judaeo-Christian heritage.
But Islam has now also become part of German identity.’36 Although, this
last sentence was highly criticised, the speech confirmed, that strict laicism
is not the German tradition. The separation of church and state according
to the German Constitution has been implemented in the spirit of ‘mutual
recognition and cooperation’. Former German chancellor Willy Brandt
described this relationship as follows: ‘We do not think of the Churches
as simply being a group out of many in a pluralistic society. This is why we
do not want to treat their representatives as representatives of mere group
interest. In the sign of freedom, we want partnership.’37
Under German constitutional law, this partnership, this friendly cooperation,

was established almost a century ago in the Weimar Constitution of 1919
when society was still much more religiously homogeneous. But is the
German model of friendly cooperation between church and state still up
to date in a modern, multi-cultural, multi-religious and also sometimes
34
‘Islamic Religious instruction’ in accordance with Article 7 (3) of the German Basic
Law – which requires the religious group to name an official representative – is being
taught in Berlin and Lower Saxony, where a round table (Lower Saxony) and the
Islamic Federation Berlin (Berlin) serve as official representatives. In Bavaria ‘Islamic
instruction’ is being taught by state officials from Turkey, as well as the ‘Erlangen
Model’ which opts for a local cooperation. In North Rhine-Westphalia, local
cooperation is also being practised in Duisburg and Cologne; furthermore ‘Islamic
studies’ (see Bavarian model) has been introduced.
35
See i.e. ‘German Islam Conference’ (DIK) in its meetings on 17 May 2010, 25
June 2009 and 13 March 2008, and especially the study ‘Verfassungsrechtliche
Rahmenbedingungen eines islamischen Religionsunterrichts’ of the DIK of 13
March 2008, available at www.deutsche-islam-konferenz.de (02.05.2011).
36
‘Valuing Diversity – Fostering Cohesion’, Speech by Christian Wulff, President of
the Federal Republic of Germany, to mark the twentieth anniversary of German
Unity on 3 October 2010 in Bremen, available at www.bundespraesident.de/Anlage/
original_667212/Speech-in-English.pdf (02.05.2011).
37
Official address of Chancellor Willy Brandt on 18 January 1973, quoted in BVerfGE
42, 312 (own translation).
8
a-religious society? As I just mentioned, Sweden abolished its state church

in 2000 with exactly this line of reasoning. Is Laicism therefore – as the
Lautsi chamber judgment could be understood to suggest – the better choice
today? But for which countries? Italy? Germany and Belgium as well? The
European Union or all Member States of the Council of Europe? Is laicism
the European model?
V. A European standard on state-church relations or subsidiarity?
The question is, whether there should be a common approach to state-church

relations to all Member States of the European Union at all, and if so, which
one.
A. A common standard?
Several arguments could be made in favour of a common approach in
Europe. For example, the statute of the Council of Europe provides that the
organization’s aim is ‘to achieve greater unity between its members for the
purpose of safeguarding and realising the ideals and principles which are
their common heritage’.38 The statute furthermore states that this cannot be
realized without ‘spiritual and moral values’39, in other words, without ethics
and religion. However, as we are all well aware, several motions to include
a reference to God or to Christianity into the Preamble of the European
Constitution and the European Treaties were explicitly dismissed.40 But,
according to Article 17 of the Treaty on the functioning of the European
Union, ‘the Union shall maintain an open, transparent and regular
dialogue with […] churches and [philosophical and non-confessional]
organisations’.41 This is probably more powerful support for friendly
cooperation and active appreciation than a reference in the preamble.
Moreover, the European Union Treaties ‘[draw their] inspiration from the
cultural, religious and humanist inheritance of Europe’42. Religiousness is
part of a European identity. Furthermore, the European Union has evolved
from a once European Economic Community into a Union of principles
and values. But what principles and values does the European Union have
concerning the freedom of religion and state neutrality?
38
Art. 1 a) Statute of the Council of Europe.
39
Ibid.
40
Cf. the speech by H. de Vries, A Religious Canon for Europe? Policy, Education and
the Post-Secular Challange, p. 11.
41
Cf. the contribution by Jan de Groof.
42
Preamble of the Treaty on European Union, OJ 30 March 2010 C 83/15.
9
Juliane Kokott
1. Laicism/Passive Toleration as a common standard?
Since all Member States of the EU are signatories to the ECHR, the chamber
judgment of the European Court of Human Rights in the Lautsi case could
have suggested a laicistic approach for the European Union at first sight.
Although judgments made by the Strasbourg Court are binding for the
defendant state only, they define a common standard for all Member States
of the Council of Europe.
Some have criticised that the European Court of Human Rights did not
sufficiently make use of the method of constitutional comparison in its
chamber judgment43. The judgement of the Grand chamber took this critic
to heart and provided a thorough examination of the different national rules
and regulations on crucifixes in public school classrooms, as well as the
according jurisprudence.44 In fact, a European ruling on such a basic issue
as freedom of religion and state neutrality should only be handed down
after a thorough comparison of the Member States’ constitutions. Since the
provisions in the European Convention on Human Rights of the Council of
Europe or in the Fundamental Rights Charter of the European Union are
not unequivocal on the exact content of state neutrality, it is mainly through
constitutional comparison that a common legal standard on this issue could
be established. While freedom of religion is inherent to all the Member
States’ constitutions, the relations between state and church in Europe are
very diverse and in most cases not strictly laicistic.
In order to grasp and evaluate the status of state neutrality in religious

conflicts in the different EU Member States, a great deal of research would
be necessary. But the rudimentary remarks on the differences in state-
church-relations in the various constitutions of the EU Member States at the
beginning of this article already indicate that there is no EU-wide standard
on this issue. Most certainly, one can derive from the different constitutions,
that neither laicism, nor passive toleration, nor active appreciation is a
common standard shared by all Member States. It is against this background
that we have to ask ourselves: passive toleration or active appreciation of
diversity of the freedom of religion for the European Union?
43
2009.
44
ECtHR, Lautsi v Italy, Application No 30814/06, Grand chamber judgement of 18
March 2011, Nos 26-28 .
10
2. Friendly Cooperation / Active appreciation as a common

standard?
Article 17 of the Treaty on the Functioning of the European Union (TFEU)

clearly recognises the special status under national law of churches and
philosophical and non-confessional organizations.45 It also provides that
‘the Union shall maintain an open, transparent and regular dialogue with
these churches and organisations’46. In my opinion, this provision
1.) recognizes the status religions and religious communities may enjoy
under the national (constitutional) law of the Member States, and
2.) supports a friendly cooperation approach between the Union, churches,
and philosophical and non-confessional organisations. This is more than
mere ‘passive toleration’.
A. EU-wide solution or Subsidiarity?

However, before one opts for an EU-wide model of state neutrality and EU-
wide rules governing the relationship between church and state, another
principle of European Union law needs to be emphasised. According
to Article 4 TFEU, the Union respects the ‘national identities [of the
Member States], inherent in their fundamental structures, political and
constitutional’.47 Amongst these structures are the fundamentals of state-
church-relations and the respective model of state neutrality in religious
matters.
Any European-wide approach in this area should therefore be particularly

careful in respecting these national and constitutional identities of the
Member States.48 If a constitutional tradition common to the Member States
cannot be established, a large margin of appreciation and discretion must be
given to the Member States. This is even more true for controversial socio-
political issues – issues such as state neutrality in religious conflicts. This is
why I, personally, would have difficulties in finding a Union-wide approach
to state neutrality in religious conflicts. Nevertheless, one has to recognize
that Article 17 TFEU supports friendly cooperation which implies to a
certain extent active appreciation.
45
Art. 17 (1) and (2) TFEU.
46
Art. 17 (3) TFEU.
47
Art. 4 (2) TFEU.
48
Cf. the speech by P. de Hert and S. Somers, International human rights and national
constitutional heritage: which legal framework so we need to manage religious
tensions?, p. 10.
11
Juliane Kokott
While the chamber judgment in the Lautsi-case seemed to indicate a common

laicistic approach, the Grand chamber judgement now clearly opts in favour
of subsidiarity.49
VI. Conclusion
Freedom of Religion is granted by the ECHR and the EU Charter of

Fundamental Rights. Article 17 TFEU supports friendly cooperation / active
appreciation. But, in view of the many different constitutional traditions
and judicial interpretations on state neutrality and state-church-relations
in the various EU Member States, a Union-wide approach to church-state-
relations is difficult to find. In cases of doubt and in the absence of common
standards, European Courts should therefore exercise judicial self-restraint,
leaving the Member States their margin of appreciation. Within these
confines, we should appreciate the diversity of approaches to freedom of
religion and church-state-relationships.
In Germany, in 1555 the so-called Peace of Augsburg established the

principle ‘cuius regio, eius religio’ – ‘Whose realm, his religion’. Almost
500 years later our principle should be ‘cuius regio, eius religionis libertas’ –
‘Whose realm, his freedom of religion’.
VII. Bibliography
A. Primary sources / cases

• Address of Chancellor Willy Brandt on 18 January 1973, quoted in
BVerfGE 42, 312.
• SOU (Swedish Government Official Reports) 1994:42, Staten och
trossamfunden, p. 39-44.
• Treaty on European Union (TEU) and Treaty on the functioning of the
European Union (TFEU), OJ 30 March 2010 C 83/15.
• Charter of Fundamental Rights of the European Union, OJ 30 March
2010 C 83/389.
• ‘Valuing Diversity – Fostering Cohesion’, Speech by Christian
Wulff, President of the Federal Republic of Germany, to mark the
twentieth anniversary of German Unity on 3 October 2010 in Bremen,
available at www.bundespraesident.de/Anlage/original_667212/
Speech-in-English.pdf.
• VG Berlin NVwZ-RR 2010, p. 189 (191)
49
But see also the Dissenting opinion of Judge Malinverni joined by Judge Kalaydjieva
in ECtHR, Lautsi v Italy, Application No 30814/06, Grand chamber judgement of 18
March 2011.
12
• OVG Berlin-Brandenburg, NVwZ 2010, p. 1310 (1312).

• ECtHR, Lautsi v Italy, Application No 30814/06, chamber judgment of
3 November 2009, Grand chamber judgement of 18 March 2011.
B. Literature
• Frederick II of Prussia, letter of 15 June 1740, reproduced in: Hastings, J.
(1922), Encyclopaedia of Religion and Ethics Part 23, Charles Scribner’s
sons, New York, p.363.
• Thomas Jefferson, letter to Danbury Baptist Association, 1 January 1802,
reproduced in: Library of Congress Information Bulletin (1998) 57/6,
available at www.loc.gov/loc/lcib/9806/index.html.
• ‘German Islam Conference’ (2008) ‘Verfassungsrechtliche
Rahmenbedingungen eines islamischen Religionsunterrichts’, available
at www.deutsche-islam-konferenz.de.
• Seewald, Peter (2010), Licht der Welt, Ein Gespräch mit Papst Benedikt
XVI., Herder, Freiburg.
• Voßkuhle, A. (2010), ‘Religionsfreiheit und Religionskritik - Zur
Verrechtlichung religiöser Konflikte’, EuGRZ, 18-21, p. 57.
• Waldhoff, Christian (2010), Gutachten D zum 68. Deutschen Juristentag
- Neue Religionskonflikte und Staatliche Neutralität - Erfordern
weltanschauliche und religiöse Entwicklungen Antworten des Staates?
C.H. Beck, Munich.
13
The State in the Face of Religious Conflicts and
Intolerance in Society
I. Religious freedom and religious neutrality of the state
A starting-point for the shaping of the relations between state and religion
and for dealing with the tensions created by the phenomenon of religion
must be, I believe, respect by everyone, and first and foremost by
the state, for religious freedom, which is a fundamental human right.
Religious freedom, moreover, is not just one of many human rights; it is the
root of individual liberties, since it is deduced from freedom of conscience,
of which, in the course of history, it has been a basic expression. So it is self-
evident that religious freedom is internationally accepted and recognised in
international Conventions, which bind the national legislators, at least as far
as the core and essence of this freedom is concerned.1
Religious freedom as an individual right justifies in principle the (often

argued) need for its individualisation, which puts each believer, and not the
religious community, at its epicentre. But it must also be borne in mind that
freedom of belief and worship is usually exercised (and must be able to be
exercised) collectively. Both forms of exercise of this freedom, collective or
individual, are an expression of religious freedom.
If, now, the state must respect and protect the freedom of religion of all its
citizens, even of the smallest religious community in society or of the very
last citizen, it must be - as to its state functions, which are addressed to all
citizens - neutral in terms of religion, as well as towards the religion which
may prevail in that society, so that it does not have first and second-class
citizens, depending upon their religious creeds; so that a situation does not
arise, directly or indirectly, of diminished respect, for example, for religious
minorities or for citizens of no religion. Furthermore, the indirect pressure
which is usual - at least in my own country - to take part in religious occasions,
in violation of the free and uninfluenced choice of each individual as to his/
her participation or non-participation, is to be avoided. All this means that
the state must be secular.
1
Of course, the international Conventions leave some room for the national legislators,
who nevertheless, when they make use of their ‘margin of appreciation’ (e.g., when
religious freedom is in conflict with other rights – see further text), must respect at
least the essence of religious freedom.
15
These things could be regarded as self-evident - and they are, in fact, self-
evident when we examine religious freedom as a value per se and the religious
neutrality of the state as a consequence of that value. Things become,
however, difficult when even great values and human rights are in conflict
with other values or rights. Could it be that in that case some compromise
between the conflicting values is called for, that is, in the present instance,
some concession of religious freedom and of the state’s neutrality? And what
happens if the state laws are in conflict with religious imperatives?
I believe (and what follows can serve to confirm this consideration) that any
solutions which are found to the problem of religious confrontations and
conflicts and the satisfaction of any legitimate needs can be reconciled with
respect for religious freedom, and that there is no reason for the religiously
neutral, secular state to be sacrificed; that there is no need for us to move, as
many maintain that we should, into a post-secular age.
However, a misunderstanding which is frequently encountered should

be dispelled, and it should be made clear that religious neutrality and
secularism apply to the state, and not to society. Secularism does
not drive out religion and religious traditions from society.2 God is not
chased out of the public sphere, as is sometimes argued. It is the state,
not society, which must be neutral. I am not talking, of course, about the
extreme forms of secularism in which the state prohibits the practice of
religion or the practising of religion in a different way, thus infringing, the
first victim, religious freedom. The secular state must respect religious
freedom in society, religious freedom as an individual and collective right.
Society and its members may of course be religious. It is simply that the state
itself should not be religious. Secularisation does not mean, as is rightly
pointed out,3 ‘fin de la religion’ as other voices claim. Religious feeling
and metaphysical concerns, and, together with them, religions will always
exist in society and will appeal to a (greater or lesser) part of its population.
It is perhaps an exaggeration to speak of a ‘return of religions’ in modern
societies; nevertheless, in any event, the social significance of religion,
religious institutions, and belief practices even in democratic societies where
the state is secular should not be underestimated. The state must recognise
that there is something beyond its sphere, that there is, in particular, the
spiritual sphere, which must remain accessible to anyone who feels the need
2
However, as Lucian Hölscher (‘Civil religion and secular religion’ in Religion and
democracy in contemporary Europe, ed. Gabriel Motzkin and Yochi Fischer, Van Leer
Jerusalem Institute, 2008, p. 60) points out, in religious discourse the term ‘secular’ is
usually used as implying a lack of religion in society.
3
See Korioth/Augsberg, ‚Neue Religionskonflikte und staatliche Neutralität‘, Juristen-
zeitung 2010, 830.
16
The State in the Face of Religious Conflicts and Intolerance in Society
for it4. Moreover, the secular state can show respect to religious traditions
without losing its religious neutrality and without the religious freedom of
all its citizens being affected.
II. Today’s challenges
Today we are faced with new challenges and difficulties. The growth of
transnational migration has changed the picture of European societies and
causes conflicts both because the immigrants are often not able to integrate
into the host societies and because of the intolerance with which in many
cases they are treated in their new environment; there are conflicts between
religious communities and between the state and religious communities.
Phenomena of religious fanaticism and fundamentalism and of the use of
violence and terrorism aggravate the situation.
The new question which has arisen is whether the integration of

non-European immigrants into European societies is possible. The
problem is mainly, but not exclusively, Islamic. Furthermore, there are not only
religions, but also immigrants who are underprivileged because of their racial
and socio-economic status who remain different in their new surroundings
and remain ‘other’ in a European society. But the overwhelming majority are
Muslim. Xenophobic feelings, conservative defence of Christian culture lead
in these countries to an anti-Islamic attitude in a great part of the indigenous
population and hinder understanding between immigrant groups and host
societies, and function to the detriment of efforts at incorporation. The
strong presence of Islam in European states has become a major political
problem. And the question is whether the state’s neutrality and secularism
are sufficient to deal with these conflicts and this intolerance. Can we be
indifferent to religions today by appealing to neutrality?
III. Indifferent neutrality or responsible neutrality in the face of the

problems
The opinion is heard on many sides that the tensions and disturbances which
are caused in present-day societies arising from religious confrontations have
to do with secularism and with the indifference which that involves towards
the phenomenon of religion, and therefore the abstention of the secular state
from any measure of intervention to deal with this phenomenon. And this
4
Cf. Gabriel Motzkin, ‘Secularization, knowledge and authority’ (in Religion and
democracy in contemporary Europe, ed. Gabriel Motzkin and Yochi Fischer, Van
Leer Jerusalem Institute, 2008, p. 52), who maintains that “in a system in which
all possibility of belief in anything is vitiated, there can be no articulation of the
emotional life of the self”.
17
is precisely the reason why it is said that we must enter upon a new, post-
secular age.5 I cannot agree with this conclusion. Secular democracy and
religious neutrality of the state are not to blame for these tensions,
but, at the most, passive, indifferent neutrality is responsible. These
voices of criticism have not explained - nor do I think they can explain - why
it is not possible for passivity and indifference to be abandoned without the
good of state neutrality, called for by human rights and particularly by the
religious freedom of all citizens, being sacrificed. The state which is neutral
towards religion both can and should concern itself with the religious
phenomenon, not, of course, at its spiritual level, but in its social dimension,
to the extent, that is, that it harms or threatens peace in society (external
relations of a religion, i.e., its relations with the rest of society - ‘forum
externum’6). The same is true of the judge who resolves social disputes which
are brought before him/her and who does not lose sight (must not lose sight)
of his impartiality and neutrality towards the litigants.
It is true that indifference on the part of the state nurtures the confrontations
which manifest themselves or lurk in society. Passivity, on the one hand,
favours those groups with a dominant position in society in imposing their
own morality, their own way of life, their own views on what is right and not.7
In the end, that is to say, passive neutrality ceases to be neutrality at all, since it
does not prevent the ruling class from imbuing and shaping policies in society
in the light of its own views. This passive policy is not a liberal, but a too liberal,
policy and is close to indifference, carelessness, if not to irresponsibility.8 On
the other hand, passivity leaves religious minorities to entrench themselves
and to make no effort at incorporation into the societies in which they live.
Thus the secular state needs to be active through interventions, which,
however, will not entail any abandonment of religious neutrality.
Secularism should be (according to an eloquent terminology) an ‘intelligent’,
not an ‘ignorant’ secularism. These interventions should be based on the
following principles and pursue the following objectives:
A. First principle: Respect for pluralism

The state must recognise, not only in word, but in deed, all religious,
metaphysical, and philosophical convictions which have their adherents in
society (the active appreciation of diversity, which is the subject and title
5
Cf José Casanova, ‘The problem of religion and the anxieties of European secular
democracy’, in Religion and democracy in contemporary Europe, ed. Gabriel Motzkin
and Yochi Fischer, Van Leer Jerusalem Institute, 2008, pp. 73-74.
6
On the other hand, the internal relations of a religion - ‘forum internum’ – should not
be affected, as a matter of principle, by the state.
7
See Korioth/Ausberg, op. cit., p. 832.
8
Thus, it is the French ‘laïcité’ which has the great advantage of accepting that freedom
of religion may not restrain the State from intervening in society.
18
of our conference). It should show its respect for all these convictions, and,
consequently, create the conditions and the prerequisites necessary to ensure
religious pluralism, which it should guarantee, if need be, by the provision of
sanctions for those who by their actions do not show the appropriate respect.
It is only in this way that confidence will be created in religious minorities that
the state takes seriously and protects their religious freedom.
In the particular case of Muslims, it should not regard them as a monolithic

community all of whose members, without exception, swear by the Prophet’s
creed. There is no such Islamic homogeneity. The example of the Turkish
Muslims, to take one example, demonstrates this.
Recognition in practice can also take the form of support for religious
communities, on condition that the support is provided proportionally
(depending upon their size) and impartially to all religious communities.
Such support is not contrary to neutrality, because the members of religious
communities are also citizens of the state, and the state thus helps its citizens
to satisfy their religious needs. Naturally, this support should not have the
form of the promotion of the positions of particular religious communities,
but only of rendering possible their development, thus making possible
religious pluralism, instead of that monolithic version of religion which
marginalises those who dissent.
At the same time the state should prevent the views prevailing in society (for
example, by reason of superior numbers) from claiming power over society
as a whole and regulating problems or interpreting situations in need of
regulation in the light of these views. The state is even less entitled to grant
to one church the status of ‘state church’. Secularism should be compatible
with pluralism. The views of the majority on public life should not be
regarded as ‘the core’ of society to which those who do not believe in the
views in question should orientate themselves.
An example: public places, particularly courtrooms and classrooms of state

schools, or the premises of parliaments, or of town halls, etc. belong to all
the citizens, whatever religious beliefs they have or do not have. They must,
therefore, observe religious neutrality, with which the display of crosses,
icons, and other religious symbols is not in keeping.
But the question arises: what about the cohesion in society?9 Will it be
9
Cf. Silvio Ferrari, ‘Nationalism, Patriotism, and Religious Belief in Europe’, in
University of Detroit Mercy, Law Review 2006, pp. 626 et seq., on the need of a common
identity or common bond in society, and on the question of what constitutes ‘the core
of a nation’ and whether religion should be a unifying factor.
19
sacrificed? The answer is that the common identity of society should

be sought not in religion, because that would conflict with religious
freedom and the need for protection of human rights, which means
protection of pluralism. Besides, there is no society at the present
time with religious homogeneity. Therefore, the common identity
should be sought in other features which can serve as a common
basis for all.
Indeed, the cause of the cohesion of society can be satisfied by cohesive

bonds which are suited to all citizens, such as the ‘nationality’ (common
citizenship), which binds all the citizens to the state and its laws, including
whatever is shared and must be shared in common. No citizen can place
him/herself outside the laws, whereas he/she could, for example, place
himself outside a religion.10 It is another matter that people of the same race
or religion or language can cultivate the characteristics which they have in
common and observe their cultural traditions. But these cohesive features
(religious, linguistic, etc.) are not appropriate for society as a whole.
All this means that we must accept multiculturalism as a necessary

consequence of the freedom of religious and philosophical
convictions and of freedom of choice of a way of life. We cannot say
that multiculturalism has failed, because that would be like saying that
these freedoms have failed. Multiculturalism is a value identified with these
freedoms, with pluralism, with the avoidance of Procrustean restrictions on
the members of a society and the imposition upon them of a certain way of
life. The presence of Muslim communities is not a problem for democratic
states. What is a problem is the xenophobic reaction which leads to racialist
behaviours against them, and their marginalisation - often their self-
marginalisation.
By way of conclusion: we should accept multiculturalism both as an

expression of principles and values (particularly of tolerance) and as the
only practical solution for the safeguarding of social peace in a spirit of
conciliation and not of oppression.
10
Concerning the question of the reference to the Christian tradition in the Preamble of
the European Charter of Fundamental Rights, see Stathopoulos, ‘Can the democratic
state impose limits on religion?’, in Religion and democracy in contemporary Europe,
ed. Gabriel Motzkin and Yochi Fischer, Van Leer Jerusalem Institute, 2008, pp. 148
et seq.
20
B. Second principle: Acceptance of necessary limitations to deal

with conflicts - Respect of otherness
The state, on the one hand, is entitled to set limits (quantitative and other)
on the acceptance of immigrants who flow in particularly - at the present
time - from Eastern and African countries - limits on the criteria of how
many people, and whom, the host society can and is willing to absorb. As
long as there are states and state power, there are also borders of states,
and therefore the state power can control how many new citizens it
can and will absorb in its territory. And, on the other, the state must
set limits to the exercise of religious or philosophical convictions (on their
exercise -forum externum- and not on the convictions themselves).11 This
exercise must show respect for the views of others, respect for human
rights.12 The possibility of limitations is also provided for in international
conventions which guarantee religious freedom.13
The state must impose sanctions upon acts (a fortiori acts of violence) which
call into question religious pluralism and show lack of respect for otherness.
These are acts which disrupt the peace of society. Otherwise, the
individuals or groups involved will not be deserving of incorporation
into the host society. It goes without saying that the sanctions should be
the ultimum remedium, that is, they should be activated only if dialogue and
an attempt at reaching an understanding have failed. Furthermore: the State
expects from all religions respect for the religious freedom of others.
The application of this to immigrants and to members of all minority

groups means that they must be loyal to the state in which they have
settled. They must realise that religious views which forbid them to be loyal
to the host state are not tolerated and deprive them of justification for their
integration. Integration is not justified, in general, by acts which fanatisise
or by rules of a religion which adversely affect human rights, for example,
which entail oppression of women (wives or daughters).14 For the same
11
See Korioth/Augsberg, op.cit., p. 834.
12
As Ernst Hirsch Ballin (‘Europe’s Values’ in Cultural and Educational Rights in the Enlarged
Europe, ed. Jan De Groof and Gracienne Lauwers – Wolf Legal Publishers, 2005, pp.
62-63) maintains, “interreligious dialogue can only bear fruit if one is prepared to
respect the other as a human being” and “a peaceful dialogue can only be established in
mutual recognition of diversity on the basis of universal and unifying values”.
13
See, inter alia, Art. 8 § 2 of the European Convention on Human Rights of 1950:
“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 for the protection of the rights and
freedoms of others”.
14
Here one has to agree with Viviane Reding (Member of the European Commission)
when she says (‘Dialogue between peoples and cultures’, Conference in Brussels, 24 and
21
reason, school students who, for example, object, under the influence of
their own sacred rules, to receiving teaching which belongs within the field
of general scientific or historical knowledge, as, for example, about Darwin,
the Holocaust, etc., should not be regarded as suitable for integration.
The state must guarantee to its religious citizens respect for their religion,
but at the same time it must imbue them with values which help the
citizen to develop a free spirit, even if this may reduce the influence
of religion. The individual’s autonomous choice, free as far as possible
from the influences of any religious or other power, must be guaranteed,
so that individuals decide on their own world views. And in any event the
state must help them to learn to respect difference. Those who cannot fulfil
the fundamental duty of a citizen to accept otherness can hardly live in that
society. They can go to another, non-democratic, society, or to a monastery,
or make another choice outside a democratic society.
An issue of heated discussion is that of the Muslim women’s head-covering,

which has also been dealt with by the European Human Rights Court.15 The
Court held that “it is difficult to reconcile the head-covering with the message
of tolerance, respect for third parties and, above all, respect for the equality of
the two genders and of non-discrimination which every teacher16 in a democracy
should convey to the students”. These principles, generalised and reinforced
by the need which we have noted to help all citizens to develop a free spirit,
justify, in my view, the legislative measures in France and Belgium which
prohibit the veil.
On the other hand, the German Federal Constitutional Court held that
a teacher may wear the Muslim head-covering in class. This is because, as
the Court held, there is no relevant prohibitory provision of law regarding
those employed in education.17 I fear that the German court did not take
into consideration that the rules of law are not to be found only in express
provisions (which it clearly looked for in vain), but may be deduced
indirectly from a conjunction of provisions or from general principles of law,
particularly those having to do with human rights.
25 May 2004, publ. European Commission, 2005, Introductory address, p. 26) that
“certaines interprétations du Coran aboutissant à avilir la femme dans la famille et dans
la société ne sont pas acceptables pour l’ Europe, pas plus que ne le sont les atteintes aux
droits de l’ homme et à la liberté d’ expression”. It is fair to add that the same is true of
some passages of the Gospel.
15
Dahlab v. Switzerland judgment of 14.2.2001, http://www.echr.coe.int
16
The case concerned a Muslim woman teacher in a public primary school in Geneva
who claimed the right to wear the Muslim hijab in the school classroom.
17
BVerfG, 2 BvR 1436/2002, 3.6.2003.
22
C. Third principle: Positive measures for incorporation

In parallel, the state, when immigrants fulfil the above conditions, should take
positive measures (affirmative action) to ensure for them a prospect of
their incorporation and a guarantee of equal access. This applies especially
to young immigrants. The state must also show strictness towards racialist
phenomena coming from the host society which threaten social peace.
In a recent referendum in Switzerland, the majority expressed their

opposition to the building of a mosque. Furthermore, in Greece, in spite of
the constant assurances of the political authorities that they will facilitate the
building of a mosque in Athens, the issue is repeatedly postponed, clearly
under the influence of circles within the prevailing Orthodox Church or
other conservative circles. In both instances, if the matter were to reach the
European Court of Human Rights, its judgment would, I think, vindicate
Muslim citizens who wish to have a place where they can perform their
religious duties. The state, as we have already pointed out, must, in respecting
religious freedom, assist them in this.
D. Fourth principle: Intervention in disputes between religious

groups (which disturb peace in society)
Nor should the state remain indifferent when there are tensions in the relations
between religious communities. It must intervene in order to impose
the peaceful settlement of religious disputes; to ensure tolerance
between religious communities and their freedom of expression, which
includes also the freedom of criticism of religious doctrines to the extent
that it does not constitute insult; to promote dialogue between religions;
to obviate instances of privileged treatment, for example, tax privileges,
or discrimination, for example, treating some churches as public law legal
persons (a status which strengthens the position of the Church in society,
but also involves obligations of a public nature which are not compatible
with religious freedom) and others as private law legal persons. In the last
analysis, it is not necessary for religious communities to be squeezed into
one of these two categories of legal persons. In any event, a church neither
exercises public authority - for it to be a public law legal person - nor can it be
equated with an ordinary association - for it to be a private law legal person.
It would be more correct for the status of a sui generis legal person to be
recognised to all religions - that is, a third category of legal person, with its
own consequences in law. If they need state support in order to function, this
must be provided for all of them, as has already been stressed, on the basis of
proportional equality.
E. The importance of education - Application of the first principle

The major issue which is chiefly of interest to our conference is the relation
between Religion and Education. We have here to apply the imperatives of
23
the first principle, so that the state’s educational policy guarantees freedom
of religious and philosophical convictions and, finally, freedom of choice of
a way of life for everybody.
The negative phenomena of religious fanaticism, of hate for the different,

etc. start out from the indoctrination which young children receive in school.
Unless the problem is dealt with in education, it will be perpetuated. With this
matter the previous panel concerned itself, and so will the ones that follow.
I shall confine myself to saying that a confessional or catechetical Religious
Instruction lesson is not appropriate to state schools as being contrary to the
above principle. Catechism can be undertaken by the religious authorities
outside the state school.
Nor would a right on the part of the students to choose between religious
instruction and another lesson (e.g., religious studies) be the right solution,
because, on the one hand, there will usually be indirect coercion of the pupils
under the influence of the majority in society to choose the former, and, on
the other, it will lead to discrimination within the student community, with
the further consequence of probable unfavourable treatment of the minority
group.
By way of contrast, the religious studies lesson should be a unified, historical,

cultural lesson for all, in which the phenomenon of religion will be taught,
as this is undoubtedly an important factor in the evolution of the human
spirit. This lesson should be, according to the jurisprudence of the European
Court of Human Rights, interpreting Art. 2, sentence 2, of the 1st Protocol
to the European Convention on Human Rights,18 “objective, pluralistic and
critical”.19 In my view, this provision of sentence 2 gives parents the right to
intervene in cases of indoctrination which their children receive in school,
not in cases where the lesson is “objective, pluralistic and critical” (restrictive
interpretation of the sentence). The parents should not have the right to raise
objections to such a lesson, for the same reasons that they may not hinder the
teaching of history or biology, etc.
18
This provision reads as follows:”In the exercise of any functions which it assumes in
relation to education and to teaching, the State shall respect the right of parents to ensure
such education and teaching in conformity with their own religious and philosophical
convictions”.
19
See its decisions: Kjeldsen, Busk Madsen and Pedersen v. Denmark, of 7.12.1976;
Campbell and Cosans v. UK, of 25.2.1982; Folgero and others v. Norway, of
29.6.2007.
24
IV. Epilogue
In my view, religion should not be a problem or a threat for Western

societies. Only it must be clear that religious freedom is a major good
which should be respected by the state as a right which every citizen can
exercise either individually or collectively, as he/she chooses. But it must
also be respected by every citizen, religious or otherwise, in his/her
attitude towards others. We must accept that there is a tendency for this
respect, or even tolerance, not to be shown by large sections of religious
citizens. This has been down the centuries a characteristic chiefly of the
followers of the three great monotheistic religions (Judaism, Christianity,
Islam), which have laid claim to unique ‘truth’ for themselves, thus creating
a situation of intolerance for the ‘truth’ of others. We must also accept that
this phenomenon today manifests itself more acutely among large sections
of the followers of Islam.
It should be made clear to anyone who cannot show this respect towards
those who are religious in a different way or to those who are not religious
at all by the state in which he/she lives that if he/she persists in not
respecting difference, he/she has no place in the society of that state.
Only in this way can and should European secularism deal with the new
challenges. It should deal with them without passivity and indifference, but
by taking active measures, without abandoning what religious freedom and
equal treatment of citizens call for - the religious neutrality of the state. It
must be demonstrated that anti-secularism is in the end anti-liberal, that it
conflicts with fundamental freedoms, and leads to fanaticism, which shatters
social peace.
My conclusion is, therefore, that we should not enter upon a post-secular

age, but on an age of active secularism.
25
Policy, Education, and the Post-Secular Challenge
Hent de Vries*1
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
current 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
* Humanities Center, Johns Hopkins University.
27
Hent de Vries
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 broadest possible sense. Such an
understanding, we might venture to say with a philosophical idiom, must be
“generic” and, further, it must reach across the board, into all sectors of society
and beyond (i.e., 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 chapter 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.
28
I. 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, here 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.
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?
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.
29
Hent de Vries
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” systematically 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 nation, of nation-states—

and, a fortiori, would a trans- and multi-national community (and, perhaps,
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.
30
“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 most recent
parliamentary elections in The Netherlands that produced a government
based upon the indirect but crucial support of an Islamo-phobic party (Geert
Wilders’ PVV), only underscore the need for a much more thoughtful and
open-minded conversation on these matters.
II. 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),3 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”.4).
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
3
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).
4
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.
31
Hent de Vries
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.5
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”.6
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”.7 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.8
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?9
5
Ibid., 491.
6
Peter Sloterdijk, Derrida, an Egyptian, trans. Wieland Hoban (Cambridge: Polity
Press, 2009), 41-49, 44-45.
7
Keith Reader, “Régis Debray,” 491.
8
Sloterdijk, Derrida, An Egyptian, 43-44.
9
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
32
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 banlieus, 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, “within a secular and Republican
framework”.10 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,11 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?12 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.13 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
fait religieux?,” in Études, 2002/3, Vol. 397, 169-180.

10
Debray, “Teaching Religious Facts in Secular Schools,” 430.
11
Jean-Marie Colombani, “Nous sommes tous Américains” in Le Monde, September
13, 2001.
12
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).
13
Debray, “Teaching Religious Fact in Secular Schools,” 415.
33
Hent de Vries
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.14
Debray’s report, entitled L’enseignement du fait religieux dans l’école laïcque

[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 has 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).15
14
Ibid.
15
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.
34
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.16 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 (in which religion, by its very construction, does not concern
us) towards a laïcité of intelligence (where understanding becomes our
duty)”.17
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
16
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.
17
Debray, L’Enseignement du fait religieux dans l’école laïcque, 43/…
35
Hent de Vries
“the idea that religion should be discussed impartially within existing

subjects”.18 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.
III. 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”).19
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,”20 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.21
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
18
Willaime, “Religion in the Classroom”.
19
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).
20
Jacques Lang, “Préface,” in Debray, L’Enseignement du fait religieux dans l’école laïcque,
9-11, 10.
21
See Yolande Jansen, Stuck in a Revolving Door: Secularism, Assimilation, and
Democratic Pluralism (Dissertation, Amsterdam 2006), 193.
36
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”.22 Only thus could the integrity of republicanism
as promulgated by the institutions of secondary and higher learning be
maintained and the corresponding “demons of communitarianism” (feared
by secularists) and the “Trojan horse” of “syncretism [confusionisme]” or
“relativism” (scorned by clerics) be contained.23
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.24
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.25
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 “pathologies,”26
which religious cults generate when left to their own devices. And holding
these in check would require nothing less than a methodological and didactic
22
Debray, L’Enseignement du fait religieux dans l’école laïcque, 23.
23
Ibid., 22.
24
Ibid., 23.
25
Ibid., 24.
26
Ibid., 26.
37
Hent de Vries
approach, based upon sound philosophical premises, which “stipulates

a 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.27
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”28) per
se. In fact, his more recent Les communions humaines: Pour en finir avec “la
religion” explicitly calls for the concept’s retirement and for its substitution
with the more sober notion of “communion”.29 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.30
27
Ibid., 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).
28
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.
29
Régis Debray, Les communions humaines: Pour en finir avec “la religion” (Paris: Fayard,
2005), 60 ff.
30
Debray, “Mediology,” 289-290.
38
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
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.
IV. “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.31
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,’”32 on the one hand, and Derrida’s more radical
and resolute federalism and internationalism (in matters European and well
beyond), on the other.
31
I am grateful to Helen Tartar for providing me with an unpublished transcript of this
intervention.
32
Reader, “Régis Debray,” 491.
39
Hent de Vries
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.33
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
33
Unpublished transcript.
40
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”.34 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)—
34
Debray, “Qu’est-ce qu’un fait religieux?,” 173-175.
41
Hent de Vries
the term “fait social total” conjures up a reference or reality 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”.35 But what does such “radical secularity”—a
“reworked and originary laïcité,”36 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.37
35
Michael Naas, “Derrida’s Laïcité,” in idem, Derrida From Now On (New York:
Fordham University Press, 2008), 62-80, 63.
36
Ibid., 64.
37
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, Hans Kippenberg’s Discovering Religious History in the Modern Age, and
Guy Stroumsa’s A New Science: The Discovery of Religion in the Age of Reason 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.
42
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 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.
V. 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”.38
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
38
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.
43
Hent de Vries
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.39
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’”40 in a laïcité of
39
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” that Jean-Luc Marion and Alain
Badiou develop in their alternative and contrasting projects, in Étant donné and L’être
et l’événement, respectively, that I would be inclined to formalize and de-formalize the
point I am trying to make here.
40
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.
44
“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.
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”?41
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).
In other words, we might 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
41
These quotations are drawn from the conference announcement.
45
Hent de Vries
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”.42 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.43
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
42
Willaime, “Teaching Religious Issues in French Public Schools,” 100.
43
Ibid.
46
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.
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
47
Hent de Vries
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, if you like.
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 at Duke University, whose
Virtual Peace and Emergence use multiplayer and transmedia simulation
environments taken from the emerging field of “alternative reality games
(ARG’s) to help students and humanitarian groups and workers in situations
of peace and conflict resolution to think and act more creatively and
cooperatively.44
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”.45
These online alternative reality games are thought- and act-experiments at

the same time.
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
44
http://www.virtualpeace.org/
45
http://dukeresearch.blogspot.com/2009/10/emergence-wages-peace-not-war-after.
html, accessed September 5, 2011.
48
developed into the country that it now is”46), or The Bètacanon, edited under
the direction of Robbert Dijkgraaf,47 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”.48
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”.49)
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.
46
Frits van Oostrum, ed., The Netherlands in a Nutshell: Highlights from Dutch History
and Culture (Amsterdam: Amsterdam University Press, 2008), 7.
47
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).
48
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”.
49
Cited after ibid., 6.
49
Hent de Vries
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.
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 is a case in point. 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”.
50
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”.50
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.51 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.52 A different type of archive and apparatus—one that is virtual
in more than one respect—is implied here.
50
Willaime, “Teaching Religious Issues in French Public Schools,” 100.
51
Ibid., 98.
52
Ibid.
51
Hent de Vries
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”.53 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.54
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.55
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, 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”.
53
Ibid.
54
Ibid.
55
Ibid.
52
VI. 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 would not need to 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 (“cultic”)—sense of the term. A canon, after all, is not
a “catechism” even if it does have certain structural features in common.56
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.
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.57
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”58 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”.59 Yet, could a more than minimal, if not necessarily maximal—by
which I mean, strictly dogmatic-theological, ecclesial—canon be seen in this
56
See Nils F. Schott, “Catechism and Enlightenment”. Diss. Johns Hopkins University,
2010. Print.
57
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 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.
58
Weiler, Ein christliches Europa, 28 and 34.
59
Ibid., 39.
53
Hent de Vries
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.60
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
60
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).
54
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.61
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”.62 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”63 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”.64 Indeed, Weiler 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 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
61
Ibid.
62
Weiler, Ein christliches Europa, 45, 48.
63
Ibid., 48.
64
Ibid., 57-58. Cf. also Joseph H. H. Weiler,”The Trial of Jesus,” in First Things, No. 204,
June/July 2010, 39-46.
55
Hent de Vries
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.65
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.66
65
Weiler, “Invocatio Dei and the European Constitution”.
66
In the Spring of 2008, Taylor co-chaired, together with Gérard Bouchard, the
Consultation Commission on Accommodation Practices Related to Cultural Differences
(Commission de consultation sur les pratiques d’accommodement reliées aux différences
culturelles), appointed by the Liberal government of Quebec in the wake of a series
of reported incidents and cultural conflicts in 2007, and co-authored its final report
(http://www.accommodements.qc.ca/). The Bouchard-Taylor report advocated a
concept and spirit of so-called “open secularism” and proposed a host of “reasonable
accommodations” for religious and ethnic minorities and immigrants to foster an
“interculturalism” or mixing of cultures, Québécois style, that would merit favorable
comparison with the much more restrictive—and, as the New York Times quipped in
an editorial, “secular fundamentalist”—policies proposed by the French report of
the Stasi committee, appointed by the French president Nicholas Sarkozy in 2003
and chaired by Bernard Stasi (The Stasi Report: The Report Of The Committee Of
Reflection On The Application Of The Principle Of Secularity In The Republic).
Bouchard and Taylor observed in their introduction that, “beyond well-known
hitches,” their consultations demonstrated that there is an “openness to the Other,”
which expresses “deep-seated values” as well as “aspirations we share” and which
should be the basis for “policy directions, programs and unifying projects” and could
lead to “the edification of an integrated Quebec that respects its diversity” (Gérard
Bouchard and Charles Taylor, Building the Future: A Time for Reconciliation, Abridged
Report, 5).
The committee, the authors explained, took its mandate broadly and considered
a more than strictly legal definition of “reasonable accommodation,” taking the
vehement debates around the latter in the months and years preceding its consultation
as merely “the symptom of a more basic problem concerning the socio-cultural
integration model established in Québec since the 1970s”. They went on to stress the
importance of “citizen action” and the “responsibility of individual and community to
56
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.
VII. 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”.67 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
encourage deliberation, free initiative and creativity in the analysis of situations” over
and against the widespread tendency to call for “external solutions in the form of new
legislation or new organizations” (ibid., 8 and 10).
In sum, the report struck a conciliatory and hopeful note, highlighting commonalities
more than differences and opting for “compromise, negotiation and balance,”
effectively decentralizing—and, especially, “dejudicializing”—the whole question
of accommodation and sociocultural integration within the larger perspective of
“openness to the world” and a stoic appreciation, even affirmation, of the undeniable
“shift to globalization” (ibid., 10), which defines modern culture and its sensibilities
no less than the expansive growth—i.e., ups and downs—of its financial and economic
markets.
67
Ibid.
57
Hent de Vries
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”.68 (Indeed, to
add that religion, like the metaphysical concept of truth, offers “the accurate
representation of reality,” Rorty claims, leads nowhere: “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”.69)
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”.70
68
Richard Rorty, Philosophy and the Mirror of Nature, Thirtieth-Anniversary Edition
(Princeton and Oxford: Princeton University Press, 1979, 2009), 10.
69
Ibid.
70
Keith Reader, “Régis Debray,” 491.
58
Balancing Non-discrimination & Equality and the
(Right to) Identity of Non-governmental Schools
in Dutch Law
B.P. Vermeulen*1
I. Introduction
The question how to balance equality (non-discrimination, equal

opportunities etc.) on the one hand, and the rights and freedoms of non-
governmental schools to maintain there own identity (freedom of education
and religion) on the other, is not an easy one. Difficult moral, legal and
conceptual issues are involved. In this article I will only touch upon a few
topics, without pretending to solve these issues.
The term “balancing” rightly indicates that we are dealing here with
compromises. The assumption that it might be possible to reach a harmonious
solution, that all relevant parties would or at least should accept, disregards
the great differences in views and the impossibility to fully reconcile these
values. Indeed, there is a fundamental tension, a real conflict between the
freedom of education and religion, that non-governmental schools can
invoke, and the right of the individual pupils/parents and teachers to equal
acces to school places and jobs. To put it simply: on the one hand there is the
freedom of the collectivity to maintain its group identity, and on the other
hand there is the right to equal treatment of the individual.
It must be stressed, however, that there is also an equality issue that can
be called upon by the collectivity, the non-governmental school. Article
2 Protocol 1 of the European Convention on Human Rights (ECHR) and
similar provisions in the UN-covenants on civil and political rights and on
economic, social and cultural rights give groups and legal persons the right
to freedom of education, which includes the freedom to establish non-
governmental schools, and to base their curriculum on a distinct religion,
philosophy or pedagogical theory. However, there is the question whether
this freedom, in conjunction with the demands of equality, includes an
enforceable claim to public funding, equal to that of governmental schools.
Interesting though this issue is, and relevant as it may be to effecting equal
access for minority groups, I will not discuss it here.
* Council of State, the Netherlands; Prof. of Education Law Radboud University

Nijmegen
59
B.P. Vermeulen
There is also an identity issue for the individual: his right to freely live his
life according to his own plans, his own identity, including his right to be
free within his private sphere, without being hindered in his equal right to be
admitted to the school. This privacy issue is so directly connected with the
claim to equal treatment, that I will touch upon it.
In sum: in this paper I will concentrate only on the conflict of collective

identity rights of schools (freedom of education in conjunction with the
freedom of religion) versus the rights of the individual to equality/non-
discrimination and privacy. Furthermore: I will only discuss the primary and
secondary school sectors, draw my examples and cases primarily from the
Netherlands, and concentrate on non-governmental schools with a strong
identity (the religiously orthodox1). However, I believe my analysis may also
to some extent apply to other educational systems: the problems discussed
here are relevant in the school systems of most other Western-European
countries too.
II. Relevant provisions
There are five levels of legal rules to be distinguished here. First there are
national constitutional provisions and principles concerning the freedom
of education and religion, and on equality and privacy. So the Dutch
Constitution guarantees the freedom of religion and education (articles 6
and 23) as well as the right to equality and privacy (articles 1 and 10). Second,
there is national statute law grounded in these rights and freedoms,
further elaborating them and often trying to balance them where they might
conflict with each other. The most importante statute is the General Equal
Treatment Act (1994), that intends to reach a compromise between the
rights to equality and privacy on the one hand and the fundamental freedoms
on the other hand.
On the international level there are more or less similar human rights
treaty provisions that protect both aspects: the right to collective freedom
and autonomy on the one hand, and on the other hand the right to protection
against discrimination, and guarantees for equality and privacy. For instance
the European Convention on Human Rights in article 8 protects the right
to privacy, in article 9 the freedom of religion, in article 14 and the Twelfth
Protocol equality and non-discrimination principles and in article 2 Protocol
1 the right to and freedom of education.
1
The issues in so far as they concern the larger - settled - denominations (Roman
Catholic, mainstream Protestantism) are less ‘bitter’ and problematic.
60
Identity of Non-governmental Schools in Dutch Law
Then on the supranational (EU-)level there is primary European Union

law, the Charter of Fundamental Rights which protects the right to privacy
in article 7, the freedom of religion in article 10, the right to and freedom of
education in article 14, and provisions on equality- and non-discrimination
in article 20, 21 and 23. There are also several more specific instruments
of Community law – secondary Community law - guaranteeing equal
treatment. Council Directive 2000/43/EC implementing the principle of
equal treatment between persons irrespective of racial or ethnic origin2 must
be mentioned in this regard. Article 2 in conjunction with Article 3 of this
Directive forbids direct and indirect discrimination on the basis of race and
ethnicity in the fields of labour, social security, education and housing.
Also relevant are Articles 2-4 of Council Directive 2000/78/EC, providing

for equal treatment in labour relations irrespective of religion or conviction
(as well as handicap, age or sexual orientation).3 However, according
to Article 4(2) of this Directive, churches and other denominational
organisations nevertheless may differentiate on the basis of religion or
belief, when a person’s religion or belief constitutes a genuine occupational
requirement, having regard to the ethos of the organisation. This implies
that these organisations under certain conditions still may require their
staff members to adhere to their ethos.4 Finally, in 2008 the Commission
has proposed a Council directive on implementing the principle of equal
treatment - including the field of education - between persons irrespective
of religion or belief, disability, age or sexual orientation,5 which however
2
Official Journal of the European Union (OJ) L 180, 19 July 2000, pp. 22-26.
3
OJ L 303, 2 December 2000, pp. 16-22.
4
Article 4(2) of Directive 2000/78/EC reads as follows:
“ 2. Member States may maintain national legislation in force at the date of adoption
of this Directive or provide for future legislation incorporating national practices
existing at the date of adoption of this Directive pursuant to which, in the case of
occupational activities within churches and other public or private organisations
the ethos of which is based on religion or belief, a difference of treatment based on
a person’s religion or belief shall not constitute discrimination where, by reason
of the nature of these activities or of the context in which they are carried out, a
person’s religion or belief constitute a genuine, legitimate and justified occupational
requirement, having regard to the organisation’s ethos. This difference of treatment
shall be implemented taking account of Member States’ constitutional provisions and
principles, as well as the general principles of Community law, and should not justify
discrimination on another ground.
Provided that its provisions are otherwise complied with, this Directive shall thus not
prejudice the right of churches and other public or private organisations, the ethos of
which is based on religion or belief, acting in conformity with national constitutions
and laws, to require individuals working for them to act in good faith and with loyalty
to the organisation’s ethos”.
5
(COM (2008)0426), amended by the European Parliament (OJ C 137 E/68).
61
B.P. Vermeulen
in article 3(3) gives the schools the right to diffentiate on the basis of their
religious ethos.6
III. Restricting the autonomy of denominational schools: recent

proposals in the Netherlands
There is a tendency – at least in Dutch law and politics – to restrict the

autonomy of denominational schools as guaranteed through the freedom
of education (in conjunction with the freedom of religion). The freedom of
education as enshrined in the Dutch Constitution, to a certain extent also
guaranteed in human rights treaties, guarantees denominational schools
the right to express their own religious and philosophical views on man and
society in their ethos and curriculum. This right also implies the freedom to
6
Article 3 – paragraph 3
-Commission:
“This Directive is without prejudice to the responsibilities of Member States for
the content of teaching, activities and the organisation of their educational systems,
including the provision of special needs education. Member States may provide for
differences in treatment in access to educational institutions based on religion or
belief”.
-Parliament:
“This Directive shall not apply to the content of teaching, activities and the
organisation of national educational systems, while Member States shall ensure the
rights of persons with disabilities to education without discrimination and on the
basis of equal opportunities. Member States shall also ensure that, in determining
which type of education or training is appropriate, the views of the person with
a disability are respected. Member States may allow for differences in access to
educational institutions based on religion or belief, so as to maintain the particular
character and ethos of such establishments and a plurality of educational systems,
provided that this does not represent an infringement of the right to education and
does not justify discrimination on any other grounds. Member States shall ensure
that this does not lead to a denial of the right to education”.
Article 3 – paragraph 4
-Commission:
“This Directive is without prejudice to national legislation ensuring the secular
nature of the State, State institutions or bodies, or education, or concerning the
status and activities of churches and other organisations based on religion or belief. It
is equally without prejudice to national legislation promoting equality between men
and women”.
-Parliament:
“This Directive shall not apply to national law ensuring the secular nature of the
State, State institutions or bodies, or education, or concerning the status, activities
and legal framework of churches and other organisations based on religion or belief
where this falls outside the competence of the EU. Where the activities of churches
or other organisations based on religion and belief fall within EU competence, they
shall be subject to the Union’s non-discrimination provisions. It is equally without
prejudice to national legislation ensuring equality between males and females”.
62
select teachers and pupils on the basis of criteria derived from these views.
Denominational schools can demand of their employees and students to
commit themselves to the (religious, philosphic) mission of the school, and
if they are not willing or capable to do so to choose not to admit them.
The limits of this ‘right to select’ have been made explicit in the General
Equal Treatment Act (1994) (Algemene Wet Gelijke Behandeling, AWGB).
This Act – which to a large extent implements the EC directives and treaty
provisions on anti-discrimination just discussed - intends to give “more
substance” and more effectiveness to the principle of equality. The AWGB is
applicable not only to vertical relations between government and citizens but
also, to a certain extent, to horizontal relations, relations between individuals
and private organisations (for instance business enterprises, housing
corporations and non-state denominational schools).
The structure of the AWGB is determined by the principle that

differentiations based on specific (suspect) grounds like political persuasion,
race, sex, religion, etc. are prohibited in particular areas (work, commercial
transactions, education, etc.).7 Article 5(1) AWGB for instance prohibits
differential treatment on these grounds in the case of – inter alia - conclusion
and termination of a labour contract, appointment of a civil servant and
termination of his engagement, as well as the terms of employment. Article
7(1) AWGB prohibits differential treatment when “offering goods and
services” (that includes education).
The AWGB distinguishes between direct and indirect differential treatment.

Direct differential treatment explicitly refers to suspect criteria like religion,
race, etc. and is always prohibited, unless the AWGB contains an explicit
exception. Indirect differential treatment is a form of differential treatment
in which a criterion is applied that seems to be neutral, but in practice
disproportionately targets persons sharing a common characteristic like
religion, race, etc. Indirect differential treatment not only may be justified on
the basis of an explicit exception, but also by giving an objective justification
(Article 2(1) AWGB). With regard to education, for instance, indirect
differential treatment under the guise of an ostensibly neutral dress code
that nevertheless disproportionately affects religious persons, is prohibited
unless the school board can rely on an explicit provision or is able to come up
with strong arguments (safety, order, educational purposes etc.) to justify it.
7
The AWGB does not forbid differentiation on the grounds of race, etc. when
the purpose of such differentiation is to put an ethnic or cultural minority group
in a favourable position in order to diminish or abolish inequalities (positive
discrimination/action), and ifthis measure is proportionate to this goal (article 2(3)
AWGB).
63
B.P. Vermeulen
According to Article 5(2) AWGB, the first paragraph of this provision

does not eliminate the freedom of faith-based private schools and other
denominational organisations to lay down requirements concerning the
fulfilment of a position that the organisation may regard as necessary in
order to realise its religious or philosophical principles. However, such
requirements may not lead to differential treatment based on the sole fact of
political persuasion, race, sex, nationality, sexual preference or civil status;
but differential treatment solely on the basis of religious grounds is permitted.
Article 7(2) AWGB contains an exception for faith-based schools with
regard to the (non-)admission of pupils similar to that in Article 5(2) AWGB.
The aim of these exeptions is, of course, to respect the freedom of education
and religion, allowing denominational organisations to select on the basis
of criteria flowing from their specific ethos and thereby maintaining their
collective identity.
The exceptions of Article 5(2) and 7(2) AWGB are inspired by the famous
Maimonides judgment (1988), in which the Supreme Court held that an
orthodox Jewish school could exclude a pupil from a liberal Jewish family
because that exclusion was based on a consistent policy, and because that
policy was directly related to the religious foundation of the school. The
school therefore could rely upon its constitutional freedom of education.8
Because of procedural obstacles, the Court could not decide the other
issue, whether the application of religion-based criteria that were linked
to ethnicity – in this case, the criterion that a nonbeliever was nevertheless
regarded as Jewish if (s)he had a Jewish mother, and would be admitted –
should be regarded as racial discrimination.
In line with the Maimonides decision, the AWGB leaves denominational

schools and other institutions based on a religious ethos freedom to apply
criteria derived from their religious “mission” and to select on the basis of
such criteria, as long as they do so in a consistent manner. This means that
the Maimonides case would probably be decided in the same way under the
regime of the AWGB as it was in 1988.9 It also means that if a denominational
organisation selects its employees or pupils on denominational grounds on a
case-by-case basis rather than in a consistent manner, it cannot appeal to the
exception of the AWGB and thus will be in breach of article 5 or 7 AWGB.
In practice this implies that the non-orthodox organisations – even though
based on a religion or belief – in general are bound by the non-discrimination
principle, because they do not rely on a strict and consistent policy (based on
their religious views) with regard to their teachers and pupils, and therefore
cannot invoke the exceptions.
8
Hoge Raad 22 January 1988, Administratiefrechtelijke Beslissingen 1988, 96.
9
Hof Arnhem 24 July 2007, NJCM-Bulletin 2008, 498.
64
Most cases involving religion until now have to do with dress codes.10 They
often concern the Islamic headscarf. In general the refusal of teachers and
pupils because they are wearing the Islamic headscarf is regarded as justified
under articles 5(2) and 7(2) of the AWGB, if and only if this refusal is an
inherent consequence of the denomination of the school, and is consistently
applied. For instance it has been ruled that a Roman Catholic school could
expel Muslim students because they began to wear headscarves. The school
could rely on a strict policy forbidding – on denominational grounds –
clothing with non-Christian connotations.11
The locus classicus from a symbolical-political viewpoint, concerning the

question whether a Christian school may refuse to appoint a teacher because
of his or her sexual orientation, though much debated in Parliament until
now has never been decided by a court. Nevertheless this issue is the main
reason for a bill recently introduced in Parliament12, to eliminate the socalled
“sole fact”-construction, that denies denominational schools to exclude
teachers because of the sole fact of their orientation (which includes the fact
of living together with a person of the same sex), but still allows additional
circumstances to sometimes refuse them. The MP’s introducing the bill
refer to an infraction procedure by the European Commission based upon
directive 2000/78, and intend to diminish the room that the AWGB still
allows strict Christian and Muslim schools to exclude homosexual teachers.13
The reason for this bill thus is to make absolutely clear that sexual orientation
– including the behaviour associated with it, even outside the private sphere
– may never be a reason (not even for instance for orthodox schools who
reject homosexuality) not to hire a teacher; it is submitted that that clarity is
essential on the grounds of non-discrimination and privacy-protection.
Other initiatives only concern the freedom of denominational schools to

select their pupils on the basis of their religious mission. One option put
forward in a bill is to strengthen the legal position of pupils and parents, in
that they should have a virtually unconditional right to be admitted to the
10
A comparative survey of European state practice – with an extensive discussion of the
French position - can be found in Dominic McGoldrick, Human Rights and Religion:
The Islamic Headscarf Debate in Europe, Oxford, Hart Publishing, 2006; and in
Françoise Lorcerie (ed.), La politisation du voile en France, en Europe et dans le monde
arabe, Paris, L’Harmattan, 2005.
11
Commissie gelijke behandeling (Equal Treatment Commission) 5 August 2003,
decision 2003-112, Administratiefrechtelijke Beslissingen 2003, 375.
12
Kamerstukken II 2009/10, 32476, nrs. 1-3.
13
Kamerstukken II 2007/08, 27017, nr. 34. See on the infraction procedure the Council
of State, Kamerstukken II 2009/10, 28481, nr. 7; and A.B. Terlouw & A.C. Hendriks,
‘Gebrekkige implementatie gelijkebehandelingsrichtlijn door Nederland’, NJCM-
Bulletin 2008, pp. 616-629.
65
B.P. Vermeulen
school of their choice, regardless of the admission policy of that school.14

Quite often it is assumed that denominational schools abuse their right to
select in order to refuse minority children, leading to a concentration of
these children in public authority schools, which do not have that right. For
instance it is suggested that dress codes, though formally inspired by the
religious views of the school as laid down in its charter, in fact often is used
to refuse admission of girls from migrant minorities. By giving them a strong
right to be admitted, such discriminatory practices will be countered, and
they will be given choices equal to that of other children/parents.
Strengthening parental choice is also seen as one of the means to limit a

further growth of the number of so-called “black” schools. In the last 40
years, the ethnic and cultural composition of the Dutch schools has changed
considerably. The percentage of “ethnic minority” children in primary and
secondary schools has risen, and the number of so-called “black schools”
has grown considerably. Now several hundreds out of the 7000 primary
schools are “black schools”15: schools with more than 50 percent of ethnic
minority pupils that may be presumed to have learning disadvantages and
therefore receive additional funding. This development has created a lively
political debate about whether the trend toward further segregation between
“white schools” and “black schools” should be countered by legal measures.
An argument in favor of such measures is that it is more difficult to realize
a minimum of communication and social integration between “black”
and “white” children in ethnically segregated schools than if the school
population consists of an adequate ethnic mixture. One way to stop this
trend towards further segregation is a policy requiring schools to achieve
an adequate mix of “black” and “white” pupils. It is yet unclear whether the
current legal framework contains the competence of local government to
oblige schools – including the orthodox - to work together in order to achieve
that mix.
Furthermore, schools more than before are required today to do their share
in strengthening social cohesion, in teaching civic virtues, in making pupils
“citizens”, in short: to fulfill an integrative function. A shift in emphasis
from multiculturalism towards integration becomes evident in the changing
definitions of the general aims of education. For instance, article 8 section 3
of the Primary Education Act and article 17 of the Secondary Education Act
formerly prescribed that schools should take into account that pupils “grow
up in a multicultural society”. These provisions suggested that schools should
instill in their students a positive attitude towards the multicultural character
of society. In the new version of these provisions, in force since 2006, the
14
Kamerstukken II 2006/07, 30417, nr. 5.
15
Aanhangsel Handelingen II 2005-2006, 1922.
66
reference to the “multicultural society” has been changed into a “pluralist

society”. But most telling is the fact that a new goal – the advancement of
“active citizenship and social integration” - is added (article 8 section 3(b)
of the Primary Education Act and article 17(b) of the Secondary Education
Act).16 In addition, the curriculum is recently adjusted, in that in all primary
and secondary schools explicit attention must be devoted to the “canon”, a
set of fifty historic events and persons which have shaped Dutch society.17
These requirements demand of schools to be open to society and its history,
and not to settle themselves within the boundaries laid down in the school’s
charter.
Finally a bill has been introduced to strengthen inspection of new schools as

to their school plan, in which the board expounds how the school will try to
attain the targets set by the education legislation. The school plan not only
concerns the subjects to be taught, but also how the school will endeavour to
further active citizenship and social integration. Until now the school plan
will only be checked when the school already is in operation for some time,
when it can be examined how the plan actually is put into practice. But the
bill proposes to examine the school plan immediately from the start18, or
even – as proposed in two amendments to the bill19 - before that, when the
minister is deciding whether the school will be funded. It may be assumed
that this examination will turn out to be disadvantageous for new schools,
Islamic schools and other minority schools in particular.
I believe that these proposals are difficult to reconcile with the constitutional
freedom of education. In the next paragraph the one-sided ideological
assymptions of these proposals will be discussed.
IV. Ideological assumptions20
The proposals sketched in paragraph 3 are based on some fundamental

ideological assumptions.
(a) They presuppose that religion – Islam in particular, but also orthodox
Christianity – is a dark and irrational force, a source of deep divisions and
conflicts, and that the answer is adherence to the ideal of the common school.
(b) They are inspired by demands for a stricter separation of church and state,
a further secularisation of the public sphere, limiting the role of religion and
16
Wet van 9 december 2005, Staatsblad 2005, 678 (Kamerstukken 29666).
17
Besluit van 29 april 2009, Staatsblad 2009, 223.
18
Kamerstukken II 2008/09, 32007, nrs. 1-3.
19
Kamerstukken II 2009/10, 32007, nrs. 13 and 14.
20
I use the term “ideological” in a neutral sense.
67
B.P. Vermeulen
religious collectivities to the purely private sphere.

(c) These demands are also connected with a market ideology, and with the
assumption of the primacy of the privacy of the individual above the school
as a community.
(a) One of the recurrent discussions in Dutch politics – which lies at the
base of the proposals just mentioned - is whether the state should only fund
the common school, one that is equally accessible to all and free of religious
sectarianism, and should stop funding denominational schools.21 Indeed it
is often argued that the principle of separation of church and state demands
that the state should not support denominational schools.22 A basic premise
is that in a society as religiously and culturally differentiated as the Dutch,
it is necessary to use the educational system as an instrument to further
integration. Schools should teach children of different ethnic, religious,
social and cultural backgrounds to live peacefully together, to respect each
other, instilling in them the basic values of democracy and the rule of law. In
general this position is combined with the ideal of the secular state school,
which is not only “common” in that it is open and available for all, but also
in that it teaches the values and norms that are common to western society.
Thus, schools should link individuals to a shared belief in the same basic,
nonsectarian and impartial principles of the Enlightenment - somewhat
like John Dewey’s civil religion or the French republican école laïque.23 Seen
from this perspective, the common public school stresses basic virtues and
attitudes, such as autonomy, citizenship, tolerance and rationality, thereby
creating a shared understanding. Religious schools on the other hand are
sources of social division, devoted as they are to their own sectarian purposes,
keeping pupils apart in separate schools and strengthening oppositions.
21
For an analysis of this position see B.P. Vermeulen, “Een schets en evaluatie van
de kritiek op de overheidsfinanciering van het bijzonder onderwijs”, in W.B.H.J.
van den Donk, A.P. Jonkers, G.J. Kronjee and R.J.J.M. Plum (ed.), Geloven in het
publieke domein. Verkenningen van een dubbele transformatie, Amsterdam, Amsterdam
University Press, 2006, pp. 353-366.
22
See for recent examples the papers published by the Teldersstichting (the think-
tank of the Liberal Party VVD): S. Bierens and P. van Schie, “Neutraliteit van de
staat, godsdienstneutraal onderwijs en liberalisme”, 147-154; N. Dodde, “Offers
uit openbare kassen. De geschiedenis van de huidige invulling van artikel 23”, pp.
155-172; C. van den Berg, “Onderwijs en segregatie. De invloed van ‘vrijheid’ van
onderwijs op de huidige integratieproblematiek”, pp. 173-186, all published in W.P.S.
Bierens et al., Grondrechten gewogen. Enkele constitutionele waarden in het actuele
politieke debat, Den Haag, Teldersstichting, 2006.
23
Cf. Charles Glenn’s excellent study of the development of this ideal in the United
States, France and the Netherlands, The Myth of the Common School, Oakland, ICS
Press, 2002.
68
Therefore – critics of the dualistic school system argue – we can and should
make do with the common state school; a plea furthermore supported by
the presumpotion that this system leads to a split between schools along
ethnic and religious lines. Authorities should require schools to make a
contribution to the removal of social inequalities and religious/cultural
“apartheid”, a precondition for full participation of all in society. However,
because private (and especially orthodox denominational) schools are
established to perpetuate rather than to remove group loyalties, they cannot
adequately contribute to cultural integration. So they should give up their
(distinctive) religious character. But when they have done that, they have
thereby lost their legitimacy to stay apart from the public school system and
should simply be taken over by the state, or at least give up their claim to
the right to a separate collective identity.24 This argument seems to put the
strict denominational schools in an impossible position. As long as they are
truly distinctive and really religious, it is claimed that they cannot fulfil their
integrative tasks, and should therefore not be funded by the government. But
as soon as they begin to adequately fulfil these tasks and contribute to social
integration, they cannot but give up their religious characteristics, and no
longer have any reason to stay outside the state school system.
It is true that the freedom of education may have as a side-effect the existence
of mono-religious and mono-ethnic schools. However, the large majority
of formally denominational schools (mainstream Catholic and Protestant
schools) do not select on the basis of religion; only a limited number of schools
consistently do so. It should be stressed once again that a denominational
school that is not consistent in its selection criteria thereby forfeits its right
to refuse pupils on religious grounds. Furthermore, it is indeed the case
that for some 25 years now there is a trend towards a division into mono-
ethnic “white” and “black” schools. It is debatable, however, whether this
trend is mainly caused by the Dutch school system. It seems that this trend
to a larger extent merely reflects demographic and housing patterns, and
can also be found in countries where the common secular school is strongly
favoured, as in the United States and France. In general, a school in a “black”
neighbourhood is “black”, whereas a school in a “white” neighbourhood is
“white”, irrespective of whether it is a neutral public-authority school or a
private denominational school.25
Finally, I believe that the critics of the Dutch school system create the false
impression that orthodox denominational schools by definition are unable
to fulfil the necessary integrative functions. Indeed, I believe that these
24
A.P.M. van Schoten and H. Wansink, De nieuwe schoolstrijd: Knelpunten en conflicten
in de hedendaagse onderwijspolitiek, Utrecht, Bohn, Scheltema & Holkema, 1984.
25
S. Karsten et al., Schoolkeuze in een multi-etnische samenleving, Amsterdam, 2002.
69
B.P. Vermeulen
schools are able to create a sense of community – quite often absent in Dutch
mainstream society – characterized by an atmosphere in which civic virtues
can effectively be cultivated. But this may be a subjective observation.
Unfortunately there are as yet but few objective empirical data on the relation
between integration and denomination.26
(b) These proposals are connected with a trend away from pluralist
accommodation (multiculturalism) towards individualist secularism. They
are defended by an appeal to the neutrality of the state, demanding a strict
separation of church and state. However, this appeal to neutrality and church-
state separation overlooks the fact that these principles themselves are not
neutral: they have multiple and contested meanings, corresponding to at
least three different models. The strict neutralist view – strong secularism
- reflects but one of these models. In fact, in the past two centuries there
has been a gradual shift from the established church system towards strict
separationism. In the first half of the nineteenth century Christianity,
institutionalised in the Reformed Church, was still the dominant, state-
supported religion. In the twentieth century the pluralist-cooperationist view
took over, according to which government should not take sides among the
plurality of religions and secular worldviews, but should treat and support
them in an even-handed manner. And now, in the twenty-first century, there
is a tendency towards a strict dualism between the public and the private
sphere, between the state on the one hand and religion and culture on the
other, demanding uniform neutrality in the public sphere and cutting the
traditional ties between the state and faith-based organisations.
This dualism draws its inspiration from the French ideal of citizenship, based
on the republican values of laïcité, individualism and equality.27 According
to this ideal the law should not recognise other subjects than the individual
citizen, who has an exclusive legal bond with the nation-state, not mediated
through collectivities. This direct relation should not be interfered with by
legal recognition of intermediate structures and organisations – religious
or other – in public life. Corporate and group rights would only disturb
the unique relation of loyalty between the state and the individual. It is this
notion of shared Dutch (secular-individualist) values that also inspires the
plea in favor of the public school as the common school, and against the
denominational school which perpetuates (religious) group loyalties. And it
is this notion that generates the idea that religion must be restricted to the
26
A.B. Dijkstra, “Opbrengsten van onderwijsvrijheid. Over de effecten van verzuild
onderwijs”, in T.J. van der Ploeg et al. (ed.), De vrijheid van onderwijs, de ontwikkeling
van een bijzonder grondrecht, Utrecht, Lemma 2000, pp. 243-260.
27
Cf. the analysis of the French secularist-republican theory of the state in McColdrick
2006 [footnote 10], pp. 38-51.
70
private sphere. At its basis lies the ideal of the self-determining autonomous
individual, who follows his own plan of life while at the same time respecting
the free spheres of the other individuals.
Individual autonomy is of course an inspiring ethical ideal, to which I

subscribe personally. At the same time, I think it is too “thick”, too “full”, too
“all-encompassing” to be the only basic principle in the politics concerning
education and citizenship. The liberal-pluralist state is precisely liberal in
that it rejects the idea of state-enforced concepts of the good citizen and
the worthy individual, whose standards are obligatory for all. In a liberal
state, the source of unity and integration cannot be a substantive view of
the “good” – a “thick” version of public morality – but only a procedural
agreement on what is “right” – a “thin” notion of public morality. Though
it should be admitted that the ideal of personal autonomy is less substantive
than competing ideologies – because it leaves the individual a fair amount of
self-definition, and thereby presumes a minimum level of relativism. Still it
is too insensitive to alternative, more collectivist concepts, based on religion,
tradition, culture, group identities and loyalties that cannot be reduced to
individual choices.
(c) Finally, this reasoning has links with a market philosophy, that to a certain
extent also pervades European Community education law. For instance, as the
Explanations relating to the Charter of Fundamental Rights28 state concerning
Article 14 of the Charter (on the freedom of education): “Freedom to found
public or private [educational] establishments is guaranteed as one of the
aspects of freedom to conduct a business”. It seems, then, that school primarily
should be a business, should be part of an education market. It is merely an
economic institution that acts efficiently, and not a community based on
(other than rational, economic) values. This means that school should select
its personnel on a non-discriminatory basis (article 2 of Directive 2000/78),
differentiating solely on the basis of functional criteria – objective criteria
inherent in the function at hand (article 4(1) of Directive 2000/78). Only by
way of an exception other, additional criteria, derived from the normative
ethos of institution, may be added (article 4(2) of Directive 2000/78). And
furthermore, it should to a large extent respect consumer sovereignty (article
2 of the proposal for a Council directive on implementing the principle of
equal treatment), in principle demanding equal acces of pupils/students to
the education offered; only by way of exception requirements of loyalty based
on the religious ethos of the school are allowed (article 3(3) of the proposed
directive).
28
OJ 2007, C 303/17.
71
B.P. Vermeulen
The purely functional relationship inherent in the economic viewpoint

also reflects the primacy of the individual’s right to privacy. In general,
it is sufficient to fulfil the functional requirements, strictly necessary for
the job. Apart from strictly job-bound criteria loyalty requirements that
concern a person’s lifestyle - his private sphere - are fundamentally suspect.
So orthodox institutions, who insist on a moral unity of theory and praxis,
of verbal adherence to the ethos of the school and actual behavior loyally
expressing that ethos will be severely limited in applying their standards.
The question may be raised, whether the Council directives have sufficiently
taken into account the sovereignty of the Member-states, explicitly endorsed
in the subsidiarity provisions on education (articles 165 and 166 of the
Treaty on the Functioning of the European Union).
V. Conclusion
There is a tendency to restrict the rights of orthodox schools to maintain

their identity in selecting their teachers and pupils, and in their freedom
to follow their own educational ethos and school plan. This tendency is
inspired by various ideological assumptions concerning the irrationality
of religion and denominational schools and the rationality of the common
school; is based on the individualist-secularist belief in the necessity to
realize a stricter separation of church and state; and is linked to an economic
view on the school as just a business. What I would not want to argue is,
that these assumptions are wrong in themselves. To a large extent they reflect
basic values of our societies. However, they are one-sided, and overlook other,
more collectivist-communitarian views on religion and education, held by
orthodox minorities. These views, however, also deserve adequate attention
and care when laws are enacted and decisions are made that really endeavour
to balance non-discrimination & equality and the (right to) identity of non-
governmental schools.
72
The Transmission of Values and Interreligious
Dialogue Today1
Hans Joas*
Whenever there is talk of the necessity of a clear value-orientation, of

the urgency of a reflection on one’s own values, or of the difficulties of
transmitting values to the next generation, the question concerning religion
is not far off. This is not surprising because religions do indeed give values a
graphic form. Believers gain motivation and orientation from their faith and
position themselves within traditions which they also try to pass on to their
children and pupils. On closer examination, however, difficulties also reveal
themselves. The Christian churches, for instance, despite all the achievements
in the area of transmitting values, are like other religious communities by no
means unanimously enthusiastic when, in view of social ills or conflicts, they
are given a kind of commission to reconstitute social cohesion. They then
feel themselves to be degraded to mere tools or functional social systems,
and resist faith’s being put into service for exogenous ends. Their objection
is that faith does not arise through a rational conviction that it is useful for
the individual, or for others, or for society. Conversely, some warn against
regarding religions at all as a possible source of social cohesion. Their
argument is that religions are necessarily particular formations borne by
particular communities. Quite independently of their orientation, they are
therefore said to have a divisive potential which the state and society have to
tame and to overarch with religiously neutralized institutions.
The following considerations represent a modest attempt to sketch a realistic

path for religiously founded transmission of values and interreligious
dialogue in a time when the various religions are coming into ever closer
contact with one another through migration and globalization, but at the
same time, especially in Europe, the Christian tradition has been pushed
onto the defensive, and even partially marginalized through various forms
of secularization.
1
This article is the revised version of an essay that appeared in Liz Mohn et al. (ed.)
Werte. Was die Gesellschaft zusammenhält Gütersloh 2006 pp. 19-32. An English
version of the original article appeared in the Korean periodical Indigo 2 (2010), pp.
72-80.
* Universität Erfurt/ Max-Weber-Kolleg für kultur- und sozialwissenschaftliche
Studien; University of Chicago
73
Hans Joas
The starting-point must be the insight that religions are indeed more than
value systems.2 Those who believe, certainly regard their faith not primarily
as a logically consistent system of statements about the good, or even as a
merely emotionally coloured morality. Faith is based on intensive experiences;
it enables participation in rituals which themselves are in turn sources of
experience; it offers exemplary models that invite us to imitate them; and it
contains stories and myths that provide a thread when interpreting our own
lives and history, helping us to answer questions concerning the meaning
of life. What is decisive is that all these experiences, symbolizations and
narratives are far too rich to be reduced to formulae. Instead of reducing
religions to value-systems or systems of doctrinal protositions, it would
therefore be more plausible to ask conversely for the experiential foundations,
symbolic and narrative structures in all non-religious value-systems. To be
sure, orientations arise for the faithful from faith, but they are not derived
from it in an abstract, logical way, but through the concrete interpretation of
invariably risky situations of decision and action.
This insight into the character of religions, and in part even of stable and
widespread secular interpretations of the world as well, must be taken as
starting-point because it makes an effect comprehensible that many feel to
be paradoxical and which recurs in attempts to provide an overview of the
world’s religions or competing value-systems. When religions are presented
as mere systems of values or statements of faith held to be true, whether it be
in school-teaching, or in a social-scientific form, the effect is initially mostly
confusion, then indifference. Even when the intention of this preoccupation
consists in facilitating for participants a free, individual decision in the market
for systems of meaning, in such a presentation, the individual religions must
appear as formations that are difficult to understand, stretch the limits of
comprehensibility and in part are even odd and peculiar. And this holds not
only for the religions of exotic cultures but, in such a presentation, even for
those that in the past have left a deep impression on their own culture; even
these religions can provoke perplexity about the irrationality of our forebears.
Non-believers thus usually find a confirmation of their prepossession about
how healthy it is to keep a safe distance from the peculiarities of religious life.
If mere distance does not suffice for them, they can only attempt to assume
an objectifying perspective on religions in their diversity, to conceive of them
as the consequence of economic, political or social conditions, or to attribute
them to psychological, and perhaps even biological, phenomena of human
existence.
In such confrontations with the diversity of religions (and secular world-
2
For details on the understanding of religions, faith and values cf. Hans Joas Do We
Need Religion?On the Experience of Self-Transcendence Boulder, Co 2008; Hans Joas
The Genesis of Values Chicago 2000.
74
The Transmission of Values and Interreligious Dialogue Today
interpretations) there are for believers in principle two options. They too,
like the self-assured secular thinker, can on the one hand, attribute truth,
and even evidence, to their own faith only; for them, too, then all other
religions are a cabinet of curiosities, a ‘gobbledygook’, as missionaries
sometimes called the religions of their mission districts. On the other hand,
some missionaries, by contrast, developed an understanding of, sometimes
even gaining admiring access to the religions they found in foreign parts.
They regarded the religions they struck upon as impressive interpretations
of authentic experiences that people had gone through in other times and
cultures in their lives, including in their dealings with the divine. According
to this view, many or all religions contain an element of divine revelation.
A precondition for such a productive relationship to religions is to regard

them not as value-systems, and also not as quasi-scientific doctrines, but
as attempted interpretations of human experiences. Secular and religious
ways of dealing with experiences are then distinguished by the fact that
the former hold that which is encountered in human experience as a purely
inner-worldly phenomenon, whereas the latter declare that a genuine
encounter with the divine is possible, and therefore presuppose that in
experiences of self-transcendence there is also an opportunity to encounter
transcendence per se. The obverse side of productive curiosity about
religious interpretations of the world is thus a certain humility toward one’s
own interpretive background. It, too, then becomes recognizable as an
expression of constitutive experiences, and the thought becomes plausible
that also one’s own interpretation of experiences of self-transcendence is to
be regarded as never quite successful, never quite exhausting the richness
of experience. This must hold true all the more when a real encounter with
divine transcendence is seen in these experiences. The divine can only ever
reveal itself comprehensibly in the words and symbols of human beings, but
never can present itself to us as it is in itself. In such a perspective, the word of
God, as it has been laid down in the holy scriptures, is not the immediate self-
expression of God, but the passing-on of God’s communicative intention
within the referential frame of the recipients, that is, of people who are
always situated distinctively in history and culture, and thus within the limits
of their knowledge and imaginative powers.
Accordingly, the preoccupation with religions generates not merely

confusion and indifference if it takes place with an open mind toward
the other and humility regarding one’s own worldview. Now, it is easy to
demand open-mindedness and to declare that one is prepared to be so. A
general open-mindedness, however, does not achieve any more than a search
for common features, the formation of a smallest common denominator.
It does not open up anything really new and therefore does not lead to any
change in one’s own standpoint. In this sense, open-mindedness is only a
75
Hans Joas
minimum condition that has to be fulfilled if an exacting process is to get

underway, for the serious engrossment with religions is a strenuous process
challenging one’s own certainties. As in the case of understanding other
people or cultures in general, a comparison with the acquisition of foreign
languages helps here. When we learn a foreign language, our sensibility for
the contingencies of one’s own language is enhanced. We see that semantic
structures and syntactic rules are not necessary per se, and are not demanded
by the inherent structure of the world. The acquisition of every further
language is tedious. Through the attempt to acquire several languages
simultaneously, we become confused and do not make headway with any of
them. A comparative lecture about the grammars of the world’s languages
may provide us with some information, but certainly does not teach us the
use of a single language. This can be regarded as an analogy to the attempt
to gain an overview of the religions. It seems as if the acquisition of further
foreign languages becomes easier if we have already learned some; but there
is no completely generalized ability to learn languages which would obviate
the acquisition of each concrete language.
George Santayana has put this into the famous formula: “The attempt to speak
without speaking a concrete language is just as much doomed to failure as the
attempt, without a calling, to be religious in a certain religion”.3 In a context
marked by Christianity, the ‘realistic’ path which is to be sketched here must
therefore begin with the ecumenical dialogue as soon as the transmission
of one’s own tradition of faith is to be transcended. The opportunities and
difficulties of the intra-Christian ecumenical dialogue are necessary training
for a more comprehensive understanding among the religions. The ecumenical
dialogue can indeed lead to the overcoming of only apparent existing
differences, whether these exist in theological doctrines or in mere stereotypes
of mentality as they have come down from history or arise recurrently from
the needs of denominations or confessions to mark oneself off and sharpen
one’s own profile. This dialogue can also lead to the sobering insight that
the differences are not even described in a common language, and even the
offers of common ground from one side are perceived by the other as mere
strategies for co-option and absorption. In Germany, the ecumenical dialogue
is simplified by the fact that it takes into consideration only a small segment of
the Christian spectrum. The orthodox and oriental forms of Christianity play
only a minor role in it, and the Protestant spectrum comprises practically none
of the fundamentalist currents that are so significant in the United States, nor
the Pentecostal movement whose rapid spread in parts of Latin American and
Africa is nothing less than spectacular.
Apart from the ecumenical dialogue, in the second half of the 20th century,
3
George Santayana ‘Reason in Religion’ in Santayana Works Vol. IV. New York 1936
pp. 3-206; here p. 4.
76
the Judaeo-Christian dialogue has become more intense. Racist anti-

Semitism, and especially the murder of millions of Jews by the Nazis, have
confronted the Christian churches with the inescapable task of rethinking
the traditions of Christian anti-Judaism and posing the question concerning
one’s own guilt and responsibility for the Holocaust. The talk of the Judaeo-
Christian tradition so easily spoken of by Christians today is itself only a
product of the 20th century. This is often forgotten. It is itself an expression
of the praiseworthy attempt to overcome a self-presentation of Christianity
against the foil of a distortedly presented Judaism. Even this apparently
unproblematic composite, even when it is free of all undertones that Judaism
is only a preliminary step toward true faith, can be felt from the Jewish side
as a smothering co-option. The deceased Pope John-Paul II sought a way out
of this dilemma by taking up a formulation referring to the Jews as the “elder
brothers in faith” from a 19th century Polish poem. Following the Jewish
religious thinkers Franz Rosenzweig and Martin Buber, Wolfgang Huber
speaks of “two ways of faith” which only come together in an eschatological
perspective.4 Without a dialogue with Judaism Christianity cannot be.
Neither the ecumenical nor the Judaeo-Christian dialogue have so far

attained their goal, but it cannot be overlooked that at the beginning of
the 21st century a high-priority task is posed which could be called the
dialogue among the Abrahamic religions, that is, a dialogue among Judaism,
Christianity and Islam. The political charging-up of Islam in the present
day can lead to Islamophobia, which does injustice to this great religion,
and even transfers stereotypes of Christian anti-Judaism to Islam. Of
course, anti-Jewish and anti-Christian images cultivated by Muslims are
just as dangerous. Rémi Brague is certainly right to demand that a dialogue
among these religions, whose history is marked by a diversity of intensive
interactions, cross-influences and hostility, must not gloss over the deep
differences for the sake of intellectual ease, but presupposes the endeavour
“to understand the other just as he understands himself, to comprehend the
meaning of words in the way he uses them, to accept the initial situation of
disunity in order to attempt to achieve a better understanding starting from
this situation”.5 It then quickly becomes apparent that it is not sufficient to
conceive of the relation to a holy book or to Abraham or to monotheism as
an assured common basis, since even the status of the book and genealogy
and the conception of God differ greatly from one another. A central place
in this dialogue on the theological plane seems to me to be the Christian
doctrine of the Divine Trinity. What appears from a Muslim perspective as
a relapse into polytheism must be an occasion for the Christians to reflect
4
Wolfgang Huber, The Judeo-Christian Tradition, in: Hans Joas / Klaus Wiegandt
(eds.), The Cultural Values of Europe. Liverpool 2008, pp. 43-58.
5
Rémi Brague ‘Schluß mit den “drei Monotheismen”!’ in Communio 2007 pp. 98-113.
77
Hans Joas
upon the depth of their own conception of God. Islam has always considered
itself a purification and critique of a Christianity that is seen as a falsification
even of the true message of Jesus. For that reason Islam needs the dialogue
with Christianity as Christianity needs the dialogue with Judaism. And
Christianity needs the dialogue with Islam for an examination and potential
correction of its self-perception.
Although the political priority of the ‘Abrahamic dialogue’ today seems

indisputable, the next great task is already announced: the dialogue of the
Abrahamic religions with the forms of religiosity in southern and eastern
Asia. Like the other attempts at reaching an understanding discussed
here, this dialogue, too, has already begun, in this case, at the latest in the
19th century. Very frequently, however, it is not really a dialogue with
representatives, for instance, of Buddhism itself, but with European or
American experts or converts or contemporaries who merely flirt with
dropping out of the Jewish-Christian-Muslim tradition and thus out of the
monotheistic reference-system. This will change, and that not only because
of the growing economic and political significance of Asia, because of
migration and politicization also of Hinduism (in India) and in part even of
Buddhism (in Sri Lanka), but also because of the considerable attractiveness,
especially of Buddhism, in the West. In his speculations on an imminent “age
of conciliation”6 Max Scheler already anticipated this necessity. Not only the
murmuring praise of Asian mysticism as an alternative to monotheistic faith,
but also the general claim that the mystical traditions of the Jews or Christians
or Moslems already contained what was to be learnt from Asia, are of no
assistance here. Once again it is only the willingness to enter into a genuine
confrontation with the other without renouncing one’s own standpoint that
can be productive.
My plea is thus for the thesis that today, only such a form of the transmission
of faith is in keeping with the times which poses these tasks of dialogue for
itself, and which also, conversely, does not bracket off its own tradition of
faith, but regards it as a necessary precondition for a productive confrontation
with the other. Two objections against this thesis are close at hand. Some will
object that religions mutually exclude each other. The perspective sketched
here of a multi-stage, difficult dialogue would then be simply illusory; much
more likely would be the conflict among the religions which, when religions
become political, must become a clash of civilizations. Others will object
that, at least in the radically secularized parts of Europe, a link with one’s
own tradition precisely cannot be assumed. The multi-stage interreligious
dialogue would then have to fail even at the first stage and, despite all the
6
Max Scheler ‘Der Mensch im Weltalter des Ausgleichs’ (1927) in: Scheler Späte
Schriften Gesammelte Werke Band 9. Berne-Munich 1976 pp. 145-170.
78
disadvantages, only a neutral overview of the diversity of worldviews and

religions would remain.
Both objections should be briefly responded to. The first objection proceeds
from a fundamentally false premise, namely, that religions or cultures
could act at all. In contrast to this premise, the preceding considerations
presuppose that it is always only people who act, that is, individuals and
their associations, organizations and institutions.7 These people believe and
disseminate their faith; they go through experiences and interpret them;
they have many different needs and interests, aims and values. Therefore,
religions or cultures as such cannot clash, but only human beings who define
their faith or their political objectives, among other things, in certain ways.
People, however, can join together in joint actions, even when their culturally
shaped motives differ. They can also bring together impulses from different
traditions in new, creative ways; they can discover new shared interests and
values; and they can orient themselves toward precisely such values which
cannot be conceived as the exclusive property of their own community.
The dissemination of Christianity in late antiquity seems to have been
significantly furthered by a willingness of the Christians to assist not only
other Christians, but all people.8 This does not yet say anything about the
concrete dangers of religiously motivated political, or politically motivated
religious conflicts. It is only a matter of repudiating the thought of inevitable
clashes among differing religious traditions.
The second objection takes a real situation seriously, namely the extensive
de-christianization, for instance, of eastern Germany, but also of many cities
in the old West Germany. Nevertheless, this objection does not describe
the situation precisely enough. Intact religious milieus, namely, still coexist
with largely secularized milieus; innumerable buildings, symbols, rituals,
norms and values are witnesses of a religious past which in this way is once
again raised to awareness and then quickly made recognizable at least as a
force leaving its imprint upon a culture. To this is added the fact that the
religious vitality of immigrants partly, as Muslims, represents a challenge to
a secularized self-conception, and partly, as Christians, also contributes to a
revitalization of Christian communities. From low numbers of church-goers
or church members, it also does not follow necessarily that all people lacking
7
This seems to me to be a common feature of the research programs of Max Weber
and the American pragmatists.
8
W. G. Runciman argues thus in ‘The Diffusion of Christianity in the Third Century
AD as a Case-Study in the Theory of Cultural Selection’ in Archives européennes de
sociologie 45 (2004) pp. 3-21. An overview of competing explanations is provided
by Christoph Markschies ‘Warum hat das Christentum in der Antike überlebt? Ein
Beitrag zum Gespräch zwischen Kirchengeschichte und Systematischer Theologie’
Leipzig 2004 (Forum Theologische Literaturzeitung).
79
Hans Joas
such activity or membership regard themselves as being non-religious. What

is called for, therefore, is a self-conception of religions that, in its articulation,
reaches both those schooled in a certain faith and those whose knowledge
is sparse or who have turned away from faith on the basis of a good level
of knowledge. At least for the latter two groups, what has been asserted as
a precondition for a productive interreligious dialogue holds true. Without
a relation of faith and all binding values and interpretations of the world
to constitutive experiences, no genuine and honest discussion between
the faithful and non-believers can get underway. Through this relation,
however, the interpretation of the world by non-believers can become more
transparent to them, just as the meaning of the truths of faith can be made
freshly aware to the faithful.
So far these considerations have left one aspect largely to one side, namely,
that of a properly political ethics and the affinities between religions and
specifically political values, such as those of democracy. The emphasis on the
religious in the narrow sense derives from caution about attributing at all to
religions a kind of inherent political ethics. Today we are inclined to attribute
to Christianity a self-evident tendency toward democracy and human rights.
Historically, however, that is untenable. It would be more appropriate to
trace the historical path on which Christian foundations for democracy
and human rights were developed. From this self-critical, careful and non-
triumphalist perspective on the history of Christianity, a bridge could then
be built in search of religious foundations for democracy and human rights
in other religious traditions. In this way, the religious traditions could enter
into an interreligious dialogue also about political ethics without having
their dialogue reduced to it. It has also become apparent that it is the ethos
of democracy and human rights that has inspired this idea of interreligious
dialogue. It is a matter of a universalism that does not impose upon people
any breach with the particular binding powers of those traditions out of
which they understand themselves. The demand for such a rupture, for a
transition to rational universalisms, for foundational arguments without
any self-reflective anchoring in experience and binding power is downright
counter-productive in this context.
We remain obliged to adopt this stance in our preoccupation with other

religions, even when there is no concrete partner to the dialogue or the partner
denies us a dialogue. Politically, we may and must fight religiously motivated
opposition against democracy and human rights; but our transmission of
values must be oriented not toward struggle but toward productive dialogue.
This dialogue connects religious and secular forms of moral and legal
universalism. They stand united against racist and other forms of anti-
universalism, against a post-modern indifference with regard to universal
80
validity claims and against the exaggeration of a single one of the competing
universalisms to be the only one. In dialogue the coexisting universalisms
may discover their hidden particularities.
81
Schooling in Post-secular Europe
Charles L. Glenn*1
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 policymakers 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”.
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
* Boston University
83
Charles L. Glenn
life that we endanger the future of the democratic polity if we cannot

integrate them into the workings of public reason”.
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 in 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.
Some 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
84
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”.
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 gone 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.7
While 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 possesses 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.
The 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, to make some general
remarks about considerations to take into account as policymakers grapple
with these unavoidable issues.
1. 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 that
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
85
Charles L. Glenn
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
equally
misleading when applied to immigrants from predominantly-Muslim

countries and their descendants in Europe. Philip Jenkins reminds us that
the 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.
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 the best of
intentions–could lead us to saddle them with cultural baggage that they have
no wish to carry”.
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
86
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 deplores
the influence of such nurturing on children subjected to it, when it is by

conservative religious groups,
[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,
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.
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
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Charles L. Glenn
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 in something 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 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
88
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 all
immigrations 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 of 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 many 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.
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Charles L. Glenn
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.
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 why 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 routinely
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,
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
90
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 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 last dependencies on the
State.
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Charles L. Glenn
References
•• 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.
•• 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.
•• 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.
•• Jenkins, Philip. 2007. God’s Continent: Christianity, Islam, and Europe’s
Religious Crisis. Oxford,56.
•• Jenkins, 287.
•• Casanova, José. 1994. Public Religions in the Modern World, Chicago:
University of Chicago Press, 29.
•• Micklethwait, John and Adrian Wooldridge. 2009. God Is Back: How the
Global Revival Of Faith Is Changing the World. New York: Penguin Press,
25.
•• 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.
•• 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.
•• Pera, Marcello. 2011. Why We Should Call Ourselves Christians: The
Religious Roots of Free Societies. Encounter Books.
•• Berger, Peter, Grace Davie, and Effie Fokas. 2008. Religious America,
Secular Europe? Farnham, Surrey: Ashgate Publishing, 11.
•• Jenkins, 122.
92
•• 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.
•• Sandel, Michael J. 1982. Liberalism and the Limits of Justice. Cambridge
University Press, 150.
•• 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.
•• See, for example, Dwyer, James G. 1998. Religious Schools v. Children’s
Rights, Ithaca, NY: Cornell University Press.
•• Spinner-Halev, Jeff. 2000. Surviving Diversity: Religion and Democratic
Citizenship. Baltimore: Johns Hopkins University Press, 65.
•• Gutmann, Amy. 1987. Democratic Education, Princeton University Press.
•• Galston, William A. 1991. Liberal Purposes: Goods, Virtues, and Diversity
in the Liberal State. Cambidge University Press, 253-4.
•• Galston, 255.
•• 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.
•• 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.
•• 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.
•• Tinker v. Des Moines Independent Community School District, 393 U.S.
503 (1969). 25.Micklethwait and Wooldridge, 295.
•• Taylor, Charles. 2007. A Secular Age. Cambridge: The Belknap Press of
Harvard University Press, 529.
•• Spinner-Halev, 213.
•• Micklethwait and Wooldridge, 285.
93
What About Teaching about Religions in Europe?
Luce Pépin*1
I. Ignorance provides the fuel for fears, prejudices and hate
The issue of religious education in Europe is a complex one which is deeply

rooted in Member States’ history, culture and education policies and, in
many cases, is highly dependent on the degree of separation between State
and Church. Closely connected with the broader issue of the evolving
links between religions and the public sphere, it gained in importance
over the past decade in particular since the dramatic events of September
11, 2001 in New York and the various terrorist attacks on the European
soil. Suspicions, fears and hate vis-à-vis religions in general, and islam in
particular, have dramatically developed. They must also be understood
within a broader context of societies characterised by an increased
secularism and multiculturalism and also, most importantly, a growing
ignorance among young people as far as religions and religious issues are
concerned.
The latter is a key question confronting most of the European education

systems. It should be the priority concern when discussing the place of
religions within the school system and reassessing what has been done
so far in this respect. As underlined by the Council of Europe Secretary
General at the first forum of the Alliance of Civilizations in Madrid in
2008 “Cultural diversity is something to be enjoyed. It is not a problem.
The problem is ignorance that provides the fuel for fear, prejudice and
hate”. The challenge is particularly important in European state schools
(whose mission is to accept all children irrespective of their ethnical
origin, their culture and religion) which are characterised by increased
cultural and ethnic diversity, in particular in urban areas (in cities like
Rotterdam, Birmingham or London, almost half of the school population
has an immigrant background). Within the EU, at least 10% of the school
population aged 15 is either born abroad or has both parents born in
* Former (1992-2001) Director of the EU information network on education

in Europe (EURYDICE), author of “The History of European Cooperation in
Education and Training” published by the European Commission in 2006 and of
“Teaching about religions in European school systems” drafted for the Network of
European Foundations (NEF) and published by the Alliance Magazine (UK). The
present article is mainly based on the analysis and main findings of this latter report
which is accessible in English and French at www.nefic.org.
95
Luce Pépin
another country. The figure is even more (around 15%) at primary school
level1.
Through the Debray report to the Minister of Education in 2002 (Debray,

2002), France was one of the first European countries to clearly analyze and
voice at the top political level the reasons and the worrying consequences
of this growing ignorance among the young population as far as religions
and religious issues are concerned. Ignorance indeed prevents young people
‘from understanding an essential part of their own heritage as well as the
contemporary world they live in. Ignorance and a lack of cultural reference
cut young people off from their own roots (...). It lays the foundation for
intolerance and prejudice’ (Pépin, 2009). A weak position of humanities
studies in the curriculum and the decline in religious practice and in the
religious transmission through families are major reasons explaining this
growing ignorance and lack of interest.
II. Political consensus about the way to go
A political consensus on the need to teach about religions and religious

diversity within the broader framework of pupils’ intercultural education
has been built over the past decade and is clearly expressed in a number of
European policy statements. The Council of Europe has made education
for democratic citizenship, the management of socio-cultural diversity
and intercultural education and dialogue (Council of Europe, 2007 and
2008b) action priorities and had its Committee of Ministers adopt in 2008
a specific Recommendation on the dimension of religions and non-religious
convictions within intercultural education (Council of Europe, 2008a).
Conceptual and pedagogical instruments have been developed to support
the implementation of these policy statements at school2. In the same vein,
and with the similar objective of helping policy-makers and education
practitioners to go from theory to practice, the OSCE (Office for Security
and Cooperation in Europe), with the support of recognised experts, issued
in 2007 a set of key principles and recommendations to support teaching
about religions and beliefs in public schools (OSCE, 2007). Mainly due to its
political sensitivity, the issue as such has not yet been addressed at EU level by
the long-standing education cooperation between Member States. However,
the Recommendation adopted by the European Parliament and the Council
in 2006 on key competences to be acquired by all students by the end of
1
PISA/OECD data referred to in the European Commission Green Paper on
“Migration and Mobility: challenges and opportunities for European education
systems”. COM(2008) 423 final.
2
Ex: Council of Europe Reference book for schools “Religious diversity and
Intercultural Education”, Council of Europe, 2007.
96
their compulsory education present clearly the social and civic competence
as one of the eight key competences for lifelong learning, including
personal, interpersonal and intercultural competences, indispensable to
enable all individuals to live and work in diversified societies and resolve
possible conflicts. “Full respect for human rights... and appreciation and
understanding of differences between value systems of different religious or
ethnic groups lay the foundations for a positive attitude”.3
III. Academic research, a key dimension
Increasing work is also being done at academic level in particular by the religious
sciences field to develop approaches and pedagogical instruments suitable to
the school system and objectives. The work done, for instance, by the Religions
and Education Research Unit of the Warwick University, headed by Prof.
Robert Jackson, is worth mentioning. It is based on the theoretical “Interpretive
approach” which considers diversity within and between religions and aims
at developing in any student, skills of interpretation and a critical personal
reflection of the material studied at a distance. In France, as a follow-up to the
Debray report, the European Institute of Religious Sciences (IESR4) was set up
in the religious sciences’ department of the Ecole Pratique des Hautes Etudes in
Paris. It aims at bringing together pedagogy and research where the teaching of
the “religious facts” and the support to initial and in-service training of teachers
are concerned. The EU financed network of academic experts (REDco)5 also
produced recommendations supporting a pluralistic approach to religious
education within the broader framework of intercultural education, after three
years of in-depth and also empirical analyses.
The subject is not only a field of interest for the policy and academic levels
but also for the civil society at large. The Network of European Foundations
(NEF) contributed very much to making the issue more widely understood
and discussed through its major Initiative “Religion and Democracy” within
which the education field was a key dimension studied. Its report on teaching
about religions in European education systems6 provides a mapping of
approaches in place in Member States and analyses the trends and challenges
confronting European education systems if teaching about religions is to
contribute to intercultural and citizenship education (Pépin, 2009).
3
The EU Reference Framework on the key competences for lifelong learning (Official
Journal of the EU, 30 December 2006).
4
Web site: http://www.iesr.ephe.sorbonne.fr
5
REDCo (‘Religion in Education. A contribution to Dialogue or a factor of Conflict
in transforming societies of European countries’) is an EU project bringing together
researchers working on religious education in Europe, financed under the seventh
Research Framework Programme. www.redco.uni-hamburg.de.
6
This report is available in English and French on the NEF website: www.nefic.org
97
Luce Pépin
IV. Limits of existing approaches
Most existing national approaches to religious education have clear limits

when it comes to ensure a solid pluralistic and intercultural teaching about
religions and non religious beliefs as put forward in the European policy
documents or in the most relevant academic researches. When the approach
is positively pluralistic and non-confessional (whether subject-based or
trans-disciplinary), the problem lies in the weak position of the subject in the
curriculum (lack of clarity, lack of time), the poor links with intercultural or
civic education, and, above-all, the insufficient preparation of teachers (both in
contents and pedagogy terms) to deal with this complex and sensitive matter.
In a 2007 report assessing the situation of religious education in schools,
Ofsted (the UK Office for Standards in Education, Children’s Services and
Skills) underlined the inadequacy of teacher training, stating that “only 36%
of new teachers were judging that they have been well prepared to teach
in multicultural schools” (Ofsted, 2007). This statement would certainly
be also true for many other European countries. This inadequacy was re-
affirmed three years later in a new report underlining that the situation had
deteriorated, in particular at secondary school level (Ofsted, 2010). Despite
progress in this area over the past 20 years in many countries, much remains
to be done to strengthen intercultural and civic education in the curriculum
and also in the school organisation and life.
When the approach is confessional (confessions being taught separately),

the objective of educating all young people about the diversity of religions
and other beliefs is a real difficulty, even if there has been some positive
experiences in certain countries. One additional problem is that pupils who
do not adhere to any religions, are excluded from almost any learning about
religions and religious issues, in particular when knowledge about religions
is weak in the core curriculum. Moreover, the confessional approach cannot
be expanded ad infinitum to cover the increased diversity of religions now
represented in European societies. This would be unmanageable for schools
and for the state (financially) and it would be contrary to the objective of
educating all pupils to intercultural and interreligious/inter-convictional
understanding and dialogue. With an increasing number of grant-aided faith
schools in certain countries (in particular England), we also see some worrying
trends (increased selection, segregation and teaching of creationism).
Confessional religious education will certainly continue to exist in many
countries but it will have to seriously evolve to be more open to cultural and
religious diversity. Otherwise, there will be a clear contradiction between
the pluralistic approach put forward in intercultural, civic and human rights
education (which hopefully will be strengthened in all education systems)
and the approach and contents of the religious education course. Such a
contradiction will be increasingly difficult to justify by those States which
98
are often supporting financially confessional religious education within

the framework of the school system. Such a problem is already apparent in
countries where the religious education course teaches creationism7 in full
contradiction with what is being taught in the science course.
The case of Spain is also meaningful of the kind of difficulties which may
arise. The Catholic Church organises religious education in publicly-
financed schools (26,5% of these schools are private, among which 70%
are Catholics), based on the 1979 Agreement between the Spanish state
and the Holy See. When the Government established in 2006 a new school
subject on citizenship education as obligatory, some parents, supported
by the Church, refused permission for their child to attend this course
arguing that its content contravened their constitutional right as parents
to give their children religious and moral education in accordance with
their own convictions. ‘From the outset, the new subject had met with the
opposition of the Conservative party and a greater part of the Catholic
Church which considered it a means to weaken the teaching of religion.’
(Pépin, 2009). This example reflects the tensions which may exist between
the will of a government to develop such subjects like civic or intercultural
education and the conservative position of the Church and some political
parties vis-à-vis the religious education course (of the majority religion).
V. Trends
The development of a non-confessional and pluralistic approach to religious

education (e.g. England, Sweden, Denmark) or an approach aiming at
promoting knowledge about the “religious facts” throughout the most
relevant school subjects (France), are interesting trends, fully in line with the
objective of providing an unbiased education to all pupils. In England, non-
and pluri-confessional religious education is certainly the most developed in
Europe both in terms of content, pedagogy and research, taking also into
account non religious beliefs. Religious education syllabuses are defined at
local level within the framework of pluralistic bodies (the SACRE - Standing
Advisory Councils for Religious Education)8. These syllabuses must fit the
non-statutory National Framework for Religious Education (QCA/DfES,
2004) which specifies that such syllabuses must contribute to the general
objectives of the National Curriculum and in particular the promotion of
7
For further reading on the issue of creationism in education, see the Council of
Europe report prepared by Guy Lengagne for the Committee on Culture, Science
and Education, Doc. 11297, June 2007.
8
The SACREs have a pluri-denominational composition consisting of 4 main
representative groups: Christian and other religions; the Church of England; teacher
organisations and local authorities. A SACRE can also include humanists and
members of minority religions (Pépin, 2009).
99
Luce Pépin
‘pupils’ spiritual, moral, social and cultural development”. The development

of non confessional religious education is also a pattern in some Länder in
Germany (e.g. Berlin, Bremen, Hamburg).
One can also note a certain “deconfessionalisation” of confessional

education, in particular in some countries where the private/confessional
publicly-funded education sector is important (it represents 75% of the
pupils in the Netherlands and 20% in France). State-financed confessional
schools have become more open to a culturally diverse population and
parents’ choice is less and less guided by the religious character of the school
but more by its teaching reputation. In countries where religious education
is of a non-confessional status, there are possibilities of closer links with
parallel developments in intercultural and citizenship education. For
instance, in England, the proposal of a common qualification at GCSE level
between citizenship education and religious education have been made in
the 2007 Curriculum Review on “Diversity and citizenship” commissioned
by the Department for Education.
We see also various attempts and initiatives to meet the needs of minority
religions and in particular the Muslim communities. For instance, in Spain,
progress is made to ensure a better implementation of the 1992 agreements
passed between the Spanish State and the Muslim communities, the
Protestant churches, the Jewish communities, establishing the rights of
children to receive an education in their own religion in state and grant-aided
private schools. In Germany, in Bremen, work has been done to define an
Islamic course for public schools. In the particular case of Berlin, the Islamic
federation has been authorized to develop Islamic religious education
programmes, alongside those existing for Christian religions. Münster and
Osnabruck universities have established teacher training programmes for
Islamic religious education teachers. In Nord-Rhein Westphalia, a region
where there is an important Muslim population, the subject “Teaching of
Islam” has been introduced. In Austria, the Islamic Religious Community is
recognised alongside the other religions. In the Netherlands, there are some
40 coranic state-funded schools (being however the target of criticisms).
In 1997, the Islamic University of Rotterdam was created supporting the
training of imams, of Islamic teachers).
VI. Key conditions for substantial changes towards intercultural

teaching about religions
Teaching about religions and non religious beliefs in public schools within
the broader framework of intercultural, civic and human rights education is
the only approach which can obtain a broad consensus, benefit a maximum
of pupils (85% of them being in state-financed schools in Europe) and, on the
100
longer-term contribute significantly to the society cohesion. The approach

will however only be effective if such intercultural and civic education is a
well-established and coherent dimension of the school curricula and a key
dimension of teachers’ initial and in-service training.
In its report on teaching about religions in European school systems (Pépin,

2009), the Network of European Foundations (NEF) proposes a European
Reference Framework on the conditions for high-quality intercultural
teaching about religions and other convictions in state education. This
framework, which is proposed as a flexible tool, is in line with European
positions (in particular Council of Europe, OSCE) on the matter. The key
conditions put forward concern the definition of teaching about religions, its
status in the curriculum and the essential issue of teacher training. It is worth
introducing it here as such, not as a concluding element but rather as an “open
door” to stimulate further reflection and discussion, and exchange of good
practices between countries at all levels, on a matter that will continue to be a
concern and a challenge for most education systems in the decade ahead. The
challenge which most European countries have to face in the years ahead
if they want to achieve greater cohesion and peace in their societies and at
European and world level is the challenge of unity in diversity. As Mahatma
Ghandi put it “The ability to reach unity in diversity will be the beauty and
test of our civilisation”.
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Luce Pépin
Extract from the NEF Report on “Teaching about religions in

European School Systems”
Towards a European Reference Framework on the conditions for high-quality

intercultural teaching about religions and other beliefs in state education
The proposed European Reference Framework should be seen as a flexible and

evolving tool available to the different players concerned in support of their ideas,
both domestic and European. It does not seek to impose any particular model:
starting points and approaches differ from one country to another and are deeply
rooted in the traditions and history of each country. Education remains the
responsibility of each member state.
Definition (at compulsory education level)

 The aim should be teaching about religions and other beliefs and not
religious instruction.
 Teaching about religions should be neutral and unbiased, non-
confessional, and based on an objective and well-documented presentation
of the facts.
 It should be pluralist, inclusive of the diversity of religions and other beliefs,
defined in cooperation with all confessions and other relevant parties.
 It should draw on the best research work, in particular in the science of
religions.
Status in the curriculum

 Teaching about religions and other beliefs (either as a separate subject
or integrated into others) should take place within the framework of the
objectives and programmes of intercultural, citizenship and human-
rights education.
 It should be provided to all students.
 It should have clear objectives, particularly with respect to the knowledge
to be acquired and the attitudes and aptitudes to be developed.
 It should enjoy sufficient time in the curriculum.
Teacher-training
 High-quality initial and in-service training on content and teaching
methods.
 Adequate teaching materials (content should be pluri-confessional and
embrace other beliefs).
 A clear ethical approach that allows teachers to carry out their teaching in
an objective, well-documented and non-partisan way.
Resources
 Possible access to external contributors who are both qualified and
neutral.
 Access to the best sources of information, adapted to this kind of teaching;
cooperation in particular with departments focusing on science of religions.
 Access to information from the European Wergeland Centre on
education in intercultural understanding.
 Availability in all languages of the Toledo Guiding Principles (OSCE) on
teaching about religions and beliefs in public schools.
102
VII. References
• Council of Europe (2007), Religious Diversity and Intercultural Education:

A handbook for use in schools.
• Council of Europe (2008b), White Paper on Intercultural Dialogue, ‘Living
together in equal dignity’, Strasbourg, 7 May 2008.
• Council of Europe (2008a) Recommendation of the Committee of
Ministers to member states on the dimension of religions and non-religious
convictions within intercultural education (CM/Rec(2008)12).
• Debray, R (2002), L’enseignement du fait religieux dans l’école laïque,
report to the minister of education, February 2002.
• Langagne, G (2007), The dangers of creationism in education, Report to
the Council of Europe Committee on Culture, Science and Education.
Doc. 11297 (June 2007).
• Ofsted (2007), Making sense of religion: a report on religious education in
schools and the impact of locally agreed syllabuses.
• Ofsted (2010), Transforming religious education – religious education in
schools 2006-09, Ofsted, June 2010.
• OSCE (2007), Organization for Security and Cooperation in Europe
(OSCE), Toledo Guiding Principles on Teaching about Religions and Beliefs
in Public Schools, 2007.
• Pépin, L (2009), Teaching about religions in European school systems – Policy
issues and trends, Network of European Foundations (NEF) Initiative on
Religion and Democracy in Europe, published by the Alliance Publishing
Trust (UK).
• QCA/DfES (2004), Religious Education – the non-statutory national
framework, Qualifications and Curriculum Authority (QCA) and the
Department for Education and Skills (DfES).
• REDCo (2007), Religion and education in Europe : Developments, contexts
and debates. Münster. Robert Jackson, Siebren Miedema, Wolfram
Weisse and Jean-Paul Willaime. Waxman Verlag, 2007.
103
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.3
Some 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
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’).
105
Rainer Palmstorfer
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.
I. 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
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
106
Religious Symbols in Public Schools – some legal remarks
on crosses in classrooms
religious instruction also qualifies as a violation of Article 2 of Prot No 1.13
II. 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
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.
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.
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Rainer Palmstorfer
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 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
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 66
23
Lautsi II (n 2) paras 72-74.
24
25
German Constitutional Court 16 May 1995, 1 BvR 1087/91 (‘Kruzifixbeschluss’).
108
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.
III. 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
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
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
31
109
Rainer Palmstorfer
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
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.
110
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.
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.
111
An Educational Right: Teaching and Learning
about Controversial Issues
Thomas Misco*1
I. 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
* Ph.D., Associate Professor of Social Studies Education, School of Education, Health,

& Society, Miami University (USA)
113
Thomas Misco
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).
II. 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).
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An Educational Right: Teaching and Learning about Controversial Issues
A. 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, 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
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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).
B. 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
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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).
III. 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:
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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).
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).
A. 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
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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,
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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).
B. Teachers
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
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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
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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).
C. 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.
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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 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).
D. 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
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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).
E. Necessary Conditions
Paradoxically, 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
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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).
IV. Conclusion
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).
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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.
V. References
•• Almond, G., & Verba, S. (1963). The civic culture. Princeton: Princeton
University Press.
•• Apple, M. W. (2004). Ideology and curriculum (3rd ed.). New York:
RoutledgeFalmer.
•• Asimeng-Boahene, L. (2007). Creating strategies to deal with problems
of teaching controversial issues in social studies education in African
schools. Intercultural Education, 18(3), 231-242.
•• Barnett, J., & Hodson, D. (2001). Pedagogical content knowledge:
Toward a fuller understanding of what good science teachers know.
Science Teacher Education, 426-453.
•• Barr, R. D., Barth, J. L., & Shermis, S. S. (1977). Defining the social studies.
Washington: National Council for the Social Studies.
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131
Part II
Country Reports and
Questionnaires
Muslim Schools in the Nordic Countries1
Jenny Berglund*
State-funded Muslim schools has since the 1980s emerged in Europe. In

several countries, there among the Nordic ones, there has been considerable
debate about these schools. In Norway, the only Muslim school closed down
in 2004 after a couple of years, but at least two schools who have received
permission to start in 2012. In Denmark, who has the longest tradition of
Muslim schools among the Nordic countries there has been considerable
attention given to these schools and acquisitions of extremist teaching. In
Sweden, the debate about these schools was very intense for a while, in
recent years the National Agency of Education has intensified the control
of denominational schools, the debate has calmed down. In Finland, where
Muslims have the right to Islamic Religious Education (IRE) in public
schools, there are so far no Muslim schools.
In this paper I intend to describe and analyze the establishment of Muslim

schools in the Nordic countries. Since my own research concerns Muslim
schools in Sweden and the content of Islamic religious education (IRE),
there will be a special emphasis on the Swedish situation.
I. Background
The populations of the Nordic countries are today estimated to 9 million in

Sweden; 4,6 million in Norway; 5,5 million in Denmark and 5,2 million in
Finland. Sweden, Norway and Denmark are constitutional monarchies.2 Finland
is a republic, with a president and a prime minister. Denmark, Finland and
Sweden, are members of the European Union, while Norway remains outside
but closely follows EU policies. In terms of religion the Nordic countries are
dominated by Lutheran Protestantism. Norway and Denmark have Lutheran
state churches, while Finland and Sweden have separated the ties between the
former Lutheran state churches and the state. Instead they have been turned
into “national churches” i.e. churches which are identified with the nation and its
history, but which are no longer governed by state ministries.
1
Here I use “Nordic countries” for Sweden, Norway, Denmark and Finland, i.e. I have
chosen not to include Iceland.
* PhD, Department of Study of Religions, School of Gender, Culture and History,
Södertörn University, Stockholm, Sweden
2
I.e. the monarch is a symbolic head of state, the head of government is the prime
minister.
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Jenny Berglund
The Nordic countries are often characterized as welfare states according

to a model where the state to a large extent is the supplier of social services
where benefits tend to be defined at the individual level, but with differences
depending on each persons history on the labour market. The state finances
social services by taxes and fees.3
This has importance for our discussion, since schooling, both public and the
so called “independent schools”4 which is the category that Muslim schools
belong to in the Nordic countries, are financed by the state.
A. Immigration
After the Second World War, Sweden, Norway and Denmark became
immigration countries. Finland was instead a emigration country until
the nineteen eightees. Labour migration, mainly between the Nordic
countries and from southern and eastern Europe, made an essential input
to the Swedish, Norwegian and Danish economies between the fifties and
seventies. Immigration policies changed from being focused on labour
migration to refugees and asylum seekers in the beginning of the eighties,.
Around 2005, approximately 12 percent of Sweden’s population was foreign
born; 7 percent in Norway; in Denmark 8 percent; and in Finland around 3
percent.5 Of these Muslims constitute around 3,8–4,4 percent of the national
population in Sweden; 3,5 percent in Denmark; Norway 2,5 percent; and in
Finland 0,8 percent.6
II. Islam in the Nordic Countries
Islam is today the largest non-Christian religion in the Nordic countries.

Geographically, nationally and socially, Muslims in the Nordic countries
come from diverse areas, although the number of Muslims born there is
steadily increasing. The theological and political differences are very large,
which means that Muslims in the Nordic countries must be categorized as a
very heterogeneous group.
A. Muslims in Sweden
The presence of Muslims in Sweden is relatively recent, with the Tartars
having been the first to arrive at the end of the 1940s. The 1960s marked
the beginning of Muslim labour migration; and when the need for labour
decreased at the end of the 1970s, immigration policy once again became
3
Andersen and Molander 2003:10.
4
The word independent here refers to the fact that the schools are run independently,
i.e. they are run privately, not by the municipality or the state.
5
Migration Information 2006b; Migration Information 2005; Migration Information
2004.
6
Larsson, ‘Introduction’, 3. Note that these figures must be considered very rough.
136
Muslim Schools in the Nordic Countries
more restrictive.7 At present, there are no reliable statistics regarding how

many Muslims currently reside in Sweden. However, with as many as one
hundred established communities, Islam has clearly become this country’s
largest non-Christian religion. Available data indicates that the Swedish
Muslim population stands at about 400,000.8 Of these, approximately half
are held to be secularised9, an estimated one-third are considered to be
school age and younger, and around 110,000 are said to belong to some
kind of “registered” Muslim organisation.10 In Sweden, as in many European
countries today, issues relating to Islam and Muslims have been the focus of
intense public debate. The establishment of Muslim schools has been one
such issue.11
B. Muslims in Norway
As already mentioned, in Norway the church is not separated from the state
which among other things mean that the church budget is integrated with
the municipal and state funding. A compensatory system has been created
that gives other registered churches and religious organisations as much
state aid per member as the state church (Leirvik 2003:122). This system
has contributed to the fact that a larger proportion of the Muslim minority is
registered in Muslim organizations than in the neighbouring countries. The
number of members of the registered Muslim organizations was in 2010 99
000 which is about 60 percent of the Muslim population (Leirvik 2012).
C. Muslims in Denmark
Most Muslims in Denmark as in Sweden and Norway either economic
migrants or refugees. The number of Muslims in Denmark is assumed to
be approximately 175-200 (Helquist & Sebian). Organizational patterns are
usually members’ ethnicity, while the sub-units are organized for religious
or political differences (Svanberg 1999:389). In 2010, 21 different Muslim
religious organizations had status of official recognized religious societies,
7
Svanberg & Westerlund 1999:13 ff.
8
Larsson & Sander 2007:71; Otterbeck & Bevelander 2006:16.
9
Hjärpe 2004:153.
10
Those organisations that are “registered” receive financial support from the
Commission for State Grants to Religious Communities [Samarbetsnämnden för
stöd till trossamfund], see Otterbeck & Bevelander 2006:15. Communities that
are not organised in relation to the Islamic Cooperation Council are dependent on
voluntary membership support and/or support from organisations located in Muslim
counties. For a description of the process of Muslim institutionalization in Sweden,
see Larsson & Sander 2007:169 ff.
11
Other issues that have instigated fierce public debate concern the establishment of
mosques, veiling, halal-slaughter, male circumcision, infibulations and the matter
of so-called “honour-crimes”, see Larsson & Sander 2007; Otterbeck & Bevelander
2006.
137
Jenny Berglund
something that gives them tax benefits.12
D. Muslims in Finland
Finland has had no labour immigration in the post-war period, making the
number of Muslims far fewer than in the other Nordic countries. But due to
Finland’s EU membership this has changed over the last decades leading to a
whole new situation affected by global migration. The number of Muslims
in Finland is now estimated to be 45 000 (Martikainen 2012). Finland is
the only Nordic country witch has a Muslim population of older date than
around the sixties, namely the Tatars. They fought in the Russian army and
settled in Finland in the end of the 19th century. In 1925, after Finland’s
independence, the Tatar Muslims gained official recognition as a religious
body.13 Minority religions were granted rights in the Religious Freedom Act
in 1922, although Lutheran and Orthodox Christianity have historically
had a privileged position.14 All registered religious congregations receive
financial assistance from the State (Olin 2000:111). The fact that most of the
Muslim immigration to Finland is of late date means that the establishment
of organizations is just starting to take off although the Tatars have had
special organizations since the early 1900’s.
III. Religious Education
For Muslims as a religious minority in the Nordic countries there are

many challenges. One such challenge is the question of Islamic education
and instruction. How to ”transmit” religious tradition to the coming
generation is known as one of the most important questions for survival of
a religious minority.15 Some Muslim children attend supplementary classes
in afternoons and weekends to learn about their religious tradition, others
are taught at home. A crucial question in this discussion is who should have
responsibility for this instruction and what interpretation of Islam should be
taught.
In the second article of the First Additional Protocol of the European

Convention of Human Rights (ECHR), we can read the following:
12
http://www.familiestyrelsen.dk/11/godkendte-trossamfund-og-menigheder/
islamiske-og-islam-inspirerede-trossamfund-og-menigheder
13
The majority of Finland’s Muslims came with immigration from the 1980s, and today
represents around 20 nationalities, roughly corresponding to those in Denmark and
Sweden. Martikainen, ‘Finland’, 76–7, 79, 81.
14
Mårtensson and Larsson 2012.
15
See Berglund 2011 where the term “transmit” is criticized for giving an inaccurate
view of religious instruction.
138
No one shall be denied the right to education. In the exercise of the

activities the State may incur in terms of upbringing and education,
the State shall respect the right of parents to ensure their children’s
upbringing and teaching in conformity with their religious and
philosophical convictions. (Council of Europe 1995)
ECHR guarantees parents the right to choose philosophical or religious

education for their children. There are several ways for states to deal with
this issue which has importance for our discussion about Islamic instruction
and Muslims schools. Within each country, religious education has been
shaped by a multiplicity of forces, including the specific structure of its
educational system as well as its history, politics and so forth. In Europe,
two models for RE can be discerned within the public school sector: 1) the
denominational (sometimes confessional) approach; and, 2) the Religious
Studies approach. A primary distinction between these types concerns
who is ultimately responsible for determining the content, developing the
curricula, selecting the materials and training the teachers. In countries
that have adopted the denominational approach, these responsibilities are
handled by the denominations themselves or denominations together with
the state. In those countries, such as Sweden, that have adopted the Religious
Studies approach, they are handled by the state.16 It is here important to note
that regardless of the approach adopted, the state is presumed to be neutral
relative to the matter of religious conviction. With the denominational
approach, the state’s neutrality is said to manifest in the fact that it grants
the denomination responsibility for RE-content development and makes RE
attendance only an option that parents can either accept or reject. With the
Religious Studies approach, the state’s neutrality is displayed by providing
school courses that are intended to be neutral respecting religions, thus
guaranteeing that religious education is made acceptable to persons of all
faiths. Most often countries that adopt the denominational approach have
separative RE, i.e. students with different religious belongings are taught
RE in separate classrooms and those countries that have Religious Studies
approach have integrative teaching, i.e. pupils are taught RE together
irrespectively of their religious belonging.
A. Sweden
The Nordic countries have a long history of Christian education related
to the Lutheran State Church. In the case of Sweden schooling was made
compulsory for all children in 1842. Back then, the most important school
subject was religious instruction into Lutheran Christianity and this remained
the case in Sweden until a major curriculum adjustment in the year 1919, the
16
See the introduction chapter of this publication about RE in the other Nordicn
countries.
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Jenny Berglund
starting point of the secularization of Swedish schools. Thereafter, religious

instruction was reduced by fifty percent, other subjects were introduced to
balance the difference, and “[f]ostering for national citizenship instead of
the Lutheran faith became the task of the school system” (Hartman 2007:
260).
In 1962, a school reform in Sweden required the subject of Christianity to

maintain a “neutral” profile with respect to questions of faith; and in 1969,
the subject’s name was changed from Christianity to “Religious Knowledge”
(religionskunskap), indicating the transition from a denominational to a non-
nondenominational form of religious education that prioritized teaching
about religion—including different religions—from a Study of Religions
perspective. The current Swedish national curriculum contains the following
statement:
Education in the Swedish school system shall be non-denominational.

The task of the school is to encourage all pupils to discover their own
uniqueness as individuals and thereby actively participate in social
life by giving of their best in responsible freedom (Curriculum for the
Compulsory School System, the Pre-school Class and the Leisure-time
Centre 2006).17
The use of the term non-denominational (icke-konfessionell) in the above

quotation is meant to imply that in the Swedish school system religious
education is to be presented such that no particular worldview is prioritized
and pupils from all cultural, ethnic and religious backgrounds would feel
comfortable in attendance. This neutrality, however, does not extend to the
realm of what is described as society’s “foundational values”, the mediation
of which the national curriculum considers a primary task of Sweden’s
educational system. This is one of the reasons why RE is taught in terms of
the Religious Studies approach and, in 1996, was made obligatory for all
pupils. The following quotation from the national curriculum explains:
The school has the important task of imparting, instilling and

forming in pupils those foundational values on which our society
is based. The inviolability of human life, individual freedom and
integrity, the equal value of all people, equality between women and
men and solidarity with the weak and vulnerable are all values that
the school should represent and impart. In accordance with the ethics
borne by Christian tradition and Western humanism, this is achieved
17
This is the official English translation, the word used in Swedish for non-
denominational is icke-konfessionell, which could also be translated into non-
confessional.
140
by fostering in the individual a sense of justice, generosity of spirit,

tolerance and responsibility.
An aim with the non-confessional religious education that is stipulated by

the Swedish national syllabus is to learn about different religious traditions
and worldviews. It is clear that school should not teach the pupils to practice
any specific religion; instead it is supposed to be “neutral” in relation to
religious traditions. The “neutrality” of religious education has been highly
questioned and it has been claimed that the non-denominational religious
education rather is an education into secularism, or at least that it has a very
strong secular bias. It has also been suggested that to claim a certain “value
foundation” independent of religion is as much an expression of faith as any
religion, since it makes a truth claim that is binding for everyone.
As mentioned above it is since 1996 no longer possible to be exempted from

RE in Sweden, because of its non-denominational character. This is from a
European perspective, a unique phenomenon. In almost all other European
countries, it is possible to be exempted from the municipal or state religion
taught in school if parents so wish. The aim of the RE school subject in the
Swedish curriculum is supposed to be in line with the European Convention
(Kilkelly 2004).
B. Norway
As for religious education in schools, the Norwegian school system has had
a stronger connection to Christianity than Sweden. Religious education
was until 1997 Christian instruction and teaching (CRE). Students could
be excused from CRE if they had at least one parent who did not belong to
the state church. The schools who had a large number of exempted students
organized “world view orientation” (livssynskunnskap) as an alternative
(Opsal & Skauge 1996). In 1997 however, Norway changed the Christian
religious education to “Knowledge about Christianity with religion and
worldview orientation” (KRL). Despite this change, the government had
to introduce yet another school subject (2008) with a stronger Religious
Studies approach after the European Court of Human Rights in Strasbourg
had ruled that Norway was violating the principle of freedom of religion
with the former obligatory RE school subject. The Norwegian way to deal
with RE in state schools thus came closer to the Swedish model.
C. Denmark
In Denmark CRE is a compulsory subject in primary and secondary school.
Parents have the right for exemption if they take responsibility for the child’s
religious education themselves. Public school CRE teaches about different
religious traditions but the primarily focus is on Christianity. Parents can
ask for exemption for their children from these classes. Recently suggestions
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Jenny Berglund
have been made that there should be cooperation between the Ministry of
Education and Muslim organizations in the curriculum development.
D. Finland
Finland has a system of Religious Education where pupils are taught
according to the religious tradition they belong to. A majority of the pupils in
Finland belong to the Evangelical Lutheran church and are therefore taught
Lutheran RE (LRE) in school. Since the 90ies when a new school law was
passed certain minorities, such as the Muslim, have the right to their own
religious education if there is at least three minority pupils who require a
certain RE. Since then there is also a common framework for all religious
education in comprehensive schools was also established. According to its
aims, all pupils were to attain “religious literacy”, either from RE connected
to their own religion or through Finland’s non-denominational alternative
(Kallioniemi 2011).
In 2003 the Finnish parliament reformed the Religious Freedom Act. This
included a shift from ”confessional religious education” to ”religious
education according to one’s own religion” and placed the different REs on
the same level, with the intention of promoting religious equality (Seppo
2003: 177-179.). Pupils cannot ask for exemption but those who do not
belong to a religious community should be provided a non-denominational
alternative. The Finnish system is unique from a Nordic perspective since
it gives children from religious minorities the right to participate in RE
according to their own religion within public schools. What should also be
mentioned though is that in practice, organizing several forms of religious
education is often difficult but also expensive.
In Finland, like in Denmark, education and not schooling is compulsory. This

means that there are opportunities for home schooling but homeschooling
has to be paid by parents in contrast to public schools that are free of charge.
Children who are taught at home must pass special tests every year to prove
that they reach the required national level.
IV. The Establishment of Muslim Schools
A. Sweden
In Sweden it has, with few exceptions, not been permitted to establish
denominational schools, although there are a few exceptions.18 In 1992
18
There are a few examples of denominational independent schools before 1992, such as
the Jewish Hillel School was established in 1955, Ekeby Holm school run by Seventh
Day Adventists and Anna School in Jönköping (see for example Algotsson 1975:461,
Johansson 2007, Peste 2007, Atkins 2007). Today, independent schools in Sweden
142
the educational policies were adjusted its to make it possible for a range of
private actors, including religious denominations, to obtain state funding
for independent schools. In 1993 Sweden’s first Muslim school opened in
the southern city of Malmö; to date, that number has increased to fifteen.
Of these, nine have been classified as “Islamic” by the Swedish National
Agency for Education (see table below) and six have been classified as
“Swedish-Arabic” or the like. Because a number of the schools characterized
as “Swedish-Arabic” provide some sort of Islamic Religious Education
(IRE)—e.g., lessons in the Quran—here called “Muslim” as well.19 Each
Muslim school currently educates between 20 and 250 pupils.
Even though a small number of Christian schools as well as one Jewish

school existed in Sweden before the 90-ies, the policy change lead to a vast
increase of denominational schools:
Christian Muslim Jewish
Compulsory schools 54 9 3
Upper secondary schools 6 0 0
Denominational schools in Sweden (2006)
Although the above table only lists schools designated as “denominational”

(religiösa friskolor) by Sweden’s National Agency for Education, it nonetheless
indicates that the number of Muslim schools is far less than the number of
Christian schools. It also shows that Muslim schools are presently confined
to the compulsory segment of the Swedish school system, since no Muslim
upper secondary schools (not compulsory in Sweden, but nearly all pupils
continue to upper secondary school) have been established.
According to the Education Act, independent schools must open their doors
to everyone, regardless of faith, and must be approved by the National Agency
for Education. While run privately, Sweden’s Independent schools are as
already mentioned subsidized by the state. The nature of one denominational
school may be extremely different from another, and a distinction is often
drawn between those that have “strong” and those that have “weak” profiles.
have to respond “to the general objectives and values that apply to education in the
public school system” (Education Act in practice: designs and comments 2005:117).
19
One reason that the Arab private schools in the agency’s statistics described as ethnic
language may be, that the application process has shown that it is easier for linguistic-
ethnic schools to get permission to establish themselves than for denominational
private schools (Abdelcader 1998).
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Jenny Berglund
These classifications pertain to the degree of impact that a specific religion

has on the profile of the school.
In most cases “denominational profile”20 means that schools are adding

specific substances, such as reading Quran, Arabic, Islamic history and
Islamic singing in Muslim schools (Berglund 2010). An independent school
is private in the sense that it has a private owner, however, it is funded by
the state. The Muslim independent schools run by different local Muslim
organizations.
In accordance with Sweden’s Education Act, the so called “foundational

values” as well as the general goals outlined in the national curriculum
(see above) are meant to be achieved in both non-denominational and
denominational settings, and thus the “objectivity” of education is not to
be intruded upon by indoctrination or tendentious modes of discourse,
regardless of the school’s profile—denominational or otherwise. In pursuit
of these aims, most schools with denominational profiles arrange only a
small number of hours per week for the introduction of certain religious
subjects. In the specific case of Muslim schools, this number amounts to one
to three hours per week of Islamic religious education (IRE). And since there
are no national syllabi for such subjects, local syllabi must be written instead.
These, however, must also adhere to the above described “foundational
values”, which tend to be interpreted differently by different schools. In
combination with the fact that those who have established Muslim schools
belong to different theological traditions, this means that the local syllabi and
what is taught in different IRE classrooms can differ widely (for examples
see Berglund 2010).
B. Norway
In Norway, the political debate on private and independent schools has
been ongoing since the 1920s (Flateby 2003:61-62). The law that gives the
possibility to establish private schools has strong links with international
laws regarding parental rights i.e. Article 2 of the ECHR (see above). In 2003
a new law made it easier to establish independent schools. The requirement
was that the independent school should be a religious, ethical or substance
educational alternative to public school (Bergesen 2003:51).
In 2010 there were 95 Christian schools but no Muslim ones in Norway.

Nevertheless several attempts have been made to establish such schools and
Urtehagen Muslim school functioned in Oslo for a number of years. The first
20
Municipal Schools might also have a profile for example, football, arts or a specific
pedagogy. So far though, there are no Municipal Schools that have chosen (or even
tried to) establish a denominational profile in Sweden.
144
attempt to establish a Muslim school was turned down in 1995 on the grounds
that it would have negative impacts on integration. According to Carolyn
Midsem the refusal was a violation of the prohibition of discrimination,
since similar arguments have never been used when Christian schools have
been established in Norway (Midsem 2003:21). The refusal was never
legally tested (Midsem 2003:21). In 1999 the same application was amended
by a new government (Christian democratic instead of Social democratic)
and Urtehagen Muslim school could opened. However, the school closed
down after a couple of years due to internal problems. Since then there
have been discussions about establishing other Muslim schools in Norway
and in 2009 the ministry of education approved an application to establish
a Muslim school in Oslo, but the municipal government later turned the
local application down. At the moment at least two schools have been given
permission to start during 2012.
C. Denmark
In terms of denominational schools, Denmark differs from the other Nordic
countries since they have a long tradition of independent denominational
schools. As early as in the middle of the 19th century a large number of
denominational schools characterized by the so called “Grundtwig revival”
(the 19th century) were founded (Ihle 2007: 29).21 Independent schools have
been disputed, but are considered an integral part of the Danish school
system. The strong tradition of these schools in Denmark is also related to
the fact that the Danish Constitution that imposes compulsory education,
but not that children have to attend school, as is the case in for example
Sweden. Independent schools in Denmark are not totally financed by the
state as in Sweden but partly by individual contributions. Approximately 15
percent of all children attend independent schools in Denmark.
In view of Denmark’s long tradition of independent schools, it is no

coincidence that it was in Denmark that the first Muslim independent school
in the Nordic countries was founded (1978), today there are around 20
schools (Nielsen 2004:82; Ihle 2007:54). A difference compared to Sweden
is that Muslim schools, like other independent schools in Denmark, are not
fully financed by the state, instead parents have to contribute by paying a fee
(in 2004/2005 the monthly fee was approximately 40€). Another difference
is that they are not inspected by a national agency of education, instead they
are supervised by an external examination board chosen by the parents as
well as the ministry of Education (Ihle 2007:39-45).
21
Christian movement that is considered to have been of great importance for the
development of democracy in Denmark and for the development of particular folk
high school and friskolerörelsen (Jensen 2004:80; Lundgren & Teachers 1996:222).
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Jenny Berglund
D. Finland
In Finland the Tartars ran a Muslim school in Helsinki from 1948 to 1969
(Martikainen 2004:116). Today there are no Muslim schools in Finland
but the Rabita mosque in Helsinki performs home schooling with a small
number of pupils since several years back.
V. Reasons for Choosing a Muslim School
Considering the reasons for establishing Muslim schools in Sweden, a study

conducted in 1997 by the Swedish National Agency for Education concluded
that certain Muslim parents send their children to Muslim schools because
of negatively biased and inaccurate views of Islam in municipal schools and
schoolbooks, disregard for common Islamic rules regarding diet, dress, prayer,
chastity, fasting, and so forth, poor religious education by the standards of
Islam, insufficient discipline, fear of exposure to narcotics and alcohol and
too great a diversity of immigrant groups in the neighbouring municipal
schools. Another important reason concerns the difficulties encountered
by Muslim parents in their interactions with municipal school officials and
staffs—interactions that had left them feeling humiliated, alienated and
shamed. Reportedly, it was such incidents that had convinced them that is
was impossible to effectively execute their parental responsibilities within
the municipal school framework; thus they opted to send their children to a
Muslim school instead. A more recent study concerning the matter of “choice
of school” indicates the same thing: parents choose to send their children to
Muslim schools more for purposes of security and well-being than for the
purpose of religion although the criticism against the perceived “neutral”
position also exists (Bunar & Kallstenius 2006). Thus their choice might
be seen as one way of avoiding discrimination and obtaining acceptance of
difference—i.e., as primarily involving concerns over power of influence and
democratic rights. It is impossible to exclude such considerations from any
comprehensive discussion regarding Muslim schools in Sweden and Ajagan-
Lester even claims that the establishment of Muslim schools in Sweden might
be seen as a reaction against municipal schools as they have nothing else than
heteronomy and submission to offer to minority pupils. Whether or not one
accepts the validity of the preceding reasoning, it is also of importance to
many Muslim parents to locate an educational environment in which their
children can be educated not only about Islam via RE textbooks based on a
secularized religious studies approach, but also into Islam via confessional
lessons in which Islam is the norm and the child learns about the “good life”
from the Islamic point of view. Notably, choosing an education into could
alongside the above arguments also be understood in terms of opposition to
an education into secularism, which is the “neutrality” that municipal schools
is considered to uphold. A surprising circumstance for this discussion is that
there is up to date no available statistics comparing the performances of
146
Muslim pupils in Muslim and municipal schools which of course also would
be interesting for the present discussion.
Although, as indicated above, the decision to send one’s child to a Muslim

school is not usually based on the fact that it offers IRE, the appearance of
this extracurricular subject in the school syllabi is nonetheless significant
in terms of drawing a formal distinction between Muslim and non-Muslim
schools in Sweden, Denmark and presumably Norway. The case of Finland
is some what different since it is possible for Muslims to get IRE within the
public school. Never the less, to claim that this would be a the reason for not
establishing Muslim schools in Finland would be a simplification since the
Muslim immigration is of far later date than in the other discussed countries
and could thereby not
Reasons for the choice of Muslim independent school in the other Nordic
countries are similar in many respects one another (see for example Ejrnæs
& Shooting 1987 and Olesen 1987; Ihle 2007). In Denmark (as for example
in the Netherlands) many Muslim parents choose to put their children in
Christian, especially Catholic, schools instead of public schools. This is
considered mainly due to the Christian schools’ positive attitude to religion,
the strict discipline and a lower proportion of children of foreign origin
(Shadid & Koningsveld 1995:106). However, it is important to remember
that there are Muslims in Sweden as in other Nordicn countries that are
opposed to both religious and Muslim schools. These opponents warn that
the Muslim private schools at risk of becoming isolated islands in the society,
which increases the already widespread segregation. Some also believe that
there is a danger that Muslim schools are recruiting for “extremist” Muslim
groups (see for example Pekgul 2005).
VI. Controvercies
In 2003 and 2004 Swedish National Agency for Education conducted,

extensive inspection of the Muslim and Arab independent schools. This
was to a large extent a consequence of a television program which showed
the existence of problems and violations in a number of Muslim schools.
The results of the first inspection conducted in autumn 2003 was that two
of the reviewed schools’ permissions were withdrawn, and that six schools
were requested to report improvement (Skoverket 2003-12-18). In 2004,
the National Agency made follow-up visits. In a “result-memorandum” they
write “The interviewed students generally express that they are happy in their
schools and feel secure during their school day”. Furthermore, it appears
that all schools have taken action in the areas where the National Agency
previously identified deficiencies. These measures are considered to have led
to “significant improvement” in the schools (National Agency for Education
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Jenny Berglund
2004-05-12). Never the less, the TV program led to increased debate about
Muslim schools in Sweden. Even those schools that were not criticized in
the program experienced the effects of the program, in terms of negative
attitudes from society. Many Muslim parents and teachers at Muslim
schools thought that the program is part of a “conspiracy” on Muslims in
Swedish society (interview with Parent, May 2004). However, there are
others who share the program’s criticism, and who think it is good that the
situation in the schools was investigated. It is also clear from interviews with
staff at some Muslim schools that the debate after the programs have led to
increased awareness and discussion of how the curricula and syllabi should
be realized. This makes it possible to assert that the critical debate has had
a positive effect by initiating a discussion on professionalization at some
Muslim schools.
Urtehagens Muslim School in Oslo was while running also under

considerable debate. In the spring term of 2004, about a 100 of the pupils
at home by their parents because they wanted to show his distrust of school
management. Even the teachers were protesting against the management by
taking sick leave (Norsk Utdanning 2004-04-21). The County Governor of
Oslo was asked to investigate the school’s problems (Aftenposten 2004-07-
16) and criticized the way school dealt with its finances. As a consequence,
Urtehagens headmaster decided to close the school.
During the early 1990s, the Danish media took an interest in Muslim schools
which led to a strong criticism of schools. The criticism can be summarized in
three different levels: a) criticism of management and economics, b) critique
of education level, c) criticism of the values and standards. As a consequence
of the debate the law on independent schools was altered. According to
Jensen, the changes could be construed as a consequence of the rancorous
debate that raged in both media and among politicians about the integration
of Muslims in Denmark. The change in the law meant that schools must
prepare students to live in a society with “Freedom and democracy”. In
addition, it requires that the school management has to be able to speak
and write Danish and that the teaching of all subjects that should be part
of elementary school teaching should also be conducted in Danish (Jensen
2004:82). In 2003-2004, the Danish Ministry of Education visited, a large
number of “independent schools for Children with two languages”. This led
to even further regulatory requirements.
VII. Concluding Discussion
The establishment of Muslim schools could be understood as one of many

initiatives taken by some Muslims in the Nordic countries to facilitate the
ability to live life according to Islam in a Nordic context. The Muslim private
148
schools activities may be one of several ways to convey Islam as the norm
for both learning and living. However, it is important to remember that
the differences between various Muslim schools are great in many ways.
According to Waardenburg (2003) first-generation Muslims often formulate
their Islam in the new country in accordance with the ideas offered in the
home country. He argues that future generations, and especially women see
new needs in relation to the new country and thereby make changes that
can either mean that they become “secular” Muslims or, for example, seek
authoritative answers to the newly arising issues directly in the Quran and
hadith literature. Others reinterpret and study to include the religious texts
in new ways, for example, by freeing themselves from traditional forms of
textual interpretation (Waardenburg 2003:326-327). It should be noted
however, that while all Muslims share a few basic rules and doctrines,
Islam can be formulated and practiced in a variety of ways. This variation is
combined with national, social or individual characteristics (Waardenburg
2003: chapter 11). In the Nordic countries yet another variable will be
added, since the existent variants will be combined with the cultural, social
and individual conditions which are characteristic of each country. This
dual or rather three-dimensional variation in living conditions, lifestyles
and interpretations make it impossible to speak about Islam in the Nordic
countries, as well as of Islam in Muslim schools, in generalized terms.
This means that not only different schools represent different theological
traditions within Islam (to some extent they sometimes compete with each
other) but also that how they function and what the content of IRE is very
extensively between schools (see Berglund 2010). Awareness of what these
differences between various Muslim schools may mean is very low in the
Nordic countries. How much of the school day that is influenced by religion
also vary widely between the schools. In some schools the religious element
is only one lesson with IRE a week and leave at Muslim holidays while in
other schools it is more important and shape many activities in one way or
the other. A concrete example of this variation may occur is how different
Muslim schools handle the teaching of the Quran. In some schools, it is an
integral part of IRE, in other schools there is none at all. In some schools
every single word the students learn to recite is translated into Swedish while
in yet other schools teachers argue that pupils should first learn the meaning
of what is “proper Islam” and then learn to understand the words in the
recited verses (for further discussion of Quran teaching see Berglund 2010).
One of many things that is interesting about independent schools and IRE is
that Islam is not the only norm. Schools must also live up to their respective
national educational objectives. This means that yet another dimension that
shapes what actually can be taught. The significance of independent schools
and/or the formulation of IRE within the educational system will vary. The
requirement to meet the national goals of education may act as an “incentive”
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Jenny Berglund
to formulate an Islam that takes the Nordic social aspects seriously. Schools
could therefore help in responding to newly emerging issues on how to live
life as a Muslim in the best way.
150
Parental Rights and Educational Freedom
Svein Egil Vestre*1
Parents’ right to decide what kind of education their children receive and
their right to ensure religious and moral education in conformity with their
own convictions, raise pressing questions in multicultural societies. The
idea of parental custody may be seen as a “natural law” that is unrelated to
time and place - parental responsibilities and rights can be seen as a natural
consequence of the biological relationship between parents and children.
In recent times human rights conventions have been used to argue for and
to legitimate parental rights. The Parliament in Norway in 1999 adopted
a Human Rights Act. The following four conventions apply as superior
to Norwegian law: (1) Convention for the Protection of Human Rights and
Fundamental Freedoms (Council of Europe 1950), (2) International Covenant
on Economic, Social and Cultural Rights (UN 1966); (3) International Covenant
on Civil and Political Rights (UN 1966); (4) Convention on the Rights of the
Child (UN 1989). All four conventions assert the principle of parental rights.
Several human rights conventions are a mixture of (1) declaration of

freedom (everyone has the right to freedom of thought, conscience, religion
and expression), and (2) statements of rights combined with performance
requirements: The International Covenant on Economic, Social and
Cultural Rights (Art. 13) states such as: - The States Parties to the present
Covenant recognize the right of everyone to education…primary education
shall be compulsory and available free to all; …to have respect for the liberty of
parents and, when applicable, legal guardians to choose for their children schools,
other than those established by the public authorities, which conform to such
minimum educational standards as may be laid down or approved by the State
and to ensure the religious and moral education of their children in conformity
with their own convictions …
The complimentary principle here laid down requires an economic

contribution from the state. We can argue that the right to basic education
must also entail financial obligations for the state not only in relation to
public schooling, but also in relation to the options that the law recognizes,
i.e. private school or homeschooling. Otherwise it will seem inconsistent
that the same convention both gives the right to free education and gives the
parents a right to choose other training than the publicly organized.
* Institute of Educational Research, University of Oslo
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Svein Egil Vestre
Conventions seem to put religious freedom in a separate class in relation

to the choice of educational options. Freedom of religion and freedom of
expression are in Norway constitutional rights independent of conventions.
But constitutional provisions should be viewed in light of the European
Convention on Human Rights (ECHR), Article 9 & 10. Thus, private
schools or other forms of alternative education are rooted in both freedom
of religion and freedom of expression. The Human Rights Convention
states that freedom of expression should include not only the freedom to
hold opinions, but also to receive and impart information and ideas without
interference by public authority. Dissemination of information and ideas has
always been a school issue.
In 2008 we got a statutory provision for a new mandatory subject (RPE) in

Norwegian schools:
Religion, Philosophies of life and Ethics is an ordinary school subject that

shall normally be attended by all pupils. Teaching in the subject shall not
involve preaching.
The teaching in Religion, Philosophies of life and Ethics shall provide
knowledge of Christianity, other world religions and philosophies of life,
knowledge of the significance of Christianity as a cultural heritage and of
ethical and philosophical topics.
The teaching in Religion, Philosophies of life and Ethics shall promote
understanding, respect and the ability to carry out a dialogue between
people with differing views concerning beliefs and philosophies of life.
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. (Ed.act §2-4)
The new mandatory subject and accompanying curriculum is particularly

problematic in relation to parental custody. First, a limited exemption
scheme has become a contentious issue. Secondly, the concept of preaching
is problematic. It can be interpreted as a ban on intentional and active
influence in religious and ethical context or requirement of so-called “neutral
teaching”. It is argued that the conventions require a neutral instruction if the
subject is to be a common core for all without right of exemption; teaching
the new subject is to be neutral - objective, critical and pluralistic - and not
affect students in the direction of a particular faith or attitude. The condition
for a religious subject without right of exemption or only limited exemption
seems to be that the subject is communicated with no impact. This stands
in contrast to the Norwegian school tradition in religious education
(Christianity). The National Curriculum of 1939 suggests (p. 25): ... The
teacher must always remember that what children learn in religious education,
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Parental Rights and Educational Freedom
should be the basis for their faith and to rule their lives ... And in the NC of 1987
stated (p.102): ... Christian knowledge can in a special way help parents in the
task of raising their children. The content of the subject is important for developing
moral awareness and conduct, which is also a responsibility of the school. While
the subject still represents a cultural and religious heritage, the students learning
the subject, will receive guidance and help in clarifying questions of personal faith.
The RPE-subject, in contrast, does not aim to assist parents in the upbringing
of their children. Rather, the subject is assumed to be so neutral and pluralistic
that it hardly gives answers if the parents should ask: what impact has the
school for my child in relation to religious education?
The state might in the curriculum of the public school choose a neutral
educational concept for common religious education. It is in this case
an ideological choice. But the state’s legitimate right to set academic
requirements for private education should not be confused with ideological
claims. To require that private schools and home education shall follow
the public school’s ideology as it is formulated in a national curriculum is,
in my view, unreasonable and in violation of parental custody. - The spirit
of the conventions is positive obligations in relation to parents’ wishes for
the education and upbringing of their children. Parents are interested in
influencing the curriculum in accordance with their own beliefs. Parents’
rights to educate in accordance with their own beliefs are not respected by
the formula “objective, critical and pluralistic education”. In the conventions
for protection of Human Rights religious influence is seen as a positive right
for parents and children, and not something they must be protected against.
When the convention speaks about compulsory education, this is to be

understood as mandatory education for all, but it is not mandatory to attend
a public school. The freedom to organize alternatives should to be observed.
But it follows of the conventions that the state can set certain minimum
standards for education. - The question of which national requirements
that should apply to private schools and private home education, can easily
result in difficult disputes. In the Norwegian Education Act of 1999 it is
determined that the public school’s mission statement, curriculum, and
provisions on mandatory knowledge about “Religion, Philosophy of Life and
Ethics (RPE)” shall also apply to private schools and training at home. For
private schools and home education there is a “negative” reference to human
rights conventions: - regulations issued pursuant thereto apply for the content
of private primary and lower secondary education in the home insofar as the
regulations do not violate Norway’s obligations under international law (Ed.act
§ 2-13). - The phrase is perhaps chosen based on a desire to be as restrictive
as possible to private schools and home education without coming in obvious
conflict with the conventions.
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Svein Egil Vestre
The minimum requirements can, in my view, not be defined beyond the skills
and general knowledge we need to act as citizens in the society. - Skills in
reading and writing, communicative competence, mathematical skills like
calculations with Arabic numerals are basic; in addition students should
have knowledge of key elements from history and civics. Or, alternatively,
the requirements could be defined as a legal standard with regard to
academic level or performance for private schools or home instruction to
be recognized as equal to what is normally required in the public schools as
measured by national exams or tests.
Generally, it is a policy goal in our society to put the citizens and their needs
at the center. User-orientation is particularly relevant when it comes to
health, social and educational services. Within these sectors an increasing
number of complaints are reported. The issues apply to both qualitative
aspects of services and individual legal protection against abuse of authority.
In the field of education they will be most pronounced in elementary school
because it has a compulsory character, and because the public in fact has a
monopoly on provision of service.
In educational policy we can see two trends dominate the thinking:
I. Uniform schooling: - students in the local community should

go in the same school, the local school should be a social and
cultural meeting place for all. Schools have geographical criteria for
recruitment of students. As for user orientation, they will primarily
have to orient themselves towards the systems-related instruments
such as the school evaluation and complaint mechanisms.
II. Free choice of school: - with the emphasis on free school

establishment and “competition” between schools for recruitment
of students. Arrangements like this will need less institutionalized
legal protection because users will have a major influence on how
alternative schools get money. Free school election establishes a
contractual basis for claims on defined benefits and mutual rights
and obligations. Parent power is in the money and is not embedded in
complaint mechanisms. - If we want to make parents more powerful
than they are today, we can let the school-money follow the student to
alternative education institutions.
154
The four main issues of religion in Egypt
Tayseir M. Mandour*
I. 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.1 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”.2
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”.3 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.
II. 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
* Professor of Medicine, Al-Azhar University, Member of the Supreme Council for

Islamic Affairs, Commission of Dialogue and Foreign Islamic Relations, Member of
the Egyptian Council for Foreign Affairs.
1
President Barack Obama, Remarks by The President on A New Beginning (June
4, 2009), http://www.whitehouse.gov/the-press-office/remarks-president-cairo-
university-6-04-09
2
Id.
3
THE NOBLE QUR’AN: INTERPRETATIONS AND MEANINGS OF THE
NOBLE QUR’AN IN THE ENGLISH LANGUAGE. 49:13 (Muhammad Muhsin
Khan & Muhammad Taqi-ud-Din Al-Hilali trans., Dar-us-Salem Publications 1999),
available at http://www.dar-us-Salam.com/TheNobleQuran/index.html (last visited
Sept. 25, 2010).
155
Tayseir M. Mandour
in modern societies, especially those with multiple identities and religious

pluralism, deeply shaped by globalization.4
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.
III. 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”.5 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”.6
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.7
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
4
RICHARD M. LANDAU, WHAT THE WORLD NEEDS TO KNOW ABOUT
INTERFAITH DIALOGUE (2001), http://www.intculturaldialogue.com/outline.
html (last visited Sept. 2, 2010).
5
THE NOBLE QUR’AN, supra note 3, 2:256.
6
Id . .at 18:29.
7
A. GUILLAUME, THE LIFE OF MUHAMMAD: A TRANSLATION OF ISHAQ’S
SIRAT RASUL ALLAH 231-33 (2002).
156
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.8
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”.9
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].10
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”.11
IV. Importance of interfaith dialogue in peaceful coexistence
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.
8
G. LeviDellaVida and M. Bonner, ‘Umar (I) b. al Khatt b, in ENCICLOPEDIA OF
ISLAM (P. Bearman, et 31. eds., Brill 2d ed. 2010); THE COVENANT OF OMAR,
http://www.mideastweb.org/covenantfomar.html (last visited Sept. 2, 2010).
9
THE NOBLE QUR’AN, supra note 3, at 16:125.
10
Id. at 3:64.
11
Id. at 109:6.
157
Tayseir M. Mandour
A. Recognition and Basis of Equality

There must be recognition of the other community and interaction based
on equality.12 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.13
12
Ketevan Kakitelashvili & Malkhaz Toria, Identity, Similarity, and Difference as Factors
for Intercultural Dialogue, in ROUND TABLE: CAUCASUS - PERSPECTIVE
OF INTERCULTUAL DIALOGUE 45 (Thilisi State University 2007) available
at http://www.culturedialogue.com/unesco/unesco_files/caucasus - Perspective of
Intercultural Dialogue.pdf
13
See Pieter Coertzen, Grappling with Religious Differences in South Africa: A Draft
for a Charter of Religious Rights, 2008 BYU L. REV. 779, 792 (2008) (“[A] plurality
158
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.
V. 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.14 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.15 As cooperation and understanding
increase among the scholarly, this progress will spread to their nations and
peoples.16 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.17
As communities establish and support these dialogues, mutual understanding

among world religions, cultures, and civilizations will increase.18 Each will
gain a greater understanding of the others core beliefs.19 Over the last twenty
of directions is … a reality that has to be reckoned with … The fact that many of the
ideological and religious directions of institutions and associations in society cannot
be accepted … does not mean that they should not be respected and tolerated.
14
See Egypt State. Information Service, Egypt and Inter-civilization Dialogue (2001),
http://www2.sis.gov.eg/En/Pub/magazin/summer110218000000000011.html (last
visited Sept. 2, 2010).
15
See TREVOR NOBLE, SOCIAL THEORY AND SOCIAL CHANGE 67 (Palgrave
Macmillan 2000).
16
See id.
17
DAVID R SMOCK, INTERFAITH DIALOGUE AND PEACEBUILDlNG (David
R. Smuck ed., US Institute of Peace Press, 2002)
18
See id.
19
See id.
159
Tayseir M. Mandour
years, Egypt has sought to establish communication between world religions,

cultures, and civilizations.20 To promote this kind of dialogue, Egypt has
hosted, participated in, and promoted many conferences and events.21 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,22 and entered into
a similar agreement in 2002, when Egypt signed an interfaith dialogue
agreement between Al-Azhar and the Church of England.23
Also in 2002, Egypt participated in the World Economic Forum Davos

conference, held in New York, discussing “Dialogue Between Civilization”.24
Egypt again participated in the World Economic Forum Davos conference
held in Switzerland in 2003, where forum participants discussed interfaith
dialogue among monotheistic religions.25
Egypt also participated in the interfaith dialogue events held in conjunction

with the Olympic Games in Athens in 2004.26 Egypt took an active role in
2006 and 2007, by hosting the World Economic Forum Davos conference in
Sharm El Sheikh.27
In 2008, Egypt participated in a conference with Saudi Arabia, held in

Madrid, discussing “Dialogue Among Civilizations”.28 In addition, in 2008,
Egypt participated in a conference with Saudi Arabia, held in New York,
20
See MOHAMMED ABU-NIMER, AMAL KHOURY, EMILY WELTY, UNITY IN
DIVERSITY: INTERFAITH DIALOGUE IN THE MIDDLE EAST 141-78 (US
Institute of Peace Press, 2007).
21
See id.
22
International Religious Freedom Report: Egypt 2001, http://www.jewishvirtuallibrary.
org/jsource/anti-semitism/relegypt01.html (last visited Sept. 2, 2010).
23
Polly Stewart, Anglicans, Muslims Agree to Promote Understanding, BELIEFNET,
Jan. 30, 2002, http://www.bliefnet.com/News/2002/02/Anglicans-Muslims_Agree_
To-Promote-Understanding.aspx (last visited Sept. 25, 2010).
24
WORLD ECONOMIC FORUM, A PARTNER IN SHAPING HISTORY, THE
FIRST FORTY YEARS, (2009), http://www.worldforum.org/pdf/40years.pdf
25
Id.
26
Eric J, Greenberg, Olympic Spirit Drives Interfaith Meeting, THE JEWISH DAILY
FORWARD, Aug. 13, 2004, available at http://www.forward.com/articles/5122/
27
WORLD ECONOMIC FORUM, supra note 24.
28
P.K. Abdul Ghafour, Interfaith Meet Set for Sept. 30, ARAB NEWS, Sept. 7,
2009. Available at http://archive.arabnews.com/?page=1&section=0&article=
126159&d=7&m=9&y=2009&pix=kingdom.jpg&category=Kingdom
160
discussing dialogue among cultures and civilizations.29
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.30
In 2007, Egypt participated in an interreligious dialogue conference in

Makkah, Saudi Arabia.31 This conference later became the model for
conferences in Madrid and New York discussing “Dialogue Between
Cultures and Civilizations”.32
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.33 The
most recent conference, held in March, 2009, was centered on peace, justice,
and fighting extremism.34
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.35 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.36
29
id.
30
See Arab Thought Forum, http://www.multaqa.org/etemplate.php?id=36 (last
visited Sept. 2, 2010).
31
Ghafour, supra note 28.
32
See id.
33
See Supreme Council for Islamic Affairs, Arab Republic of Egypt, http://www.
islamic.council.org/ (last visited Sept 2, 2010).
34
Egyptian Initiative for Personal Rights: Reports, Publications, and Activities, http://
eipr.org/en/report/2009/12/12/295/303 (last visited Sept. 25, 2010).
35
See Middle East Council of Churches, http://www.mec-churches.org/main_eng.htm
(last visited Sept 2, 2010).
36
See Anna Lindh Euro-Mediterranean Foundation for the Dialogue Between
Cultures, http://www.euromedalex.org/networks/egypt (last visited Sept 2, 2010).
161
Tayseir M. Mandour
VI. 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.
162
Islam and Democracy in Morocco and Algeria
What can we do?
Fouad Laroui
Democracy’s reputation has taken a severe beating in recent years in many

areas around the globe—namely, in certain Arab and Islamic quarters.
While in the past century, there has been no shortage of governmental and
non-governmental opposition to democracy in practice, in theory, virtually
every country on earth has proudly trumpeted support for this principle of
popular sovereignty. Whether in Eastern Europe, Africa, or elsewhere, venal
dictatorships and centralized one-party states have all referred to themselves
as the “Democratic Republic of” their respective countries. Even Enver
Hoxha—the Albanian Communist who was so hard-line that he returned
from visiting Kim Il Sung’s North Korea convinced that it was “dangerously
implanted” with bourgeois revisionism—organized regular elections in
which the people could, in theory, turn him out of power. To take one election
during the last years of his reign as an example, some seven people did vote
against him—but they were outweighed by the 2 million who approved of the
“Paradise on Earth” that the dictator was establishing. To the north of this
Eden lay the German Democratic Republic, for whose regime the presence of
the sacred word in the state’s name was sufficient proof of its virtue (certainly,
compared to the mere German Federal Republic to the West). As the saying
goes, hypocrisy is simply the homage that vice pays to virtue!
Now, however, it is evident that times have changed. On any visit to Algeria or
Saudi Arabia, one can meet plenty of people who squarely reject democracy,
whether in practice, or simply in name. In fact, there is no need to travel at
all: turn on the television and watch Al-Jazeera, or any of the 250 satellite
channels available to the Arab world, and before long you will see these kinds
of pronouncements. I must add, however, that I believe Al-Jazeera is a quality
network that is having success at promoting free speech in the Arab world.
The problem is not with Al-Jazeera, but with some of the self-proclaimed
“true Muslims” who appear on it regularly to air their points of view—thus
taking advantage of the same freedom of speech that they themselves would
abolish immediately were they to seize power!
I. The Strange Case of the FIS—And What It Teaches Us
In Algeria, attitudes toward democracy are clouded by the nearly

schizophrenic relationship many people still have with France. To give just
two examples, they hate France, but with so much passion that it seems like
163
Fouad Laroui
unrequited love, and they celebrate independence from France with not one,
but two, national holidays, yet every year they apply for more and more visas
to visit France. Algerians understand “democracy” only as “something that
came ashore with French troops when they invaded in 1830”. There is no
use explaining that nineteenth-century French democracy was not exactly
a paragon, even by the standards of its day; furthermore, even the relatively
limited rights enjoyed by French citizens in 1830 were never granted to the
indigenous population of Algeria.
For the two-thirds of the Algerian population that voted for the Front
islamique de salut (FIS, or “Islamic Salvation Front”) in 1991–92, democracy
was indeed something foreign—and something French. The FIS had clearly
identified the enemy as the “Hizb Fransa,” the Party of France. Though there
was no such party on the ballot, FIS claimed to know exactly who its members
were. First, all those in power were members of Hizb Fransa, as were all those
who spoke French, read French-language newspapers, or watched French
channels. Of course, many such “members” were outraged, as they had taken
part in the War of Independence in 1954–1962, and lost family and friends.
Their indignation at these accusations of treason was ignored, as it was when
they protested the unsubtle religious implications of the Front’s rhetoric. In the
Quran, the faithful are called “Hizb Allah,” the party of God; thus, both the
FIS and its opponents understood the charge of belonging to another party as
a charge of apostasy, of being an enemy of God.
Against this background, the FIS was able to exploit the government’s
declared commitment to democracy, charging that only the Hizb Fransa
would be concerned with democracy. The Berlin Wall had fallen, and the
Cold War was over. Throughout the globe, a virtual spring cleaning was
taking place, as regimes began dismantling the hollow façades that had
served them during the previous half-century and replacing them with more
substantial democratic structures. There were no more excuses; the right-
wing authoritarian regimes no longer had a communist bogeyman, and the
Marxist-Leninist claim that a small -advance guard- was “the people” no
longer had any authority.
Democracy, then, was the order of the day, and while the term was borrowed
directly for the Arabic-speaking world, in Arabic, dimoqrattiya has a definite
alien flavor. All “true”—that is, linguistically Semitic—Arabic words derive
from a three-consonant root, and are immediately recognizable. But how
many consonants are in this strange word dimoqrattiya? Four, five, no, six!
Its sound is unmistakably foreign. To Western readers, this may seem to
be an arcane, exotic, or contrived point: since when does the number of
consonants in a word explain such critical events as a revolution, a campaign
of repression, or a civil war—all of which occurred in Algeria?
164
Islam and Democracy in Morocco and Algeria What can we do?
Yet it is undeniable that discussion about “the word” took place at the
beginning of a series of events that would lead, in turn, to civil war. Since
dimoqratiyya does not sound like Arabic, it was easy for the FIS to label it
a foreign import, and to charge those who promoted it with being foreign
sympathizers and traitors, conveniently bundled together into the concept
Hizb Fransa.
To further understand how this was possible, recall that for devout Muslims—
including even those of the second and third generations in Europe—there is
nothing worse than bid’a, or “innovation”. By the time they reach adulthood,
they will have heard the phrase “all innovations lead to hell” (kull bid’a fi-
nnar) a thousand times; the association becomes automatic in their minds. It
is true that by “devout” I mean “Orthodox” here, but unfortunately, there has
not been much that is outside this orthodoxy for at least eight centuries—
ever since the last true Muslim philosopher, Ibn Roshd, died, heartbroken
and bitter. In that period, the Abbasid caliphate established the rule that “the
doors of ijtihad”—independent interpretation of scripture—“are closed”.
The little refrain we learned as children—that all innovations lead to hell—
dates from this period. One decision to close a door, and no one would be
allowed to innovate! Anyone who wonders why the once-glorious Islamic
civilization wilted, and then virtually died, should wonder no longer; the
explanation is as loud and clear as the thud of a giant door slamming shut.
This shared psychological background made it simple for the FIS to give
democracy a bad name. They shouted at rally after rally, “Don’t you see, it’s
not even an Arabic word! It is a bidá! And what happens to a bidá?” That
was enough; the mobs knew the answer all too well.
The FIS made a huge mistake: it was too candid about its intentions. Since
it hated democracy, item number one on its agenda was to abolish it after
seizing power. The fact that it was using elections—that is, democracy—as
a means of taking control did not in any way trouble it. If turkeys want to
vote for Christmas, as it were, why would we stop them? On a more sinister
note, even Hitler was duly elected chancellor according to strict democratic
procedures, following a reasonably free and fair election.
The overconfident leaders of the FIS, by contrast, did not even attempt to be
seen as playing by the rules—and thus overlooked the fact that the army, still
accorded the legitimacy it earned during the bloody eight-year war against
France, had no intention of turning over power to a party keen on destroying
before it created. It was not a stretch for the army to imagine a scenario in
which the FIS would decide to dismantle it; every single one of the generals
spoke French, and indeed, had begun their careers in French uniforms.
Indeed, what institution better represented the hated Hizb Fransa than the
165
Fouad Laroui
army? A shiver went down the collective spines of the generals, who canceled
the expected second round of the elections—which the FIS was predicted to
win easily—and declared a state of emergency. Thus passed the only genuine
attempt at democracy in Algeria.
II. Morocco: Between the PJD and the Qawma
Next door, in my own country of Morocco, Islamists steadily gained political

strength, becoming one of the key stars in Morocco’s political constellation.
The lessons of the FIS debacle in Algeria have not been lost on them: you could
not imagine gentler and more modest Islamists than those of the Moroccan
species —at least for the moment. They go by the name of “Hizb al-adala wa
at-tanmiyya,” the Justice and Development Party (PJD in its French acronym).
This name offends no one—after all, who opposes justice or development?
If you ask party members why their group shares a name with the party now
governing Turkey—albeit under the watchful eyes of the military—they
point out that it was they who first chose the name, which was copied later by
the Turks. If you ask them whether democracy is a bidá, an innovation, they
quickly reject the idea: democracy is in fact an Islamic value, they say. After
all, doesn’t the Prophet recommend that Muslims establish a shurah council
in order to govern a city? Shurah means something like “consultation”. One
must “consult” the people on every question—how democratic, after all!
And when pressed to explain how they will strike a balance between the
tenets of Islam and the principles of democracy—such as freedom of speech,
freedom of conscience, absence of religious discrimination—they repeat ad
nauseam that they do not see any contradiction between the two. Even when
confronted with unavoidable contradictions, notably regarding equal rights
for women or homosexuals, they repeat their vague credo that “there are no
problems”.
Not everyone is convinced. Many people, in fact, think that the PJD is
practicing what is known as taqiyyah, which could be loosely translated as
“sacred hypocrisy,” and means that it is permitted to lie about one’s faith or
intentions when under duress, or when circumstances require it. Ironically,
taqiyyah has come to be associated with Shia Islam, and is used routinely by
Sunnis as an insult (Hypocrites! Liars!). Morocco is entirely Sunni, so it is
quite puzzling that the PJD is practicing taqiyyah—if that is indeed what is
going on. (It would be interesting—but beyond the scope of this paper—to
explore whether taqiyyah is practiced in Europe by those well-dressed and
soft-spoken Islamists, pampered by the governments of countries such as
Britain and the Netherlands as “good Muslim” partners, in contrast to the
“bad guys” of al-Qaeda.)
166
Here, at least, we have yet another example of an uneasy, if not strained,

relationship between Islam and democracy. Certainly, in light of the
disastrous experience with the FIS, the more cautious PJD has taken to
heart the idea that if you can’t beat ‘em, join ‘em. And thus it claims to be as
democratic as any other party, if not more so. Its evidence for democracy,
the divine concept of shurah, carries more weight than something devised
by sinners named Rousseau or Mill. Should we believe the PJD? As a French
politician once said, “Promises only bind those who listen to them . . . ”
In its defense, the PJD can at least point to a group nastier than itself: the
illegal (but tolerated) Islamist group called “al-Adl wa al-ihsan,” meaning
something to the effect of “Justice and Good Deeds”. The name itself has
no significance. Al-Adl, as it is commonly known, is in fact a cult, led by
a Sheikh Yassine—no relation to the Hamas leader, also Sheikh Yassin,
killed by Israel in 2004. (Actually, many followers of al-Adl used to believe
that the two sheikhs were the same man. This truly amazing Moroccan ex-
schoolteacher could be in two places at the same time! His ubiquity was proof
of his quasi-prophetic status; the sect’s leaders never denied such rumors,
which were certainly lapped up by the rank-and-file. I point to this and other
absurdities to indicate just what kind of struggle democrats face in a country
like Morocco!)
Al-Adl has a clear view of democracy: it hates it. (This is not an exaggeration
or a hostile characterization; in fact, it has to hate it, because democracy is a
bidá, and God has ordered the group to hate such things.) And so we return
to a similar situation. Democracy is a despicable innovation propounded by
the frenchified elite of Morocco— so explains Nadia Yassine, the fanatical
daughter of the sheikh, in the perfect French she acquired in the French
schools to which her father sent her, long before he discovered his divine
mission on earth. In contrast to the FIS of old, al-Adl takes this belief to
its logical consequences; since it does not believe in democracy, it will not
participate in elections. Why would people want to join a party if it does
not plan to seek power? The answer is that it does plan to attain power, not
through elections, but through a qawma, that is, an insurrection, which is
supposed to take place soon. Since the PJD also plans to accede to power
soon, though by democratic means, it is understandably uneasy about al-
Adl’s prophesies. Yet such unease is also beneficial to the PJD, which gains
thereby an aura of respectability. Its unspoken question to Moroccans seems
to be: since Islamists are going to govern you in the years to come, wouldn’t
you prefer the PJD, which plays the democratic game, to that madman
Yassine and his qawma? I must say that many Moroccans seem to answer
with a resounding “yes,” whereas many others frown at having to choose, as
they say, between cholera and the plague.
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Fouad Laroui
III. What It Means for Europe
Almost all of the 250 satellite TV channels in the Arab world can be watched
in Europe, which causes an interesting dilemma: should we, in the name
of democracy, allow anti-democratic voices to be heard? This is especially
relevant in the country where I live today; integration in the Netherlands
has become harder now that you can easily immerse yourself, twenty-four
hours a day, in an entirely non-Dutch world, where Arabic is the language,
and a bearded, anti-democratic TV imam is the authority. Should that
imam be tolerated? This is a well-known problem: more than two centuries
ago, Saint-Just and Camille Desmoulins were already shouting, “Pas de
démocratie pour les ennemis de la démocratie!’’ (No democracy for the
enemies of democracy!) Regarding the FIS, the PJD, or al-Adl, all we can
do at the moment is pay close attention to the situation. After all, the qawma
might not take place anytime soon; in the 2007 election, for example, secular
political parties won a majority.
But here in Europe, where there are millions of hearts and minds to be won,
this is an existential question. The second and third generations of Muslims
are Europeans, and they are here to stay. No discussion about the need to
protect and promote democracy can ignore the fact that these men and
women have been exposed to the ideas outlined above. In this light, a careful
distinction must be made between two possible attitudes regarding Islam
and democracy.
The first concerns the question of bidá. If we engage in a debate on whether

democracy is an innovation, it is soon lost. Instead, we must reject the whole
notion of denouncing “innovations” to begin with. This notion has nothing to
do with Islam as a faith, and is certainly not one of the religion’s tenets. Even
the most orthodox Muslims have to concede that there is only one equivalent
of the Roman Catholic “mortal sin” in their religion, polytheism (as-shirk), and
therefore, innovation cannot be a mortal sin. Even the most orthodox Muslims
have to concede that there are exactly five canonical obligations, no more, and
no less: the shahada (profession of faith), daily prayer, fasting during the month
of Ramadan, the giving of alms (zakat), and the pilgrimage (hajj) to Mecca, for
those who can afford it. Therefore, rejecting every bidá cannot be a canonical
obligation. One can be a good Muslim and embrace any innovation that does
not contradict the five canonical obligations. Simply stating that democracy is
a bidá does not imply anything about its value or pertinence.
Much less clear is the second attitude, that the umma (Islamic community)
is supreme over all other groups, distinctions, or differences in opinion. For
the most extreme proponents of this idea, the umma is still waiting for its
caliph, or supreme ruler. Since the catastrophic day in 1924 when Turkey’s
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founder Ataturk abolished the caliphate and sent the last caliph into exile in
Switzerland, some Muslims have hoped for a kind of restoration. In Morocco,
I was surprised to encounter recently some individuals who refuse to pray
in the mosque on Fridays, because it “makes no sense” to them without a
caliph in whose name to say the collective prayer. I refrained from asking
them whether the new caliph should be a Turk, an Arab, or an Iranian: the
resulting discussion would have been never-ending.
I also did not share with them the conclusive answer given by the Muslim
judge Ali Abderraziq, who showed in 1925 that it did not make much sense to
have a caliph. One can be a perfectly good Moslem without having a person
who is the incarnation of a kind of spiritual power. And as for secular power,
a caliph made even less sense, according to the esteemed judge. Shortly
after meeting those unusual individuals, I saw Abderraziq´s booklet, Islam
wa usul al-hukm [Islam and the origin of government], on sale in Marrakesh
for a very reasonable price. This shows that there is no shortage of serious
reflections on Muslim culture and religion, whether from the early twentieth
century, or afterward. What is missing is a serious effort to promote and
spread these works. There are plenty of petrodollars set aside to promote the
views of those who mechanically repeat orthodox teachings. Perhaps some
European institution should devote funds to translating and distributing
books like Abderraziq’s? Maybe it should be given free of charge to every
young person, in the same way extremist propaganda is distributed gratis?
But what about those young Muslims who are not waiting for the new
caliphate, but who are, nonetheless, very much seduced by the idea of an
umma? The problem is simple to grasp when stated clearly: the notion of a
community that transcends all geographic boundaries, all social classes, all
personal differences, and the like, is at odds with the idea of democracy. If a
Muslim in the Netherlands feels that he is closer to a Pakistani five thousand
miles away than to a next-door neighbor who happens to be Christian,
agnostic, or Jewish, then something is wrong. Politics refers, most of all, to the
running of the polis, the “city” where people live—not some imaginary polity
made of people separated by thousands of miles. The geographic position
of the Netherlands means that it is constantly threatened by floods, rivers,
water, and similar natural disasters. Keeping the country running means
ensuring that all inhabitants care enough to cooperate closely to address
each problem. The degree of “cohesion” of European (or any other) societies
is determined by such practical issues. Dutch Moroccans or Dutch Turks,
many of whom have dual citizenship, cannot delete the part of themselves
that makes them responsible for fighting the clear and present danger of, say,
flood. They can feel nostalgic toward the country where their parents were
born, they can be devout Muslims if they want to, but they must fight against
the water with their fellow Dutchmen.
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Fouad Laroui
If you do not think you are in the same boat, then something is wrong.
This is exactly what is happening with some second- and third-generation
Muslims in Europe. It is a worrying development, and is far from being
strictly theoretical. Think of the two Dutch teenagers of Moroccan origin
who died in Pakistan, trying to find a way to join the Taliban. Think of the
young Frenchmen who died in Chechnya fighting the Russians. Think of the
young British men who blew themselves up in the London tube, killing other
Britons with whom they felt no solidarity or sympathy because they were not
part of the umma.
In the Netherlands, this does not appear to be seen as a problem. The Dutch
are used to the verzuiling system of denominational “pillarization,” which
divided much of social life along religious lines. We may ask, since it worked in
the past, why it should not work now. There is one good reason, however: the
understanding of the umma now propagated in Europe, even by those whom
the foreign minister is glad to host in The Hague for a cup of coffee, is an
aggressive one. They say that the umma is in a fight to the finish. Either they will
destroy us, or we will destroy them. The clash of civilizations was not invented
by Samuel Huntington or Bernard Lewis (who did use the phrase first), but
by the founders of the Muslim Brotherhood, many decades before. As long
as such ideas are allowed to prevail, pillarization will not bring pacification.
On the contrary: forcing people into a Moslem pillar will in some cases breed
resentment. This is what a young man could say: “I was born in this country,
I was raised in it, I have a Dutch passport, and yet you see me primarily as
a Muslim? Okay, I will be that, and even worse: I will be an alien. I will have
nothing to do with your society”. So much for democracy. Those who think
that this is fictional should read what Mohammed Bouyeri—the young man
who killed Theo van Gogh—and people like him, have said or written.
I remember how shocked and angry I was when, some years ago, I received
a letter from the head of the Amsterdam Police Department wishing me a
happy Ramadan. The intention was good, but then again, bid’a is not the only
thing that leads to hell. What shocked me most was that the police seemed to
have a list of all “Muslims” living in Amsterdam. That raised an interesting
question: did the police have a list of all Jews living in Amsterdam during
the war? Of course—something the Germans found very useful. When I
inquired, I was told that such a list did not exist—the police had, instead,
used the highly sophisticated method of sending the cards to those with
“Muslim-sounding” names. Thus, a fashion boutique, owned by a very blue-
eyed Dutch person, received a card congratulating the store on the occasion
of Ramadan. The boutique’s name: Baobab. Definitely “Muslim”. This is not
merely all in good fun, as it proves my point: people do not seem to realize
how dangerous it is for a democracy to allow groups to form that then begin
to estrange themselves from the nation.
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IV. What to Do?
What can be done? It seems to me that we must be unrelenting in explaining,

again and again, that the whole progress of civilization was based on the
emancipation of the individual. And we must be equally unrelenting in
defending the rights of the individual, specifically those of individual women
and individual members of all minority groups. As for groups, we should
treat them along the lines of the famous speech of Clermont-Tonnerre to
the French Constituent Assembly in December 1789, when he stated what
emancipation really meant: “We must refuse to give anything to the Jews as a
nation, and to give everything to the Jews as individuals!”
What would the proponents of the FIS have to say in response? No doubt
they would criticize the author as another frenchified person trying to
introduce an alien concept into our glorious Islam. This could impress some
people who are ignorant of history, but those who are familiar with the past
know that it is not so alien. One could argue that the whole movement of
emancipation of the individual began on Islamic soil, first in the Baghdad
of the Abbasids, and later in Muslim Andalusia. To state but one fact, how
many of these so-called Muslims have ever heard of the Ikhwan as-safa (the
Brothers of Purity), the first encyclopedists, who tried to record on paper the
whole profane knowledge of their times? Answer: zero. I asked the question
repeatedly during my last trip to Morocco. Nobody seemed to know anything
about the Ikhwan as-safa. Does it matter? It does. The French Encyclopedists,
led by Diderot and d’Alembert, represented an essential moment in the
emancipation of the individual, which eventually led to democracy in its
present form. Would democracy and the primacy of the individual not be
more acceptable to Muslims—more natural—if they knew that these are not
alien innovations? Here again, we see how destructive ignorance can be.
Yet ignorance comes from both sides, alas. In all my years of studying in
various French schools, lycées, and universities, I never heard any mention of
the Ikhwan as-safa. I never heard anything said about Ibn Roshd (Averroes)
or al-Farabi, either, though I did learn a lot about Voltaire and the French
Encyclopedists, which has instilled in me a profound attachment to freedom
and democracy. But for the new generations in Europe, subjected to the
propaganda of anti-democratic fundamentalists at home and in the mosque,
Voltaire may not be enough. We must tell them—and show them—that the
desire for freedom and democracy ran in the veins of their own ancestors.
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Respect for philosophical and religious
convictions of parents in Education
‘Real pluralism and real democracy require
real choices for parents’
Michael P. Donnelly*
I. Introduction1
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.2 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
* 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.
1
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.
2
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.
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Michael P. Donnelly
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.
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‘Real pluralism and real democracy require real choices for parents’
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.
II. 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).
III. 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 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
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Michael P. Donnelly
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.
IV. The Hand that Rocks the Cradle Rules the World3
Until the Middle Ages the state played a minor role in education. The
Reformation in Germany initiated the interest in literacy and the interest
3
William Ross Wallace poem, “The Hand That Rocks The Cradle Is The Hand That Rules
The World,” 1865.
176
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.
V. 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:
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Michael P. Donnelly
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.)
VI. 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)
178
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).
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Michael P. Donnelly
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).
VII. 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:
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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 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).
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Michael P. Donnelly
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,
182
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.
VIII. 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 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).
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Michael P. Donnelly
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
184
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.
IX. 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:
185
Michael P. Donnelly
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).
X. 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.
• 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/
186
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).
187
The ambiguous case of teaching religion in Spain
Diana Zavala Rojas & Camil Ungureanu*
I. 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”.1 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.2
* 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)
1
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.
2
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.
189
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.3
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.4 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”.5
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,6 and to
the constitution of new religious communities resulted from immigration.7
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).8
The tension between these forces is reflected by the Spanish “model” to

teaching religion. Spain has moved away from the state religion model and
3
Ibid. and Martínez-Torrón (2006), op. cit.
4
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.
5
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.
6
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.
7
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.
8
Cortés, V. (2009) “Hacia el primer colegio musulmán de España”, El Pais.
190
its standard upshot – a full-fledged confessional approach of education.9

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.10
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.11
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 secularity12. 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.
II. Models of teaching religion
For the purpose of our discussion, we distinguish five types of religious

education.
9
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.
10
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.
11
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.
12
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.
191
A. 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.13
B. The Secularist model

The “secularist model”14 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.15 However, militant secularism was
most systematically 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
13
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
14
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.
15
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.
192
of mutual toleration.16 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.
C. Exclusive laicism (laïcité)

The French model of laïcité emerges from the French Revolution – as does
the conflict between the state and the Catholic Church.17 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.18 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.19 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.20
16
See also Glenn, C. L. (1999) “Character-building and freedom in education”,
European Journal for Education Law and Policy 2, pp. 125–144.
17
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.
18
Gauchet, M. (2001) La réligion dans la démocratie: parcours de la laicité (Romanian
translation), Humanitas.
19
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.
20
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.
193
D. 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.21 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.22
E. 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.23 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.
21
Parekh, B. (2000), Rethinking Multiculturalism: Cultural Diversity and Political Theory,
Macmillan; Kymlicka, W. (1995) Multicultural Citizenship, Oxford University Press;
Modood, T. (2005), 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.
22
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.
23
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
194
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.
III. The Spanish approach to teaching religion (1)
A. 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.24 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
24
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/)
195
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.25 This hostility is part
of a strong Catholic/anti-Catholic 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”.26 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.27
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.28
25
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.
26
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.
27
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”.
28
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.
196
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.29
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)30, the Organic Law on Religious Freedom
(LOLR)31 and the Organic Law in Education (LOE).32 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
29
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
30
“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.
31
(1980b), Ley Orgánica 7/1980, de 5 de julio, de Libertad Religiosa. Boletín Oficial del
Estado (BOE) núm, 177 (LOLR)
32
(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.
197
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.33
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 School34, the Agreements
with three minority religious communities: Islamic, Jewish and Protestants35
33
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.
34
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.
35
(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.
198
(1992) and the Provisions36 and Resolutions37 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.38 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 1992.39 This was
in part due to the division of the Islamic community into two associational
bodies, the Spanish Union of Islamic Communities (UCIDE)40 and the
Spanish Federation of Islamic Religious Entities (FEERI)41. 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 religion42 (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
36
Orden de 9 de abril de 1981, Boletín Oficial del Estado (BOE) núm, 95; (1993b),
Órden 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.
37
(1996a), Resolución de 23 de Abril de 1996, Boletín Oficial del Estado (BOE) núm, 108
38
Martínez-Torrón, Separatismo y cooperación en los acuerdos del Estado con las minorías
religiosas, 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.
39
Jiménez-Aibar, I. (2004), El Islam en España: aspectos institucionales de su estatuto
jurídico. Berrizoar, Navarra Gráfica, Navarra.
40
Unión de Comunidades Islámicas de España
41
Federación Española de Entidades Religiosas Islámicas
42
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.
199
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).
B. Organizing and financing education

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
school43. 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.44 The numeric
43
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.
44
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
200
importance of State-funded Catholic schools varies from region to region.

Some Autonomous Communities (A.A. C.C.)45 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 Barcelona46. There are no Islamic
schools funded by the State or depending on the official representatives of
Muslim communities,47 although there is a project to open the first Islamic
primary school in Granada.48 There are three private Islamic schools
authorized in Spain.49
de Estadística y Archivos del Consejo General de la Educación Católica) on pupils

enrolled in Catholic schools in 2009-2010.
45
Spain is divided politically in 17 self-governed regions called Autonomous
Communities.
46
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 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
47
Spanish Islamic Commission (Comisión Islámica de España, CIE)
48
Cortés, V. (2009), ´Hacia el primer colegio musulmán de España´, El País
49
Royal decree 806/1993 May 28 (Real Decreto 806/1993 de 28 mayo) regulates
foreign schools established in Spain. Lorenzo and Peña, op. cit.
201
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 Spain
Pupils in
Catholic public-
funded schools
Pupils in catholic over all pupils in non-public
Public owned- Public-funded public-funded public-funded funded private
Primary education schools private schools schools private schools schools
TOTAL 67,19 28,89 20,30 70,28 3,93
Andalusia 75,81 20,98 16,45 78,39 3,21
Aragon 66,94 30,14 28,16 93,45 2,92
Asturias 68,50 29,07 27,17 93,46 2,43
Balears 63,28 33,70 27,93 82,87 3,02
Canary Isl. 75,00 19,72 10,09 51,19 5,28
Cantabria 63,35 36,26 29,48 81,30 0,38
Castile & Leon 66,83 32,73 30,93 94,50 0,43
Castile-La Mancha 82,25 17,16 13,98 81,49 0,60
Catalonia 63,72 33,90 20,11 59,30 2,38
Valencia 67,10 28,50 22,59 79,26 4,41
Extremadura 78,61 20,86 16,95 81,28 0,54
Galice 68,58 29,42 20,27 68,89 2,00
Madrid 53,15 34,14 21,24 62,20 12,70
Murcia 71,75 26,72 13,69 51,22 1,53
Navarra 63,94 36,06 24,25 67,25 0,00
Basque Country 49,54 49,58 29,04 58,58 0,88
Rioja 65,93 34,07 32,18 94,44 0,00
Ceuta & Melilla 1,15 48,18 12,22 50,10 0,76
Source: Own calculations based on Ministry of Education (2010) “Estadística de la Enseñanza en

España niveles no universitarios: Educación Primaria Curso 2008-09, (Statistics on Teaching in
Spain in non-University Levels. Primary 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.
202
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 Spain
Pupils in
Catholic public-
funded schools
Pupils in over all pupils in Non-public
Secondary Public owned- Public-funded Catholic public- public-funded funded private
education schools private schools funded schools private schools schools
TOTAL 65,89 30,52 22,55 73,89 3,59
Andalusia 75,35 21,73 17,66 81,29 2,92
Aragon 63,70 33,88 32,49 95,89 2,42
Asturias 64,98 32,67 30,37 92,96 2,35
Balears 61,13 35,83 30,79 85,95 3,05
Canary Isl. 75,54 20,31 11,21 55,20 4,15
Cantabria 62,24 35,88 31,01 86,42 1,88
Castile & Leon 63,33 36,04 34,20 94,90 0,63
Castile-La Mancha 80,52 18,21 16,19 88,87 1,27
Catalonia 59,62 38,22 23,03 60,24 2,16
Valencia 66,17 30,10 24,61 81,74 3,72
Extremadura 76,89 22,61 19,22 85,03 0,50
Galice 69,38 28,09 20,10 71,57 2,54
Madrid 52,05 36,20 24,56 67,85 11,75
Murcia 71,66 26,93 14,60 54,22 1,40
Navarra 60,70 39,30 28,71 73,06 0,00
Basque Country 44,60 54,52 35,42 64,96 0,87
Rioja 64,32 35,68 34,72 97,31 0,00
Ceuta & Melilla 1,61 38,72 12,66 66,41 0,00
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.
203
D. 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.50 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.51
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.52 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.53
50
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.
51
Royal Decree 1631/2006, Second additional provision. Teachings of religion. Art. 6
b) Ibid.
52
Royal Decree 1513/2006, First Additional Provision and Royal Decree 1631/2006,
Second additional provision.
53
Consejo Escolar del Estado (Nacional School Council) (2010), Informe sobre el Estado
y Situación del Sistema Educativo. Curso 2007/2008, Ministerio de Educación, Madrid.
204
Table 3 shows the number of students attending religious courses at each level of
basic compulsory schooling by type of school.
Hist. &
PRIMARY EDUCATION Catholic Protestant Islamic Jewish Cult. of Opt out
Rel.
ALL 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
88,37% 0,10% 0,02% 0,02% -- 11,49%
SCHOOLS
NON-PUBLIC FUNDED
69,19% 0,05% 0,14% 0,13% -- 30,49%
PRIVATE SCHOOLS
Hist. &
SECUNDARY EDUCATION Catholic Protestant Islamic Jewish Cult of Opt out
Rel.
ALL 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
84,71% 0,06% 0,02% 0,02% 2,17% 13,03%
SCHOOLS
NON-PUBLIC FUNDED
61,09% 0,26% 0,15% 0,03% 10,02% 28,45%
PRIVATE SCHOOLS
Source: Ministry of Education (2010) “Estadística de la Enseñanza en España niveles no

universitarios: La enseñanza de la religión. Curso 2008-09” (Statistics on Teaching in Spain in non-
University Levels. Teaching of Religion Course 2008-2009).
IV. 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.54 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.55 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.56
54
1979, op. cit; LOE Second Additional Order 2006, op. cit.
55
Royal Decree 1513/2006, First Additional Provision, and Royal Decree 1631/2006
56
Consejo Escolar del Estado (State’s School Council), op, cit.
205
Articles 120 and 121 of the LOE give administrative and “ideological”
autonomy to schools for developing an educational project.57 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.58
The LOE provides that enrolling a child in a school implies accepting its
educational project (Article 84.9)59. 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 Council60, 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 Catholicism61.
Second, the Agreements with minority religious communities do not
57
Ibid.
58
However, parents decide if children participate in additional religious activities or
not.
59
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
60
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.
61
1979, op.cit.
206
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.62 Third, the Agreements
do not provide that religious instruction of minority communities would
be designed in comparable terms with other fundamental courses.63
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 1981.64 The representatives of the
Protestant community presented them in 1993 - one year after signing the
Agreements.65 In turn, the CIE did not agree on the contents of a curriculum
of the course on Islam until 1996.66 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.67 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.68
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.69
62
Ibid, Art. 7.
63
Ibid; Lorenzo and Peña, op. cit.
64
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.
65
(1993b), op.cit.
66
(1996a), op.cit; see also Planet, A. I. (2005), Íslam y Escuela´, in García, B. and M.
Berriane, M. (eds.), Atlas de la inmigración marroquí en España. Taller de Estudios
Internacionales Mediterráneos, Madrid.
67
1996a, 1996b, op.cit.
68
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)
69
“Pluralismo y Convivencia” (2010), Recursos didácticos por confesiones, Pluralismo
y Convivencia, available at: http://www.pluralismoyconvivencia.es/recursos_
didacticos/confesiones/evangelicos
207
Even if the Muslim population is the largest minority religious community in

Spain, 70 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”
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 1,086
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. 71 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.72
The Agreements signed with minority religious communities do not
require private schools receiving public funding to offer courses on
70
Bravo, F. (2010), Íslam 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/
71
Rodríguez-Moya, op.cit. p. 16
72
Planet, op. cit.
208
Islam, Protestantism or Judaism, if this is at odds with their educational

project.73 If there is a strong tension between parents’ requirements and the
school’s “philosophy”, the educational authorities reallocate the student.74
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.
V. 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”.75 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”.76
Second, the “school environment”, to which symbols pertain, should not
lead to indoctrination, but foster a culture of respect and pluralism.
73
Laws 24/1992, 25/1992 and 26/1992 Art. 10.1., and 1992a, 1992b, 1992c, op. cit.
74
See section below on religious symbols in public schools
75
Ibidem
76
Ibidem. See also note 11, supra
209
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 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 77 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.78 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.79
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
77
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.
78
Alvarez, P., Ńajwa vuelve a clase en un instituto cercano al que no la admitió con
“hiyab”´, El País, 28 April 2010
79
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.
210
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.80 The Court argued that Lautsi (2009) needed to
be interpreted within the Spanish constitutional context, which precluded its
mere “linear or literal extrapolation”.81 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.82 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”.83 Secularism (laicismo) is defined as an “ideological
current” characterized by its “rejection of the religious fact in all its public
manifestations”.84 In turn, a state that is positively secular85 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
80
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.
81
Ibid, para 4.6.
82
Para 4.4
83
Ibidem
84
Ibidem
85
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).
211
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 symbols86 and, even worse, to the “othering”
of Muslims currently taking place in long-established democracies like
Switzerland or France.
VI. 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”.87
However, there is a relative convergence88 in terms of advancing a
“neutrality-and-cooperation” approach.89 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
86
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.
87
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”).
88
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.
89
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 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).
212
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 ..”.. 90 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),91 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”.92
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 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
90
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.
91
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.
92
The Lisbon Treaty is available at: http://europa.eu/lisbon_treaty/index_en.htm
213
of the Spanish society.93 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.94 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.95 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.96
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.
93
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.
94
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.
95
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.
96
Cembrero, I. and Ceberio, M., Ńi 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.
214
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.
* 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.
215
Rubens Becak
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.
I. 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
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.
216
Brazil - Ethical-Moral and Constitutional Aspects
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.
II. 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.
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:
2
GALDINO, Elza. Estado sem Deus: a obrigação da laicidade na Constituição. Belo
Horizonte: Del Rey, 2006, p.2.
3
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.
217
Rubens Becak
“(...)
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.
(...)”
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.
218
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.
(...)”
7
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.
219
Rubens Becak
III. 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 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:
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
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.
220
“(...)
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
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.
221
Rubens Becak
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
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.
222
has led to the intensification of the arguments about the reinforcement of the
secular character of the State.
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.
IV. 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.
223
Rubens Becak
V. 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.
224
Religion in Education and Respect for Parental
Convictions in Education
Johan Beckmann*
I. 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.
a. Relevant provisions of the Constitution of 1996 (the Constitution)

regarding religion, opinion and belief
b. The White Paper on Education and Training of 1995 (White Paper)
c. Relevant provisions in the South African Schools Act, 84 of 1996 (SASA)
d. The Policy on Religion in Education (“the Policy”)
e. An incident
f. Assessment of the state of religion in education and recognition of the
voice of parents
II. Relevant Provisions of the Constitution of 1996 Regarding

Religion, Opinion and Belief
A. 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) …
* University of Pretoria
1
Census 2001
225
Johan Beckmann
(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
B. 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 –
2
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 Constitution
4
Section 1 (d) of the Constitution.
226
Religion in Education and Respect for Parental Convictions in Education
(a) those observances follow rules made by the appropriate public

authorities;
(b) they are conducted on an equitable basis; and
(c) 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:
1. 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
2. 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
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
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
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.
227
Johan Beckmann
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
4. 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.
5. 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.
C. Section 29(3)
This Section provides that –
Everyone has the right to establish and maintain, at their own expense,
independent educational institutions that -
(a) do not discriminate on the basis of race;
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 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.
228
(b) are registered with the state; and

(c) 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-
(a) …
(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).
229
Johan Beckmann
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.
D. Section 31
Section 31 of the Constitution provides the following in regard to cultural,
religious and linguistic communities:
(1) Persons belonging to a cultural, religious or linguistic community may

not be denied the right, with other members of that community -
(a) to enjoy their culture, practise their religion and use their language; and
(b) to form, join and maintain cultural, religious and linguistic associations
and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.
12
The court of final instance in South Africa.
230
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).
III. 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:
1. 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.
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/1995
231
Johan Beckmann
This prevents the state from not respecting the parents’ convictions
regarding their children’s education.
2. 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
IV. 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:
1. To provide for the organisation of schools
2. To provide for the governance of schools
3. To provide for the funding of schools
Some 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.
1.1 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.
1.2 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
15
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.
232
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
1.3 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 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
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.
233
Johan Beckmann
1.4 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
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.
234
1.5 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.
1.6 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.
31
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.
235
Johan Beckmann
V. 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
35
Pretoria: Department of Education. Approved by the Council of Education Ministers
on 4 August 2003.
36
Par 1 of the Policy.
37
38
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.
236
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.
VI. An Incident
The CESA and Wittmann cases have been discussed.44 A survey of the
literature reveals that there is only significant incident to be discussed.
A. 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
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.
237
Johan Beckmann
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,
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.
238
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.
VII. 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.
239
Public Funding of Religious Education in Finland
Päivi Gynther*
I. Introduction
A. Social Context
For readers familiar neither with the religions nor the education system of
Finland, it may be convenient to start with a couple of introductory notes.
The first concerns the religious landscape. No detailed statistics are available
about the religious affiliations of people permanently residing in Finland, and
the numbers from different sources vary quite a bit. In the table below, the
number of Lutherans is estimated to be 84%, whereas data from Statistics
Finland shows that the number of Evangelical Lutherans is as low as 79%
and the number of non-affiliated as high as 17.7%. Small minorities of Greek
Orthodox Christians, other Christian denominations and churches, and
non-Christian communities total together less than 3% of the population.1
Whatever the exact figures may be, most of the Finnish people are members
of the Evangelical Lutheran Church. The second largest group of the
population is registered merely in the statutory Population Information
System maintained by the Population Register Centre and local register
offices. Thus they are not counted as member of any religious community.
Nonetheless, many members of, for instance, the Pentecostal and Muslim
communities appear in the statistics as non-affiliated, as will be discussed in
greater detail later.
* University of Jyväskylä, Department of Educational Sciences

1
These figures are from the website of the Evangelical Lutheran Church of Finland http://
evl.fi/EVLen.nsf/Documents/230282E6EFEF75C6C225730E00426EE1?open
Document&lang=EN
241
Päivi Gynther
Table 1. Churches and religions in Finland
%
Lutherans 4,378,000 84
Orthodox 57,000 1
Pentecostals 50,000 1
Members of Finnish Free Church 13,000 -
Roman Catholics 7,900 -
Adventists 4,100 -
Baptists 2,500 -
Methodists 1,200 -
Anglicans-Episcopalians 100 -
Members of other Christian churches 1,000 -
Muslims 30,000 -
Jehovah’s Witnesses 19,200 -
Mormons 3,300 -
Jews 1,200 -
Non-affiliated 700,000 13
Another introductory note concerns the position of religious education in

the school system of Finland. As will be described, publicly-funded religious
education and ethics actually already starts, in one form or another, at day
care. Every child under school-age has a right to day care arranged by the
municipality, and religious and ethical teaching is a statutory part of the day
care. Likewise, each municipality is obliged to offer pre-school education for
6-year-old children, even if attendance is not compulsory. Comprehensive
school is usually started at the age of seven. The completion of the basic
education syllabus takes nine years. The general upper secondary education
– divided into academic and vocational paths – starts on average at the age of
15/16 and the syllabus is completed in about three years.
B. Constitutional Context
Freedom of religion and conscience is acknowledged in the Constitution of
Finland (731/1999), Section 11, which reads as follows: “(1) Everyone has the
freedom of religion and conscience. Freedom of religion and conscience entails the
right to profess and practice a religion, the right to express one’s convictions and
the right to be a member of or decline to be a member of a religious community. (2)
No one is under the obligation, against his or her conscience, to participate in the
practice of a religion”. Besides, the right to freedom of religion is supported by
the general clause on equality and non-discrimination, contained in Section 6
of the Constitution. Accordingly: “no one shall, without an acceptable reason,
242
be treated differently from other persons on the grounds of religion, conviction,

opinion…” among other prohibited grounds of discrimination.2 Section
11 of the Constitution is implemented, first of all, through the Freedom of
Religion Act (453/2003). This Act addresses the legal status of churches
and religious associations by distinguishing between three different types
of religious communities: (1) the Evangelical Lutheran Church of Finland;
(2) the Greek Orthodox Church of Finland, and (3) the registered religious
communities. Entities falling into the third category achieve legal capacity
once they are entered in the register of associations kept by the National
Patent and Register Board. A group consisting of no less than 20 individuals,
who are above 18 years of age, can become officially registered as a religious
community organization. The right to profess and practice a religion per se
does not require that the community is registered as a religious association.
Nevertheless, only the official registration brings with it the right to school
religious education, as will be described below.
This paper is organized as follows: Chapter 2 discusses the place of religious

education (hereafter RE) in the current education law of Finland. Chapter
3 examines what types of implementative regulations are issued for the
provision of religious education, followed by a discussion on publicly-funded
denominational schools and their state supervision in Chapter 4. Chapter 5
makes some observations on the limitations of freedom in respect of religious
education in general and Chapter 6 in respect of Islam in particular. Chapter
7 concludes by highlighting some of the recent reform efforts concerning the
topic at issue.
II. The Place of Religion in Current Education Law
The constitutionally-guaranteed freedom of religion and conscience does

by no means mean total liberation from religious education. Neither does it
mean an obligation on the state to provide religious instruction in schools. In
the current education law of Finland, religious education exists as subject in
its own right for all pupils of comprehensive school level and in the academic
path of upper secondary level. The Basic Education Act (628/1998) and
the Upper Secondary Education Act (629/1998) were both amended on
this point in 2003 (Amendments 454/2003 and 455/2003). Before then,
education law acknowledged no more than a negative right to be exempted
from religious instruction. The Basic Education Act, Section 13, concerning
religious education and ethics, now reads in its entirety:
2
It is also worth mentioning that Section 76 of the Constitution guarantees autonomous
status for the Evangelical Lutheran Church of Finland. For historical reasons, it is
the national Parliament that has ratified the Church Acts of the Evangelical Lutheran
Church (1054/1993) and the Orthodox Church (985/2006).
243
Päivi Gynther
1. The provider of basic education shall provide religious education in

accordance with the religion of the majority of pupils. In this case, religious
education is arranged in conformity with the religious community to
which the majority of pupils belong. A pupil who does not belong to this
religious community may attend the said religious education after the
provider of basic education has been notified of the matter by the parent/
carer.
2. Three or more pupils not belonging to the Evangelical-Lutheran Church
or the Orthodox Church who do not participate in religious education
referred to in subsection 1 shall be provided education in accordance
with their own religion.
3. Three or more pupils belonging to a religious community other than
those referred to in subsection 2 who do not participate in religious
education referred to in subsection 1 shall be provided religious education
in accordance with their own religion, if their parents/carers so request.
4. If a pupil belongs to more than one religious community, the pupil’s
parent/carer shall decide in which religious education the pupil will
participate.3
5. Pupils who do not belong to any religious community and do not take
part in religious education referred to in subsection 1 shall be taught
ethics. A pupil belonging to a religious community who is not provided
religious education in accordance with his or her religion shall be taught
ethics when requested by his or her parent/carer. The provider of basic
education shall organise ethics education if there are at least three pupils
entitled to it.
6. A pupil who does not belong to any religious community may, at the
request of his or her parent/carer, also participate in religious education
provided by the provider of basic education which, in view of his or her
upbringing and cultural background, evidently corresponds to his or her
religious beliefs.
As subsection 13.1 states, religious education shall be provided in accordance

with the religion of the majority of pupils. In practice, this means that religious
education in public schools is rendered mostly in the creed of the Lutheran
majority. As to minorities, the case of the Orthodox Christian religious
education differs somewhat from other religions, in line with the special
position of the Evangelical Lutheran Church and the Orthodox Church in
Finnish legislation.4 Religious education is automatically provided when
3
The question of who decides on the denomination of the child is laid down in Freedom
of Religion Act (453/2003), Section 3. This Act also permits a person to belong to
several religious communities concurrently. It is up to the religious communities to
decide whether or not they allow for a dual membership.
4
See above, footnote 2.
244
there are at least three Orthodox children in municipality schools, without

parents requesting it. Religious education in other religions is provided only
if the following three prerequisites are fulfilled: there is a minimum of three
pupils representing that faith in the municipality; the religion in question is
officially registered in Finland; and the parents/guardians of the pupils make
a request to this effect.
The Upper Secondary Education Act, Section 9 is almost identical to Section

13 of the Basic Education Act, quoted above. However, whereas in basic
education it is the parents/guardians that shall request religious education in
other than Evangelical-Lutheran or the Orthodox Christian faith, in upper
secondary school the request is to be made by the student herself/himself. In
the pre-primary education, the core curriculum does not divide instruction
into subjects or lessons, but it does include ethics and philosophy as a
subject field of its own. At this level, parents/guardians may decide among
the same options as in primary education.5 In the Vocational Education Act
(630/1998), nothing is stipulated about religious education.
Religious education in schools shall not involve the practice of religion.

When each pupil is entitled to education in her/his own faith and also
obliged to participate in it, s/he also needs protection against abuse through
religious indoctrination. As a solution, given by the Finnish legislature, the
term “religious education according to the pupil’s denomination” used in the
previous statutes, is replaced by the term “religious education in accordance
with their own religion”.6 Pupils that are not members of any congregation
or religious group are provided education in secular ethics, with the same
preconditions as for pupils belonging to religious minorities, as described
above.
III. Implementative Regulations
Under the Finnish law, the syllabus of comprehensive and upper secondary
school shall contain studies in religion or ethics. The Government decides
on the allocation of the time to be used for instruction in different subjects.
The National Board of Education is authorized to decide on the objectives
and core contents of the different subjects, inclusive of religious education.7
The statutory requirement that applies to all religious education in public
education institutions is laid down in the National Core Curriculum for
Basic Education (2004) and the National Core Curriculum for Upper
5
The National Board of Education defined the core curriculum for pre-primary
education in 2000.
6
See subsections 13.2 and 13.3 of the Basic Education Act, above.
7
Basic Education Act, Section 14 (13.6.2003/477).
245
Päivi Gynther
Secondary Education (2003) respectively. These core curricula define the

purpose of religious education in the following words: “The main purpose of
religious education is to offer stimuli for the construction and development
of students’ own religious view on life by teaching them about their own
religion, the life and thinking of various religions, and by giving students the
readiness to understand different world views”.
It is the duty of the provider of education to draw up the local curricula

based on the national core curriculum.8 In the case of religious education, the
National Board of Education elaborates, in cooperation with the respective
religious communities, a separate RE curriculum for each religious
community officially registered under Finnish jurisdiction.9 That is to say,
for any religious education provided under Section 13 of the Basic Education
Act, or for Section 9 under Upper Secondary School Act, a curriculum shall
be accepted by the National Board of Education.
At present, there are RE curricula in basic education for the following religious
communities, of which some half are different forms of Christian faith;
Adventist, Bahá´í, Buddhist, Christian Community, Evangelical Lutheran,
Free Church, Greek Orthodox, Hare Krishna, Islamic, Jewish, Latter Day
Saints, Lord’s People (Herran kansa ry.) and Roman Catholic. The reason
for each officially registered religious community having a curriculum of its
own is that more denominational content of the religious community at issue
can be included, although other religions are also studied.
IV. Publicly-funded denominational schools and state supervision
A. Estimate Figures
Of all Finnish children subject to compulsory education, less than 3 per cent
attend private schools. Most pupils complete the basic education syllabus
by attending comprehensive public schools, which are run primarily by the
municipalities and financed by local and central governments. At the upper
secondary level, the number of private education providers is higher as
there is no statutory duty for local authorities to arrange education above
compulsory school age.
Statistical information provided online by the National Board of Education

does not contain data about the number of pupils in denominational
schools.10 According to the Association of Private Schools in Finland, some
80 private schools provide general education. Among the publicly-funded
8
Ibid, Section 15.
9
On official registration of associations, see Chapter 1.2, above.
10
http://www.oph.fi/tietopalvelut/tilastotiedot
246
private schools, only a small number are denominational. There are 25

Steiner-schools, based on anthroposophy, with some 5500 pupils altogether,
and 15 Christian schools, with the number of pupils in them totaling some
1000.
The number of other faith-related schools is very low. Religious education

in Judaism takes place in the Jewish School in Helsinki, which is maintained
by the Jewish Community. Finnish Jewry numbers some 1500, of whom
most live in the capital area. The school offers tuition at the comprehensive
school level and has as its special responsibility the teaching of Hebrew and
Judaism. The English School in Helsinki is a private Catholic foundation,
offering tuition at primary and secondary levels. The Catholic Church in
Finland has some 11,000 members. The English School in Helsinki has the
special responsibility of teaching the Finnish and English languages, along
with the culture of the Finnish and Anglo-Saxon countries.
B. Control of publicly-funded denominational schools

The education referred to in the Basic Education Act may be provided only
by a registered association or a foundation that has been authorized by
the State Government.11 When founded, private schools are given state
subsidies comparable to that given to a municipal school of the same size.
Homeschooling is also permitted in Finland, and according to the National
Board of Education, is favored increasingly among those religious minorities
that have no faith schools of their own.12 Nonetheless, the number of
homeschooled children is low, totaling in 2009 only some 400 pupils.
According to Section 26 of the Basic Education Act, the local authority of
the pupil’s place of residence shall supervise the progress of homeschooled
children.
As to the control of the content of teaching in publicly-funded denominational

schools, these schools follow the same distribution of lesson hours and
national core curriculum as the schools maintained by local authorities or
the state. Moreover, their RE curriculum must be accepted by the National
Board of Education, as was described in Chapter 3 above.
11
Basic Education Act (628/1998), Section 7.
12
Counsellor of Education Irmeli Halinen, 5.7.2010 http://www.mtv3.fi/uutiset/
kotimaa.shtml/arkistot/kotimaa/2010/07/1152076
247
Päivi Gynther
V. Limitations of Freedom in Respect of Religious Education
It is unlikely in Finland that a pupil applying for a school place in a publicly-

funded denominational school is refused access for reasons of conviction
or belief. If this were to happen, it would violate the non-discrimination
clause of the Constitution.13 Furthermore, any private school that has been
authorized to provide education referred to in Basic Education Act, must
admit all its pupils on the same basis as the corresponding municipal school.
It is noteworthy, however, that the Finnish system itself maintains the

grouping of pupils along religious lines, instead of enabling joint religious
education. Border-crossing between different religious education classes is
not a matter of free choice. Only those pupils that are not members of any
religious community are free to opt for ethics. In addition, several conditions
must be met before a non-Lutheran pupil can take part in Evangelical
Lutheran religious education. First, reading verbatim subsection 13.6 of
the Basic Education Act,14 a pupil shall not belong to any other religious
community; second, a request from her/his parent/carer is required;
and third, the religious education provided shall be “in view of his or her
upbringing and cultural background” and “evidently correspond to his or
her religious beliefs”, as subsection 13.6 of the Basic Education Act puts it.
Only students that start upper secondary school when they have reached the
age of 18 are free to choose whether they want to study religious education
or ethics. Total exemption from both religious education and ethics is not
possible, as the basic education syllabus shall contain one of these subjects.
VI. The Peculiar Position of Islam
A. Random Statistics
As appears in the Table 1, presented at the beginning of this article, Finland has
an estimated 30,000 followers of Islam. That figure is available at the website
of the Evangelical Lutheran Church of Finland. In other sources, the number
varies from 8,200 to 45,000. For instance, Statistics Finland underlines that
the information on religious community collected by it by does not represent
inhabitants with a foreign background accurately. This may be because not
all immigrant religious communities are officially registered, and not all
those practicing a religion belong to parishes. For example, according to the
Population Information System maintained by Statistics Finland, some 72%
of Somali-speaking people permanently residing in Finland do not belong to
any registered religious community.15
13
See above, Chapter 1.2.
14
See above, Chapter 2.
15
Source: http://www.stat.fi/til/vaerak/2009/vaerak_2009_2010-03-19_laa_001_en.html
248
For the same reason, there are no exact statistics about the religious affiliation
of pupils in general education. As Table 2 illustrates, this particularly
concerns children of non-Christian faith.16
Table 2. Attendance of religious education and ethics in Finnish comprehensive

schools
2003 % 2008 %
Evangelic-Lutheran faith 552958 94.53 512 705 93.57
Orthodox faith 6934 1.19 7 003 1.28
Ethics 14056 2.40 15 543 2.84
Other religions 6775 1.16 8 919 1.63
No attendance 4257 0.73 3 763 0.68
Total 584980 100.00 547 933 100.00
Interestingly, detailed numbers concerning pupils in two forms of Christian

faith (Evangelic-Lutheran and Orthodox) are discerned in Table 2, whilst
other forms of Christian faith (Catholic, Free Church etc.) along with all non-
Christian religions are grouped as one single category. Altogether, some 20
officially registered communities of Islamic faith (Sunnis, Shias etc.) are also
included in this category. However, it has been estimated that only some 10-
15% of Muslims in Finland are members of a registered Islamic community.
As was mentioned above, only those pupils that are members of an officially
registered religious community have the subjective right to receive minority
religious education of their own. The rest falls into the categories of ethics,
no-attendance or remain uncounted.
B. Teacher Competence
One of current controversies in religious education debate revolves around
teacher competence. All Finnish teachers are required to be Master’s degree
graduates, no matter whether they teach primary or secondary level students.
The majority of subject teachers in RE are Masters of Theology who have
specialized in teaching. Since the law reform of 2003, teachers of RE do not
have to be members of the religious community of the religion they teach.
The main emphasis is placed on pedagogical skills instead of the conviction
of the teacher. Members of minority religious communities, again, may find
16
Table 2 was delivered by the Counsellor of Education responsible for religious
education at the National Board of Education as a reply to my request for RE statistics.
According to the same source, there are no figures of even this precision for upper
secondary schools. E-mail correspondence with Counsellor of Education Pekka
Iivonen 9.9.2010; http://www.oph.fi/download/119433_Koulutuksen_maaralliset_
indikaattorit_2009.pdf
249
Päivi Gynther
it difficult to accept that their religion is taught to their children by someone

not sharing their faith, with how ever high academic degree. There may be
mistrust towards non-confessional education, along with a fear of a covert
attempt to convert Islamic children away from the faith of their parents.
On the other hand, from the formal qualification requirements it follows

that there are hardly any competent Islamic religious teachers available.
When unqualified persons are employed as Islamic teachers, they are paid
less, often lack pedagogical skills, and also may be unwilling to teach their
pupils about other religions, as expected in the national core curricula. An
additional teaching challenge follows from the fact that minority religious
education groups are often linguistically very heterogeneous, pupils coming
from many different parts of the world.
There has been public debate on the establishment of an Islamic School in

Finland. Those arguing for it say that it is a better alternative than Islamic
parents sending their children to Qur’an Schools abroad. However, for
instance, the current Minister of Immigration Astrid Thors has stated as her
opinion that no Islamic schools shall be established in Finland.17
VII. Latest reform
In Finland, where the system of public schools prevails, the challenge of intra-
school multi-faith reality is more acute than the supervision of private schools.
Honkaheimo & Luodeslampi (2009) raise the following standpoint: “In
contemporary Finland the multi-faith schools have concentrated around the
largest cities, especially in the areas of (capital) Helsinki. If there are many
more faith traditions who want to have their own curricula in schools, the
costs of RE will become higher than nowadays. It might put pressure on RE
integration”.
Just lately, a committee has been deliberating on reforms to the distribution

of lesson hours. It proposes, among other reforms, that ethics be introduced
as a new compulsory subject for all. Another new proposal, relevant for
the issue dealt with in this article, is that there should be at least ten pupils
requesting minority religious education classes – instead of the current
three – before the education provider shall be obliged to provide for it. The
proposal of the committee has been circulating for comments during the
summer of 2010. Both of the suggestions mentioned here have been far and
wide resisted by religious communities, both those in the majority and those
in a minority. A government decree will be drafted to be issued in early 2011
on the basis of the committee proposal.
17
Helsingin Sanomat 6.2.2010.
250
Publicly-funded religious education in Finland strives to be non-confessional.

Yet, it is far from easy to provide religious literacy for all pupils irrespective
of their denominational affiliations.
VIII. Bibliography
•• Aikonen, R.(2009). Orthodox Religious Education in Finland – Principles

and Basis (unprinted)
•• Alitolppa-Niitamo, A. (2002), The Generation In-between: Somali youth
and schooling in metropolitan Helsinki. Intercultural education, 13 (3),
275-290.
•• Holm, N.G. (2000), Islam and Christianity in School Religious Education.
Religionsvetenskapliga skrifter nr 52. Åbo Akademi University: the
Department of Comparative Religion.
•• Holma, M. (2000). Finland. Peter Schreiner (ed.), Religious education
in Europe. A collection of basic information about RE in European
countries, 37-41. Münster: ICCS / Comenius-Institute.
•• Honkaheimo, M. & Luodeslampi, J. (2009). Religious Education in
Finland http://www.mmiweb.org.uk/eftre/reeurope/finland_2009.html
•• Pyysiäinen, M. (2000). Yksi oppiaine, seitsemän opetussuunnitelmaa.
Peruskoulun ja lukion opetushallituksen 1990-luvulla vahvistamien
opetussuunnitelmien tunnustuksellinen luonne. Tutkimuksia 223.
Helsinki: Helsingin yliopiston opettajankoulutuslaitos.
•• Sakaranaho, Tuula. (2006). Religious freedom, Multiculturalism, Islam:
Cross-reading Finland and Ireland. Leiden & Boston: Brill.
Statutes:
Basic Education Act (628/1998)

Upper Secondary School Act (629/1998)
Freedom of Religion Act (453/2003)
National core curriculum for basic education (2004). Finnish national board
of education. http://www.oph.fi/english/publications/2009/national_core_
curricula_for_basic_education
National core curriculum for upper secondary education (2003). Finnish
national board of education.
http://www.oph.fi/download/47678_core_curricula_upper_secondary_
education.pdf
Core curriculum for pre-school education in Finland (2000). Finnish
National Board of Education, Order 64/011/2000.
251
Päivi Gynther
Statistics:
KOTA, on-line database of the Ministry of Education, Finland,

https://kotaplus.csc.fi/online/Etusivu.do?lng=en, accessed 4 October 2010.
Statistics Finland, www.stat.fi/til/akop/index_en.html, accessed 4 October
2010.
252
Issues Regarding Relations Between Religion
and the State in the Framework of the Right to
Education. Albania’s Case
Juliana Latifi*
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 education1.
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.
* Lawyer, Specialist for the higher education rights, Professor of private law, Tirana
International University, Albania.
1
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
253
Juliana Latifi
I. 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 centuries2.
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 Zog3.
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 guaranteed4».
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
2
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 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.
3
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…”
4
Arben Puto, quoted material, page 471.
254
in the Framework of the Right to Education. Albania’s Case
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,5 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 women6. 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 issues7.
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 atheism8, the banning of any religious activity or process, as well as the
perception of religious practice as a criminally punishable action9, in the
5
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.
6
Arben Puto, quoted material, page 338.
7
See, Civil Code of 1929. Papirus Publication, Tirana, 2010.
8
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
9
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
255
Juliana Latifi
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 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
Albania10.
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
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
10
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
256
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 itself11”.
II. 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 right12.
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
right13.
11
Ismail Kadare, in the same material, page 14-16.
12
Commentary. Code of Administrative Procedure, page 23-27. Institute of public and
legal studies. Tirana, 2001.
13
Jean-Francois Akandji-Kombe, Positive Obligations under the European Convention
257
Juliana Latifi
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 programs14.
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 belonging15.
on Human Rights. A guide to the implementation of the European Convention on

Human Rights. Human rights handbooks, No. 7.
14
BVerfGE 93, 1 (Kruzifix), page 195. Selected Decisions of the Federal Constitutional
Court of Germany. Vinsent-Grafika, Skopje, Macedonia, 2010.
15
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
258
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”16.
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 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 law17, 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
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.
16
17
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
259
Juliana Latifi
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 418) .
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 it19.
18
Draft-law « On pre-university education », Article 36, Limitations of some actions in
an education institution
1. 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.
www.mash.gov.al
19
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”.
www.mash.gov.al
260
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 view20.
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 21.
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:
1. 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.
2. 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 context22, and as writer Ismail Kadare says: “Religious harmony
20
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.
21
BVerfGE 39, 98, page 183. Selected Decisions of the Federal Constitutional Court
of Germany. Vinsent-Grafika, Skopje, Macedonia, 2010.
22
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,
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Juliana Latifi
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 legal23.
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 on24”.
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 interpretation25,
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
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.
23
Ismail Kadare, in the same material, page 14.
24
25
Luan Omari. Parime dhe institucione të së drejtes publike (The principles and
institutions of public law. Elena Gjika Publication, Tirana, 1993, page 133-137.
262
also the freedom to live and act in compliance with the personal conviction of this
religion. The freedom of religion guarantees 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 displayed26».
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:
i. Whether there was an interference;
ii. Prescribed by law;
iii. Legitimate aim;
iv. Necessary in a democratic society27.
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 countries28?
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
26
27
Handyside v. the United Kingdom (7December 1976).
28
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.
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Juliana Latifi
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
person29”
III. 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 Advocate30.
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:
1. Wearing of the Islamic veil from Muslim believers, such as pupils,
students, and teachers;
2. Distinctive appearance, such as a beard peculiar to Muslim believers.
The first report which dated in 200131, 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”.
29
Kokkinakis v. Greqise (25 May 1993)
30
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
31
Official webpage of The People’s Advocate of the Republic of Albania. www.
avokatipopullit.gov.al
264
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
communities32, 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 agreements33, 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.
32
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.
33
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”
Qendra e Publikimeve Zyrtare (Official Publications Centre). www.qpz.gov.al
265
Juliana Latifi
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.
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
266
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.
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Juliana Latifi
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 law34.
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 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”.
34
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.
268
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 35. 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 state36”. 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
35
See, 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
36
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.
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Juliana Latifi
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 all37.
37
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
270
IV. 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 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.
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Juliana Latifi
••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”.
V. 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.
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273
‘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 Avest*1
I. 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.
* InHolland University of Applied Sience, Amstelveen, the Netherlands
275
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.
II. 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.
276
amongst seven ex-pupils of an Islamic primary school 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
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,
277
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.
III. 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
278
their integration in the Netherlands?
By means of qualitative research we expect to find answers to these questions. Before

we Identity
present theDevelopment
setup and workand Integration:
method Report
of our survey, we willon a qualitative
further elaborate onsurvey
the
amongst
theoretical seven ex-pupils
framework of an
within which Islamic
this survey primary school in the Netherlands
takes place.
of Theoretical
III. his respondents to two questions. Those questions are displayed in the
framework
diagram below.
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
Figure 2: four acculturation strategies according to Berry
respondents to two questions. Those questions are displayed in the diagram below.
Question 1: Does one find it

important to
maintain the own
cultural identity
and
characteristics?
Four acculturation
Question 2: strategies
Yes Integration Assimilation
Yes No
Does one find it important to
maintain relations with other groups
in society?
No Segregation Marginalisation
Figure 2: four acculturation strategies according to Berry
In literature, a lot has been written on the (non)integration of migrant worker in the
In literature,
Netherlands. Threea final
lot stages
has been
can bewritten on the
distinguished in the(non)integration of (Van
process of integration migrant
Amersfoort,
worker inin:the Eldering 2002, p. 28Three
Netherlands. ff.). The moststages
final drastic can
final be
stage is absorption (or
distinguished in the
assimilation). In that case the
process of integration (Vangroup of migrants in:
Amersfoort, hasEldering
completely2002,
mergedp. with the The
28 ff.).
most drastic final stage is absorption (or 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
279
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.
IV. 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
280
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.
281
V. 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 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’.
282
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.
VI. 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:
283
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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belevingen van het moslim zijn (p. 7). Leuven: Acco.
285
The Place of Religion Under Education Law –
Country reports
I. Religious instruction organised during the school hours (in lower

and in secondary education) in state funded schools
I.1 Question: Religious instruction organised during the school hours

(in lower and in secondary education) in state funded schools. Is – and
if affirmative please refer to the provisions in the law (add the text
separately) – the teaching of religion in your country organised during
school time in public educational institutions: in primary education, in
secondary education.
I.2 Question: What choices amongst the religious education possibilities

are offered in public educational institutions , e.g. catholic religion,
Islamic teaching, ….
II. State funded denominational schools and state supervision
II.1. Question: Are there state funded denominational schools in your

country? If affirmative, what is the numeric importance of state funded
schools. If affirmative, what is the numeric importance of Islamic state
funded schools. Please refer to statistical information on-line
II.2. Question: Are there non-state funded denominational schools in

your country (private)? If affirmative, what is the numeric importance of
private schools. If affirmative, what is the numeric importance of Islamic
private schools. Please refer to statistical information on-line
II.3. Question: How do the authorities control the teaching in state

funded denominational schools and are there any special questions about
the control of the content of teaching in state-funded denominational
schools? Please refer to the provisions in the law.
287
The Place of Religion Under Education Law – Country reports
III. Refusal or limitations on the number of pupils of another

conviction/belief by the governing board of a confessional (catholic)
school
III.1. Question: Does the head of a state funded denominational (e.g.

Catholic) school have the right to refuse pupils from other religious
beliefs? Please refer to the provisions in the law.
III.2. Question: Does the head of a state funded denominational (e.g.

Catholic) school the authority to limit the number of pupils from other
religious beliefs (e.g. Muslim pupils) in order to support the specificity of
the project?
IV. Point of views of the authorities concerning the teaching of

Islam in denominational (Catholic) education, Islam instruction or
instruction on other convictions/beliefs in denominational (catholic)
schools for (a number of pupils requesting it) and alternative ethical
course
IV.1. Question. Is there a legal obligation to organise, if parents ask for,

classes of Islamic religion in denominational (Catholic) education funded
by public authorities? a. for any pupil for whom a request has been made?
b. from a minimum number of pupils for whom a request has been made?
IV.2. Question. Does the same obligation exist for the offer of (a) other
religions and/or philosophical convictions, (b) an alternative class of
conception of life, philosophy, ethics
IV.3. Question. Can you shortly mention the pro and contra standpoints
that have been expressed concerning the respect of fundamental rights
(among others, freedom of education and right to education) in relation
with this obligation?
IV.4. Question. Reference to the legal basis, with Website address, and
also if possible to the parliamentary preparation of texts.
288
The Place of Religion Under Education Law – Country reports
V. Teaching of Islam in denominational (e.g. Catholic) schools at

their own initiative
V.1. Question: Is there in your country a general guideline for teaching

of Islam in denominational (e.g. Catholic) schools at their own initiative
defined by (a) the Bishops’ Conference, (b) another body, namely. . .
V.2. Question: If affirmative, does the guideline implies that (a) the
teaching of other religions is organised when: one parent asks for, or
a sufficient number of parents ask for (how many?), (b) only teaching
of Islam is offered as alternative religion when one parent asks for or a
sufficient number of parents ask for (how many?)
V.3. Question: There is no guideline and: (a) in fact, teaching of Islam

is never proposed in Catholic schools, or (b) the teaching of Islam is
organised in some schools, which have taken themselves the initiative. If
possible, explain the importance of this option
VI. Religious symbols in public schools
VI.1. Question: Are religious symbols (e.g. crucifix) in public schools

compulsory, allowed, or forbidden?
VI.2. Question: Is a teacher allowed to wear the Islamic headscarf and

manifest her religion? Please explain if not allowed on which grounds.
VI.3. Question: Is a pupil allowed to wear the Islamic headscarf and

manifest her religion? Please explain if not allowed on which grounds.
VI.4. Question: Who decides on the dress code in schools. Please refer to
the law.
VI.5. Question: Can a pupil and/or a teacher be exempted from the dress
code when she considers it her religious duty to wear the Islamic headscarf?
VI.6. Question: Who is the regulatory authority in this sphere?
VI.7. Question: What kind of disciplinary measures and proceedings are

taken if the pupil or teacher fails to comply with the rules on dress codes?
VI.8. Question: Please describe the case-law in your country.
289
BahaeddinBudakandInaterAvest*ThePlaceofReligionUnderEducationLaw–Countryreports
VII. After-school education in private religious institutions. Islamic

instruction organised after the school hours (age 6-18)
VII.1. Question: Is there any form of Islamic teaching (for children and
youngsters of age 6-18) in your country organised after school time in
private religious institutions:
VII.2. Question: Is there any form of Islamic teaching in your country

organised in primary education age (6-12)
VII.3. Question: Is there any form of Islamic teaching in your country

organised in secondary education age (12-18)
VII.4. Question: How many such institutions are there in your country
providing Islamic instruction organised after the school hours?
VII.5. Question: How many children take part in the activities of Islamic
instruction organised after the school hours?
VII.6. Question: How is the pedagogical quality of Islamic instruction

organised after the school hours safeguarded?
VII.7. Question: How would you characterize the public debate about
this form of Islamic instruction organised after the school hours?
VIII. Additional comments
XI. Bibliography
290
The Place of Religion in Education in Albania
Juliana Latifi* and Nikoleta Mita**

I.1. The public education in Albania is secular. This feature of the public
education is determined by Constitution of the Republic of Albania.
Based on the Constitution some others laws regulate the relationship
between education and religion. (See Annex 1)
The main legal documents1 that regulate the right to religious education and
freedom of religion in schools in Albania are:
• Law No.7952, date 21.6.1995 On Pre-University Education System,
changed by Law No.8387, date 30.7.1998 For Some Changes in the Law
No.7952, date 21.6.1995 On Pre-University Education System;
• Decision of Council of Ministers No. 248, date 28.05.1999 On Criteria
and Procedures of giving permission for functioning of non-public
education institutions and complementary education institutions that
teach religious subjects or the language of instruction is a foreign language;
• Law No. 8902, date 23.05.2002 For Ratification of the “Agreement
Between the Holy See and the Republic of Albania on the regulation of
the mutual relations”;
• Law No. 9365, date 31.05.2005 On Procedures of Recognizing of the
Legal of the religious of the Holy See;
• Agreement between Government and Islamic Community (Muslim
Sunni), Government and Orthodox Community, Government and
Bektashi (Muslim Shiite), 2008.
The legislation regulates the right to religion and religious education; the
relationship between the state and the non-public schools that offer religious
subjects as well; relationship between the state and the religion communities;
set the requirements for establishing and controlling the activity of non-
public schools that offer religious subjects; foresees rules to the teachers and
parents in exercising the right to religion.
* Lawyer, Specialist for the higher education law, Professor of private law, Tirana
University, Faculty of Law, Albania.
** Professor of Education, Tirana University, Faculty of Social Sciences, Albania.
1
Qendra e Publikimeve Zyrtare (Official Publication Centre), available at http://www.
qpz.gov.al
291
Based on this legislation, in Albania there are two types of schools of the
pre-university education system: public secular and non-public that offer
religious subjects as well.
Article 10, points 1, 2 and 4 of the Constitution 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…” “The state and religious communities ...
cooperate to the good of each and all”.
The Article 24 sanction: “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”.
So, the article 24 of the Constitution permits the exercise of religion through
education. This establishes the freedom of religious education both through
religious schools and by permitting information of religion to be treated in
public schools.
This means that the position of the Albanian state in the field of religious
education must be not only a neutral and unbiased one, but must also include
positive interventions to ensure freedom of education in the religious field.
The legal formula of the solution is given by the Constitution and it is realized
through agreements between the state and four main religious communities
in Albania.
Article 57, paragraph 6 of the Constitution of Republic of Albania, which

recognizes the right of students to education in non-public schools at all
levels, must be seen as closely linked to Article No. 5 of the Law No.7952, date
21.6.1995 On Pre-University Education System, changed by Law No.8387,
date 30.7.1998 For Some Changes in the Law No.7952, date 21.6.1995 On
Pre-University Education System, states that the Ministry of Education
and Sciences (hereinafter MOES) is responsible for the enforcement of the
state policy on secular education, approved by the Council of Ministers.
So, MOES is not taking responsibility for the religious part of the private
schools that offer religious subjects as well nor for the religious schools.
292
Article No. 14 of the Law No.7952, date 21.6.1995 On Pre-University

Education System, changed by Law No.8387, date 30.7.1998 For Some
Changes in the Law No.7952, date 21.6.1995 On Pre-University Education
System, prohibits teachers from influencing students’ social, political and
religious beliefs.
The procedure for establishing a secular private school, according to the

Pre-University Education Law and the Decision of Council of Ministers No.
No. 248, date 28.05.1999, is different from establishing a religious school.
While a secular private school, where classes are taught in Albanian, receives
its license from the Ministry of Education, the approval of the Council of
Ministers is needed for a non-public school that offer religious subjects and
for a non-public school where classes are taught in a foreign language.
Currently, according to the MOES data2, the main religious communities in

Albania have established institutions for the respective religious education.
For example, the Albanian Muslim Community (Sunni version) has under its
subordination 4 medresses and 3 joint schools (elementary and secondary).
The Orthodox community administers 1 secondary school.
I.2. Regarding the access that religious information has in public school
programs at the pre-university level, it must be emphasized that significant
improvements have been made in comparison with the past. Once, such
information was “heretical”. Currently, the public school curricula of all
levels of schooling transmit knowledge on religious philosophy, on the
history of the development of religions, their geographical distribution
and actual problems of cohabitation in different regions. The information
on religion is integrated in the different subjects that are compulsory and
students can’t opt out. Optional religious subjects are not a case in Albanian
schools.
The place that religions have in pre-university public school textbook

systems are limited and conditioned by plans and programs developed by the
Institute of Curriculum and approved by MOES.
2
Ministria e Arsimit dhe Shkences se Republikes se Shqiperise (Ministry of Education
and Science of the Republic of Albania), available at http://www.mash.gov.al
293
Problems related to religion: the birth of religions, their essence, their role
in history, etc., are partially addressed in the textbooks of a 9-year history
system of secondary education (Gymnasium) and in texts “Social Education”
“Knowledge Society”, “History of Literature” and texts related to the arts.
Religions do not represent any point of reference3.
II.1. No, there are no state funded denomination schools in Albania.
II.2. Yes, there are non-public schools that offer religious subjects and
private religious schools funded by religion communities.
The Ministry of Education and Science declares that during 2009-2010
school year, from 518 private educational institutions only 8 (equal to 1,9 %)
are non - state denominational schools.
From 8 non-state denominational private schools only one belongs to
Orthodox religion. From 2079 students that attend non-public schools that
offer religious subjects 2044 equal to 98% attend Islamic private schools.
See the attached file in Annex 2. Source: Ministry of Education and Science
(rmerdani@mash.gov.al)
II.3. In Albania there are foreseen some rules on controlling the non-public
schools that offer religious subjects. The following are two main articles
related to this issues taken from the Law No.7952, date 21.6.1995 On Pre-
University Education System, changed by Law No.8387, date 30.7.1998
For some Changes in the Law No.7952, date 21.6.1995 On Pre-University
Education System
Article 45
45.1 MOES determines equivalency for recognition of the transcript of a
private grade or a private school. If the private school offers the religious
subjects as well, the MOES determines the equivalency for the recognition of
the laic part of the curriculum at the end of a private grade or a private school.
Article 47
Ministry of Education and Science and its education organs in districts
control regularly the laic education process in the private school in order to
verify accomplishment of the requirements of the curricula and the education
programs approved by the Ministry of Education and Sciences.
More detailed requirements related to the control are included in the
3
Adrian Klosi at all, Feja dhe shkolla ne Shqiperi (The religion and schools in Albania),
Soros Foundation in Albania, 2010, available at http://www.soros.al
294
Decision of Council of Ministers No. 248, date 28.05.1999 On Criteria and

Procedures of Giving Permission for Functioning of Non-public Education
Institutions and Complementary Education Institutions that Offer Religious
Subjects or Instruction is given in a Foreign Language.
Point 2 of this document requires from non-public school that offer religious
subjects, submitting to the MOES the following documents:
• Curriculum and syllabi. Structure of the school year of non-public
education institutions that offer religious subjects or instruction is given
in a foreign language has to be equivalent to the structure of the public
school of the same level. The complementary non-public institutions
that offer religious subjects or instruction is given in a foreign language,
it is required the determination of the duration, structure, levels and
modules will be taught.
• List of main texts will be used from that institution. The set of texts will
be in disposal of the education organs if it is required by them.
• List of compulsory subjects that are the same as of the public schools.
• List of subjects that differ from the curriculum of the public schools of
the same level.
• List of optional and elective subjects.
• Approval by the State Religion Secretariat of the religious part of the
curriculum, syllabi of religious subjects, texts that will be used for the
religious subjects.
Non-public education institution and complementary non-public education
institution that offer religious subjects or that offer instruction in a foreign
language are required to inform educational organs on various extracurricular
activities that they organize.

school
III.1. and 2. In Albania there are no legal provisions related to the right to
refuse pupils from other religious beliefs.

course
IV.1. and 2. There are no legal provisions and there are no practices of this
approach in Albania.
There is a rare practice that pupils attend study in a non-public school that
295
offer religious subjects different from their religion. According to a testimony

of an inspector of the Ministry of Education and Sciences, ten students that
belonged to the Christian religion were accepted to study in the school that
belonged to Islamic community in Kavaja city. The reason of this choice was
the quality of that school.
IV.3. The religion tolerance is one of the best values of the Albanian society.
Two major religions: Christianity (catholic & orthodox) and Islam (Muslim
Sunni & Muslim Shiite) have co-existed in Albania, historically. Tolerance
and the fact that Albanians are not fanatic believers have created a positive
background for the respect of different religions. But the fact that the right
to religion was forbidden for 23 years created a passive attitude to religious
education.
In Albania there is no any discussion on including the religious education in
the public schools.
IV.4. See bibliography

V.1. In practice, non-public schools that offer subjects of one religion do not
teach the subjects of another religion.
VI.1. The Public education in Albania is secular and it is conditioned by

the secular character of the state. In this context, the religious symbols are
forbidden in our public schools.
In the Law No.7952, date 21.6.1995 “On Pre-university Education System”,

Article 7 sanctions:
7.1 Public pre-university education is secular.
7.2 In public education institution the ideological and religious indoctrination
is forbidden.
VI.2. There is an expressed rule prohibiting the wearing of Islamic headscarf

teachers. But on the other hand, there is the practice where a citizen who had
applied for work as a teacher and was wearing the Islamic headscarf, was
denied the right to work as a teacher.4
4
The People’s Advocate. Annual reports of 2001, 2004, 2006, 2007, and 2008. Avokati
i Popullit, available at http://www.avokatipopullit.gov.al
296
VI.3. The wearing of the Islamic headscarf and manifestation of religion in

public schools, is one of the more debated questions in Albanian reality.
The pupils, who wear the Islamic headscarf are allowed in the areas of the
schools, based on the provisions of law “ On Pre-University Education
System “ which sanctions the secular character of public education in
Albanian (Art.6) and “Normative Provisions For Pre-University education”,
which in Article 40, letter (j) entitled the duties of student, sanctions: His/
her dress and appearance is correct, without excess, appropriate to the age
that he/she has, in accordance with the norms of coexistence in society and
domestic regulation school.
VI.4. As mentioned above (VI.3), the public school is obliged to respect the
law for secularism of the education. According to Art. 5 of the Law “On Pre-
University Education System”: The Ministry of Education and Sciences is
responsible for the enforcement of the state policy on secular education,
approved by the Council of Ministers.
On the other hand, every school has its “Regulations”, which describe the
rights, duties and responsibility for pupils and teachers. These Regulations,
sanction the responsibility of pupils to respect the dress code of the school
according to the standards established by the Directorate of School.
VI.5. In reality, there are cases where pupils who wear the Islamic headscarf
are not allowed to participate in the educational process, but there is no
official data that they are forced to remove the Islamic headscarf.
VI.6.
VI.7. The pupils / teachers that fail to comply with the rules on dress codes
are forbidden to participate in the educational process.
VI.8. There are no such law- cases that have become the subject of
proceedings in the Albanian courts.
But these cases have become the object of activity of the People’s Advocate.

There is no official data to give answers to the questions.
297
As mentioned above the wearing of the Islamic headscarf and manifestation of

religion in public schools is one of the more debated questions in Albanian reality.
The only institutional documents which deal with this issue are the annual
reports of the People’s Advocate5.
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:
1. Wearing of the Islamic veil from Muslim believers, such as pupils,
students, and teachers;
2. Distinctive appearance, such as a beard peculiar to Muslim believers.
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 is 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 to serve as recommendations
and the experience has shown these recommendations have not been
considered in time or have not been considered at all6.
5
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, available at http://
www.avokatipopullit.gov.al
6
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, available at . http://www.avokatipopullit.gov.al
298
XI. Bibliography
Albanian Constitution, approved by the Albanian Parliament on 21 October

1998, available at http://www.president.al/english/pub/kushtetuta.asp
Law No.7952, date 21.6.1995 For Pre-University Education System,
changed by Law No.8387, date 30.7.1998 For some changes in the Law
No.7952, date 21.6.1995 For Pre-University Education System, available at
http://www.mash.gov.al
Decision No. 248, date 28.05.1999 On Criteria and Procedures of Giving

Permission for Functioning of Non-public Education Institutions and
Complementary Education Institutions that Teach Religious Subjects or
the Language of Instruction is a Foreign Language, available at http://www.
mash.gov.al/VKMnr.248,dt.28.05.1999.htm
Law No. 8902, date 23.05.2002 For the Ratification of the “Agreement
Between the Holy See and the Republic of Albania on the Regulation of the
Mutual Relations”, available at http:// www.qpz.gov.al.
Law No. 9365, date 31.05.2005 On Procedures of Recognizing the Legal
Ability of the Religious Legal Persons of the Catholic Church, available at
http:// www.qpz.gov.al
The People’s Advocate. Annual reports of 2001, 2004, 2006, 2007, and
2008. Avokati i Popullit, available at http:/www.avokatipopullit.gov.al
Adrian Klosi at all, Feja dhe shkolla ne Shqiperi (The religion and schools in
Albania), Soros Fondation in Albania, 2010, availavle at http://www.soros.al
http://www.ligjet.org
wwww.instat.gov.al
299
Annex 1: Normative acts
Constitution of Republic of Albania
Article 10
1. In the Republic of Albania there is no official religion.
2. The state is neutral in questions of belief and conscience, and also, it
guarantees the freedom of their expression in public life.
3. The state recognizes the equality of religious communities.
4. The state and the religious communities mutually respect the independence
of one another and work together for the good of each of them and for all.
5. Relations between the state and religious communities are regulated on
the basis of agreements entered into between their representatives and the
Council of Ministers. These agreements are ratified by the Assembly.
6. Religious communities are juridical persons. They have independence in
the administration of their properties according to their principles, rules and
canons, to the extent that interests of third parties are not infringed.
Article 24
1. Freedom of conscience and of religion is guaranteed.
2. Everyone is free to choose or to change his religion or beliefs, as well as
to express them individually or collectively, in public or private life, through
cult, education, practices or the performance of rituals.
3. No one may be compelled or prohibited to take part or not in a religious
community or in religious practices or to make his beliefs or faith public.
Article 57
1. Everyone has the right to an education.
2. Mandatory school education is determined by law.
3. General high school public education is open for all.
4. Professional high school education and higher education can be
conditioned only on criteria of abilities.
5. Mandatory education and general high school education in public schools
are free.
6. Pupils and students may also be educated in private schools of all levels,
which are created and operated on the basis of law.
7. The autonomy and academic freedom of higher education institutions are
guaranteed by law.
Law No.7952, date 21.6.1995 “On Pre-University Education

System”, changed by Law No.8387, date 30.7.1998 “For some
Changes in the Law No.7952, date 21.6.1995 On Pre-University
Education System”
300
Article 5
Ministry of Education and Sciences is responsible for the enforcement of
the state policy on secular education, approved by the Council of Ministers.
Article 7
7.1 Public pre-university education is secular.
7.2 In public education institution ideological and religious indoctrination is
forbidden.
Article 14
14.1 The teacher is the main pedagogical and scientific personality in the
public preschool and primary institutions. He/she implements the programs
approved by the Ministry of Education and Sciences. A teacher has the right
to choose appropriate methods and mechanisms for the implementation of
the main program, through his/her professional abilities and knowledge,
through providing an harmonized education respecting students personality
and through avoiding any influence based on his/her social, political and
religious beliefs.
Article 44
44.1 Private secular education institutions, that offer instruction in Albanian
language can be established based on the permission given by the Ministry
of Education and Sciences. The private education institutions that offer
instruction in a foreign language or offer religious subjects, can be established
based on the permission of the Council of Minister taking the consideration
of the Ministry of Education and Science proposal.
44.2 The permission is given if curriculum, syllabi and circumstances of
their implementation do not contradict the national interests, national
legislation, public order, moral norms and hygiene, and if the necessary
material conditions and teaching staff are provided.
44.4 Permission criteria and procedures for secular private schools that
offer instruction in Albanian language, are regulated by bylaws issues by the
Ministry of Education and Sciences. Permission criteria and procedures for
other private schools that offer religious subjects or that offer instruction in
a foreign language are regulated by bylaws issues by the Council of Ministers
taking the consideration of the Ministry of Education and Science proposal.
The permission of establishment of a private education institution is not
given before three months and later one year from the date the request is
submitted.
Article 45
45.1 MOES determines equivalency for recognition of the transcript of a
private grade or a private school. If the private school offers the religion
subjects as well, the MOES determines the equivalency for the recognition
301
of the laic part of the curriculum at the end of a private grade or a private
school.
Article 47
The Ministry of Education and Science and its education organs in districts
control regularly the laic education process in the private schools in order
to verify accomplishment of the requirements of the curricula and the
education programs approved by the Ministry of Education and Sciences.
Normative Provisions “For Pre-University Education”
Article 40, letter (j): The duties of student

His/her dress and appearance is correct, without excess, appropriate to the
age that he/she has, in accordance with the norms of coexistence in society
and domestic regulation school.
Decision of Council of Minister No. 248, date 28.05.1999 “On

Criteria and Procedures of Giving Permission for Functioning of
Non-public Education Institutions and Complementary Education
Institutions that Offer Religious Subjects or Instruction is given in a
Foreign Language”.
Point 2 of this document requires from non-public school that offer religious
subjects, submitting to the MOES the following documents:
Curriculum and syllabi. The structure of the school year of non-public
education institutions that offer religious subjects or instruction which is given
in a foreign language has to be equivalent to the structure of the public school of
the same level. The complementary non-public institutions that offer religious
subjects or instruction which is given in a foreign language it is required the
determination of the duration, structure, levels and modules will be thought.
List of main texts will be used from that institution. The set of texts will be in
disposal of the education organs if it is required by them.
List of compulsory subjects that are the same as of the public schools.
List of subjects that differ from the curriculum of the public schools of the
same level.
List of optional and elective subjects.
Approval by the State Religion Secretariat of the religious part of the
curriculum, syllabi of religious subjects, texts that will be used for the
religious subjects.
Point 6: Non-public education institution and complementary non-public
education institution that offer religious subjects or that offer instruction
in a foreign language are required to inform educational organs on various
extracurricular activities that they organize.
302
Law No. 8902, date 23.05.2002 For the rectification of the

“Agreement between the Holy See and the Republic of Albania on
the regulation of the mutual relations”
Article 7
Christian Church has the right to establish and lead its schools, clinics, and
social centres according to Canonist Rights and in accordance with the
legislation of the Republic of Albania.
Law No. 9365, date 31.05.2005 “On Procedures of Recognizing the

Legal Ability of the Religious Legal Persons of the Catholic Church”
Article 10
Licensing
Legal religious persons, apart from their religious activity, have the right
to organize other activities like in the field of education, social, and health
in accordance with Albanian legislation for getting the license or relevant
permissions.
303
Annex 2: Religious schools (2009-2010 school year)7
Religion
Local City/ Public/ Level of No. of community
No School District Type Date of est.
unit Town No public school stud. to what
belong
Non
1 MUSTAFA VAROSHI Durres Durres City Rel. Sec. 118 Islamic 29.12.1999
public
Non
2 LIRIA Elbasan Cerrik Town Rel. Sec. 163 Islamic 29.11.1995
public
Non
3 KRYQI I NDERUAR Gjirokast Gjirokast City Rel. Sec. 35 Orthodox 10.06.1999
public
Non Prim
4 MEDRESE Korçë Korçë City Rel. 228 Islamic 2008
public & sec.
Non
5 HAFIZ ALI KORÇA Kavaje Kavaje Town Rel. Sec. 200 Islamic 29.11.1995
public
Non
6 SAADI Tirane Tiranë City Rel. Sec. 47 Islamic 01.12.2000
public
Non Prim.
7 MEDRESE Tirane Tiranë City Rel. 361 Islamic 29.11.1995
public & sec.
Non Prim.
8 HAXHI SH.SHAMIA Shkoder Shkoder City Rel. 927 Islamic 29.11.1995
public & sec.
The table presents an overview of educational institutions managed

by religious communities in Albania up to 20108
Bektashi
No Category of institution Muslim Orthodox Catholic (Muslim Protestant Others
Shiite)
1 High Schools _ _ 1 _ _ _
2 Religious High Schools _ 1 1 _ _ _
3 General Secondary School religious 7 1 1 _ _ _
4 Education 9 years 2 - 6 _ 2
5 Primary Education _ 2 6 _ 2 _
6 Pre-school Education _ 14 21 _ 4 _
7 Different Courses 5 1 16 _ 1 4
8 Orphanage _ 1 2 _ _ _
Total 14 20 54 9 4
7
Ministria e Arsimit dhe Shkences se Republikes se Shqiperise (Ministry of Education
and Science of the Republic of Albania), available at http://www.mash.gov.al
8
Adrian Klosi at all,
304
The Place of Religion in Education in Austria
Walter Berka*1and Claudia Wernig**2

I.1. In Austria religious instruction is organised during school hours in lower

and secondary education in public schools as well as in specific private schools
(those private schools which are recognized as equal as public schools and
which nearly have the same legal standing as public schools have). For those
pupils who are a member of a denomination which is lawfully acknowledged
in Austria it is obligatory to take part in that religious instruction (unless they
visit one of those schools mentioned in Article 1 § 3 Religious Instruction
Act, e.g. vocational schools; in that case it is up to the pupils if they choose
the subject or not). Parents of pupils under 14 years and pupils over 14 years
have the right to opt out from religious instruction at the beginning of each
school year.
(see Article 1 § 1 Religious Instruction Act (Religionsunterrichtsgesetz)).
I.2. Pursuant to Article 1 § 1 Religious Instruction Act (Religions-

unterrichtsgesetz) and due to the fact that the Islamic community is lawfully
acknowledged in Austria, pupils who are a member of the Islamic community
can choose in principle for Islam instruction in the official education sector
as well as in recognized private schools. However the organization of that
(Islam) religious instruction could differ depending on the number of
Islamic pupils attending the class or school. That means (for example) that
if this number is too low it could happen that these pupils have to have their
religious instruction together with pupils from other classes or other schools
or that the number of school hours is shortened (see Article 7a Religious
Instruction Act (Religionsunterrichtsgesetz)).
II.1. At the moment (state 2007) 8 (private) Islamic schools exist in Austria.
II.2.
*
**
305
Walter Berka and Claudia Wernig
II.3. The Austrian legal system draws a distinction between different types
of private schools. A private school can receive a similar legal standing as
public schools have (especially concerning the legal effect of certificates)
if they fulfill all necessary qualifications. In that case religious instructions
are performed by the religious community and under its responsibility; the
supervision by the government is restricted to organizational and disciplinary
matters. In so called “free private schools” (which are not trying to achieve
the same status as public schools have) religious instructions are performed
und supervised by the religious community.
(see Article 22 Private School Act (Privatschulgesetz).

school.
III.1. Pursuant to Article 4 § 3 School Organization Act

(Schulorganisationsgesetz) the governing board of a confessional school
could refuse pupils because of their belief, language or gender. In practice
however catholic schools in Austria have already started to admit also pupils
of another denomination.
III.2. Yes (see above I/5)

course.
IV.1. In the Austrian legal system lawfully acknowledged religious

communities (such as the Catholic community) have a legal title to be
subsidized by the government if they run a private school, which nearly has
the same legal standing as public schools have (see Article 17 Private School
Act (Privatschulgesetz)). If such a confessional (catholic) private school
fulfill these qualifications the governing board of that school is obligated (by
law) to teach religious instruction for all lawfully acknowledged religious
communities (including the Islamic Community) which are represented in the
class (see Article 1 § 1 Religious Instruction Act (Religionsunterrichtsgesetz)).
From this it follows that a request of parents or pupils for islam instruction is
not necessary.
(for details concerning the organization of such a religious instruction in
private catholic schools compare I./2).
306
IV.2. This legal obligation exits for all lawfully acknowledged religious
communities in Austria.
In Austria there is no a legal obligation (neither for public schools nor for
private schools) to provide an alternative ethical course, but for the time
being some schools in Austria are taking part in a pilot project teaching
alternative ethical courses in schools.
IV.3. (…)
IV.4.
• K. Pabel, Religion im öffentlichen Schulwesen, in: Prisching/Lenz/Hauser:
Bildung und Religion, 37-76 (2006)
• B. Schinkele, Umfang und Bedeutung des kirchlichen Privatschulwesens
im österreichischen Schulsystem, in: A. Rinnerthaler: Das kirchliche
Privatschulwesen - historische, pastorale, rechtliche und ökonomische
Aspekte, 287-314 (2007)
• H. Kalb, Arten von Privatschulen, deren Öffentlichkeitsrecht und die
Rechtsstellung von Lehrern und Schülern - ein Überblich, in: A. Rinnerthaler:
Das kirchliche Privatschulwesen - historische, pastorale, rechtliche und
ökonomische Aspekte, 315 - 343 (2007)
• W. Rees, Beaufsichtigung und Finanzierung kirchlicher Privatschulen und die
Existenz von gesetzlichen Interessensvertretungen an diesen Einrichtungen,
in: A. Rinnerthaler: Das kirchliche Privatschulwesen - historische,
pastorale, rechtliche und ökonomische Aspekte, 345 - 416 (2007)
• H. Kalb, Verfassungsrechtliche und einfachgesetzliche Verankerung des
Religionsunterrichts, in: A. Rinnerthaler, Historische und rechtliche
Aspekte des Religionsunterrichts, 209 – 239 (2004)
• A. A. Bucher, Ethikunterricht in Österreich: noch einiges unklar,
in: A. Rinnerthaler, Historische und rechtliche Aspekte des
Religionsunterrichts, 297-310 (2004)

V.1. For the moment there does not exist any general decision by such
a(n) (catholic) agency mentioned above. But as already mentioned, Islam
instruction is offered in all catholic schools which fulfill the qualifications
(mentioned above). Some bishops responsible for catholic schools in their
region ask Islam parents to agree to Islam religious instruction when their
children attend a catholic school.
VI.1. (…)
307
VI.2. (…)
VI.3. (…)
VI.4. (…)
VI.5. (…)
VI.6. (…)
VI.7. (…)
VI.8. (…)

VII.1. (…)
VII.2. (…)
VII.3. (…)
VII.4. (…)
VII.5. (…)
VII.6. (…)
VII.7. (…)
XI. Bibliography
See Literature above
308
ANNEX
Internetsite where one could consult the appropriate legislation:

http://www.ris2.bka.gv.at/
Legal documents we refered to:
Langtitel
Bundesgesetz vom 13. Juli 1949, betreffend den Religionsunterricht in der
Schule (Religionsunterrichtsgesetz)
StF: BGBl. Nr. 190/1949
Änderung
idF:
BGBl. Nr. 185/1957
BGBl. Nr. 243/1962
BGBl. Nr. 324/1975
BGBl. Nr. 329/1988
BGBl. Nr. 256/1993 (NR: GP XVIII RV 656 AB 1003 S. 109. BR: 4502
AB 4511 S. 568.)
Text
§ 1. (1) Für alle Schüler, die einer gesetzlich anerkannten Kirche oder
Religionsgesellschaft angehören, ist der Religionsunterricht ihres
Bekenntnisses Pflichtgegenstand an den öffentlichen und den mit dem
Öffentlichkeitsrecht ausgestatteten.
a) Volks-, Haupt- und Sonderschulen,
b) Polytechnischen Lehrgängen,
c) allgemeinbildenden höheren Schulen,
d) berufsbildenden mittleren und höheren Schulen (einschließlich der land-
und forstwirtschaftlichen Schulen),
e) Berufsschulen in den Bundesländern Tirol und Vorarlberg sowie land-
und forstwirtschaftlichen Berufsschulen im gesamten Bundesgebiet,
f) Akademien für Sozialarbeit,
g) Anstalten der Lehrer- und Erzieherbildung (einschließlich der land-
und forstwirtschaftlichen Lehranstalten), wobei an den Pädagogischen,
Berufspädagogischen und Land- und forstwirtschaftlichen
berufspädagogischen Akademien an die Stelle des Religionsunterrichtes der
Unterricht in Religionspädagogik tritt und in den folgenden Bestimmungen
unter Religionsunterricht auch Religionspädagogik zu verstehen ist.
(2) Schüler, die das 14. Lebensjahr noch nicht vollendet haben, können jedoch
von ihren Eltern zu Beginn eines jeden Schuljahres von der Teilnahme am
Religionsunterricht schriftlich abgemeldet werden; Schüler über 14 Jahren
können eine solche schriftliche Abmeldung selbst vornehmen.
309
(3) An den öffentlichen und mit dem Öffentlichkeitsrecht ausgestatteten

Berufsschulen, soweit sie nicht unter Abs. 1 lit. e fallen, ist für alle Schüler, die
einer gesetzlich anerkannten Kirche oder Religionsgesellschaft angehören,
der Religionsunterricht ihres Bekenntnisses als Freigegenstand zu führen.
§ 2. (1) Der Religionsunterricht wird durch die betreffende gesetzlich
anerkannte Kirche oder Religionsgemeinschaft besorgt, geleitet und
unmittelbar beaufsichtigt. Dem Bund steht jedoch
- soweit § 7d nicht anderes bestimmt - das Recht zu, durch seine
Schulaufsichtsorgane den Religionsunterricht in organisatorischer und
schuldisziplinärer Hinsicht zu beaufsichtigen.
(2) Die Lehrpläne für den Religionsunterricht werden hinsichtlich des
Lehrstoffes und seiner Aufteilung auf die einzelnen Schulstufen von der
betreffenden gesetzlich anerkannten Kirche oder Religionsgesellschaft
im Rahmen der staatlich festgesetzten Wochenstundenzahl für den
Religionsunterricht erlassen und sodann
- soweit § 7d nicht anderes bestimmt - vom zuständigen Bundesminister
bekanntgemacht. Den gesetzlich anerkannten Kirchen und
Religionsgesellschaften ist vor der Festsetzung und vor jeder Änderung
der Wochenstundenanzahl für den Religionsunterricht Gelegenheit zur
Stellungnahme zu geben.
(3) Für den Religionsunterricht dürfen nur Lehrbücher und Lehrmittel
verwendet werden, die nicht im Widerspruch zur staatsbürgerlichen
Erziehung stehen.
§ 2a. (1) Die Teilnahme an den von den gesetzlich anerkannten Kirchen
und Religionsgesellschaften zu besonderen Anlässen des schulischen oder
staatlichen Lebens, insbesondere zu Beginn und am Ende des Schuljahres
abgehaltenen Schülergottesdiensten sowie die Teilnahme an religiösen
Übungen oder Veranstaltungen ist den Lehrern und Schülern freigestellt.
(2) Den Schülern ist zur Teilnahme an den im Abs. 1 genannten
Schülergottesdiensten und religiösen Übungen oder Veranstaltungen die
Erlaubnis zum Fernbleiben vom Unterricht im bisherigen Ausmaß zu
erteilen.
Beachte
Abs. 1: teilweise Grundsatzbestimmung
§ 2b. (1) In den unter § 1 Abs. 1 fallenden Schulen, an denen die Mehrzahl
der Schüler einem christlichen Religionsbekenntnis angehört, ist in allen
Klassenräumen vom Schulerhalter ein Kreuz anzubringen.
(2) Die Bestimmung des Abs. 1 gilt hinsichtlich jener Schularten, bezüglich
deren Erhaltung dem Bund die Grundsatzgesetzgebung und den Ländern
die Ausführungsgesetzgebung zukommt, als Grundsatzbestimmung.
(3) Hinsichtlich jener Schulen, bezüglich deren Erhaltung die Gesetzgebung
ausschließlich den Ländern zukommt, bleibt die Regelung der im Abs. 1
behandelten Frage der Landesgesetzgebung vorbehalten.
310
§ 3. (1) Die Religionslehrer an den öffentlichen Schulen, an denen

Religionsunterricht Pflichtgegenstand oder Freigegenstand ist, werden
entweder.
a) von der Gebietskörperschaft (Bund, Länder), die die Diensthoheit über
die Lehrer der entsprechenden Schulen ausübt, angestellt oder
b) von der betreffenden gesetzlich anerkannten Kirche oder Religions-
gesellschaft bestellt.
(2) Die Anzahl der Lehrerstellen, die gemäß Abs. 1 lit. a besetzt werden,
bestimmt die Gebietskörperschaft auf Antrag der zuständigen kirchlichen
(religionsgesellschaftlichen) Behörde.
(3) Alle Religionslehrer unterstehen hinsichtlich der Vermittlung des
Lehrgutes des Religionsunterrichtes den Vorschriften des Lehrplanes und den
kirchlichen (religionsgesellschaftlichen) Vorschriften und Anordnungen; im
übrigen unterstehen sie in der Ausübung ihrer Lehrtätigkeit den allgemeinen
staatlichen schulrechtlichen Vorschriften.
(4) (Anm.: Aufgehoben durch BGBl. Nr. 243/1962.)
§ 4. (1) Die gemäß § 3 Abs. 1 lit. a von den Gebietskörperschaften (Bund,
Länder) angestellten Religionslehrer sind Bedienstete der betreffenden
Gebietskörperschaft. Auf sie finden die für die Lehrer an den betreffenden
öffentlichen Schulen geltenden Vorschriften des Dienstrechtes einschließlich
des Besoldungsrechtes und, sofern es sich um Religionslehrer handelt, die
zu der Gebietskörperschaft in einem öffentlich-rechtlichen Dienstverhältnis
stehen, auch einschließlich des Pensions- und des Disziplinarrechtes unter
Bedachtnahme auf die Bestimmungen der folgenden Abs. 2 bis 5 Anwendung.
(2) Die Gebietskörperschaften (Bund, Länder) dürfen nur solche
Personen als Religionslehrer anstellen, die von der zuständigen kirchlichen
(religionsgesellschaftlichen) Behörde als hiezu befähigt und ermächtigt
erklärt sind. Vor Aufnahme in das öffentlich-rechtliche Dienstverhältnis
als Religionslehrer und vor Verleihung einer schulfesten Stelle an einen
Religionslehrer ist die zuständige kirchliche (religionsgesellschaftliche)
Behörde zu hören.
(3) Wird einem unter Abs. 1 fallenden Religionslehrer die ihm erteilte
Ermächtigung (Abs. 2) nach erfolgter Anstellung von der zuständigen
kirchlichen (religionsgesellschaftlichen) Behörde entzogen, so darf er für die
Erteilung des Religionsunterrichtes nicht mehr verwendet werden.
(4) Bei einem als Vertragsbediensteten angestellten Religionslehrer gilt der
Entzug der kirchlichen (religionsgesellschaftlichen) Ermächtigung für den
Dienstgeber als Kündigungsgrund, sofern nicht nach den Vorschriften des
Vertragsbedienstetenrechtes zugleich ein Grund zur Entlassung oder für
eine sonstige vorzeitige Auflösung des Dienstverhältnisses vorliegt.
(5) Wird einem im öffentlich-rechtlichen Dienstverhältnis angestellten
Religionslehrer die kirchliche (religionsgesellschaftliche) Ermächtigung
entzogen, so ist er, wenn nicht zugleich ein Austritt aus dem
Dienstverhältnis oder ein auf Entlassung lautendes Disziplinarerkenntnis
311
oder ein den Verlust des Amtes zur Folge habendes rechtskräftiges
strafgerichtliches Urteil vorliegt, oder sofern er nicht nach den allgemeinen
Bestimmungen des Dienstrechtes wegen Dienstunfähigkeit - wobei
der Entzug der kirchlichen (religionsgesellschaftlichen) Ermächtigung
als solcher nicht als Dienstunfähigkeit gilt - oder wegen seines Alters
in den dauernden Ruhestand versetzt wird oder wegen Erreichung der
Altersgrenze von Gesetzes wegen in den dauernden Ruhestand tritt, aus
dem öffentlich-rechtlichen Dienstverhältnis unter Bedachtnahme auf die
sozialversicherungsrechtlichen Vorschriften auszuscheiden und so zu
behandeln, als ob er Vertragsbediensteter wäre (Abs. 4); hiebei sind die für
die Erlangung höherer Bezüge angerechneten Vordienstzeiten hinsichtlich
der Höhe des Monatsentgeltes zu berücksichtigen.
§ 5. (1) Die gemäß § 3 Abs. 1 lit. b von den gesetzlich anerkannten
Kirchen und Religionsgesellschaften bestellten Religionslehrer müssen die
österreichische Staatsbürgerschaft besitzen und - außer dem Erfordernis der
kirchlich (religionsgesellschaftlich) erklärten Befähigung und Ermächtigung
für die Erteilung des Religionsunterrichtes - hinsichtlich der Vorbildung die
besonderen Anstellungserfordernisse erfüllen, die für die im § 3 Abs. 1 lit. a
genannten Religionslehrer gelten. In besonders begründeten Ausnahmefällen
kann - soweit § 7d nicht anderes bestimmt - der zuständige Bundesminister
von dem Erfordernis der österreichischen Staatsbürgerschaft Nachsicht
erteilen.
(2) Durch die Bestellung dieser Religionslehrer wird ein Dienstverhältnis zu
den Gebietskörperschaften (Bund, Länder) nicht begründet.
§ 6. (1) Die im § 3 Abs. 1 lit. b genannten Religionslehrer erhalten für ihre
Lehrtätigkeit an öffentlichen Schulen eine Vergütung nach den Ansätzen
des Entlohnungsschemas II L (§ 44 des Vertragsbedienstetengesetzes 1948,
BGBl. Nr. 86, in seiner jeweils geltenden Fassung) zuzüglich der jeweiligen
Bezugszuschläge, nach den für die Lehrer der betreffenden Schularten dort
festgesetzten Entlohnungsgruppen.
(2) Im übrigen finden hinsichtlich der Bemessung der Vergütung für die
im § 3 Abs. 1 lit. b genannten Religionslehrer die Bestimmungen des
Vertragsbedienstetengesetzes 1948, BGBl. Nr. 86, in seiner jeweils geltenden
Fassung, soweit sie sich auf Vertragsbedienstete des Entlohnungsschemas
II L beziehen, dem Sinne nach - insbesondere hinsichtlich Dauer des
Dienstverhältnisses, Kündigung, Abfertigung, Entlassung, Erkrankung,
Todesfall - Anwendung. Desgleichen haben diese Religionslehrer
Anspruch auf Vergütung nach den für die Vertragsbediensteten des Bundes
jeweils geltenden Reisegebührenvorschriften mit der Maßgabe, daß bei
Religionslehrern, die Geistliche oder Ordensangehörige oder Angehörige
von Diakonissenanstalten sind, der Wohnort als Dienstort gilt.
312
Beachte
Zum Inkrafttreten vgl. § 9 Abs. 1
§ 7. Den Aufwand für die im § 6 angeführten Vergütungen trägt
die Gebietskörperschaft (Bund, Länder), die nach Maßgabe der
bundesgesetzlichen Vorschriften die Kosten der Besoldung der übrigen
Lehrer an der betreffenden Schule trägt.
§ 7a. (1) Nehmen am Religionsunterricht eines Bekenntnisses weniger
als die Hälfte der Schüler einer Klasse teil, so können die Schüler dieses
Bekenntnisses mit Schülern desselben Bekenntnisses von anderen Klassen
oder Schulen (derselben Schulart oder verschiedener Schularten) zu
Religionsunterrichtsgruppen zusammengezogen werden, soweit dies vom
Standpunkt der Schulorganisation und des Religionsunterrichtes vertretbar
ist.
(2) Nehmen am Religionsunterricht eines Bekenntnisses in einer
Klasse weniger als 10 Schüler teil, die zugleich weniger als die Hälfte
der Schüler dieser Klasse sind, oder nehmen am Religionsunterricht
in einer Religionsunterrichtsgruppe weniger als 10 Schüler teil, die in
ihren Klassen jeweils weniger als die Hälfte der Schüler jeder einzelnen
Klasse sind, so vermindert sich die festgesetzte Wochenstundenanzahl
für den Religionsunterricht (§ 2 Abs. 2), sofern sie mehr als eine Stunde
beträgt, auf die Hälfte, mindestens jedoch auf eine Wochenstunde; diese
Verminderung tritt nicht ein, wenn der Lehrerpersonalaufwand für die
Erteilung des Religionsunterrichtes hinsichtlich der Differenz auf das
volle Wochenstundenausmaß von der betreffenden gesetzlich anerkannten
Kirche oder Religionsgesellschaft getragen wird.
(3) Nehmen am Religionsunterricht eines Bekenntnisses in einer
Klasse vier oder drei Schüler teil, die zugleich weniger als die Hälfte
der Schüler dieser Klasse sind, oder nehmen am Religionsunterricht in
einer Religionsunterrichtsgruppe vier oder drei Schüler teil, die in ihren
Klassen jeweils weniger als die Hälfte der Schüler jeder einzelnen Klasse
sind, und konnte durch Zusammenziehung der Schüler gemäß Abs. 1
keine höhere Zahl erreicht werden, so beträgt die Wochenstundenanzahl
für den Religionsunterricht (§ 2 Abs. 2) eine Wochenstunde; diese
Verminderung tritt nicht ein, wenn der Lehrerpersonalaufwand für die
Erteilung des Religionsunterrichtes hinsichtlich der Differenz auf das
volle Wochenstundenausmaß von der betreffenden gesetzlich anerkannten
Kirche oder Religionsgesellschaft getragen wird. In diesen Fällen gebühren
den Religionslehrern nur die Bezahlung für eine Wochenstunde, nicht
jedoch sonstige Vergütungen für finanzielle und zeitliche Aufwendungen
für die im Zusammenhang mit der Erteilung dieses Religionsunterrichtes
allenfalls erforderlichen Reisebewegungen.
(4) Ein Religionsunterricht für weniger als drei Schüler einer Klasse,
die zugleich weniger als die Hälfte der Schüler dieser Klasse sind,
sowie ein Religionsunterricht für weniger als drei Schüler einer
313
Religionsunterrichtsgruppe, die in ihren Klassen jeweils weniger als die

Hälfte der Schüler jeder einzelnen Klasse sind, ist im vollen oder in dem in
den Abs. 2 oder 3 angeführten verminderten Wochenstundenausmaß nur
dann zu erteilen, wenn die betreffende gesetzlich anerkannte Kirche oder
Religionsgesellschaft den Lehrerpersonalaufwand hiefür trägt.
(5) Die Absätze 1 bis 4 finden keine Anwendung auf Religion als
Wahlpflichtgegenstand an allgemeinbildenden höheren Schulen im Sinne des
§ 39 Abs. 1 Z 3 lit. b des Schulorganisationsgesetzes, BGBl. Nr. 242/1962,
in der Fassung des Bundesgesetzes BGBl. Nr. 327/1988.
§ 7b. (1) Als Religionslehrer an den unter § 1 fallenden mit dem
Öffentlichkeitsrecht ausgestatteten und sonstigen privaten Schulen dürfen
nur Personen verwendet werden, die von der zuständigen kirchlichen
(religionsgesellschaftlichen) Behörde als hiezu befähigt und ermächtigt
erklärt sind. Wird einem solchen Religionslehrer die ihm erteilte
Ermächtigung von der zuständigen kirchlichen (religionsgesellschaftlichen)
Behörde entzogen, so darf er für die Erteilung des Religionsunterrichtes
nicht mehr verwendet werden.
(2) Auf die im Abs. 1 genannten Religionslehrer finden die Bestimmungen
des § 3 Abs. 3 sowie sinngemäß die Bestimmungen des § 4 Abs. 4 und
5 Anwendung; ferner finden auf die im Abs. 1 genannten Schulen die
Bestimmungen des § 7a sinngemäß Anwendung.
§ 7c. (1) Für die unmittelbare Beaufsichtigung des Religionsunterrichtes
(§ 2 Abs. 1) werden von den gesetzlich anerkannten Kirchen und
Religionsgesellschaften Fachinspektoren für den Religionsunterricht
bestellt.
(2) Durch die Bestellung zum Fachinspektor für den Religionsunterricht wird
weder ein eigenes Dienstverhältnis zu den Gebietskörperschaften (Bund,
Länder) begründet noch ein auf Grund der Anstellung als Religionslehrer
(§ 3 Abs. 1 lit. a) bestehendes Dienstverhältnis zu einer Gebietskörperschaft
(Bund, Länder) berührt.
(3) Religionslehrern (§ 3 Abs. 1), die zu Fachinspektoren für den
Religionsunterricht bestellt werden, ist, soweit sie unter die nach Abs. 4
festzusetzende Zahl fallen, für ihre Tätigkeit als Religionsinspektoren
die nötige Lehrpflichtermäßigung oder Lehrpflichtbefreiung unter
Belassung ihrer vollen Bezüge beziehungsweise ihrer vollen Vergütung
zu gewähren. Außerdem ist ihnen nach den Grundsätzen, die für die
Dienstzulagen der Fachinspektoren für einzelne Gegenstände gelten (§ 71
Abs. 2 des Gehaltsgesetzes 1956, BGBl. Nr. 54), ein Verwendungszuschuß
in gleicher Höhe und erforderlichenfalls ein Reisekostenpauschale
nach den für die Fachinspektoren für einzelne Gegenstände geltenden
Grundsätzen zu gewähren. Der Verwendungszuschuß ist bei den als
Fachinspektoren für den Religionsunterricht verwendeten Religionslehrern,
die als Religionslehrer im öffentlich-rechtlichen Dienstverhältnis zu einer
Gebietskörperschaft (Bund, Länder) stehen, nach den für die Dienstzulagen
314
der Fachinspektoren für einzelne Gegenstände geltenden Grundsätzen (§

71 Abs. 3 des Gehaltsgesetzes 1956, BGBl. Nr. 54) für die Bemessung des
Ruhegenusses anrechenbar. Der aus den Bestimmungen dieses Absatzes
sich ergebende Aufwand einschließlich der Vertretungskosten für die zu
Fachinspektoren für den Religionsunterricht bestellten Religionslehrer
ist entsprechend den Bestimmungen über den Personalaufwand für die
Beamten des Schulaufsichtsdienstes vom Bund zu tragen.
(4) Die Zahl der Fachinspektoren für den Religionsunterricht, auf die
die Bestimmungen des Abs. 3 Anwendung finden, wird auf Antrag der
zuständigen kirchlichen (religionsgesellschaftlichen) Behörden
- soweit es sich nicht um land- und forstwirtschaftliche Schulen handelt,
nach Anhörung des zuständigen Landesschulrates - vom zuständigen
Bundesminister im Einvernehmen mit dem Bundeskanzler
- soweit § 7d nicht anderes bestimmt - festgesetzt.
§ 7d. (1) Die gemäß § 2 Abs. 1 zweiter Satz und Abs. 2 erster Satz, § 5 Abs. 1
letzter Satz und § 7c Abs. 4 vom Bund wahrzunehmenden Aufgaben kommen
in den Angelegenheiten der land- und forstwirtschaftlichen Berufsschulen
und der land- und forstwirtschaftlichen Fachschulen den Ländern zu; soweit
in den angeführten Bestimmungen Bundesminister genannt sind, treten an
ihre Stelle die Landesregierungen.
(2) Die Regelung des Abs. 1 gilt nicht, soweit es sich um Fachschulen für die
Ausbildung von Forstpersonal oder um öffentliche land- und forstwirtschaftliche
Fachschulen handelt, die mit einer höheren land- und forstwirtschaftlichen
Lehranstalt, mit einer Anstalt für die Ausbildung und Fortbildung der Lehrer
an land- und forstwirtschaftlichen Schulen, mit einer Fachschule für die
Ausbildung von Forstpersonal oder mit einer land- und forstwirtschaftlichen
Versuchsanstalt des Bundes organisatorisch verbunden sind.
Beachte
Zum Inkrafttreten vgl. § 9 Abs. 1
§ 8. Folgende Vorschriften, soweit sie noch in Geltung stehen, treten außer

Kraft:
1. Das Gesetz vom 20. Juni 1872, R. G. Bl. Nr. 86, in der Fassung des
Gesetzes vom 17. Juni 1888, R. G. Bl. Nr. 99, betreffend die Besorgung des
Religionsunterrichtes in den öffentlichen Volks- und Mittelschulen sowie in
den Lehrerbildungsanstalten und den Kostenaufwand für denselben;
2. die §§ 1 bis 5 des Gesetzes über Maßnahmen auf dem Gebiete des
Schulwesens in Österreich, G. Bl. f. d. L. Ö. Nr. 121/1939;
3. der Erlaß des Ministeriums für innere und kulturelle Angelegenheiten,
Abt. IV: Erziehung, Kultus und Volksbildung, Z 335.908/1939-3 a vom 29.
August 1939, Verordnungsblatt des Ministeriums für innere und kulturelle
Angelegenheiten, Abt IV:
315
Erziehung, Kultus und Volksbildung, Nr. 106;

4. der Erlaß des Staatsamtes für Volksaufklärung, für Unterricht und Erziehung
und für Kultusangelegenheiten vom 7. Juni 1945, Z 505, betreffend die
vorläufige Regelung des Religionsunterrichtes an öffentlichen Schulen.
§ 9. (1) Dieses Bundesgesetz tritt in jedem Bundesland mit dem
1. jenes Monates in Kraft, der der Kundmachung des mit diesem
Bundesgesetze übereinstimmenden Landesgesetzes des betreffenden
Bundeslandes nachfolgt, die Bestimmungen des § 3, Abs. (1) und Abs. (2),
lit. a, sowie der §§ 4, 6 und 7 jedoch nicht vor dem 1. Jänner 1950.
(2) § 7c Abs. 4 in der Fassung des Bundesgesetzes BGBl. Nr. 256/1993 tritt
mit 1. Juli 1993 in Kraft.
§ 10. (1) Mit der Vollziehung dieses Bundesgesetzes, soweit sie in den
Wirkungsbereich des Bundes fällt, sowie mit der Wahrnehmung der
Rechte des Bundes gemäß Art. 14 Abs. 8 und 14a Abs. 6 des Bundes-
Verfassungsgesetzes in der Fassung von 1929 ist der Bundesminister für
Unterricht, Kunst und Sport betraut, soweit Abs. 2 nicht anderes bestimmt.
(2) Mit der die land- und forstwirtschaftlichen Schulen des Bundes betreffenden
Vollziehung des § 2b Abs. 1 und der dienst- und besoldungsrechtlichen
Bestimmungen dieses Bundesgesetzes für die Religionslehrer sowie mit
der Wahrnehmung der Rechte des Bundes gemäß Art. 14a Abs. 6 des
Bundes-Verfassungsgesetzes in der Fassung von 1929 hinsichtlich der
dienst- und besoldungsrechtlichen Bestimmungen dieses Bundesgesetzes
für Religionslehrer an sonstigen land- und forstwirtschaftlichen Schulen ist
der Bundesminister für Land- und Forstwirtschaft betraut.
(3) Mit der Vollziehung des § 7c Abs. 4 ist der gemäß Abs. 1 und 2 zuständige
Bundesminister, jeweils im Einvernehmen mit dem Bundeskanzler und dem
Bundesminister für Finanzen, betraut.
Artikel II.
(Anm.: Zu den §§ 1, 2 - 2b, 3, 7a - 7c und 9, BGBl. Nr. 190/1949)
Solange öffentliche oder mit dem Öffentlichkeitsrecht ausgestattete
hauswirtschaftliche Berufsschulen bestehen, ist für alle Schüler dieser
Schulen, die einer gesetzlich anerkannten Kirche oder Religionsgesellschaft
angehören, der Religionsunterricht ihres Bekenntnisses Pflichtgegenstand.
Die Bestimmungen des Religionsunterrichtsgesetzes in der Fassung der
Religionsunterrichtsgesetz-Novelle 1957 und in der Fassung des Artikels I
dieses Bundesgesetzes finden hiebei sinngemäß Anwendung.
316
Langtitel
Bundesgesetz vom 25. Juli 1962 über das Privatschulwesen

(Privatschulgesetz)
StF: BGBl. Nr. 244/1962
Änderung
idF:
BGBl. Nr. 290/1972
BGBl. Nr. 448/1994 (NR: GP XVIII RV 1507 AB 1661 S. 166. BR: AB
4804 S. 587.)
(EWR/Anh. VII: 389 L 0048)
BGBl. I Nr. 75/2001 (NR: GP XXI RV 578 AB 608 S. 72. BR: AB 6367 S.
678.)
BGBl. I Nr. 71/2008 (NR: GP XXIII RV 522 AB 533 S. 58. BR: 7933 AB
7934 S. 756.)
Text
§ 1. Geltungsbereich
Dieses Bundesgesetz regelt die Errichtung und Führung von Privatschulen
- mit Ausnahme der land- und forstwirtschaftlichen Schulen - sowie die
Verleihung des Öffentlichkeitsrechtes und die Gewährung von Subventionen
an solche Privatschulen.
§ 2. Begriffsbestimmungen.
(1) Schulen im Sinne dieses Bundesgesetzes sind Einrichtungen, in denen
eine Mehrzahl von Schülern gemeinsam nach einem festen Lehrplan
unterrichtet wird, wenn im Zusammenhang mit der Vermittlung von
allgemeinbildenden oder berufsbildenden Kenntnissen und Fertigkeiten ein
erzieherisches Ziel angestrebt wird.
(2) Ein erzieherisches Ziel ist gegeben, wenn außer den mit der Erwerbung
von Kenntnissen und Fertigkeiten an sich verbundenen Erziehungszielen
die Festigung der charakterlichen Anlagen der Schüler in sittlicher Hinsicht
bezweckt wird.
(3) Privatschulen sind Schulen, die von anderen als den gesetzlichen
Schulerhaltern errichtet und erhalten werden (Artikel 14 Abs. 6 und 7 des
Bundes-Verfassungsgesetzes in der Fassung von 1929 und in der Fassung
des Bundesverfassungsgesetzes vom 18. Juli 1962, BGBl. Nr. 215).
(4) Eine Lehrbefähigung im Sinne dieses Bundesgesetzes liegt bei Erfüllung
der für ein öffentlich-rechtliches oder ein privatrechtliches Dienstverhältnis
erforderlichen besonderen Ernennungs- bzw. Anstellungserfordernisse vor.
§ 2a. Österreichischen Staatsbürgern und inländischen juristischen
Personen sind Staatsangehörige und juristische Personen eines Landes,
317
dessen Angehörigen und juristischen Personen Österreich auf Grund eines

Staatsvertrages im Rahmen der europäischen Integration dieselben Rechte
zu gewähren hat wie Inländern und inländischen juristischen Personen,
gleichgestellt.
ABSCHNITT I.
Errichtung und Führung von Privatschulen. § 3. Voraussetzungen für die
Errichtung.
(1) Die Errichtung von Privatschulen ist im Sinne des Artikels 17 Abs. 2
des Staatsgrundgesetzes vom 21. Dezember 1867, RGBl. Nr. 142, über die
allgemeinen Rechte der Staatsbürger, und - soweit es sich um Schulen von
gesetzlich anerkannten Kirchen oder Religionsgesellschaften handelt - auch
im Sinne des § 4 des Gesetzes vom 25. Mai 1868, RGBl. Nr. 48, wodurch
grundsätzliche Bestimmungen über das Verhältnis der Schule zur Kirche
erlassen werden, bei Erfüllung der in diesem Bundesgesetz enthaltenen
näheren Vorschriften gewährleistet.
(2) Die Errichtung von Privatschulen setzt voraus, daß die Bedingungen
hinsichtlich des Schulerhalters (§ 4), der Leiter und Lehrer (§ 5) und der
Schulräume und Lehrmittel (§ 6) erfüllt werden.
§ 4. Schulerhalter
(1) Eine Privatschule zu errichten, ist als Schulerhalter - bei Erfüllung der
sonstigen in diesem Abschnitt festgesetzten Voraussetzungen - berechtigt
a) jeder österreichische Staatsbürger, der voll handlungsfähig ist, der in sittlicher
Hinsicht verläßlich ist und in dessen Person keine Umstände vorliegen, die
nachteilige Auswirkungen auf das österreichische Schulwesen erwarten
lassen;
b) jede Gebietskörperschaft, gesetzlich anerkannte Kirche oder
Religionsgesellschaft und sonstige Körperschaft des öffentlichen Rechts;
c) jede sonstige inländische juristische Person, deren vertretungsbefugte
Organe die Voraussetzungen nach lit. a erfüllen.
(2) Andere als österreichische Staatsbürger und andere als inländische
juristische Personen können als Schulerhalter - bei Erfüllung der sonstigen
in diesem Abschnitt festgesetzten Voraussetzungen - Privatschulen
errichten, wenn sie beziehungsweise ihre vertretungsbefugten Organe
in sittlicher Hinsicht verläßlich und keine nachteiligen Auswirkungen
auf das österreichische Schulwesen zu erwarten sind. Sofern die
vertretungsbefugten Organe nicht die österreichische Staatsbürgerschaft
besitzen und ihren Wohnsitz nicht in Österreich haben, ist von ausländischen
juristischen Personen ein Zustellungsbevollmächtigter zu bestellen, der die
österreichische Staatsbürgerschaft besitzt und seinen Wohnsitz in Österreich
hat. Durch Staatsverträge (Kulturabkommen) begründete Rechte werden
hiedurch nicht berührt.
(3) Aufgabe des Schulerhalters ist die finanzielle, personelle und räumliche
Vorsorge für die Führung der Schule.
318
(4) Der Schulerhalter hat außer den ihm nach diesem Bundesgesetz sonst
obliegenden Anzeigen jede nach den Bestimmungen dieses Bundesgesetzes
maßgebende Veränderung in seiner Person beziehungsweise in der Person
seiner vertretungsbefugten Organe und in der Organisation der Schule
sowie die Einstellung der Schulführung und die Auflassung der Schule der
zuständigen Schulbehörde unverzüglich anzuzeigen und ihr auf Verlangen
alle zur Wahrnehmung der Aufsicht (§ 22) erforderlichen Auskünfte über
die Schule zu geben. Er darf den Organen der zuständigen Schulbehörden
den Zutritt zu den Schulliegenschaften, die Beobachtung des Unterrichtes
und die Einsicht in die Schulakten nicht verweigern.
(5) Der Schulerhalter hat sich der Einflußnahme auf die nach den
schulrechtlichen Vorschriften dem Leiter der Schule - sofern er nicht selbst
Leiter der Schule ist (§ 5 Abs. 2) - und den Lehrern zukommenden Aufgaben
zu enthalten.
§ 5. Leiter und Lehrer
(1) Für die pädagogische und schuladministrative Leitung der Privatschule
ist ein Leiter zu bestellen,
a) der die österreichische Staatsbürgerschaft besitzt,
b) der die Eignung zum Lehrer in sittlicher und gesundheitlicher Hinsicht
aufweist,
c) der die Lehrbefähigung für die betreffende oder eine verwandte Schulart
oder eine sonstige geeignete Befähigung nachweist und
d) in dessen Person keine Umstände vorliegen, die nachteilige Auswirkungen
auf das österreichische Schulwesen erwarten lassen.
(2) Schulerhalter, welche die im Abs. 1 lit. a bis c genannten Bedingungen
erfüllen, können die Leitung der Privatschule auch selbst ausüben.
(3) Der Leiter ist für die unmittelbare Leitung und Überwachung des
Unterrichtes an der Privatschule verantwortlich. Er ist an die in Ausübung
der Aufsicht (§ 22) erteilten Weisungen der zuständigen Schulbehörden
gebunden.
(4) Die an der Schule verwendeten Lehrer haben ebenfalls die im Abs. 1 lit. a
bis d genannten Bedingungen zu erfüllen.
(5) Die zuständige Schulbehörde kann von dem Erfordernis der
österreichischen Staatsbürgerschaft (Abs. 1 lit. a und Abs. 4) Nachsicht
erteilen, wenn die Verwendung im Interesse der Schule gelegen ist und
öffentliche Interessen der Nachsichterteilung nicht entgegenstehen.
(6) Die Bestellung des Leiters und der Lehrer sowie jede nach den
Bestimmungen dieses Bundesgesetzes maßgebende Veränderung in deren
Person ist vom Schulerhalter der zuständigen Schulbehörde unverzüglich
anzuzeigen, welche die Verwendung des Leiters oder Lehrers innerhalb
eines Monats ab dem Einlangen der Anzeige zu untersagen hat, wenn die
Bedingungen der vorstehenden Absätze nicht erfüllt sind. Darüber hinaus
hat die zuständige Schulbehörde die Verwendung eines Leiters oder
Lehrers zu untersagen, wenn die in den vorstehenden Absätzen genannten
319
Bedingungen später wegfallen, sowie hinsichtlich des Leiters auch dann,

wenn er die ihm nach Abs. 3 obliegenden Aufgaben nicht ausreichend erfüllt.
(7) Die Bestimmungen des Abs. 6 gelten sinngemäß auch für den
Schulerhalter in seiner Eigenschaft als Leiter der Schule (Abs. 2).
§ 6. Schulräume und Lehrmittel
Der Schulerhalter hat nachzuweisen, daß er über Schulräume verfügt,
die baulich und einrichtungsmäßig dem Zweck und der Organisation der
Privatschule sowie den Grundsätzen der Pädagogik und der Schulhygiene
entsprechen. Ferner hat er nachzuweisen, daß die Privatschule die zur
Durchführung des Lehrplanes notwendigen Lehrmittel und sonstigen
Ausstattungen und Einrichtungen aufweist.
§ 7. Anzeige und Untersagung der Errichtung
(1) Die Errichtung einer Privatschule ist der zuständigen Schulbehörde
mindestens drei Monate vor der beabsichtigten Eröffnung der Schule unter
Nachweis der Erfüllung der Bestimmungen des § 4 Abs. 1 oder 2, des § 5
Abs. 1 oder 2 und 4 (unbeschadet der Bestimmung des § 5 Abs. 5) sowie des
§ 6 anzuzeigen.
(2) Die zuständige Schulbehörde hat die Errichtung der Schule binnen zwei
Monaten ab dem Zeitpunkt der Einbringung der Anzeige zu untersagen,
wenn die im Abs. 1 angeführten Bestimmungen nicht erfüllt sind. Wird die
Errichtung der Schule innerhalb dieser Frist nicht untersagt, so kann sie
eröffnet werden.
§ 8. Erlöschen und Entzug des Rechtes zur Schulführung.
(1) Das Recht zur Führung einer Schule erlischt
a) mit der Auflassung der Schule durch den Schulerhalter,
b) mit dem Wegfall einer der im § 4 Abs. 1 oder 2 genannten Bedingungen,
c) nach Ablauf eines Jahres, in dem die Schule nicht geführt wurde,
d) mit der Überlassung des Schulvermögens an eine andere Person in der
Absicht, die Schulerhalterschaft aufzugeben, oder
e) mit dem Tode des Schulerhalters (bei juristischen Personen mit deren
Auflösung); die Verlassenschaft beziehungsweise die Erben des
Schulerhalters können die Schule jedoch bis zum Ende des laufenden
Schuljahres weiterführen, wobei sie die Rechte und Pflichten des
Schulerhalters übernehmen; sie haben die Weiterführung der Schule der
zuständigen Schulbehörde anzuzeigen.
(2) Werden nach der Eröffnung der Schule die im § 5 Abs. 1, 2 oder 4 (unter
allfälliger Bedachtnahme auf § 5 Abs. 5) oder im § 6 genannten Bedingungen
nicht mehr erfüllt, so hat die zuständige Schulbehörde dem Schulerhalter
eine angemessene Frist zur Beseitigung der Mängel zu setzen. Werden die
Mängel innerhalb dieser Frist nicht behoben, so hat die Schulbehörde die
weitere Führung der Schule zu untersagen.
(3) Wenn für die Gesundheit oder Sittlichkeit der Schüler Gefahr im Verzug
ist, hat die zuständige Schulbehörde die weitere Führung der Schule ohne
Setzung einer Frist zu untersagen.
320
§ 9. Bezeichnung von Privatschulen

Jede Privatschule hat eine Bezeichnung zu führen, aus der ihr Schulerhalter
erkennbar ist und die, auch wenn die Schule das Öffentlichkeitsrecht
(Abschnitt III) besitzt, jede Möglichkeit einer Verwechslung mit einer
öffentlichen Schule ausschließt. Wenn nicht eine Bewilligung zur Führung
einer gesetzlich geregelten Schulartbezeichnung nach Abschnitt II erteilt
worden ist, muß ferner jede Verwechslungsmöglichkeit mit einer solchen
Bezeichnung ausgeschlossen sein.
§ 10. Schülerheime
(1) Die Errichtung privater Heime, in die Schüler öffentlicher oder privater
Schulen zum Zwecke des Schulbesuches oder zur Überwachung ihrer
Lerntätigkeit aufgenommen werden (Schülerheime), bedarf keiner Anzeige.
(2) Die zuständige Schulbehörde hat die Führung eines Schülerheimes zu
untersagen, wenn trotz Aufforderung zur Abstellung von Mängeln innerhalb
einer angemessenen Frist weiterhin Umstände vorliegen, durch die für
die Gesundheit, die Sittlichkeit oder die staatsbürgerliche Gesinnung der
Schüler Gefahr besteht. Diese Untersagung gilt für die Dauer des Vorliegens
der festgestellten Mängel.
ABSCHNITT II.
Führung einer gesetzlich geregelten Schulartbezeichnung.
§ 11. Bewilligungspflicht
(1) Die Führung einer gesetzlich geregelten Schulartbezeichnung durch
Privatschulen ist nur mit Bewilligung der zuständigen Schulbehörde zulässig.
(2) Die Bewilligung ist auf Ansuchen des Schulerhalters zu erteilen, wenn
a) die Organisation einschließlich des Lehrplanes und die Ausstattung
der Privatschule im wesentlichen mit gleichartigen öffentlichen Schulen
übereinstimmt und an der Schule nur schulbehördlich approbierte
Lehrbücher, soweit eine solche Approbation vorgesehen ist, verwendet
werden,
b) der Leiter und die Lehrer die Lehrbefähigung für die betreffende Schulart
besitzen, wobei jedoch die zuständige Schulbehörde vom Nachweis der
Lehrbefähigung für Lehrer absehen kann, wenn Mangel an entsprechend
lehrbefähigten Lehrern besteht und ein sonstiger ausreichender
Befähigungsnachweis erbracht wird, und
c) glaubhaft gemacht wird, daß die Führung der Privatschule für mehrere Jahre
mit einem hohen Grad der Wahrscheinlichkeit sichergestellt ist.
(3) Bei Gebietskörperschaften, gesetzlich anerkannten Kirchen und
Religionsgesellschaften und sonstigen Körperschaften des öffentlichen
Rechts wird die Erfüllung der Voraussetzungen des Abs. 2 lit. c von Gesetzes
wegen angenommen.
(4) Um die Bewilligung zur Führung einer gesetzlich geregelten
Schulartbezeichnung kann gleichzeitig mit der Anzeige der Errichtung der
Privatschule (§ 7) angesucht werden.
321
§ 12. Widerruf der Bewilligung

Werden die im § 11 Abs. 2 genannten Voraussetzungen nicht mehr voll erfüllt,
so hat die zuständige Schulbehörde dem Schulerhalter eine angemessene
Frist zur Beseitigung der Mängel zu setzen. Werden die Mängel innerhalb
dieser Frist nicht behoben, so hat die Schulbehörde die Bewilligung zur
Führung einer gesetzlich geregelten Schulartbezeichnung zu widerrufen,
sofern nicht § 8 anzuwenden ist.
ABSCHNITT III.
Öffentlichkeitsrecht.
§ 13. Rechtswirkungen des Öffentlichkeitsrechtes
(1) Durch die Verleihung des Öffentlichkeitsrechtes wird einer Privatschule
das Recht übertragen, Zeugnisse über den Erfolg des Schulbesuches
auszustellen, die mit der Beweiskraft öffentlicher Urkunden und mit den
gleichen Rechtswirkungen ausgestattet sind wie Zeugnisse gleichartiger
öffentlicher Schulen.
(2) Mit dem Öffentlichkeitsrecht sind weiters folgende Rechtswirkungen
verbunden:
a) an der Schule können die für die betreffende Schulart vorgesehenen
Prüfungen abgehalten werden;
b) der Schule können Lehramtsanwärter, die sich damit einverstanden
erklären, zur Einführung in die Praxis des Lehramtes mit Zustimmung des
Schulerhalters zugewiesen werden;
c) auf die Schule finden die für die entsprechenden öffentlichen Schulen
geltenden schulrechtlichen Vorschriften Anwendung, soweit gesetzlich nicht
anderes bestimmt ist und soweit sie nicht die Errichtung, Erhaltung und
Auflassung, die Sprengel und das Schulgeld betreffen. Bei der Anwendung
von landesgesetzlichen Vorschriften betreffend die äußere Organisation
der öffentlichen Pflichtschulen treten an die Stelle der dort vorgesehenen
Behördenzuständigkeiten jene des § 23.
§ 14. Verleihung des Öffentlichkeitsrechtes
(1) Privatschulen, die gemäß § 11 eine gesetzlich geregelte
Schulartbezeichnung führen, ist das Öffentlichkeitsrecht zu verleihen, wenn
a) der Schulerhalter (bei juristischen Personen dessen vertretungsbefugte
Organe), der Leiter und die Lehrer Gewähr für einen ordnungsgemäßen
und den Aufgaben des österreichischen Schulwesens gerecht werdenden
Unterricht bieten und
b) der Unterrichtserfolg jenem an einer gleichartigen öffentlichen Schule
entspricht.
(2) Privatschulen, die keiner öffentlichen Schulart entsprechen, ist das
Öffentlichkeitsrecht zu verleihen, wenn
a) die Voraussetzungen nach Abs. 1 lit. a vorliegen,
b) die Organisation, der Lehrplan und die Ausstattung der Schule sowie die
Lehrbefähigung des Leiters und der Lehrer mit einem vom Bundesminister
322
für Unterricht, Kunst und Kultur erlassenen oder genehmigten

Organisationsstatut übereinstimmen und
c) die Privatschule sich hinsichtlich ihrer Unterrichtserfolge bewährt hat.
(3) Bei Gebietskörperschaften, gesetzlich anerkannten Kirchen und
Religionsgesellschaften und sonstigen Körperschaften des öffentlichen
Rechts wird die Erfüllung der Voraussetzungen des Abs. 1 lit. a und des Abs.
2 lit. a von Gesetzes wegen angenommen.
§ 15. Dauer der Verleihung
Das Öffentlichkeitsrecht darf an Privatschulen vor ihrem lehrplanmäßig
vollen Ausbau jeweils nur für die bestehenden Klassen (Jahresstufen)
und jeweils nur für ein Schuljahr verliehen werden. Nach Erreichung
des lehrplanmäßig vollen Ausbaues kann das Öffentlichkeitsrecht nach
Maßgabe der Unterrichtserfolge auch auf mehrere Schuljahre verliehen
werden. Wenn Gewähr für eine fortdauernde Erfüllung der gesetzlichen
Bedingungen besteht, ist das Öffentlichkeitsrecht nach Erreichung des
lehrplanmäßig vollen Ausbaues der Schule auf die Dauer der Erfüllung der
gesetzlichen Bedingungen zu verleihen.
§ 16. Entzug und Erlöschen des Öffentlichkeitsrechtes.
(1) Wenn die im § 14 genannten Voraussetzungen während der Dauer des
Öffentlichkeitsrechtes nicht mehr voll erfüllt werden, ist dem Schulerhalter
unter Androhung des Entzuges beziehungsweise der Nichtweiterverleihung
des Öffentlichkeitsrechtes eine Frist bis längstens zum Ende des
darauffolgenden Schuljahres zur Behebung der Mängel zu setzen.
Werden die Mängel innerhalb der gesetzten Frist nicht behoben, so ist das
Öffentlichkeitsrecht zu entziehen beziehungsweise nicht weiterzuverleihen.
(2) Mit der Auflassung einer Privatschule erlischt das ihr verliehene
Öffentlichkeitsrecht. In diesem Falle sind die an der Schule geführten
Amtsschriften und Kataloge der zuständigen Schulbehörde zur
Aufbewahrung zu übergeben.
ABSCHNITT IV.
Subventionierung von Privatschulen.
A. Subventionierung konfessioneller Privatschulen.
§ 17. Anspruchsberechtigung
(1) Den gesetzlich anerkannten Kirchen und Religionsgesellschaften
sind für die mit dem Öffentlichkeitsrecht ausgestatteten konfessionellen
Privatschulen nach Maßgabe der folgenden Bestimmungen Subventionen
zum Personalaufwand zu gewähren.
(2) Unter konfessionellen Privatschulen sind die von den gesetzlich
anerkannten Kirchen und Religionsgesellschaften und von ihren
Einrichtungen erhaltenen Schulen sowie jene von Vereinen, Stiftungen und
Fonds erhaltenen Schulen zu verstehen, die von der zuständigen kirchlichen
(religionsgesellschaftlichen) Oberbehörde als konfessionelle Schulen
anerkannt werden.
323
§ 18. Ausmaß der Subventionen

(1) Als Subvention sind den gesetzlich anerkannten Kirchen und
Religionsgesellschaften für die konfessionellen Schulen jene
Lehrerdienstposten zur Verfügung zu stellen, die zur Erfüllung des
Lehrplanes der betreffenden Schule erforderlich sind (einschließlich des
Schulleiters und der von den Lehrern an vergleichbaren öffentlichen Schulen
zu erbringenden Nebenleistungen), soweit das Verhältnis zwischen der Zahl
der Schüler und der Zahl der Lehrer der betreffenden konfessionellen Schule
im wesentlichen jenem an öffentlichen Schulen gleicher oder vergleichbarer
Art und vergleichbarer örtlicher Lage entspricht.
(2) Die gemäß Abs. 1 den einzelnen konfessionellen Schulen zukommenden
Lehrerdienstposten hat die zuständige Schulbehörde auf Antrag der für die
Schule entsprechend dem § 17 Abs. 2 in Betracht kommenden Kirche oder
Religionsgesellschaft festzustellen.
(3) Die gesetzlich anerkannte Kirche oder Religionsgesellschaft hat
Umstände, die eine Auswirkung auf die Anzahl der einer konfessionellen
Schule zukommenden Lehrerdienstposten zur Folge haben können,
unverzüglich der zuständigen Schulbehörde zu melden.
(4) Die zuständige Schulbehörde hat bei Änderung der Voraussetzungen
nach Abs. 1 die Anzahl der der Schule zukommenden Lehrerdienstposten
neu festzustellen.
(5) Wenn für eine konfessionelle Schule
a) erstmals um das Öffentlichkeitsrecht angesucht wurde oder
b) im vorangegangenen Schuljahr das Öffentlichkeitsrecht verliehen und
nicht gemäß § 16 Abs. 1 entzogen worden ist sowie für das laufende
Schuljahr um die Verleihung des Öffentlichkeitsrechtes angesucht wurde,
ist sie hinsichtlich der Subventionierung auf Antrag der betreffenden
gesetzlich anerkannten Kirche oder Religionsgesellschaft so zu behandeln,
als ob ihr das Öffentlichkeitsrecht bereits verliehen worden wäre. Wird das
Öffentlichkeitsrecht jedoch nicht verliehen, so hat die gesetzlich anerkannte
Kirche oder Religionsgesellschaft dem Bund den durch die Subventionierung
entstandenen Aufwand zu ersetzen.
(6) Die Feststellung der den einzelnen konfessionellen Schulen zukommenden
Lehrerdienstposten wird mit Beginn des auf die Einbringung des Antrages
gemäß Abs. 2 und die Änderung der maßgeblichen Voraussetzungen
folgenden Monatsersten wirksam, sofern der Antrag jedoch für ein
bevorstehendes Schuljahr oder einen bevorstehenden Teil eines Schuljahres
vorgelegt wird, frühestens mit Beginn des Schuljahres beziehungsweise des
Teiles des Schuljahres.
§ 19. Art der Subventionierung
(1) Die Subventionen zum Personalaufwand sind nach Maßgabe der
Bestimmungen dieses Abschnittes zu gewähren:
a) durch Zuweisung von Bundeslehrern oder Bundesvertragslehrern durch
den Bund als lebende Subventionen an die Schule, soweit es sich nicht um
324
eine in lit. b genannte Schule handelt, oder

b) durch Zuweisung von Landeslehrern oder Landesvertragslehrern durch
das Land als lebende Subventionen an Volks-, Haupt- und Sonderschulen,
polytechnische Lehrgänge und Berufsschulen.
(2) Die Kosten der Subventionen zum Personalaufwand sind auch in den
Fällen des Abs. 1 lit. b vom Bund zu tragen.
(3) Ist die Zuweisung eines Lehrers nach Abs. 1 nicht möglich, so hat der Bund
für den unterrichtenden Lehrer eine Vergütung in der Höhe der Entlohnung
zu leisten, die diesem Lehrer zustehen würde, wenn er entsprechend der
Art der betreffenden Schule entweder Bundes- oder Landesvertragslehrer
wäre. Erfüllt dieser Lehrer die Anstellungserfordernisse nicht, ist die
Vergütung in der Höhe der Entlohnung festzusetzen, die in gleichartigen
Fällen in der Regel Bundes(Landes)vertragslehrern gegeben wird. Der
Bund hat auch die für einen solchen Lehrer für den Dienstgeber auf Grund
gesetzlicher Vorschriften anfallenden Leistungen bis zu der der Vergütung
entsprechenden Höhe zu ersetzen. Durch die Zahlung der Vergütung wird
ein Dienstverhältnis zum Bund nicht begründet.
(4) Die Vergütung gemäß Abs. 3 ist an den unterrichtenden Lehrer
auszuzahlen. Sofern der Lehrer jedoch Angehöriger eines Ordens oder
einer Kongregation der katholischen Kirche ist und die Schule, an der er
unterrichtet, von diesem Orden oder dieser Kongregation erhalten wird, ist
die Vergütung an den Schulerhalter zu zahlen.
(5) Wird einer konfessionellen Schule das Öffentlichkeitsrecht rückwirkend
verliehen und wurde kein Antrag gemäß § 18 Abs. 5 gestellt, ist der in Betracht
kommenden gesetzlich anerkannten Kirche oder Religionsgesellschaft für
diese Schule der Lehrerpersonalaufwand zu ersetzen, den der Schulerhalter
für die dort unterrichtenden Lehrer geleistet hat, höchstens jedoch im
Ausmaß des Betrages, der bei Anwendung der Abs. 3 und 4 bezahlt worden
wäre.
§ 20. Grenzen der Zuweisung lebender Subventionen
(1) Den unter § 17 fallenden Schulen dürfen nur solche Lehrer als lebende
Subventionen zugewiesen werden, die sich damit einverstanden erklären
und deren Zuweisung an die betreffende Schule die zuständige kirchliche
(religionsgesellschaftliche) Oberbehörde beantragt oder gegen deren
Zuweisung sie keinen Einwand erhebt.
(2) Die Zuweisung ist aufzuheben, wenn der Lehrer dies beantragt oder
wenn die zuständige kirchliche (religionsgesellschaftliche) Oberbehörde die
weitere Verwendung des Lehrers an der betreffenden Schule aus religiösen
Gründen für untragbar erklärt und aus diesem Grunde die Aufhebung der
Zuweisung bei der zuständigen Dienstbehörde beantragt.
B. Subventionierung sonstiger Privatschulen.
§ 21. Voraussetzungen
(1) Für Privatschulen mit Öffentlichkeitsrecht, die nicht unter § 17
fallen, kann der Bund nach Maßgabe der auf Grund des jeweiligen
325
Bundesfinanzgesetzes zur Verfügung stehenden Mittel Subventionen zum

Personalaufwand gewähren, wenn
a) die Schule einem Bedarf der Bevölkerung entspricht,
b) mit der Führung der Schule nicht die Erzielung eines Gewinnes bezweckt
wird,
c) für die Aufnahme der Schüler nur die für öffentliche Schulen geltenden
Aufnahmsbedingungen maßgebend sind und
d) die Schülerzahl in den einzelnen Klassen nicht unter den an
öffentlichen Schulen gleicher Art und gleicher örtlicher Lage üblichen
Klassenschülerzahlen liegt.
(2) Ein Bedarf im Sinne des Abs. 1 lit. a ist bei privaten Volks- und Hauptschulen
jedenfalls nicht gegeben, wenn dadurch die Organisationshöhe einer
öffentlichen Volks- oder Hauptschule, in deren Sprengel die Privatschule
liegt, gemindert wird.
(3) Die Art der Subventionierung für die im Abs. 1 genannten Schulen richtet
sich nach § 19 Abs. 1. Vor Zuweisung eines Lehrers als lebende Subvention
ist der Schulerhalter zu hören.
ABSCHNITT V.
Gemeinsame Bestimmungen.
§ 22. Aufsicht über die Privatschulen
(1) Die Aufsicht über die Privatschulen erstreckt sich auf die Überwachung
der Erfüllung der Bestimmungen des Abschnittes I, bei Privatschulen, die
zur Führung einer gesetzlich geregelten Schulartbezeichnung berechtigt
sind, auch auf die Überwachung der Erfüllung der Bestimmungen des
Abschnittes II und bei Privatschulen mit Öffentlichkeitsrecht überdies auf
die Überwachung der Erfüllung der Bestimmungen des Abschnittes III.
(2) Die Aufsicht über private Schülerheime erstreckt sich auf die im § 10
Abs. 2 vorgesehenen Maßnahmen.
§ 23. Behördenzuständigkeit
(1) Zuständige Schulbehörde erster Instanz im Sinne dieses Bundesgesetzes
ist der örtlich zuständige Landesschulrat, soweit im folgenden nicht anderes
bestimmt ist.
(2) Der Bundesminister für Unterricht, Kunst und Kultur ist in erster Instanz
zuständig
a) für die Angelegenheiten der in private Pädagogische Hochschulen
eingegliederten Praxisschulen,
b) für die Verleihung und den Entzug des Öffentlichkeitsrechtes,
c) für die Subventionierung von Privatschulen gemäß § 21 mit Ausnahme der
nach Abs. 5 zu beurteilenden Zuständigkeiten für die einzelne Zuweisung
von Lehrern.
(3) Bei privaten Volks-, Haupt- und Sonderschulen und Polytechnischen
Lehrgängen sowie bei privaten Schülerheimen, soweit sie ausschließlich
oder vorwiegend von Schülern derartiger öffentlicher oder privater
326
Schulen besucht werden, sind die nach diesem Bundesgesetz in Betracht

kommenden Anzeigen und Ansuchen (ausgenommen in Angelegenheiten
der Subventionierung von konfessionellen Privatschulen) beim örtlich
zuständigen Bezirksschulrat einzubringen, welcher sie mit seiner
Stellungnahme dem Landesschulrat vorzulegen hat. Für diese Schulen ist
der örtlich zuständige Bezirksschulrat zuständige Schulbehörde im Sinne
des § 16 Abs. 2 zweiter Satz.
(4) Ansuchen um Verleihung des Öffentlichkeitsrechtes sind beim örtlich
zuständigen Landesschulrat einzubringen, soweit es sich nicht um Schulen
nach Abs. 2 lit. a handelt oder Abs. 3 anzuwenden ist. Der Landesschulrat hat
derartige bei ihm eingebrachte oder ihm gemäß Abs. 3 vom Bezirksschulrat
vorgelegte Ansuchen mit seiner Stellungnahme dem Bundesminister für
Unterricht, Kunst und Kultur vorzulegen. Ansuchen dieser Art für die im
Abs. 2 lit. a genannten Schulen sind unmittelbar beim Bundesminister für
Unterricht, Kunst und Kultur einzubringen.
(5) Die Zuständigkeit für die im Rahmen der gewährten Subventionen zum
Personalaufwand zu erfolgende Zuweisung der einzelnen Lehrer (§ 19 Abs.
1) richtet sich nach den für die Zuweisung von Lehrern an gleichartigen
öffentlichen Schulen geltenden Zuständigkeitsbestimmungen.
(6) Im übrigen richtet sich die Zuständigkeit zur Schulaufsicht und in den
Angelegenheiten, die in gleicher Weise öffentliche und private Schulen
betreffen, nach den allgemeinen schulrechtlichen Vorschriften.
§ 24. Strafbestimmungen
Wer entgegen den Bestimmungen dieses Bundesgesetzes
a) eine Privatschule ohne Anzeige oder nach Untersagung der Errichtung
eröffnet; oder nach Entzug oder Erlöschen des Rechtes zur Führung
einer Privatschule diese weiterführt;
b) für eine Privatschule eine Bezeichnung führt, die mit der Bezeichnung
einer öffentlichen Schule verwechslungsfähig ähnlich ist; oder für eine
Privatschule ohne Öffentlichkeitsrecht den Anschein erweckt, als ob sie
das Öffentlichkeitsrecht besitze; oder ohne Bewilligung eine gesetzlich
geregelte Schulartbezeichnung oder eine mit dieser verwechslungsfähig
ähnliche Bezeichnung führt;
c) Zeugnisse ausstellt, die mit den Zeugnissen einer öffentlichen
oder mit dem Öffentlichkeitsrecht ausgestatteten Schule gleich
oder verwechslungsfähig ähnlich sind, ohne daß die Schule das
Öffentlichkeitsrecht besitzt;
d) einen Leiter oder Lehrer nach der Untersagung dessen Verwendung
weiter in dieser Eigenschaft an der Schule beschäftigt;
e) den Organen der zuständigen Schulbehörden den Zutritt zu den
Schulliegenschaften, die Beobachtung des Unterrichtes und die Einsicht
in die Schulakten ungerechtfertigterweise verweigert oder die nach den
Bestimmungen dieses Bundesgesetzes zu erstattenden Anzeigen oder
Auskünfte unterläßt;
327
f) ein privates Schülerheim nach Untersagung der Führung trotz weiteren

Vorliegens der beanständeten Mängel weiterführt, begeht, wenn die Tat
nicht nach anderen gesetzlichen Vorschriften strenger zu bestrafen ist,
eine Verwaltungsübertretung und ist von der Bezirksverwaltungsbehörde
mit einer Geldstrafe bis zu 2 180 Euro, im Falle der Uneinbringlichkeit
mit Ersatzfreiheitsstrafe bis zu vier Wochen zu bestrafen.
Übergangsbestimmungen.
§ 25
Im Zeitpunkte des Inkrafttretens dieses Bundesgesetzes bestehende
Privatschulen, deren Errichtung vor dem Inkrafttreten dieses Bundesgesetzes
von der zuständigen Schulbehörde zur Kenntnis genommen oder genehmigt
worden ist, gelten als im Sinne dieses Bundesgesetzes errichtet. Ebenso
bleiben die vor dem Inkrafttreten dieses Bundesgesetzes ausgesprochenen
Verleihungen des Öffentlichkeitsrechtes aufrecht. Im übrigen finden auf
diese Schulen und Schülerheime die Bestimmungen dieses Bundesgesetzes
Anwendung.
§ 26
(1) Folgende Schulen sind abweichend von den Bestimmungen des § 9
berechtigt, weiterhin ihre nachstehend angeführte Bezeichnung zu führen:
a) Öffentliches Schottengymnasium der Benediktiner in Wien,
b) Öffentliches Stiftsgymnasium der Benediktiner in Melk,
c) Öffentliches Stiftsgymnasium der Benediktiner in Seitenstetten,
d) Öffentliches Stiftsgymnasium der Benediktiner in Kremsmünster,
e) Öffentliches Stiftsgymnasium der Benediktiner in St. Paul im Lavanttal,
f) Öffentliches Gymnasium der Franziskaner in Solbad Hall/Tirol,
g) Öffentliches Gymnasium der Stiftung „Theresianische Akademie’’ in
Wien.
(2) Die im Abs. 1 genannten Schulen gelten als mit dem Öffentlichkeitsrecht
im Sinne dieses Bundesgesetzes ausgestattet.
§ 27
(1) Bereits vor Inkrafttreten dieses Bundesgesetzes vom Bund an
Privatschulen gewährte Subventionen zum Personalaufwand, die in diesem
Zeitpunkt noch aufrecht sind, sowie im Zeitpunkt des Inkrafttretens
dieses Bundesgesetzes bestehende Verträge über die Subventionierung
von Privatschulen werden durch dieses Bundesgesetz nicht berührt. Diese
Subventionen sind jedoch auf Subventionen nach diesem Bundesgesetz
anzurechnen.
(2) Für das Öffentliche Gymnasium der Stiftung „Theresianische
Akademie’’ in Wien hat der Bund als Subvention weiterhin den gesamten
Personalaufwand für Lehrer einschließlich des Direktors durch Zuweisung
von Bundeslehrern oder Bundesvertragslehrern an diese Schule unter
Bedachtnahme auf die Bestimmung des § 21 Abs. 3 zweiter Satz zu gewähren.
Schlußbestimmungen.
§ 28
328
(1) Mit dem Wirksamwerden dieses Bundesgesetzes treten alle das

Privatschulwesen (§ 1) regelnden Vorschriften außer Kraft.
(2) Im Sinne des Abs. 1 treten insbesondere folgende Vorschriften außer
Kraft:
a) das Provisorische Gesetz über den Privatunterricht vom 27. Juni 1850,
RGBl. Nr. 309,
b) die §§ 68 bis 73 des Gesetzes vom 14. Mai 1869, RGBl. Nr. 62
(Reichsvolksschulgesetz), und
c) die §§ 187 bis 203 der Verordnung des Ministeriums für Kultus und
Unterricht vom 29. September 1905, RGBl. Nr. 159 (Schul- und
Unterrichtsordnung für allgemeine Volksschulen und für Bürgerschulen).
§ 29
(1) Dieses Bundesgesetz tritt am 1. November 1962 in Kraft.
(2) § 2 Abs. 4, § 2a, § 4 Abs. 1 und 2, § 5 Abs. 1, 4 und 5, § 14 Abs. 2, § 23
Abs. 2 und 4, § 29 Abs. 1 sowie § 30 dieses Bundesgesetzes in der Fassung
des Bundesgesetzes BGBl. Nr. 448/1994 treten mit 1. Jänner 1994 in Kraft.
(3) Die nachstehend genannten Bestimmungen dieses Bundesgesetzes in der
Fassung des Bundesgesetzes BGBl. I Nr. 75/2001 treten wie folgt in Kraft:
1. § 23 Abs. 2 und 4 sowie § 30 treten mit Ablauf des Tages der Kundmachung
im Bundesgesetzblatt in Kraft,
2. § 24 tritt mit 1. Jänner 2002 in Kraft.
(4) § 14 Abs. 2 lit. b, § 23 Abs. 2 und 4 sowie § 30 dieses Bundesgesetzes in
der Fassung des Bundesgesetzes BGBl. I Nr. 71/2008 treten mit Ablauf des
Tages der Kundmachung im Bundesgesetzblatt in Kraft.
§ 30
Mit der Vollziehung dieses Bundesgesetzes ist der Bundesminister für
Unterricht, Kunst und Kultur betraut.
329
Kurztitel
Schulorganisationsgesetz
Kundmachungsorgan
BGBl. Nr. 242/1962 zuletzt geändert durch BGBl. I Nr. 113/2006
Inkrafttretensdatum
25.07.2006
§ 4. Allgemeine Zugänglichkeit der Schulen

(1) Die öffentlichen Schulen sind allgemein ohne Unterschied der Geburt,
des Geschlechtes, der Rasse, des Standes, der Klasse, der Sprache und des
Bekenntnisses zugänglich. Aus organisatorischen oder lehrplanmäßigen
Gründen können jedoch Schulen und Klassen eingerichtet werden, die nur
für Knaben oder nur für Mädchen bestimmt sind, sofern dadurch keine
Minderung der Organisation eintritt.
(2) Die Aufnahme eines Schülers in eine öffentliche Schule darf nur
abgelehnt werden,
a) wenn der Schüler die schulrechtlichen Aufnahmsbedingungen nicht
erfüllt;
b) wenn der Schüler dem für die Schule vorgesehenen Schulsprengel nicht
angehört;
c) wenn für die Schule kein Schulsprengel vorgesehen ist, wegen Überfüllung
der Schule.
(3) Für Privatschulen gelten die Bestimmungen des Abs. 1 mit der Maßgabe,
daß an Schulen, deren Schulerhalter eine gesetzlich anerkannte Kirche oder
Religionsgesellschaft, eine nach deren Recht bestehende Einrichtung oder
ein anderer Rechtsträger ist, sofern er nicht öffentlich-rechtlichen Charakter
hat, die Auswahl der Schüler nach dem Bekenntnis und nach der Sprache
sowie die Geschlechtertrennung zulässig sind.
(4) (Grundsatzbestimmung) Die Bestimmungen des Abs. 1 und 2 gelten für
öffentliche Pflichtschulen, die keine Praxisschulen gemäß § 33a Abs. 1 sind,
als Grundsatzbestimmungen. Die nach dem Ausführungsgesetz zuständige
Behörde hat vor der Festlegung der Geschlechtertrennung den Schulerhalter
und die Schulbehörde erster Instanz (Kollegium) zu hören.
330
Constitutional and Legal Aspects of Teaching
about Religion in the Bulgarian School
Jenia Peteva*1
I. Introduction
This paper originated from a contribution to the “Conference on Religion,

Beliefs, Philosophical Convictions and Education - From Passive Toleration
to Active Appreciation of Diversity” held in Bruges in December 2010. It
reflects on the debates held during the conference and provides an overview
of the issues raised in the context of the Bulgarian legal system.
Teaching of religion in schools reflects the history of a society, its cultural

heritage and the constitutional system of the country. It also reflects
the protection of human rights the respect of which is enforced by the
constitution and the international law, and particularly by the European
Convention on Human Rights.
The main question is whether religion should be necessarily a part of

the school curriculum and if so what would be the guarantees that right
to education and freedom of religion are enforced in a balanced and
proportionate way.
These questions are explored below in their constitutional and legal context
and the concrete rules of the legislation in force.
II. Constitutional Law and Practice
The Bulgarian Constitution of 1991 recognises the right to education and

freedom of religion as human rights. It also sets up the principle of a secular state
where the Orthodox Christianity is a traditional religion. The Law on Religious
Denominations adopted in 2002 clarifies and lays down detailed provisions on
the status of denominations and the scope of the freedom of religion.
* Former assistant professor lecturer in Constitutional Law, Sofia University and

former lecturer in European Constitutional Law and International Protection
of Human Rights, New Bulgarian University, Sofia. At present, a member of the
statutory staff of the European Commission. The views expressed in this paper are
exclusively those of the author and may not be considered in any form whatsoever as
an expression of the position of the European Commission.
331
Jenia Peteva
A. Right to education
Article 53 of the Constitution recognises that everyone shall have a right to
education and sets up the conditions for the establishment of schools and the
financial commitment of the state:
Article 53
(1) Everyone shall have a right to education
(2) The school education shall be compulsory as up to 16 years of age
(3) The primary and secondary education in the state and municipal schools
shall be free of charge.
...
(5) Citizens and organisations may set up schools under conditions and by a
way as established by law. Instruction in these schools must comply with
the requirements as set up by the state.
(6) The State shall encourage the education by setting up and financing
schools, supporting gifted pupils and students, creating conditions for
vocational training and re-qualification. It shall control over all schools of
every type and grade.
Article 6 (6) on the Law on Religious Denominations recognises the right

to give and receive religious education in any language as a matter within
the scope of freedom of religion. This is separate and independent from
the teaching of religion in places considered appropriate by religious
denominations in accordance with paragraph 7 of the same article.
At the same time the right to accede to cultural heritage has a constitutional
status:
Article 54
(1) Everyone shall be able to benefit from the national and universal cultural
heritage and to develop his or her culture in accordance with his or her
ethnic belonging. This right shall be recognised and guaranteed by law.
Therefore, the Bulgarian constitution sets up the right of education in

relation to the respect for that part of human conscience that shapes also the
sense of belonging to a certain community.
In a similar way the Constitution sets up a framework for tolerance among

people belonging to different faiths and religions.
B. Status of Religions
Article 13 of the Bulgarian Constitution lays down the principles regarding
the place of religion in the public life. Accordingly, religious denominations
332
ConstitutionalandLegalAspectsofTeachingaboutReligionintheBulgarianSchool
are free but their institutions are separated from the state. In addition,
paragraph 3 recognizes the Orthodox Christianity as the traditional religion
in Bulgaria.
The Constitutional Court consistently held that this provision establishes a

separation between the state and religious denomination and the autonomy
and independence of the latter.1
The Constitutional Court pointed out that the recognition of the Orthodox
Christianity as a traditional religion is an essential feature of the Bulgarian
Constitution. It clarifies that this provision sets our Constitution in the
group of the states with established churches where the state supports
the predominant religion.2 The Court, however, does not go that far as to
conclude that this provision obliges the state to support actively the Orthodox
Christianity in a way similar to the relations between Church and State in
the countries with established churches. The Court explains the special
historical role of the Orthodox Church in the Bulgarian national history.
At the same time it clarified that the constitutional status of the Orthodox
Christian Church is a moderate expression of the special role of established
churches in the “European constitutional tradition”.
This interpretation refrains from attributing wide privileges and powers of

the Orthodox Church as regards its active involvement in the public decision
taking and functioning of the public institutions. Nor does it imply any
obligations for the citizens to contribute directly to the finances and activities
of the Church. It follows, however, that if a decision regarding religion, such
as teaching religion in schools, is to be taken, Orthodox Christianity may
take a prior role.
C. Freedom of Religion
Article 37 of the Constitution recognises freedom of religion as a human
right:
Article 37
(1) Freedom of conscience, thought and religion and the choice of religion or
religious or atheistic convictions shall be inviolable. The State contributes
to the keeping up of the tolerance and respect between believers from
different denominations as well as between believers and non-believers.
(2) The freedom of thought, conscience and religion shall not aim against
national security, public order, and public health or against rights and
freedoms of other citizens.
1
Decision N 5 of 1992 and Decision N 12 of 2003.
2
Decision N 12 of 2003.
333
Jenia Peteva
In line with the established case-law of the European Court of Human

Rights, the Bulgarian Constitutional Court recognises two aspects of this
right:
- the internal one, the so-called “forum internum” related to personal

believes and convictions that is inviolable, and
- the manifestation and expression of the freedom of religion that must
respect believes of others and could be subject to certain restrictions
when these are lawful and proportionate.3
The Law on Religious Denominations clarifies further
A specific element of the scope of the constitutional right is the obligation

for the state to uphold tolerance and respect for people of different religion.
In this way, Articles 13, 37 and 54 of the Constitution establish the principle
of a neutral secular state recognising Orthodox Christianity as a traditional
religion but promoting tolerance and respect for the right to be of a different
belonging. The specific legal framework regarding teaching religion in
public schools has to comply with this framework. This paper explores only
the place of religion in state-funded educational institutions.
III. Religion in State-Funded Educational Institutions
A. Main Legal Acts

The general rules and principles of the educational policy in Bulgaria are
laid down in the Constitution and the Law on National Enlightment4 and its
implementing rules5. These implementing rules create further a legal basis
for the adoption of detailed instructions regarding teaching of religion by
the Minister of Education. These instructions were adopted in 2003 and are
still in force.6
B. Main Principles
Secular subject
The place of religion in school curricula in Bulgaria is similar to the French
3
Decision N 5 of 1992 and Decision N 12 of 2003
4
Promulgated in State Gazette N 86 of 18 October 1991, last amendment came into
force on 5 October 2010
5
Implementing Rules of the Law on National Enlightment, passed by the Minister of
Education and published in State Gazette N 68 of 30.07.1999, last amendment came
into force on 8 June 2010
6
Instruction N 2 of 23.06.2003 regarding teaching of the school subject “Religion”,
issued by the Minster of Education and Culture, promulgated in State Gazette N 60
of 4.07.2003, in force as of 4.07.2003.
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ConstitutionalandLegalAspectsofTeachingaboutReligionintheBulgarianSchool
concept of teaching about “religious facts” as adopted in 2002.7
By virtue of Article 5 of the Law on the National Enlightment and in

accordance with the constitutional principle of separation of church and
state, education in Bulgaria is secular. Religion is taught both in primary
and in secondary schools.8
Article 4 of the Implementing rules of the law prohibits religious

indoctrination in schools and requires that religions are to be studied in their
historic, philosophic and cultural plan through the content of the curriculum
of various subjects. This provision applies to secular schools only and
does not inhibit the right of denominations to set up special educational
institutions in line with the specific precepts of their religion.9
Non-compulsory subject
Religion can be taught in two types of classes that do not form a part of the
core school curriculum:
- in classes referred to as “optional with an obligation to choose”, meaning

that pupils have to attend a certain number of those classes at their choice,
or
- in classes referred to as “fully optional” meaning that those are classes
which may be chosen completely at the discretion of pupil.10
As a school discipline, religion is taught as a comparative subject covering

more than one religion. The religious views of the pupils and their parents
are taken into account. Once chosen as a subject, religion is taught in one
class per week. There is an option to study “Religion-Christianity” focused
mainly on the Orthodox Church. These classes are in the upper primary and
in secondary school. In the primary school there are also classes in “Religion-
Islam”. There is a subject “World Religions”. It is taught in the last school
year.11
There are areas in Bulgaria where the predominant part of the population
adheres to the Islamic faith.
7
For a comparative analysis of the various system of teaching religion in state schools
see Luce Pepin “Teaching about Religions in European School Systems- Policy Issues
and Trends”, published by NEF Initiative on Religion and Democracy in Europe.
8
Articles 6 and 7 of of Instruction N 2 concerning teaching of the subject “religion”
9
Article 33 of the Law on Religious Denominations allows for the establishment of
such educational institutions by denominations that are duly registered.
10
Article 1 of Instruction N 2 concerning teaching of the subject “religion”
11
Data available in the paper “The Pedagogical Experience in an Education of
Interreligious Tolerance” by Svetla Shapkarova, to be found on line in Bulgarian
335
Jenia Peteva
Teachers must have an appropriate education in humanities or must have

graduated from a theological Christian faculty or from the High Islamic
Institute.12
Future changes
There is an on-going public debate about the introduction of the subject
“religion” as a compulsory school discipline.13 The question refers to teaching
religion as such. Although the question is voiced by the Orthodox Church
and the Christian community, teaching of Islam for those who wish this has
never been questioned. The main arguments of the supporters of this idea
are the positive ethical impact that religion would have on young people.
The Ministry of Education is working on a new general law on education.

The government has established that the legal framework on the primary
and secondary education needs more comprehensive changes. The main
elements of the draft law are:
- defining religion as “an overview of the basic religions in the world” for
the sake of better understanding of cultural differences among people,
- compulsory teaching of religion, and
- introduction of a class on religious faith albeit taught in a secular way,
that must be a part of the classes among those a number of which must
be chosen14
Nevertheless, the public debate is still ongoing and both the protagonists and
the opponents of the idea to have compulsory classes on religion are well
represented.
IV. Role of the State
The state may support denominations in their educational activities and it

has certain control over the content of the subjects taught.
A. Support
The state may stimulate educational activities by the religious
denominations through financial or other means.15 More specifically,
12
Article 11 of Instruction N 2 concerning teaching of the subject “religion”
13
See for instance the discussion held in 2008 by the Open Society Institute, available at
http://politiki.bg, 3/2008 in Bulgarian
14
The work on a draft law on education has been mentioned by Mrs Svetlana Lomeva,
Vice-Minister on Education at the Ministry of Education, Youth and Sport during
the parliamentary debates on the proposed amendments to the Law on the National
Enlightment, minutes N 954-01-18 of 15.09.2009, 41-st National Assembly
15
Article 25 (1) of the Law on Religious Denominations
336
religious denominations, may receive financial support in the form of tax and
customs reliefs, credit or other financial or economic stimuli. These forms of
financial support are subject to the audit applicable to the non-governmental
organisations. Administrative and criminal sanctions apply to any breach of
these rules. 16
The main form of state support for religious denominations is the state
subsidy allocated and apportioned to all registered denominations under
the annual law on the budget17. The subsidy covers also educational
activities of the religious denominations. The apportionment is based on the
representativeness of the denominations that have asked for a support.
B. Denominational Schools
There are five secondary denominational institutions in Bulgaria. Of those
two are Christian and three are Muslim. In addition, there are three Christian
faculties and one Islamic Institute.18 The education in these schools is on
the same footing as the one received in secular schools on the condition
that it does not obstruct the obtainment of the obligatory stages of the state
education.19
C. State Control
Teaching religion as a school subject is based on a concept developed by the
Ministry of Education. It is subject to the state supervision applied to all
schools.
Denominational schools avail of more freedom as regards their curricula but

in order to be recognised they must comply with certain general requirements
applied to all schools.
In addition a special Department at the Council of Minsters may take action

against instances of indoctrination and other acts that may prejudice the
exercise of religious freedoms.20 There have been cases where investigation
took place on the suspicion of teaching of radical Islam. These claims,
however, were not proved.
16
Article 25 of the Law on the Denominations
17
Article 28 of the Law on Denominations
18
Data available in the paper “The Pedagogical Experience in an Education of
Interreligious Tolerance” by Svetla Shapkarova, to be found on line in Bulgarian and
at http://bg.islam.blogspot.com. Legal basis is established by Article 33 of the Law on
Religious Denominations
19
Article 33 (2) and (5) of the Law on Denominations
20
The powers of the directorate are set up under Title VI of the Law on Religious
Denominations
337
Jenia Peteva
V. Religious symbols
There are no legal restrictions to wear religious symbols at school.
In 2008 the Commission on the Protection against Discrimination21

considered a case where there were that discriminatory oral warnings against
wearing a scarf as well as threats for exclusion from school. The Commission
recommended that in so far as there is no law on this issue, the legislator
should make a thorough review of the current legal situation and set forth
appropriate measures accordingly.22 The Supreme Administrative Court
upheld the decision but annulled that part of it that obliges the Minister on
Education to put forth a legislative proposal.
The prohibition of religious symbols, however, is still under discussion and

will be considered in the context of discussions of a new law on primary and
VI. Legal Analysis
Due to the role of the specific local culture and traditions education is often
managed by decentralisation. This is recognised also by the Treaty of the
Functioning of the EU (“TFEU”) and the law and practice of the protection
of human rights in accordance with the jurisprudence of the European Court
of Human Rights in the light of the European Convention on the Protection
of Human Rights (“the Convention”) and the Charter on Fundamental
Rights (“the Charter”).
More specifically, Article 165 TFEU recognises that the EU supports

cooperation as regards teaching but education remains under “the full
responsibility of the Member States”.
In a similar way the European Court on Human Rights in the case Leyla
Sahin23 pointed out that states dispose of a large margin of appreciation:
“where questions concerning relationship between state and religions are at
stake, on which opinion in a democratic society may differ widely, the role
of the national decision-making body must be given special importance...
Accordingly the choice of the extent and form such regulations should take
must inevitably be left up to a point to the state concerned, as it will depend
on the domestic context”.
21
A specialised quasi-jurisprudential body competent on issues of discrimination, set
up in 2004
22
Decision 38 of 22.02.2008, file N 37/2007
23
Leyla Sahin v. Turkey, N 44774/98
338
This principle applies also when there is issue regarding the right to education
protected under Article 1 of Protocol 2 to the Convention. Not only does
the court recognize the discretion but, as in the Leyla Sahin case, it evaluates
the situation in case in the light of the constitutional framework in Turkey.
Furthermore, when one of the religions, such as Orthodox Christianity
has a predominant role, this does not conflict in itself with Article 9 of the
Convention.24
The Convention, however, imposes certain limits on the discretion of the

State:
- firstly, education on or about religion must be done in an objective, critical
and pluralistic where there can be no place for misplaced proselytism25,
- the state remains an “impartial organiser of the exercise of various
religions, faiths and beliefs”26,
- the right to education does not impose a financial commitment on the
state27,
- education must take into account the parents convictions and exemptions
from education must be given,
- right to education must not conflict with other rights recognised by the
Convention such as the prohibition of discrimination28.
In this context the regulation of teaching on and about religion in Bulgaria

is not in conflict with international legal standard. The right to object on
religious grounds and to be exempted from attending religious classes as
well wearing of religious symbols in public places, however, would require
a special attention in the course of the adoption of the new law on primary
and secondary education. This would be an issue especially in places where
Muslims or Christians are distinct minority and exposure to religious
symbolism would be a form of indoctrination.
VII. Conclusion
The constitutional and legal framework in Bulgaria is founded on secularism

but has two distinct albeit seemingly contradictory features. On the one
hand the Constitution recognises the Orthodox Religion as a predominant
religion.
24
See for instance Angelini v Sweden case, application 10491/83
25
For instance case Kjelsen, Busk Madsen and Pedersen v. Denmark, appl. 5095/71,5920/72,
5926/72
26
See Leyla Sahin v. Turkey, N 44774/98 as well as Hasan and Chaush v. Bulgaria, appl.
30985/96 and Kokkinakis v. Greece, appl. 14307/88
27
Belgian Linguistics case, appl. 1474/62, 1677/62, 1769/63, 1994/63, 2126/64
28
Belgian Linguistics case, appl. 1474/62, 1677/62, 1769/63, 1994/63, 2126/64
339
Jenia Peteva
These general principles reflect the principles of human rights as adopted

under the European Convention of Human Rights. The principles would be
maintained and developed under the future law on primary and secondary
education. At the same time the new law may change significantly the place
of religion in public schools making it an obligatory subject. This law should
ensure a balanced enforcement of human rights with a specific attention to
the right to object and be exempted from religious classes as well as to the
issue of wearing religious symbols in public institutions.
340
The Place of Religion In Education In Cyprus
Achilles Emilianides*

I.1. Religious instruction is organised during the school hours in both

primary and secondary education. Religious lessons given in primary and
secondary schools follow the doctrine of the Eastern Orthodox Church. In
secondary education, the courses are given by graduates of university schools
of divinity, while in primary education they are given by the class teacher.
Attendance is compulsory for Orthodox pupils; atheists or members of other
religions, however, may be excused. In the 1996 Curriculum of the Ministry
of Education and Culture, the subject of religious education is under the title
‘Christian Orthodox Education’ and it is provided that the aim of the lesson
is to enable the students to realise that they are members of the Christian
Orthodox Church, to learn the fundamental truths of Christianity and to
experience a loving relationship with God. According to the Curriculum
pupils should be assisted to understand the presence of God throughout
history and the apocalypse of God as an answer to the fundamental questions
of human existence; they should experience the figure and teachings of
Jesus Christ and experience the Christian way of love towards all people,
regardless of colour, religion and race.
It is further provided that pupils ought to be introduced to the basic

aspects of other religions and develop a critical attitude towards them, so
as to become able to understand and respect the religious beliefs of others.
Orthodox education should provide pupils, according to the Curriculum,
with the skills to appreciate the meaning of the Orthodox ethics, traditions
and prayer, and the beneficial influence of the Church to the development
and progress of civilisation. In addition to the above, Orthodox education
should develop the understanding of the collective worships of the Church
and encourage the students to participate in such worships and teach them
to respect the value and importance of the various ecclesiastical monuments.
It should also promote each individual’s responsibilities for the continuation
of the Orthodox faith and way of life.1
Some of the textbooks used in Cypriot schools are edited by the Ministry of
* Cyprus Institute of State and Church Relations (University of Nicosia)

1
Ministry of Education, The National Curriculum of Cyprus (Nicosia, 1996, in Greek):
128 (in Greek).
341
Education of Cyprus, while some other textbooks are edited by the Ministry
of Education of Greece. The aims of religious education in the Greek
curriculum are nearly identical to the aims of religious education in the
Cypriot curriculum, namely to teach the pupils the Christian Orthodox way
of life, tradition and values, to develop their religious identity and to enrich
their relationship with God. In addition Orthodox education in Greece aims
to teach children the meaning, the symbols and tradition of the Orthodox
faith, the meaning of the Gospels and the moral and spiritual values of
Orthodox Christianity.
Religious education textbooks are written by committees appointed by

the Government of Cyprus, or Greece respectively. Cypriot textbooks are
edited by the Ministry of Education and Culture and distributed to every
pupil in public schools for free. Teachers of theology in public schools are
required to teach the content of such textbooks in order to promote the
aims of the Curriculum; certain teachers of theology are even members of
the clergy. Textbooks include topics from the Bible, both the Old and the
New Testament, the history of the Orthodox Church, the lives of the Saints,
hymnography and hagiography, as well as moral teachings.
I.2. There is not a possibility of religious education for members of other

religions in public schools, with the exception of Maronites and Turkish
Cypriots; the religious instruction of Maronite children who attend public
schools is taught by Maronite priests who receive a monthly salary by the
state. Similarly, where there is an adequate number, Turkish Cypriot pupils
may be religiously educated in their mother language and in their own
religion, even in Greek - speaking schools. The fact that the State cannot
offer religious education consistent with every single individual religion or
creed is not of course surprising; the great majority of pupils in each non
-Turkish public school adhere to the Orthodox Christian religion and thus,
it would be practically unfeasible for the State to provide religious education
which would meet the demands of all parents. This is why the State has opted
to assist children belonging to religious groups to attend private schools of
their choice, if they so desire, and further why non Orthodox Christians
pupils may request to be exempted from religious education, including
collective worship.
II.1. The right of religious groups to set up and operate their own schools
is safeguarded, and such schools are financially assisted by the State. It
could be well argued that there is a continuous effort to maintain the
special characteristics of the various religious communities with regard to
education. In principle financial assistance is provided to the three religious
342
groups of the island (Maronite, Roman Catholic and Armenian); religions

and creeds, other than the five major religions of the island (Orthodox,
Islamic, Maronite, Roman Catholic and Armenian), may set up and operate
their own schools if they so wish, but will not be financially assisted by the
State. The numeric importance of state funded denominational schools is
very limited and it is estimated that students who attend these schools are
less than 0.1% of the student ratio. Islamic state funded schools are very few
due to the fact that most Turkish Cypriots (Muslims) do not reside to the
areas controlled by the Republic of Cyprus due to the abnormal situation
pertaining in the island since 1974.
II.2. The Orthodox Church and the other Christian creeds operate Sunday
schools, without State intervention; the right to operate Sunday schools,
or provide private religious education in houses or other establishments is
allowed for all religions and creeds. The hieratic school ‘Apostolos Vanavas’,
bearing the name of the founder of the Orthodox Church of Cyprus, operates
in Nicosia, under the supervision of the Holy Synod, as a dependence of
the Monastery of Kykkos. The school also functions as a boarding house
for those pupils who wish to stay there during their courses. All expenses
of the school are covered by the Monastery of Kykkos. Non-state funded
denominational schools, that are not Sunday schools, is a virtually non-
existing phenomenon in Cyprus.
II.3. The authorities do not control the content of teaching in state funded
denominational schools. However, the State may safeguard that the level of
teaching corresponds to that of public schools.

school.
III.1. The issue has never arisen due to the fact that confessional schools are
very rare in Cyprus.
III.2.
IV. Point of views of the authorities concerning the teaching of Islam in

denominational (Catholic) education, Islam instruction or instruction
on other convictions/beliefs in denominational (catholic) schools for (a
number of pupils requesting it) and alternative ethical course.
IV.1. As already state, denominational education is a very rare phenomenon

for Cyprus. There are no pupils of Islamic religion in denominational
education. In public education, classes of Islamic religion might be taught
343
if there is a minimum number of pupils for whom a request has been made.
IV.2. See above.
IV.3. Objections have been raised with respect to the doctrinal character of
religious education in Cyprus; undoubtedly, religious education in Cypriot
schools does not refer to an objective study of the various religions and
creeds, but rather consists of a purely doctrinal presentation from the point
of view of the Orthodox Church. This becomes obvious not only from a
mere reading of the purposes of the curriculum of the Ministry of Education
and Culture of the Republic of Cyprus, but also from the everyday manner
religious education is carried out in Greek speaking primary, or secondary
schools. In addition collective worship only takes place in Orthodox
Christian churches, collective prayer is based on the Orthodox tradition,
while school religious festivities follow the Orthodox tradition. It could be
argued that substituting such doctrinal character of religious education with
lessons of neutral religiosity, or neutral religiosity in addition to doctrinal
education, could be more education - friendly towards non Orthodox pupils
and would promote pluralism.
It could be further argued that religion is a private matter and as such, it is

not appropriate within a state funded public school; there is no doubt that
such an educational reform would definitely be strictly opposed by the
Church. Actual criticism of the content of religious education in Cyprus has
been rather rare until now, a situation which could be explained by the fact
that the State assists pupils belonging to religious groups to attend private
schools of their choice, by covering all fees and expenses of such students,
and by the fact that non - Orthodox Christian pupils had until recently been
few in Greek - speaking primary and secondary schools.
In order to avoid the possibility of discrimination there are two possible ways
of reforming the system: either religious education could consist of neutral
religiosity instead of doctrinal education, or, if the doctrinal character of
religious education is to be retained, students could be asked to opt religious
education as a non - compulsory course; the latter option would have the
advantage of allowing parents to ensure that their children receive religious
education according to their own religion, while at the same time avoiding,
or at least restricting circumstances of indirect discrimination on grounds of
religion. A solution intends in principle to achieve a balance between the will
of the majority to have a religious education of its choice on the one hand,
and the right of the minority not to be embarrassed on the other.
IV.4. Article 20 of the Constitution provides that every person has the right
to receive, and every person or institution has the right to give instruction
or education subject to such formalities, conditions or restrictions as are in
344
accordance with the relevant communal law and are necessary only in the
interests of the security of the Republic or the constitutional order or the
public safety or the public order or the public health or the public morals
or the standard and quality of education or for the protection of the rights
and liberties of others including the right of the parents to secure for their
children such education as is in conformity with their religious convictions.

V.1. As already mentioned there are virtually no denominational schools in

Cyprus and there is no teaching of Islam in such schools. The number of
Catholics in Cyprus is not really high.
V.2.
V.3.
VI.1. They are allowed.
VI.2. They issue has never actually arisen in practice.
VI.3. The issue has never actually arisen in practice.
VI.4. The Ministry of Education issues guidelines on the dress code in

schools.
VI.5. The issue has never arisen.
VI.6 The Ministry of Education.
VI.7.
VI.8.

instruction organised after the school hours (age 6-18).
VII.1.
VII.2.
345
VII.3.
VII.4.
VII.5.
VII.6.
VII.7.
XI. Bibliography
A. Emilianides, Law and Religion in Cyprus, Kluwer, 2010.
346
The place of religion in education in Estonia
Merilin Kiviorg*
I. Introduction/Statistics
Total Population approximately 1.3 million

Estonians 67.9%
Russians 25.6%
Ukrainians 2.1%
Byelorussians 1.3%
Finns 0.9%
Other nationalities 2.2%
Estonia can be considered as one of the least religious countries in Europe

(together with former Eastern Germany and the Czech Republic). According
to the last population census from the year 2000, only approximately 29%
of the adult population, (those aged 15 and above, total questioned 1, 121,
582) considered themselves adherent to any particular creed.1 Of this
figure, about 13.6% declared themselves to be Lutherans. The majority of
Lutherans are ethnic Estonians. The Lutheran Church has been the largest
religious institution in Estonia since the sixteenth century. The second
largest religious tradition in Estonia is that of the Orthodox Church. Of
the 29% of the population (aged 15 and above) following any creed, 12.8%
considered themselves as Orthodox. However, some new data suggests
that the Orthodox community may have grown in numbers and become
a fraction bigger than the historically dominant Lutheran church.2 The
Orthodox community in Estonia is divided (also ethnically) between the
Estonian Apostolic Orthodox Church and the Estonian Orthodox Church
of Moscow Patriarchate. Most orthodox believers belong to the latter
church. All other Christian and non-Christian religious communities
have adherents of approximately 2.6% of the adult population (aged 15
and above).3 The largest religious communities among those are Roman
* Wolfson College, University of Oxford.

1
The total population of Estonia is currently 1 340 122, Statistics Estonia, <www.stat.
ee> 14 February 2011.
2
Information about current membership of religious organizations is based on data
from the Ministry of Internal Affairs. Ministry of Internal Affairs <http://www.
siseministeerium.ee/37356>, 01 January 2010.
3
Statistical Office of Estonia, ‘2000 Population and Housing Census: Education.
347
Merilin Kiviorg
Catholics, Old Believers,4 Baptists, Pentecostals, and Jehovah’s Witnesses.

Considering the above figures the percentage of atheists is surprisingly low –
approximately 6 %. According to the Euro barometer survey (‘Social Values
Science and Technology’), carried out in 2005, Estonia was shown to be the
most sceptical country in Europe in regard to belief in the existence of God.
Less than one in five people declared any belief in God (approximately 16%).
This probably shows a relative coolness towards traditional and institutional
forms of religions. However, more than 54% believed in a non-traditional
concept of ‘some sort of spirit or life force’.5 It also needs to be noted that one
way or another, some beliefs or practices of indigenous religious tradition
are popular and important for many in Estonia. Today, low religiosity in
Estonia has also been attributed to the relative success in economic transition
among postcommunist societies. For example, Norris and Inglehart by
comparing Estonia and the Czech Republic with Albania and Romania have
come to this conclusion.6 Additionally, Kilp points out that historic religious
traditions and national identity have been weakly connected both for Czechs
and Estonians compared to Lithuanians and Poles.7
Although there are discrepancies between different surveys, they seem to

suggest that a large segment of society is indifferent to religion, but also
that religion is both an individual and private matter in Estonia (believing
without belonging). These surveys also give one confidence in saying that
the majority of the Estonian population is not hostile to religion. The new
comprehensive census of the Estonian population, which will also ask
questions about religious affiliation, will take place in 2011.8
Religion’ (Tallinn, Statistical Office 2002), 40.

4
The Old Believers are Russians who fled to Estonia because of religious persecution.
‘In 1652, Patriarch Nikon of the Russian Orthodox Church introduced a number of
reforms aimed at centralizing his power and bringing the rituals and doctrines of
Russian Orthodoxy in line with those of the Greek Orthodox Church. Old Believers
rejected Nikon’s reforms. Consequently, the Old Believers were cruelly persecuted,
exiled, tortured and executed all over Russia. Their churches, icons and homes were
burnt. As a result they took refuge abroad.’ Estonia. Official Gateway to Estonia
<http://estonia.eu/about-estonia/society/russian-old-believers-in-e stonia.html>, 2
February 2010.
5
European Commission, ‘Special Eurobarometer: Social values, Science and
Technology’ (2005), 11.
6
R. Inglehart & P. Norris, Rising Tide: Gender Equality and Cultural Change around
the World (Cambridge: Cambridge University Press, 2003), 127. See also Part V
below.
7
A. Kilp, ‘Secularisation of Society after Communism: Ten Catholic- Protestant
Societies’, in Religion and Politics in Multicultural Europe, ed. A. Saumets & A. Kilp
(Tartu: Tartu University Press, 2009), 226.
8
Statistics Estonia, <www.stat.ee/39106>, 25 April 2010.
348
Muslims have lived on Estonian territory since approximately the eighteenth

century. The majority of Muslims are ethnic Tatars who arrived in Estonia
during the late nineteenth and early twentieth century. During the first
independence period (1918- 1940) there were two registered Muslim
communities in Estonia. The Tatar community established two mosques and
some graveyards, and followed their particular Islamic cultural and religious
life.9 In 1940 the Soviet regime prohibited the activities of the communities.
During the occupation the Muslim community carried on its activities
unofficially. The ethnic composition of the Muslim community changed
during the Soviet period due to new arrivals from other republics of the
former Soviet Union, such as Azerbaijan, Uzbekistan, Kazakhstan and other
traditionally Muslim nations of the Caucasus and Central Asia. However,
Tatars maintained their leading role in cultural and religious activity.10
In the late 1980s with a more liberal political atmosphere and the
independence movement in Estonia, ethnic minorities started to organise
(re-establish) cultural and religious societies. In 1989 the Tatar cultural
society re-established the Estonian Islamic Congregation. The community
was registered in 1994. Currently there are two registered Muslim religious
associations. The Estonian Islam Congregation has approximately 1400
members and has quite a unique nature. In the same congregation there are
both Sunnites and Shiites. In 1995, 13 believers left the congregation and
formed the Estonian Muslim Sunni Congregation. All 13 persons left the
Estonian Islam Congregation, not for religious reasons, but rather because
of personal misunderstandings.11 The majority of the Estonian Muslim
community is still made up of individuals who came from the territory of
the former Soviet Union: Tatars, Chechens, Azers etc. They have integrated
well into Estonian society and there is no reason to associate them with
radical Islam. Linnas has pointed out that Islam in Estonia is liberal and
has lost many of its specific features. She also notes that Estonian society
is tolerant of Muslims which she attributes to the traditionally indifferent
attitude of Estonians to religious matters in general.12 Before Estonia
joined the European Union in 2004 there were discussions on the possible
influx of migrants from traditionally Muslim countries, or Muslims from
other EU countries13. So far there has only been a limited number of new
9
R. Ringvee, ‘Islam in Estonia’, in Islam v Európe (Centrom pre európsku politiku:
Bratislava, 2005), 242-243.
10
Ibid.
11
Islam Eestis, <www.islam.pri.ee/ieestis.php>, 26 April 2010; I. Au & R. Ringvee,
Usulised ühendused Eestis [Religious Associations in Estonia], (Tallinn: Allika,
2007).
12
R. Linnas, ‘Islam Eestis’ [Islam in Estonia], in Mitut usku Eesti, ed. L. Altnurme
(Tartu: Tartu Űlikooli Kirjastus, 2004), 65.
13
R. Khair Al-Din, ‘Eesti Euroopa Liiduga ühinemise protsess: Moslemi vähemuse
349
Merilin Kiviorg
arrivals.14 They are from different regions globally, and do not form any
significant ethnic religious communities. Estonia does not yet have any of
the challenges related to the growing Muslim communities as experienced in
other European countries.

I.1. Religious education (hereinafter RE) is provided during school hours in

(lower (basic) and secondary school).15 However, it has been exceptional for
schools to offer systematic religious education classes in all grades. It also
needs to be noted that as the curriculum has been overloaded, RE has often
been pushed to the fringe of the school day.
As to statistics, in 2006-2007 there were about 50 schools, out of a total

of 601, teaching a subject related to religion, mostly for a year or two for
7–10 year old students or a year in upper secondary school (16–19 year old
students). In 2009 of 57516 basic education or upper secondary schools, 47
provided religious education and 84 provided related or some alternative
subjects to religious education.17 Students who have chosen such classes
normally have an extra lesson at the end of the school day. Some schools
have religious education as a compulsory18 subject, calling it the ‘choice of
õiguste kaitse islami õiguse seisukohast’, Akadeemia 12 (2000): 2616-2628.

14
According to public information provided by the Estonian Security Police, the
number of Muslim immigrants arriving from the so-called risky countries (from
the standpoint of counter-terrorism: North- Africa, the Middle East and Islamic
Asian countries) is on the increase. Interest by such persons in coming to Estonia has
increased due to Estonia’s joining the Schengen zone at the end of 2007. There have
been more cases of persons applying for an Estonian visa with the aim of entering the
Schengen area and continuing from here to some other EU member state. Estonian
Security Police, Ministry of Internal Affairs, <www.kapo.ee/eng/areas-of-activity/
terrorism/situation-in-estonia >, 1 April 2010.
15
Compulsory school attendance begins when a child reaches the age of seven and ends
when he or she has acquired basic education (stage I-III) or becomes 17 years old
(BSG, Art. 9 (2)). Basic education school is divided into three stages of study (BSG
Art 2 (1)): stage I - grades 1-3 (7-10 year olds), stage II - grades 4-6 (10-13 year olds)
and stage III - grades 7-9 (13-16 year olds). After basic school students may attend
upper secondary school (gymnasium), a secondary vocational school or enter a
profession. Only basic school is compulsory.
16
Haridus- ja Teadusministeerium, <www.hm.ee>, 24 June 2010.
17
Interview with Ms. Kristel Vahter from Ministry of Education and Research, 22 June
2010.
18
There was one case in the practice of the Chancellor of Justice in 2006 where he noted
a violation of law regarding requirement that religious education has to be voluntary.
Õiguskantsleri 2006. aasta tegevuse ülevaade (Tallinn, 2007), 102, Chancellor of
Justice, <www.oiguskantsler.ee>, 1 May 2010.
350
the school’ and terming it religious studies, history of religions, or cultural

studies.19 Although essentials of the compulsory school system are regulated
centrally, schools have had relative freedom to develop their own profiles and
curriculum within the given framework. However, there are some changes to
this as described later on in this section.
The Estonian school system consists mainly of state or municipal schools.

Thus, the primary place for religious education is in public schools. Religious
education is a voluntary, non- confessional (non-denominational) subject.
Unlike other countries with non-confessional models of religious education,
in Estonia religious education is an elective, not a required course. As to
the typology of RE, it is intended to be a mix of teaching about religions
and ethics.20 The type of RE reflects Estonian constitutional principles of
neutrality/separation of the State and Church (‘There is no State Church’,
Art. 40 Estonian Constitution), non-discrimination and freedom of religion
and belief.21
Religious education has been one of the most contested issues regarding
religion in Estonia today, and in fact, throughout its history as an independent
State (1918-1940 and 1991-present). During the first independence
period (1918-1940), Estonia was one of the first countries where, after
furious debates and a referendum22, a model of non-confessional religious
19
O. Schihalejev, ‘Dialogue in Religious Education Lessons – Possibilities and
Hindrances in the Estonian Context’, British Journal of Religious Education 31, no. 3
(2009): 280.
20
According to the classification provided by C. Evans, it can be argued that RE in
Estonia fits most comfortably within the category of ‘plural religious education’,
in which students learn about the basic practices, beliefs, rituals etc of a variety of
religions. They are presented with information about these religious traditions, but
are not taught that any of them are true or untrue. The instruction also extends to
philosophies and beliefs of a non-religious nature. C. Evans, ‘Religious Education
in Public Schools: An International Human Rights Perspective’ HRLR 8 (2008)
461. Religion in Estonian schools is also taught within other subjects, for example,
art, history and literature (Evans calls it ‘incidental RE’) to the extent necessary to
understand certain topics or visual art.
21
For a more detailed account on religion in Estonia see e.g. M. Kiviorg, ‘Estonia’ in R.
Torfs (ed) International Encyclopaedia of Laws: Religion (Kluwer Law International,
2011).
22
The referendum on religious education took place on 17-19 February 1923. It was the
first referendum in the history of the independent Estonian Republic. 66% of the voting
population participated in the referendum. 71.9% voted for state financed religious
education as a voluntary topic in all schools. From then on religious education was
voluntary for students and teachers, but compulsory for schools. Riigikogu juhatuse
otsus rahvaalgatamise korras esitatud algkooli seaduse muutmise seaduseelnõu, mis
Riigikogu poolt 19. detsembril s.a. tagasi lükatud rahvahääletusele panemise kohta,
RT I 1923, ½, 23. detsembrist 1922.a.
351
Merilin Kiviorg
education was introduced. The subject included learning about different

world religions. A clear distinction was made between religious education at
schools and religious instruction in churches.
In addition to the above there are several background factors which seem to
influence the debate today. In Estonia, the absence of experience in providing
or receiving religious education for some 50 years due to Soviet occupation
and State atheism, is probably one of the most important factors. However,
the relatively low religiosity of the Estonian population plays a significant
role as well.
To summarise the debate, there is some agreement as to the need to teach

students about religions. However, there are different opinions as to how
religious education should be taught. There are also some additional practical
and broader structural problems which relate to the school curriculum and
teaching methods as a whole. According to some estimations the curriculum
is overloaded. It is also fact oriented, leaving little time for students to
develop discussion skills and form their own opinion. Although reforming
the educational system in Estonia has been slowly moving from a teacher
centred to a student centred approach, the reform is still in progress. As
described below, a new law has been adopted recently to facilitate this
process and to reform the school system generally.
Regarding religious education specifically, the views vary regarding the

age at which religion needs to be introduced in schools and by whom it
needs to be taught. There has been a concern that teachers of religious
education have a mostly Christian background, and thus cannot deliver
instruction objectively. In his 2003 report the Chancellor of Justice
expressed the opinion that the State does not have to guarantee absolutely
equal presentation of world religions in the curriculum. He stated that it is
justified to include Christianity in the curriculum because of the cultural and
historic background of Estonia.23 But he also pointed out that presentation of
Christianity should not become the prevailing subject in the curriculum. He
warned that the majority of qualified teachers are of a Christian background
and this can offset the balance.24 These concerns are very similar to those
23
His statement is in conformity with the approach taken by the European Court
of Human Rights. The Court has pointed out that the fact that knowledge about
Christianity represents a greater part of the curriculum for primary and lower
secondary schools than knowledge about other religions and philosophies cannot of
its own be viewed as a departure from the principle that the curriculum should be
conveyed in an objective, critical and pluralistic manner. See e.g. Folgerø v Norway
(App no 15472/02) ECHR 29 Jun 2007.
24
Õiguskantsleri 2003.-2004. aasta tegevuse ülevaade, Tallinn, 2004, 169. Available at
http://www.oiguskantsler.ee.
352
expressed in the 1920s and thus cannot be completely attributed to Soviet

propaganda during the 50 years of occupation. Thus, the major concern has
been the content and purpose of RE and how one should strike a balance
between Christianity and other world views. In this regard, the primary
concern has been the protection of freedom of religion or belief of students
and parents, both non-believers and non- Christians. For this reason ideas
of compulsory nondenominational RE have persistently received a negative
response. These concerns also seem to relate to rather controversial attempts
to re-build national identity after the Soviet occupation. Strong political/
governmental favouritism of traditional Christian religions has added an
extra dimension to this debate. However, after protracted intense discussion
over about 18 years, a compromise seems to have been achieved. Before
returning to discuss the compromise, some information may be useful as to
the legal framework for religious education.
As to the law on education, Article 37 of the Estonian Constitution25

creates the basis for the entire school system.26 More specifically Article
2 of the Education Act27 (EA, Haridusseadus) sets objectives and levels of
education, stating inter alia that: the fundamental principles of education are
based on the recognition of universal and national values, of the individual
and of freedom of religion and conscience. According to the Estonian
Constitution provision of education is supervised by the State. The laws
specifically relevant to RE, are the EA and the Act of Basic Schools and
Gymnasiums (BSG, Põhikooli- ja gümnaasiumiseadus).28 The laws affecting
RE have been changed recently. Until 1 September 2010, Article 4 (4) of
the EA set forth that the study and teaching of religion in general education
schools is voluntary and non-confessional.29 The Act of Basic Schools and
Gymnasiums (BSG) set forth that religious education is compulsory for the
school if at least fifteen pupils wish it to be taught.30 Article 3 (4) of this Act
25
RT I 1992, 26, 349.
26
Article 37 of the Estonian Constitution: (1) Everyone has the right to education.
Education is compulsory for school-aged children to the extent specified by law, and
shall be free of charge in state and local government general education schools. (2) In
order to make education accessible, the state and local government shall maintain the
requisite number of educational institutions. Other educational institutions, including
private schools, may also be established and maintained pursuant to law. (3) Parents
shall have the final decision in the choice of education for their children. (4) Everyone
has the right to receive education in Estonian. The language of instruction in national
minority educational institutions shall be chosen by the educational institution. (5)
The provision of education shall be supervised by the State.
27
RT I 1992, 12, 192; RT I 2010, 41, 240 (last amended).
28
RT I 2010, 41, 240.
29
RT I 1992, 12, 192; RT I 2007, 12, 66.
30
This provision was introduced in 1999. Before the adoption of this provision it was
likely that schools just did not provide religious education even if there were pupils
353
Merilin Kiviorg
also specified that religious education is non-confessional and voluntary.31

There was no unified curriculum provided by the State, however, there were
guidelines.
The new BSG, adopted on 9 June 2010, took effect on 1 September 2010.32
There are many aspects to this new law which are unclear and need to be
tested out in practice. It is also likely that some further amendments to the
law are needed.
The new BSG33 introduced a few changes to the school system in Estonia
generally. As to the RE, the above mentioned provisions in the EA and BSG
have been removed. The new BSG mentions RE as one of the voluntary
subjects (Art 15 (4)). Although schools have relative freedom to provide and
design their voluntary courses, the courses on RE have to follow the State
provided syllabus (Art 15 (4)). This is a result of intensive debates on RE
which were held since the end of the Soviet occupation in 1991, and it seems
to be an attempt to unify and establish control over the content of religious
education nationally. There is another change relating to RE: in gymnasiums
(upper secondary schools) depending on the modules the student chooses
RE may become compulsory once chosen. Although, the law entered into
force on 1 September 2010, the latter provision does not necessarily take
effect in all schools until 1 September 2013 (BSG, Art 89 (1)).
According to Article 15 (2) of the BSG the Government has adopted

two regulations setting forth the National Curriculum for Basic Schools
(Põhikooli riiklik õppekava)34 and the National Curriculum for Gymnasiums
(Gümnaasiumi riiklik õppekava).35 According to Article 11 (4) of the
National Curriculum for Gymnasiums the school has to provide at least two
optional courses on RE during the three year period of study. The obligation
to provide RE is not clearly pronounced in the National Curriculum for
who wished to be taught. The reasons for this varied (financial, lack of human
resources, etc.). RT I 1993, 63, 892.
31
RT I 1999, 24, 358.
32
Parliamentary debates at the time of processing the law focused on the structure of
the school system and regional development. Intensive debates were held on how the
reform influences the survival of rural areas and financial issues relating to reform.
There was surprisingly little debate regarding the RE considering furious debates
held in the past 18 years. See XI Riigikogu Stenogramm, V Istungjärk, 25.03.2009;
XI Riigikogu Stenogramm, VI Istungjärk, 25.11.2009; XI Riigikogu Stenogramm,
VII Istungjärk, 02.06.2010; XI Riigikogu Stenogramm, VII Istungjärk, 09.06.2010.
Available at < www.riigikogu, ee>, 1 December 2010.
33
RT I 2010, 41, 240 (entered into force 01.09.2010, some provisions, however, enter
into force at a later date).
34
RT I, 14.01.2011, 1.
35
RT I, 14.01.2011, 2.
354
Basic Schools. However, the school seems to be obliged to provide some

optional courses (Art 15 (4), one of which could be RE. There are still some
discrepancies in the new BSG and between the BSG and governmental
regulations. The BSG and the regulations still need to be synchronized/
harmonized. The matter is also complicated by the fact that both the law and
regulations take effect gradually over the three year period.
As to the content of RE in basic36 and secondary schools37, it is (or will

be, as the laws take effect gradually) a mix of learning about religions and
ethics (broadly defined). The aim is to give a non-confessional overview of
world religions and to help students to understand the impact of different
religions in world culture, and most importantly, to prepare them for life
in a pluralistic and multicultural world. Not only are religious world views
covered, but also non-religious views. Topics such as secularisation and the
relationship between science and religion are also included. The syllabus
seems to be aimed at teaching tolerance. It is intended to develop religious
literacy and readiness for dialogue by introducing different world religions/
views. An interesting aspect is that students are encouraged to recognize
and understand religious discrimination and analyze both positive and
problematic religious manifestation in context. Discussions are also held
about existential questions. There are obviously differences in methods of
teaching and learning according to the age of students.
The preambles of basic school and also upper secondary school’s syllabuses
emphasise that religious education is founded on the UN Declaration of
Human Rights. Religious education is a precondition for protection of
freedom of religion or belief. The aim of religious education is to provide
knowledge about religion in order to help students understand the world,
its culture and the role of the religious dimension in human life. It also
emphasises the importance of learning about local religions and cultural
heritage. An important aim of religious education is to support the moral
development of pupils and special attention must be paid to the problems
they experience in everyday life, and answering their questions. The
syllabus seems to take into account some of the Toledo Guiding Principles on
Teaching about Religions and Beliefs in Public Schools adopted by OSCE/
ODIHR in 2007.38
36
National Curriculum for Basic Schools (Põhikooli riiklik õppekava), RT I, 14.01.2011,
1, Lisa 9.
37
National Curriculum for Gymnasiums (Gümnaasiumi riiklik õppekava), RT I,
14.01.2011, 1, Lisa 8.
38
Toledo Guiding Principles on Teaching About Religions and Beliefs in Public Schools
(Warshaw: OSCE 2007).
355
Merilin Kiviorg
Thus, there is a strong emphasis on learning how to navigate in a multi-

religious world, while remaining open minded and critical at the same time.
Dialogue and respect seem to be the keywords which characterise both the
curriculum of basic schools and gymnasiums. As to the methods of teaching,
there seems to be a strong emphasis on a student centred approach. All in
all, it seems to be a rather convincing syllabus which should satisfy people
from different backgrounds. However, it is rather ambitious and it remains
to be seen how it will work in practice. Also the lack of adequately qualified
teachers and course materials to actualize this syllabus is still an issue.
I.2. According to the law, RE in public schools is/will be based on the national
syllabus as described above. Schools have relative freedom to offer additional
voluntary courses provided that the means, time and human resources are
available. As noted above some schools have provided additional courses
related to religion. However, indoctrination into religion in public schools
is strongly questionable under the Estonian Constitutional framework. It
would most likely trigger social outcry also, with emerging questions about
neutrality and the financing of such RE. Thus, the content and method of
teaching of additional voluntary courses related to religion matters.
There is no legal basis to provide denominational education in public

schools. This option only existed during the first independence period
(1918-1940). In classes where students had the same religious background,
the confessional element was allowed to be brought in. In multi-religious
schools the grouping of students according to their confession was allowed.39
According to Art 17 (4) of the BSG, the school may also take into account
(accept) that a student takes classes in another school (basic or upper
secondary), provided there is an agreement between his parents and the
school’s director. This provision may become relevant as regards RE. For
example, in cases where a student wishes to take confessional RE in a
denominational basic or upper secondary school. However, interpretation of
this provision is not clear yet.
II.1.
II.2.
II.3.
Private/denominational schools have some access to public funding. There

are no private confessional schools which are completely funded by the
State. There is no difference in funding between private basic schools
39
Haridusministeeriumi ringkirjad (Tallinn: Haridusministeerium, 1932): 79-80.
356
(confessional or non-confessional).
Confessional religious education is provided for children by Sunday and

Bible schools operated and mostly financed by religious organisations.
Additionally religious communities can set up private educational
institutions.40 The Private Schools Act (PSA, Erakooliseadus) regulates the
establishment of private educational institutions at all school levels (pre-
school, basic, secondary, vocational and higher education).41 These private
schools need to obtain a licence from the Ministry of Education and Research
(PSA, Art 5 (1)). Sunday or Bible schools run by churches and congregations
do not need the licence.
The licence is issued for a certain period of time for up to five years (PSA, § 5
(21)). It is also important in order to apply for funding and projects financed
by the State or municipal government.
Only a very few religious organisations have established schools in

accordance with the Private Schools Act. Currently there are two
registered kindergartens (preschools), one run by Tallinn Toompea Kaarli
Congregation of the Estonian Evangelical Lutheran Church and another
run by the Catholic Educational Centre in Tartu. There are three basic
schools, run by the Word of Life (Elusõna) Tartu Congregation42, by the
Society of Orthodox Education called ‘Resurrection’ and by the Catholic
community in Tartu. There is one gymnasium – Tallinn Jewish School
(Tallinna Juudi Kool). There are also three professional higher education
institutions (rakenduskõrgkool) run by the Estonian Methodist Church, the
Union of Free Evangelical and Baptist Churches of Estonia, and by the non-
profit organisation Tartu Academy of Theology. The Estonian Evangelical
Lutheran Church has one university in Tallinn.
There is no statistical information available as to the exact number of

Sunday and Bible schools operated by religious organisations. The statistical
information and documents of private schools (registered according to the
PSA) can be obtained online.43
There are no Islamic basic or upper secondary schools established under the
Private Schools Act.
40
Private schools can be established inter alia by non-profit organisations (PSA, Art
21), including religious associations.
41
RT I 1998, 57, 859; RT I 2010, 41, 240 (last amended).
42
Tartu Elusõna Kogusus is a sister congregation of the Uppsala Livets Ord.
43
Eesti Hariduse Infosüsteem [Estonian Education Information System], ’Koolid’,
<www.ehis.ee/>, 1 December 2010
357
Merilin Kiviorg
As noted above, according to the Estonian Constitution (Art 37), provision

of education is supervised by the State.44 In law there is no difference in
control over private basic or upper secondary schools (confessional or non
confessional). If as a result of State supervision, it becomes evident that the
schooling and education provided at the private school do not comply with
the statutes of the private school or that the standard of education does not
correspond to the level of education specified in the education licence or
does not meet the requirements established for this type of private school
by law, the agency exercising State supervision has the right to issue a
precept to the head of the school for the elimination of deficiencies and for
the improvement of schooling and education (§ 23 (2) PSA). If the private
school fails to comply with the precept during the term specified in the
warning, the state supervisory agency may impose a penalty pursuant to the
procedure provided for in the Substitutive Enforcement and Penalty Act45
(Asendustäitmise ja sunniraha seadus). Issuing the above mentioned precept
is not at the discretion of the State agency and the manager of the school has
the right to contest it.
As to the actual teaching or content of RE in private schools, State control

is most likely to happen ex post facto. So far there have been no reported
conflicts of interests or concerns related to teaching RE in private schools or
in Sunday or bible schools. There have been reported problems relating to
RE in public schools.46

school
III.1.
III.2
The conditions for the admission of students are determined by the school.
Admission to a basic school, upper secondary school, vocational educational
institution, and an institution of professional higher education is subject
to the admission conditions established by law for state and municipal
educational institutions or universities in public law of the same type.
44
See Art 37 of the Estonian Constitution (n 27 above).
45
RT I 2001, 50, 283, RT I 2007, 24, 127 (last amended).
46
When public schools became open to religious education (after soviet occupation),
many eager people without pedagogical experience and professional skills rushed
to teach it. Sometimes religious education turned into confessional instruction
in schools. Valk, P., Development of the Status of Religious Education in Estonian
School. European and Local Perspectives, Paper given at the Conference on Law,
Religion and Democratic Society (Estonia, University of Tartu, 1999).
358
However, the board of a private school has the right to establish additional
requirements (PSA, § 12). It is possible, however, that if the refusal is based
on religious prescription which contradicts some fundamental values in a
democratic society it could be contested on the basis of criminal law or anti-
discrimination law. For example, it is possible, that when the refusal is based
solely on racial grounds, the law and the courts may need to react to it. The
latter is simply a speculation. There is no case law clarifying this yet.47
It is possible (although exact statistical information is not available) that
non-religious parents enrol their children in denominational schools for
educational purposes.

course
IV.1.
IV.2.
IV.3.
IV.4.
The issues behind the above questions have not come under the spotlight in
Estonia yet. In fact, there are no clear pro or contra standpoints expressed
in public discussion or by the authorities on these matters. As to the law,
there is no legal obligation to provide the teaching of Islam or other beliefs
(confessional RE) in denominational schools.
Private schools have relative freedom as regards curriculum, ethos and

admissions. The manager of a private school approves the curriculum. The
curriculum is entered into the Estonian Education Information System upon
the issuing of a licence (PSA, § 11 (2)).
According to the amendments applicable from 1 September 2010, Art 11

(5) of the PSA explicitly sets forth that it is allowed to provide confessional
religious education in private educational institutions (previously there was
no explicit mentioning of this).48 This is a general provision which applies
47
See, for example, controversial case about admission policy of the Jewish Free School
in the UK Supreme Court. R (on the application of E) (Respondent) v. The Governing
Body of JFS and the Admissions Appeal Panel of JFS and others (Appellants) [2009]
UKSC 15.
48
This provision was included by the new BSG which amended several paragraphs of
the PSA (See Art 105 of the BSG).
359
Merilin Kiviorg
to all private schools, not just confessional ones. The PSA further states
that confessional RE is voluntary. Thus, it is clear from this that there is
no legal obligation to provide confessional RE and even in confessional
schools, which provide State licensed basic or upper secondary education,
confessional RE must be voluntary. There is no provision as to the number
of students needed for this kind of course. Confessional RE is provided
according to the conditions and rules established by the school.
Private educational institutions when providing State licensed/ state supervised

basic or upper secondary education have to follow the standards set in the
National Curriculum for Basic Schools or Gymnasiums. As to compulsory
subjects and some optional courses the National Curriculum applies to all
schools non dependent on their legal status (public or private), if specific laws do
not provide different regulation (for example, PSA). This means that according
to the new law and regulations, private educational institutions (including
confessional schools) may be required to provide non-confessional RE to their
students as set forth in the BSG and in the National Curriculum. This can be
seen as justified considering the need to prepare students for a multi-religious/
cultural society with an emphasis on respect and dialogue. However, application
of the law in this matter is not entirely clear yet. All basic and upper secondary
schools have the relative freedom to offer additional voluntary courses provided
that the means, time and human resources are available.

V.1.
V.2.
V.3.
The Estonian Council of Churches49 has been very active in contributing

to policies and projects regarding religious education in public schools.
However, to the best knowledge of the author of this article no religious
institution has provided guidelines as to how other religions should be taught
at confessional schools (private schools or Sunday schools). Teaching Islam
as a separate course in private schools is likely to be very rare or completely
absent. Background factors like the small Islamic community and/or absence
of any challenges experienced in many other European states may play a role
in this.
49
The Estonian Council of Churches is a rather unusual ecumenical organisation
(registered as a non-profit organisation) which has members who normally are not
interested in ecumenical cooperation. It also includes churches with a relatively short
history.
360
VI.1.
VI.2.
VI.3.
VI.4.
VI.5.
VI.6.
VI.7.
VI.8.
Religious symbols in public schools (e.g. crucifix or a cross) are not explicitly
forbidden under Estonian law. However, displaying such a symbol in public
schools (by a school) would be in contradiction to the constitutional principles
of separation of State and Church (neutrality), non-discrimination (Art. 12
of the Constitution) and freedom of religion and belief (Art. 40). This would
stand despite the fact that separation of State and Church is not interpreted
as a strict separation such as disestablishment in the United States or the
principle of laïcité in France.50
As to the socio-political and cultural dimension of the question, it should

be emphasised that the displaying of such symbols in public schools does
not have a strong historical or cultural tradition (as e.g. in Italy). This is not
solely due to atheistic indoctrination and the strict separation policy of State
and Church as practiced during the Soviet occupation (1940-1941; 1944-
1991). There is also very little public debate going on in this regard.
As mentioned above, Estonia does not have significant immigration from

any country, including countries with a Muslim population. Thus, it does
not face any of the challenges of other European nations. There are no rules
prohibiting the wearing of religious garb in state schools by a pupil. This
tolerance is perhaps a reaction to Soviet times when all schoolchildren were
obliged to wear school uniforms. However, both state schools and private
schools have the right to establish internal rules of the school (BSG, Art
68). Today many private schools require school uniforms and so far this
requirement has not been disputed. There are also no rules prohibiting the
wearing of religious garb by teachers, and no reports of any difficulties at this
time. It is currently speculative as to how the Estonian legislature, court or
50
There is no explicit mentioning of secularism in the constitutional framework
of Estonia. The typology of the system can be described as co-operational. For a
more detailed account of State and Church relationship in Estonia see Kiviorg, M.
‘Estonia’ in R. Torfs (ed) International Encyclopaedia of Laws: Religion (Kluwer Law
International, 2011) pp. 42-43.
361
Merilin Kiviorg
public would react if someone (e.g. parents) disputed the wearing of religious
garb in state schools either by students or by teachers. The ideal may be to
teach children to respect differences and bring them up in an atmosphere of
mutual respect.

instruction organised after the school hours (age 6- 18)
VII.1. Especially after the re-gaining of Estonian independence from the

Soviet Union, the Muslim community in Estonia has been more focused
on their specific ethnic-cultural traditions rather than religion. As stated
in the introduction, in the late 1980s, ethnic minorities started to organise
(re-establish) cultural and religious societies. Most after school activities
(Sunday schools) are organised by cultural societies. As a rule these Sunday
schools are open to anybody interested in particular minority culture
(Azerbaijani, Tatar etc). As a rule none of these Sunday schools specifically
mention Islamic teaching. The focus is on teaching language, culture, history,
traditions, dances, folk songs and even cuisine. They welcome students from
different backgrounds. The aim is to spread knowledge about their culture
and customs in Estonian society. The Sunday schools are receiving some
financial support from the State. This support should be seen in the light
of the protection of minority cultures/ ethnic minorities in Estonia. It is
also part of the Government’s integration strategy. The Islamic community
in Estonia has seen itself as an ambassador for the ethnic minorities in the
country.51
For example, since 1989 there is an Azerbaijani Sunday school in Tallinn

(for ages 5-20). The aim of the school is to teach their children their mother
tongue, culture and history (including Azerbaijani and Estonian history).
In music classes children are taught their national songs and dances. The
school has been financed by grants allocated by Eestimaa Rahvuste Ühendus
(Estonian League of National/Ethnic Minorities). The League has been
financed by State and municipal budgets and from the Integration Fund
(Integratsioonifond). Parents have been giving symbolic contributions.
The Estonian Tatar community has been teaching their children the Tatar
language, history and religion since 1989. The Sunday school was based on
the enthusiasm of teachers. Parents made symbolic contributions here also.
Due to the lack of children, this Sunday school currently does not function.
51
The Chairman of the Islamic Congregation has been the president of the Estonian
Union of National Minorities. His work for national minorities was recognised by
the State. He was rewarded with the Estonian State Honour in 2004 (5th Class order
of the White Star). R. Ringvee, ‘Islam in Estonia’, in Islam v Európe (Centrom pre
európsku politiku: Bratislava, 2005), 245.
362
However, Tatar language/culture is introduced by a new Sunday school run

by Turkish Peoples Cultural Society. This society also provides courses in the
Azerbaijani language. The Uzbek Sunday school was opened in 1992. This
school ran into financial difficulties.52 However, there are now two Uzbek
Sunday schools one providing cultural education to all ages since 1994 and
another to students up to 18 years of age. There is also a Sunday school run
by the Kabardino society for 7-18 year old students. Their main focus is folk
dancing, but they also teach language, history, culture and traditions.
VII.2. There is no Islamic teaching into religion in primary education

(public or private basic schools registered under the PSA). However, Islam
is introduced as one of the world religions within the RE as described above.
According to the PSA private schools are allowed to provide confessional
RE. There is no information on private schools providing Islamic instruction.
See question IV and V above.
VII.3. There is no Islamic teaching in secondary education (public or private

basic schools registered under the PSA). See also question VII.2 above.
VII.4. There is no exact data available. See question VII.1 above.
VII.5. There are no statistics available as to how many students have been
attending Sunday schools and how many non-Muslim children have been
attending the activities of these communities. See question VII.1 above.
VII.6. The exact data is not available.
VII.7. There is no public debate on Islamic instruction after school hours

yet.
It seems that different factions of Estonian society have finally agreed that
good general education also includes knowledge about religions. More
importantly there seems to be an agreement now as to the proportions and
methods of teaching about religions and ethics. However, the implementation
of the new BSG and National Curriculum is a process. There are many
aspects to this new law which are unclear and need to be tested in practice.
There is no case law yet to clarify aspects of RE which have risen in other
European states. This may be indicative of relatively non-problematic
relationships between religious communities, State and secular community.
52
R Linnas, ‘Islam Eestis’. In Mitut usku Eesti II. Valik usundiloolisi uurimusi: kristluse
eri, edited by L. Altnurme. Tartu: TÜ Kirjastus, 2007, 44-45.
363
Merilin Kiviorg
However, it may also be indicative of the fact that religion does not play a
prominent role in Estonian society.
IX. Bibliography
•• Khair Al-Din, R. ‘Eesti Euroopa Liiduga ühinemise protsess: Moslemi

vähemuse õiguste kaitse islami õiguse seisukohast’. Akadeemia 12
(2000): 2616-2628.
•• Kilemit, L. & U. Nõmmik. ‘Eesti elanike suhtumisest religiooni’. In
Mitut usku Eesti II. Valik usundiloolisi uurimusi: kristluse eri, edited by
L. Altnurme (Tartu: TÜ Kirjastus 2007).
•• Kiviorg, M. ‘Estonia’ in R. Torfs (ed) International Encyclopaedia of
Laws: Religion (Kluwer Law International, 2011).
•• Kiviorg, M, ‘Religious Education in Estonia’, Proceedings of the
Conference on ‘Religion in Public Education’, European Consortium for
Church and State Research, 11-14 Nov 2010, Trier (Peeters, forthcoming
2011).
•• Kiviorg, M. ‘State and Church in Estonia’. In State and Church in the European
Union. 2nd ed. Edited by G. Robbers (Baden- Baden, Nomos, 2005).
•• M. Kiviorg & L. Roots, ‘Immigration, Asylum and Religion Estonia’, in
Immigration, Asylum and Religion in Europe, ed. A. Motilla (Leuven:
Peeters, forthcoming 2011).
•• Kozyrev, F. & Schihalejev, O. ‘Religious Education in Estonia and Russia:
Resemblances and Differences’. In Encountering Religious Pluralism
in School and Society: a Qualitative Study of Teenage Perspectives in
Europe, edited by T. Knauth, et al (Münster, Waxmann, 2008).
•• Linnas, R. ‘Islam Eestis’. In Mitut usku Eesti II. Valik usundiloolisi
uurimusi: kristluse eri, edited by L. Altnurme (Tartu: TÜ Kirjastus,
2007).
•• Ringvee, R. ‘Islam in Estonia’. In Islam v Európe. Centrom pre európsku
politiku: Bratislava, 2005. Schihalejev, O. Estonian Young People,
Religion and Religious Diversity: Personal Views and the Role of the
School (Tartu: University of Tartu Press, 2009).
•• Vakker, T. & Rohtmets, P. ‘Estonia: Relations between Christian and
Non-Christian Religious Organisations and the State of Religious
Freedom’. Religion, State & Society 36, no. 1 (2008): 45- 53.
•• Valk, P. ‘Development of the Status of Religious Education in Estonian
School. European and Local Perspectives’. Conference on Law, Religion
and Democratic Society. Estonia, University of Tartu, 1999.
364
The Place of Religion in Education in Finland
Päivi Gynther*1

I.1. Yes, religious instruction is organised during the school hours in state
funded schools:
- in basic education (ages 7-15/16);
- in the general (academic) track of upper secondary education (ages 15/16
- 18/19).
- in pre-school education, to which each child permanently residing
in Finland has a subjective right (but no obligation) during the year
preceding the beginning of compulsory schooling.
In vocational track of secondary education, there is no instruction in religion.
The relevant provisions in Basic Education Act (628/1998) read as follows:
Section 11.1. “The basic education syllabus shall contain, … the following
core subjects: … religious education or ethics, …”.
Section 13.1. (Amendment 454/2003). The provider of basic education shall

provide religious education in accordance with the religion of the majority
of pupils. In this case, religious education is arranged in conformity with the
religious community to which the majority of pupils belong. A pupil who
does not belong to this religious community may attend the said religious
education after the provider of basic education has been notified of the
matter by the parent/carer. Section 13.4. 4. If a pupil belongs to more than
one religious community, the pupil’s parent/carer shall decide in which
religious education the pupil will participate.
Upper Secondary Education Act, Section 9.1. (6.6.2003/455) is similar to

Basic Education Act, except that the pupils themselves may make the choices
instead of their parents.
I.2. In Finland, the Evangelical Lutheran Church and the Greek Orthodox
Church are governed by special legislation. Denominational teaching other
than Evangelical-Lutheran and the Orthodox is given if there are at least
three pupils belonging to the same religious community, registered as an
* University of Jyväskylä, Finland
365
Päivi Gynther
association, and their parents request it. In Upper secondary school the
request is to be made by the student herself/himself.
The relevant provisions in Basic Education Act (628/1998, Amendment

454/2003) read as follows:
Section 13.2. Three or more pupils belonging to the Evangelical-Lutheran

Church or the Orthodox Church who do not participate in religious education
referred to in subsection 1 shall be provided education in accordance with
their own religion.
Section 13.3. Three or more pupils belonging to a religious community other

than those referred to in subsection 2 who do not participate in religious
education referred to in subsection 1 shall be provided religious education in
accordance with their own religion, if their parents/carers so request.
Pupils/students that are not members of any congregation or religious group

are provided instruction in secular ethics. The relevant provisions in Basic
Education Act (628/1998) read as follows:
Section 13.5. Pupils who do not belong to any religious community and do
not take part in religious education referred to in subsection 1 shall be taught
ethics. A pupil belonging to a religious community who is not provided
religious education in accordance with his or her religion shall be taught ethics
when requested by his or her parent/carer. The provider of basic education
shall organise ethics education if there are at least three pupils entitled to it.
Section 13.6. A pupil who does not belong to any religious community
may, at the request of his or her parent/carer, also participate in religious
education provided by the provider of basic education which, in view of his
or her upbringing and cultural background, evidently corresponds to his or
her religious beliefs.
Students that begin upper secondary school when they have reached the age
of 18 may choose whether they wish to study RE or ethics. A non-Lutheran
pupil may take part in Lutheran RE if their guardians so request. In the case
of the Orthodox instruction, a parental request is not needed: instruction is
provided once there are at least 3 Orthodox children in municipality schools.
II.1. Yes. There are state-funded denominational schools in Finland, but the
numeric importance of these schools is reportedly insignificant. Less than
3% of pupils in compulsory school age attend private schools.
II.2. The number of private schools providing basic education is currently
366
75, of which denominational Christian schools compose 5% and Steiner/

Freinet or other, faith-related, schools 8%. The average size of private
schools is reportedly small. Homeschooling is allowed but rare. In general,
Finnish schools are not based on religion or supported by a religion. There
are no Islamic state-funded schools in Finland.
There are no non-state-funded denominational schools in Finland.
For statistical information on-line, see http://www.stat.fi/til/kou_en.html
II.3. The authorities control the teaching in state-funded denominational

schools in the following ways:
- All private registered associations or foundations that want to provide

basic education shall receive an authorization from the State Government.
- All Finnish teachers are required to be Master’s degree graduates, no
matter whether they teach primary or secondary students. The majority
of subject teachers in RE are Masters of Theology who have specialized
in teaching.
- All RE must have a curriculum which needs to be accepted by the National
Board of Education. There are 11 different curricula for the RE.

school.
III.1. Non-Discrimination Act (21/2004, amended by several acts) aims to

foster and safeguard equality and non-discrimination in several sectors of
public and private activities, but it is not unambiguous whether the Non-
Discrimination Act is applicable to school enrolment procedures. The
English translation of the Non-Discrimination Act mentions “training” – but
not “education” – among the contexts in which the Act shall apply (Section
2.3). Section 3.1 explicitly mentions that the Non-Discrimination Act does
not apply to “the aims or content of education or the education system”.
III.2. n/a (see III.1. above).

course.
367
Päivi Gynther
IV.1.
a. No.
b. Yes. Schools must give instruction in Islam or any other religions
other than Lutheran faith if there is a minimum of three pupils
representing the faith in the school. The religion in question must
be registered in Finland and the students´ family must belong to the
religion (see above, I.2).
IV.2.
a. Yes. The religion in question must be registered in Finland and the
students´ family must belong to the religion.
b. Yes.
IV.3.
Pro: religious education is a fundamental right; as an essential part of
religious freedom. There has also been public debate on the establishment
of an Islamic School in Finland. Those arguing for it say that it is a better
alternative than Islamic parents sending their children to Islamic schools
abroad.
Con: religious education does not belong to public sphere; belief is a private
issue. For instance, the Minister of Immigration (April 2007 to date) has
stated as her opinion that no Islamic schools shall be established in Finland.
Rather, more efforts should be spent in training of teachers of Islam
(Helsingin Sanomat 6.2.2010).
IV.4.

their own initiative.
V.1. All providers of basic education shall receive an authorization from the
State Government, and all RE must have a curriculum which needs to be
accepted by the National Board of Education.
V.2. The law stipulates that whenever parents/guardians of three or more

pupils belonging to a registered religious community so request, their
children shall be provided religious education in accordance with their own
religion.
V.3. n/a.
368
VI.1. Religious symbols in public schools are allowed, but not compulsory.
VI.2. There are no legal rules on dress codes in public schools.
VI.3. There are no legal rules on dress codes in public schools.
VI.4. No legal regulation exist on this particular topic.
VI.5. No.
VI.6. Not defined by law.
VI.7. n/a.
VI.8. No case-law on religious symbols in public schools can be found in the

databases of the Supreme Court, nor the Supreme Administrative Court.
VII. Additional comments
RE in Finland is non-confessional. According to the Criteria for Good

Learning Practice at the fifth grade concerning Lutheran RE, as defined by
the National Board of Education in 2003, the pupils should be able to perceive
religion as a cultural phenomenon and understand the nature of religious
language usage and recognize religious symbols, concepts, and metaphors.

VII.1. Morning and afternoon activities (or Before and After School
Activities) are provided for children in grades 1–2 of basic education and
for children admitted or transferred to special needs education in all grades.
Improving the well-being of pupils is at the core of the provision of morning
and afternoon activities. Pre-primary and basic education, morning and
evening activities and basic art education build the foundation for the growth,
learning and comprehensive well-being of children and young people.
There is no obligation to the local authorities to organise these activities.
If a local authority organises morning and afternoon activities, it may
provide these itself or may purchase services from other local authorities,
joint municipal authorities, organisations working with children and young
people, associations and parishes, etc.
369
Päivi Gynther
The National Core Curriculum for Before- and After-school Activities for
Schoolchildren is defined by the Finnish National Board of Education.
VII.2. The Islamic Council of Finland has a board for youth and student
issues. The promotion of good quality Islamic teaching is mentioned as
one of the board tasks. No reply to the e-mail question on the scale of their
activities. http://www.sine.fi/.
VII.3. n/a (see VII.2 above).
VII.4 n/a (see VII.2 above).
VII.7. no public debate on this topic.
XI. Bibliography
•• Aikonen, Risto (2009). Orthodox Religious Education in Finland –

Principles and Basis (unprinted).
•• Honkaheimo, Marja & Luodeslampi, Juha (2009) Religious Education in
Finland http://www.mmiweb.org.uk/eftre/reeurope/finland_2009.html
•• Sakaranaho, Tuula (2006). Religious freedom, multiculturalism, Islam.
Cross-reading Finland and Ireland (Brill).
•• Statutes and supplementary provisions:
•• Basic Education Act 628/1998.
•• Upper Secondary School Act 629/1998.
•• Freedom of Religion Act (453/2003).
•• National core curriculum for basic education (2004). Finnish National
Board of Education. http://www.oph.fi/english/publications/2009/
national_core_curricula_for_basic_education.
•• National core curriculum for upper secondary education (2003). Finnish
National Board of Education. http://www.oph.fi/download/47678_
core_curricula_upper_secondary_education.pdf.
370
The Place of Religion in Education in France
André Legrand*1

I.1.
I.2.
Il existe en France deux sortes d’établissements privés. Certains (art. L.

442-1 code éduc.) sont liés à l’Etat par contrat, les autres (art. L. 442-2 code
éduc.) non.
La plupart des premiers ont conclu un contrat d’association à l’enseignement

public pour tout ou partie de leurs classes (art. L. 442-5 code éduc.). Pour les
classes sous contrat, l’Etat finance les dépenses de personnel enseignant et
les collectivités territoriales les dépenses de fonctionnement dans les mêmes
conditions que celles des classes correspondantes de l’enseignement public.
En contrepartie, ces établissements doivent, pour les classes en question,
respecter les règles et programmes de l’enseignement public, la liberté de
conscience de leurs élèves et ils ne peuvent pas pratiquer de discrimination
dans le choix de leurs élèves. La très grande majorité des établissements sous
contrat sont catholiques.
Les seconds ont au contraire une très grande liberté dans le choix de leurs
élèves et le contenu de leurs enseignements. Mais ils ne sont pas subventionnés
par l’Etat. « Le contrôle de l’Etat sur les établissements d’enseignement qui
ne sont pas liés à l’Etat par contrat se limite aux titres exigés des directeurs et
des maîtres, à l’obligation scolaire, au respect de l’ordre public et des bonnes
m’urs, à la protection sanitaire et sociale » (art. L. 442-2 code éduc.). Les
élèves souhaitant recevoir un enseignement particulier en langue régionale
sont scolarisés dans des établissements de ce type (écoles Ikastolak au Pays
basque ; Diwan en Bretagne).
Dans tous les cas, le financement de l’Etat ou des collectivités territoriales

ne peut jamais concerner un enseignement religieux. Sous réserve du cas
particulier de la région alsacienne et mosellane, « l’enseignement religieux ne
peut être donné aux enfants inscrits dans les écoles publiques qu’es locaux
scolaires. Selon l’art. 141-3 du code éduc., « l’enseignement religieux est
* Professor, Former rector of Université Paris X, France
371
André Legrand
facultatif dans les écoles privées ». Lorsqu’il existe, il est obligatoirement

placé en dehors du contrat. Cela implique en particulier que d’éventuelles
heures de catéchèse ne sauraient entrer dans la quotité de service d’slam
compris. La jurisprudence a donc essentiellement concerné la question de la
libération du temps dans les écoles publiques, pour permettre l’enseignement
religieux en dehors du temps scolaire.
II.1.
II.2.
II.3.
Il y a très peu d’établissements scolaires islamiques en France (à ma
connaissance une petite dizaine scolarisant 5 à 6 à élèves : deux lycées à Lille et
à Lyon, trois ou quatre collèges ). L’ouverture des deux lycées a été entourée de
difficultés administratives, liées en particulier à la vérification des conditions
de sécurité des locaux. Pou l’heure, aucun établissement musulman n’est
sous contrat, dans la mesure où aucun ne respectait jusqu’ 5 et 6. S’agissant
d’établissements hors contrat, oui, sous réserve que le refus ne repose pas
sur des motifs de discrimination raciale. S’agissant des établissements sous
contrat, non : l’établissement « doit donner son enseignement dans le respect
total de la liberté de conscience. Tous les enfants sans distinction d’origine,
d’opinion ou de croyances y ont accès » (art. L. 442-1 code éduc.). Certains
établissements catholiques ont ainsi, après le vote de la loi de 2004, accueilli
des jeunes filles musulmanes qui souhaitaient porter le foulard islamique
dans les locaux scolaire et ne pouvaient plus le faire dans une école publique.
Dans la pratique, cependant, les choses ne sont pas aussi simples. On sait
par exemple que certains établissements israélites n’acceptent pas d’élèves
étrangers à leur confession.

school
III.1.
III.2.
Les développements précédents répondent aux questions posées.
Pièce 7. Code de l’éducation.
Article L141-2 : Suivant les principes définis dans la Constitution,

l’Etat assure aux enfants et adolescents dans les établissements publics
d’enseignement la possibilité de recevoir un enseignement conforme à leurs
aptitudes dans un égal respect de toutes les croyances.
372
The Place of Religion in Education in France
L’Etat prend toutes dispositions utiles pour assurer aux élèves de

l’enseignement public la liberté des cultes et de l’instruction religieuse.
Article L141-3 : Les écoles élémentaires publiques vaquent un jour par
semaine en outre du dimanche, afin de permettre aux parents de faire donner,
s’ils le désirent, à leurs enfants l’instruction religieuse, en dehors des édifices
scolaires.
L’enseignement religieux est facultatif dans les écoles privées.
Article L141-4 : L’enseignement religieux ne peut être donné aux enfants
inscrits dans les écoles publiques qu’en dehors des heures de classe.
Article L141-5 : Dans les établissements du premier degré publics,

l’enseignement est exclusivement confié à un personnel laïque.
Pièce 8. Conseil d’Etat, req. n° 100792 100920, 27 juillet 1990,

Association pour une nouvelle organisation du temps scolaire.
Considérant, d’une part, qu’aux termes de l’article 2 de la loi du 28 mars
1882: ”Les écoles primaires publiques vaqueront un jour par semaine,
en outre du dimanche, afin de permettre aux parents de faire donner, s’ils
le désirent, à leurs enfants, l’instruction religieuse en dehors des édifices
scolaires”; qu’un arrêté du ministre de l’éducation nationale du 2 mai 1972
pris pour l’application de cette loi fixe, en dernier lieu, au mercredi le jour
d’interruption des classes de l’enseignement primaire;
Considérant, d’autre part, qu’aux termes de l’article 8 de la loi du 11 juillet
1975 relative à l’éducation: ”l’organisation et le contenu des formations
sont définis respectivement par des décrets et des arrêtés du ministre de
l’éducation”; qu’en application de ce texte, un arrêté du 23 avril 1985 du
ministre de l’éducation nationale fixe la durée hebdomadaire de la scolarité
à l’école élémentaire à 27 heures réparties conformément à un tableau
annexé et prévoit des aménagements afin de permettre la répartition de ces
horaires sur plusieurs semaines et l’enseignement de la langue et de la culture
d’origine et d’apport;
Considérant, enfin, qu’aux termes du premier alinéa, de l’article 15 du décret
du 28 décembre 1976 relatif à l’organisation de la formation dans les écoles
maternelles et élémentaires: ”les heures d’entrée et de sortie des écoles
maternelles et élémentaires sont fixées par le règlement départemental”;
qu’aux termes des deuxième et troisième alinéas de ce même texte, dans la
rédaction que leur a donnée le décret du 13 mai 1985 pris pour l’application
de la loi du 22 juillet 1983 relative à la répartition des compétences entre les
communes, les départements, les régions et l’Etat: ”Le maire peut, après avis
de l’inspecteur départemental de l’éducation nationale, modifier les heures
d’entrée et de sortie des écoles maternelles et élémentaires en raison des
circonstances locales. L’organisation du temps scolaire peut être aménagée
pour chaque école pour une durée limitée par l’inspecteur d’académie,
directeur des services départementaux de l’éducation, à la demande de
373
André Legrand
la majorité des membres du conseil d’école et en accord avec la ou les

collectivités intéressés” ;
Considérant que si cette dernière disposition a pu légalement déléguer à
l’inspecteur d’académie le soin de procéder aux aménagements d’horaires
prévus notamment par l’arrêté du 23 avril 1985, elle n’a pas pour objet
de lui donner compétence pour écarter la règle fixée, pour l’interruption
hebdomadaire des cours, par l’arrêté précité du 2 mai 1972; qu’il suit de là
que le ministre d’Etat, ministre de l’éducation nationale, de la jeunesse et des
sports et l’association pour une nouvelle organisation du temps scolaire ne sont
pas fondés à soutenir que c’est à tort que, par le jugement attaqué, le tribunal
administratif d’ Orléans a annulé la décision de l’inspecteur d’académie du
Cher autorisant le transfert des cours du samedi matin au mercredi matin, à
compter de la rentrée scolaire de 1987 dans sept écoles publiques de la ville de
Bourges en tant qu’elle concerne 29 classes de l’enseignement primaire.
Pièce 9. Conseil d’Etat, n° 125148, ASSEMBLEE, 14 avril 1995,

Consistoire central des israëlites de France.
Considérant, en troisième lieu, qu’aux termes de l’article 10 de la loi du 10 juillet
1989 susvisée: ”Les obligations des élèves consistent dans l’accomplissement
des tâches inhérentes à leurs études; elles incluent l’assiduité et le respect des
règles de fonctionnement et de la vie collective des établissements”; qu’aux
termes de l’article 3-5 ajouté au décret du 30 août 1985 par l’article 8 du
décret attaqué du 18 février 1991: ”L’obligation d’assiduité mentionnée à
l’article 10 de la loi du 10 juillet 1989 susvisée consiste, pour les élèves, à
se soumettre aux horaires d’enseignement définis par l’emploi du temps de
l’établissement; elle s’impose pour les enseignements obligatoires et pour
les enseignements facultatifs dès lors que les élèves se sont inscrits à ces
derniers. - Les élèves doivent accomplir les travaux écrits et oraux qui leur
sont demandés par les enseignants, respecter le contenu des programmes
et se soumettre aux modalités de contrôle des connaissances qui leur sont
imposées ..... - Le règlement intérieur de l’établissement détermine les
modalités d’application du présent article”; que si les requérants soutiennent
que ces dispositions réglementaires portent atteinte à la liberté religieuse
garantie aux élèves par les dispositions précitées, en donnant à l’obligation
de respecter les horaires définis par l’emploi du temps de l’établissement
un caractère général et absolu, sans prévoir la possibilité de dérogations
fondées sur la pratique religieuse, lesdites dispositions n’ont pas eu pour
objet et ne sauraient avoir légalement pour effet d’interdire aux élèves qui en
font la demande de bénéficier individuellement des autorisations d’absence
nécessaires à l’exercice d’un culte ou à la célébration d’une fête religieuse,
dans le cas où ces absences sont compatibles avec l’accomplissement des
tâches inhérentes à leurs études et avec le respect de l’ordre public dans
l’établissement; que par suite, l’article 8 du décret attaqué ne méconnaît
aucun des principes ni aucune des dispositions invoqués par les requérants.
374
The Place of Religion in Education in Germany
Introduction by Hermann Avenarius on the constitutional and
political context
Questionnaire by Hans-Peter Füssel*1
Introduction
1. According to article 7, section 3 of the Basic Law of the Federal Republic

of Germany religious instruction shall form part of the regular curriculum in
state schools, excepting secular schools (which are a rare exception). Without
prejudice to the state’s right of supervision, it shall be given in accordance
with the tenets of the religious community concerned.
Religious instruction is therefore a regular teaching subject. As such it
is compulsory. Parents and guardians, however, have the right to decide
whether children shall receive religious instruction (article 7, section 2 of the
Basic Law). The still valid Law on Religious Education of Children (“Gesetz
über die religiöse Kindererziehung”) from 1921 regulates that even minor
students have their own rights in this matter. After the age of 11 a child may
not be educated in another than his or her previous denomination against
his or her will; therefore the child without his or her consent may neither
be exempted from any religious instruction nor sent to religious instruction
in another denomination. After the age of 13 students are self-responsible.
They decide themselves whether to receive religious instruction or not. For
those students who are exempted from religious instruction most Länder
have introduced ethics as an obligatory teaching subject.
As regular part of the state school curriculum religious instruction is as any
other subject in the responsibility of the state and subordinate to the state
supervisory school authority. On the other hand, religious instruction has
to be taught “in accordance with the tenets of the religious community
concerned”. Therefore it is not a neutral presentation of religion(s), not
a lecture in morals and ethics, but bound by a specific denominational
creed. Its content is determined by the preaching of the respective religious
community. The agreement clause (“in accordance with the tenets of the
religious community concerned”) guarantees the religious communities the
right to cooperation in designing syllabuses and in selecting textbooks. The
term “religious community” traditionally has been more or less synonymous
* Professor, German Institute for International Educational Research, Humboldt

University, Berlin, Germany
375
with “church”. So the churches are entitled to send authorized representatives

for visitations to inspect quality and compatibility of religious instruction.
Above all, they have the right to collaborate with the state in selecting and
appointing teachers for religious instruction. Accordingly, teachers need a
specific mandate by their respective church. The state is forbidden to consign
a teacher to teach religious instruction whose suitability is not or not any
more approved by his or her church. On the other hand, teachers may not
be obliged against their will to give religious instruction (article 7, section 3,
sentence 3 of the Basic Law).
2. When the founding fathers and mothers of the Basic Law passed the
constitution in 1949 they could not imagine that almost sixty years later
religious instruction based on other than Christian denominations could be
envisaged. But time and circumstances have changed and a vital and effective
constitution has to cope with new challenges and unexpected developments.
Article 7, section 3, sentence 1 of the Basic Law („Religious instruction
shall form part of the regular curriculum in state schools“), taken verbally,
cannot exclude Islam. However, the already quoted second sentence of
section 3 causes problems: „Without prejudice to the state’s right of
supervision, religious instruction shall be given in accordance with the tenets
of the religious community concerned“. The term “religious community”
is not restricted to Christian churches but includes any association which
comprises believers of a faith in order to fulfil jointly the tasks of that
faith. Besides it must have an accepted authority which is able to state the
conformity of religious instruction with the tenets of the association. While
in Austria e.g. the Islam Community (islamische Glaubensgemeinschaft) is
even recognised by the state as a corporation under public law which does
serve as the state’s counterpart, the existing Muslim associations and their
umbrella organisations in Germany appear to be not so much religious
communities but rather national and/or political organisations which are not
in a position to determine what contents should be taught in Islam religious
instruction. In some cases the aims of such associations may even contradict
fundamental principles of the Basic Law.
What can be done in this situation? Facing the great number of children and
youth with Islam religious origin it appears of utmost importance, particularly
under the aspect of a successful integration policy, to give them the chance
of receiving religious instruction corresponding to their faith. It is quite
clear that Koran schools where students usually merely recite passages from
the Koran without any critical comments do not fulfil this function. Under
theses circumstances – as long as there are no competent Islam religious
communities with binding authority for the tenets of their respective creed
– it may be acceptable to look for interim solutions, e.g. in the form of project
groups initiated and coordinated by the respective Education Ministry
which prepare curricula in cooperation with interested Muslim associations
and Islam scientists. Islam religious instruction based on such preliminary
376
approaches may not entirely correspond to the constitutional prerequisites

but could approximate the rulings of the Basic Law more than a complete
absence of religious instruction. Accordingly, most Länder of the Federal
Republic have started trial programmes where curricula are being developed
by teams of experts and Muslim associations under the responsibility of the
respective Education Ministry. The biggest problem appears to be the lack of
a sufficient number of qualified teachers.
3. Catholic schools as any other denominational schools usually are private
schools1. One has to add that private schools in Germany, compared to most
other European countries, do not play an important role in the education
system since only 7.3% of the students attend them.
According to article 7, section 4 of the Basic Law private schools, as a substitute
for state schools, shall require the approval of the state. Such approval
shall be given where private schools are not inferior to the state schools in
their educational aims, their facilities and the professional training of their
teaching staff, and where segregation of students according to the means of
the parents is not encouraged thereby. Approval shall be withheld where the
economic and legal position of the teaching staff is not sufficiently assured.
Article 7, section 5 states that a private elementary school shall be permitted
only where the state school authority finds that it serves a special pedagogic
interest, or where, on the application of parents, it is to be established as an
interdenominational school (Gemeinschaftsschule) or as a denominational
school or as a Weltanschauungsschule and a state elementary school of this
type does not exist in the commune (Gemeinde).

I.1. In Germany religious instruction is part of the regular curriculum of the

state-schools, Art.7 Para 3 of the German Basic Law (see Appendix); this
includes that the religious instruction-lessons are included in the ordinary
school hours.
Religious instruction is, in the words of the Federal Constitutional Court
(1987), a “common matter” of state and churches where “the areas of
responsibilities of both institutions are closely interlinked”.
An exception is set in the Federal Constitution also, Art.141 of the German
Basic Law: where on 1 January 1949 a different legal rule was already in
function the general rule of Art.7 Para3 will not apply. This exception is of
relevance for the Land Bremen (that is the reason why that exception is called
1
There are exceptions in Northrhine-Westphalia and Lower Saxony. In Northrhine-
Westphalia primary schools and so-called Hauptschulen may be erected on the
application of parents under specific conditions as denominational schools. In Lower
Saxony this alternative applies to primary schools.
377
“Bremen-Clause”) and the Land Berlin; if it also would apply for the Land
Brandenburg had not been decided by the Federals Constitutional Court.
I.2. In general all religious institution may offer religious instruction but
in practice only these churches and religious organisations who have an
adequate organisational structure are accepted as “partners” of the state for
organising religious instruction.
Not only the Christian Churches may offer religious instruction in schools
but also other Christian (f.e. (Greek-)Orthodox Religious Instruction in
the Land Northrhine-Westfalia) or Islamic communities (including religious
instruction f.e. for the Alevit Community in primary schools in the Länder
Bavaria, Hesse, Northrhine-Westfalia).
Also an instruction based on a particular philosophical conviction may be
offered in state-schools; some very few offers in the big cities can be observed.
The State has the right to offer a compulsory ethical (non-religious)
education in schools.
II.1. In general the type of state-schools in the Länder is the Christian

Community Schools, not orientated to a single Christian conviction.
Only in the Länder of Lower Saxonia and Northrhine-Westfalia some
denominational primary schools still exist.
In general it had to be mentioned that also private schools based a particular
philosophical conviction (and not only based on religious convictions) may
be founded.
There are only very few schools of that type, they are of no importance any
more for the general structure of the school-system.
There are only some very few Islamic Private (Primary) Schools; they will be
funded like any other school (see a)).
No statistical data are available.
II.1.
II.2.
92,4 % of all pupils had been in 2008/2007 in state schools, 91,1 % of all
schools are state-schools.
The most of the private schools are organised by the (Christian) Churches or
other religious institutions (like Foundations or Fraternities).
Nevertheless also private schools may receive state-subsidies as long as they
offer education instead of state-schools.
378
II.3. The “common matter” of religious instruction (see I 2) includes that

there are two different systems of controlling: the more general, especially
didactic-orientated control of the religious instruction and the teachers
by the state-authorities and the controlling of the accordance of religious
instruction with the beliefs of the religious institutions by these institutions
– see Art.7 Para.3 Sent.2 of the German basic Law (in annex).
In advance teachers of religious instruction in state-schools need a double
competence and authorisation: as teachers given by the state-run teachers-
training institutions and for the religious aspects the acceptance by the
religious institutions, called “vocatio” (by the Evangelical Church) or “missio
canonica” (by the Catholic Church).

school
III.1. The admission of pupils of another religious conviction to religious

instruction-lessons belongs to this part of responsibilities the religious
institutions may decide on – the Federal Constitutional Court ruled in 1987.
This rule applies also to these very few still existing denominational schools.
III.2. For the Land of Lower Saxonia f.e. the Ministry of Education has
allowed no more than 20 % of pupils of other beliefs to the denominational
schools, in exceptional cases this percentage may reach 25 % (see § 1 of
the Verordnung über die Aufnahme bekenntnisfremder Schülerinnen
und Schüler in Grundschulen für Schülerinnen und Schüler des gleichen
Bekenntnisses, vom 19.Februar 1999 - Nds.GVBl. S.51 - und vom 6.6.2009
- Nds.GVBl. Nr.14/2009 S.242-).

course.
IV.1.
IV.2.
IV.3.
IV.4.
That question has not been discussed.
379
VI.1. The Federal Constitutional Court decided in 1995 that the use of the
crucifix in state-schools is not acceptable because that may come in conflict
with the freedom of faith and conscience (Art.4 Basic Law).
Therefore the (Bavarian) School Act includes now an “appeal-solution”
(Art.7 Para.3 Bavarian School Act)): in principle a crucifix will be installed
in each class-room; if parents contradict a solution should be found in the
single school. If this seems not possible the crucifix may be abolished. This
rule had been accepted by the Federal Administrative Court in 1999.
VI.2. For teachers the wearing of a headscarf as expression of religion (Art.4

Basic Law) must be decided by the school-ac, the Federal Constitutional
Court decide in 2005. The decision in the school-act may also include
the prohibition of wearing the headscarf for teachers because of their
professional obligation of neutrality.
Teachers in training must be treated differently because they Right of
occupational Freedom (Art.12 Basic Law) gives them the right to fulfil the
professional training and work later outside the state-system.
VI.3. Pupils are allowed to wear a headscarf because of their religious

conviction (Art.4 Basic Law).
VI.4. There is no dress-code in schools in Germany, also some single schools

has discussed it.
VI.5. See No.18.
VI.6. See No 18.
VI.7 See No.18.
VI.8. There are no legal discussions or decisions by now.
380
Appendix
Article 4 of the German Basic Law (German Federal Constitution)

[Freedom of faith and conscience]
(1) Freedom of faith and of conscience, and freedom to profess a religious or
philosophical creed, shall be inviolable.
(2) The undisturbed practice of religion shall be guaranteed.
…
Article 7 of the German Basic Law

[School system]
(1) The entire school system shall be under the supervision of the state.
(2) Parents and guardians shall have the right to decide whether children
shall receive religious instruction.
(3) Religious instruction shall form part of the regular curriculum in state
schools, with the exception of non-denominational schools. Without
prejudice to the state’s right of supervision, religious instruction shall be
given in accordance with the tenets of the religious community concerned.
Teachers may not be obliged against their will to give religious instruction.
(4) The right to establish private schools shall be guaranteed. Private schools
that serve as alternatives to state schools shall require the approval of the
state and shall be subject to the laws of the Länder. Such approval shall be
given when private schools are not inferior to the state schools in terms of
their educational aims, their facilities, or the professional training of their
teaching staff, and when segregation of pupils according to the means of
their parents will not be encouraged thereby. Approval shall be withheld
if the economic and legal position of the teaching staff is not adequately
assured.
(5) A private elementary school shall be approved only if the educational
authority finds that it serves a special pedagogical interest or if, on the
application of parents or guardians, it is to be established as a denominational
or interdenominational school or as a school based on a particular philosophy
and no state elementary school of that type exists in the municipality.
(6) Preparatory schools shall remain abolished.
Article 12 of the German Basic Law

[Occupational freedom]
(1) All Germans shall have the right freely to choose their occupation or
profession, their place of work and their place of training. The practice of an
occupation or profession may be regulated by or pursuant to a law.
…
381
Article 141 of the German Basic Law (German Federal Constitution)

[“Bremen Clause”]
The first sentence of paragraph (3) of Article 7 shall not apply in any Land in
which Land law otherwise provided on 1 January 1949.
382
The Place of Religion in Education in Greece
Theodore Fortsakis* with the collaboration of Nikolas Avgouleas**

I.1. In order to understand the contrary opinions that the theory and
the jurisprudence have adopted, it is necessary to present the relevant
constitutional provisions.
Article 3 of the Constitution provides that

«1. The prevailing religion in Greece is that of the Eastern Orthodox Church
of Christ».
Article 13 provides that:

«1. Freedom of religious conscience is inviolable. The enjoyment of civil
rights and liberties does not depend on the individual’s religious beliefs.
2. All known religions shall be free and their rites of worship shall be
performed unhindered and under the protection of the law. The practice of
rites of worship is not allowed to offend public order or the good usages.
Proselytism is prohibited».
Article 16 par. 2:
«2. Education constitutes a basic mission for the State and shall aim at
the moral, intellectual, professional and physical training of Greeks, the
development of national and religious consciousness and at their formation
as free and responsible citizens»
The prevailing opinion in case law and a part of theorists1 adopts the combined
interpretation of articles 3 and 16 par. 2 of the Constitution. According
to this opinion, since the Constitution recognizes a religion as prevailing,
the development of religious conscience through religious instruction (as
provided by the article 16 par. 2 of the Constitution) must be in line with
the prevailing religion. Applying this opinion the Council of State annulled a
* Professor, Deputy President of the Faculty of Law, School of Law, Economical and
Political Sciences, National and Kapodistrian University of Athens, Greece
** LLM of European Law, Faculty of Law of the University of Athens. Attorney at Law
1
Marinos A., Constitution, Democracy and religious instruction, Ant. N. Sakkoulas,
Athens, 1981 (in Greek).
383
ministerial decision that reduced the religious instruction in lyceum from two
hours to one weekly, on the base that one hour of instruction is not sufficient
to provide for the constitutionally required development of the students’
religious conscience (Council of State No. 2176/1998). Moreover case-law
supports that in case an application for exemption from the religious lesson
is filed by a student, the director of the school shall examine the validity of
the application’s allegations in order to decide if it should be accepted2.
On the other hand, the greatest part of the theorists3 supports the
opposite opinion. According to them, articles 13 of the Constitution, 94
of the European Convention5 on Human Rights (ECHR) and 2 of the first
Additional Protocol to ECHR6 should be taken into consideration, apart
from articles 3 and 16 par. 2 of the Constitution, in order to determine the
precise content of religious instruction at schools. Moreover article 5 par.
1, which rules that each person’s personality should be freely developed,
leads to the conclusion that in order for the personality of the students to be
developed unobstructed is necessary that the educational system does not
enforce a specific dogma. According to this opinion article 16 par. 2 does
not impose a specific direction of religious instruction, but with the term
“development of religious conscience”, refers to every dogma regarding God.
Namely, article 16 par. 2 can be considered as imposing a lesson consisting
2
Fortsakis Th. – Velegrakis Em., L’ instruction religieuse dans l’ enseignement public
primaire et secondaire en Grèce in Religious Education In Public Schools: Study of
Comparative Law, M. Lopez-Muniz et al. (eds.), Springer, 2006, p. 241 et seq.
3
Tsatsos D., Constitutional Law, (Volume 3 – Fundamental Rights), Ant. N. Sakkoulas,
Athens – Komotini, 1988, p. 323 -324 (in Greek); Dagtoglou P., Constitutional
Law, Human Rights, Ant. N. Sakkoulas, Athens – Komotini, 2nd ed., 2005, p. 447
et seq. (in Greek); Chrysogonos C., Civil and Social Rights, Nomiki Vivliothiki, 3rd
edition, 2006, p. 275 et seq. (in Greek); Sotirelis G., Religion and Education, Ant. N.
Sakkoulas, Athens – Komotini, 1993, p. 213 et seq. (in Greek).
4
Article 9 of ECHR reads as follow:
“1. 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.
2. 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”.
5
European Convention on Human rights was ratified by Law No. 53/1974 (Official
Gazette, Vol. A, No. 256).
6
Article 2 of the first additional Protocol to ECHR provides 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
right of parents to ensure such education and teaching in conformity with their own
religions and philosophical convictions”.
384
of a simple presentation of the main religions and dogmas or even atheistic

theories, or it could be considered as an optional lesson.
The theorists insist on the constitutional base of the right of exception of

the religious lesson at school. They especially recognize to lyceum grade
students that they have a right of exception irrespectively of the religious
conscience of their parents7.
The case law opinion, concerning the obligation of schools’ directors to

examine the validity of the allegations that are contained in the applications
for exemption of the religious lessons, has also been criticized by the
theorists. The power to examine the applicant’s conscience does not
comply with the religious freedom and each person’s right to not reveal his
religious conscience. Following the decision No. 510/17 of the Hellenic Data
Protection Authority of 15-5-20008, which regulated that “religion, which
refers to the inner world of the person and which can change at any moment,
cannot be written on the identity card of the citizens”, the religion is not
anymore written on the identity cards.
I.2. The Greek educational system consists of the primary and secondary
education. Primary education lasts for six years while secondary consists of
two educational circles, each lasting for three years, gymnasium and lyceum.
The compulsory education, provided by article 16 par. 3 of the Greek
Constitution, consists of primary education and Gymnasium.
In Greece, the religious lesson is obligatory from the third grade of the
primary education to the last grade of lyceum for those, who adopt the
doctrine of the Eastern Orthodox Church of Christ.
Law 1566/19859, which regulates the structure and the operation of primary
and secondary education, sets the basic principles of the Greek educational
system. Particularly the provision of article 1 par. 1 verse a, provides that the
primary and secondary education helps the students:
“To become free, responsible, democratic citizens, to defend the national
independence, the territorial integrity of the country and the democracy, to
be inspired by love towards man, life and nature and to be faithful towards
the mother country and the genuine elements of the Christian orthodox
tradition. The freedom of religious consciousness is inviolable..”.
Article 4 par. 1 e of the same statute provides, among others, for a more
specific target of primary education:
“...(the students) to be gradually familiarized with the moral, religious,
7
Chryssogonos C., Religious Instruction and Dominant Religion, To Syntagma, 1999,
p. 993 et seq. (in Greek).
8
www.dpa.gr
9
Official Gazette, Vol. A, No. 167.
385
national, humane and other values and to organize them in a virtue system”.
Article 5 par. 1 provides that:

“The aim of the gymnasium is to advance, according to the general spirit of
education, the spherical development of students in relation to the abilities
of their age and the corresponding demands of life.
Particularly gymnasium helps the students:

a) To broaden their system of values (moral, religious, national, humane and
others) in order to adjust their attitude to a corresponding way. To control
and direct their sentimental world to creative aims and humanistic acts”.
Article 6 par. 2 verse b sets, among others, as aim of the lyceum to help the
students:
“To realize the deeper meaning of Christian Orthodox ethos and the
determined dedication to universal humane values and to understand the
significance of democratic dialog and of participation in collective activities”.
The Greek educational system does not offer the opportunity for the
instruction of Islam10 in common public schools, however the possibility of
exemption is provided at request of the interested party and concerns not
only the exemption from the religious instruction, but also from morning
pray and church attendance.
Specifically, article 13 par. 10 of the Presidential Decree 201/1998 that
regulates the organization and the operation of primary schools, provides
for the heterodoxies pupils:
“10. Non orthodox students
a. Students who belong to another doctrine or religion do not participate in
church attendance, when their parents have filed a written declaration. When
one of the parents belongs to another doctrine, in order for the exemption
to take place, a common declaration of the parents is required. In case that
the parents are divorced, the declaration is filed by the parent who has the
custody of the child, according to article 8 par. 2 of this Presidential Decree.
The parents of non orthodox students are informed in advance about the
day and the time of the church attendance, in order for the students to
come to school after its completion. When church attendance takes place
unexpectedly or without informing the parents and the guardians of the
above mentioned students, falls under the school is responsible for the
surveillance of the students.
b. The above mentioned students are exempted from the religious lesson
and their occupation, inside or outside or in another classroom, during the
lesson, is determined by decision of the teacher’s association.
10
Or any other religion rather than the prevailing religion.
386
c. If the parents wish to be indicated on the official papers or books of the

school the fact, that they belong to another dogma or religion, they should file
a certification of the Register or of the List of citizens on which is reported
that they belong to another dogma.
d. The above mentioned students, in case they arrive to school before the
morning prayer, they stand with the class, in which they belong, at the place
of the assembly, without participating to the prayer, maintaining a district
silence, respecting the praying teachers and classmates”.
In Greek educational system there are no schools as the foreign confessional

(catholic) schools.
As it was mentioned above, (see supra I) according to the interpretation of

the Greek courts, the religious lesson in Greek schools can only be consisted
of the instruction of the dogma of the East Orthodox Church of Christ.
Only under this definition could the Greek public schools be characterized
as confessional. The legislation does not provide for the teaching of another
religion in public schools. The Greek legislation does not allow the rejection
of a pupil of another conviction, irrespectively of the number of heterodoxies
studying in the school. The pupil can request an exemption from the religious
lesson.
Apart from the public common schools, there are also ecclesiastical schools.
Law 3432/200611 rules the structure and the operation of these schools.
Ecclesiastical schools are productive units of the Greek Orthodox Church
and are supervised by the Ministry of National Education and Religious
Affairs (article 1 par. 1 of Law 3432/2006). According to the provision of
article 2 of Statute 3432/2006, the purpose of Ecclesiastical Education is:
“…the designation and the education of Cleric and Laic officers of Greek
Orthodox Church, of high educational level and Christian ethos”.
Due to these schools’ aim, it is obvious that heterodoxies cannot be accepted.

It could be said that the ecclesiastical schools of the Greek Orthodox Church
fulfill a function comparable to Muslim religious schools (see infra).
II.1.
II.2.
Articles 37-45 of Treaty of Lausanne12, which was signed on 24-7-1923,
11
12
The Treaty was ratified by the Legislative Decree of 25-8-1923 (Official Gazette, Vol.
387
set the obligations of Turkey, concerning the rights of the non-Muslim

minorities, which reside at Turkish territory. According to article 45 “the
rights conferred by the provisions of the present Section on the non-Muslim
minorities of Turkey will be similarly conferred by Greece on the Muslim
minority in her territory”. Practically this means that the Greek State is
obliged (according to article 41 of the Treaty) to provide to the Muslim
minority of Thrace education in its native-language. Turkish is considered
as the native language of the Muslim minority, despite the fact that not all
of the Muslims originate from Turkey. The Muslim minority is the only one
that has been internationally recognized by Greece13.
Greek legislation offers two options to Muslim pupils residing in Thrace, as

far as primary and secondary education is concerned. The first option14 is to
attend a common public school, requesting at the same time the exemption
from the religious lesson (although in practice only seldom an exemption is
requested). The second choice is to attend a minority school15. At present
there are 197 primary minority schools, two minority gymnasiums and two
minority lyceums.
Teaching in minority schools is bilingual. One part of the program is taught

in Greek, and the other part, which includes the teaching of the Koran, is
taught in Turkish. The teachers of the Turkish program are graduates of the
Special Pedagogic Academy of Thessaloniki (founded by the Royal Decree
33/196816), which aims to train the Muslims teachers of minority schools.
Apart from minority schools, there are in Thrace two Muslim religious
schools (one in Komotini and one in Ehino of Ksanthi). The purpose
of Muslim religious schools is to provide religious education to Muslim
students. The teaching program of Muslim religious schools consists of
the lessons taught in common public schools, and four additional lessons
relevant to the study of Islam, namely Koran teaching, Arabic, Turkish and
Muslim religious history.
II.3. A distinction should be made concerning the state supervision of

minority and Muslim religious schools between (a) the supervision of the
A, No. 238).
13
Minaidis P., The freedom of religion of Muslims in the Greek legal order, Ant. N.
Sakkoulas, Athens – Komotini, 1990, p. 93 et seq. Poulis P., Education Law and
Institution, Sakkoulas, Thessaloniki, 2001, p. 227.
14
And the only choice of the Muslims that does not reside in Thrace.
15
The fundamental statutes concerning the minority education are Law 694/1977
(Official Gazette, Vol A, No. 264) and Law 695/1977 (Official Gazette, Vol. A, No.
264).
16
388
foundation and the operation of the schools and (b) the content of lessons
relevant to Islam.
a) Article 3 of Law 694/197717 provides that the operation of minority
schools is under the supervision of the Ministry of National Education and
Religious Affairs. Moreover, article 4 provides that “The provisions on
private schools are applied also on the foundation, operation, inspection and
supervision of primary minority schools”. Namely, the supervision that is
exercised on minority schools is the same as that of private schools.
b) Law 1566/1985 sets the basic principles of the educational system. These
principles are qualified through analytical programs of studies, which define
the content of every lesson taught in primary and secondary education. The
analytical programs of public schools are applied also in minority schools
with some disparities which are approved by the Ministry of National
Education and Religion Affaires. These disparities are caused by the
international obligations of Greece and by the profound religious character
of these schools18. Moreover the assignment of writing the books for these
lessons does not follow the usual procedure of contest but the work is directly
assigned to the writer19 by decision of MNERA, following suggestion of the
Coordinator of Minority Schools20.
It is obvious, from the above analysis, that although the Greek State has
special attention of the supervision of the content of Islam schools, exercises
it with respect to the religious conscience of Muslim students.
XI. Bibliography21
•• Beys C. (ed.), Religious Freedom, Eunomia, Athens, 1998 (in Greek)

•• Briolas D. – Fortsakis Th., L’ égalité dans l’ éducation en Grèce, European
Journal for Education Law and Policy, Journal of the European Association
for Education Law and Policy, ELA, Kluwer Law International, vol. 5, 1-2
2001, p. 103-113 (in French).
•• Chrysogonos C., Civil and Social Rights, Nomiki Vivliothiki, Athens,
2006, 3rd edition (in Greek).
•• Chrysogonos C., Religious Instruction and Dominant Religion, To
Syntagma, Athens – Komotini, 1998 (in Greek).
•• Dagtoglou P., Constitutional Law. Human Rights, Ant. N. Sakkoulas,
Athens – Komotini, 2005, 2nd edition (in Greek).
17
18
Poulis P., Education Law and Institutions, Sakkoulas, Thessaloniki, 2001, p. 249 et
seq.
19
Usually a teacher in minority schools.
20
Ibid, page 250, Ministerial Decision Z2/283/1982 (Official Gazette, Vol. B, No.
888).
21
On the constitutional framework of religious instruction.
389
•• Fortsakis Th. – Spyropoulos Ph., Constitutional Law in Hellas, Kluwer

Law International – The Hague, London, Boston, To be published (in
English).
•• Fortsakis Th. – Velegrakis Em., L’ instruction religieuse dans l’
enseignement public primaire et secondaire en Grèce in Religious
Education, in Public Schools: Study of Comparative Law, M. Lopez-
Muniz et al. (eds.), Springer, 2006, p. 241 et seq. (in French).
•• Marinos A., Constitution, Democracy and religious instruction, Ant. N.
Sakkoulas, Athens, 1981 (in Greek).
•• Poulis P., Education Law and Institution, Sakkoulas, Thessaloniki, 2001
(in Greek).
•• Skouris V., Koutoupa-Regkakou E., Education Law, Sakkoulas,
Thessaloniki, 2007 (in Greek).
•• Sotirelis G., Religion and Education, Ant. N. Sakkoulas, Athens –
Komotini, 1993 (in Greek).
•• Tsatsos D., Constitutional Law, (Volume 3 – Fundamental Rights), Ant.
N. Sakkoulas, Athens – Komotini, 1988 (in Greek).
•• Zambeta E., School and Religion, Themelio, Athens, 2003 (in Greek).
390
The place of religion in state-funded educational
institutions in Hungary
Balázs Schanda*1
I. Introduction
Ever since education in the country has become an issue, the Church
– after the Reformation the various denominations, especially the
Calvinist (Reformed) Church besides the Catholic Church – have played
a determinative role in organizing and providing education. Also since the
introduction of compulsory elementary education by the ‘Ratio educationes’
of Queen Maria Theresa issued in 1777 schools serving the public and
the state were maintained by church communities. Public schools only
emerged in the 19th century. When education was nationalized in course
of the communist takeover in 1948 2/3 of all elementary schools and 1/3 of
secondary schools were run by churches. In public schools denominational
religious education remained compulsory until 1949. The possibility of
optional religious education at schools has been recognized, but due to the
systematic harassment of clergy, as well as parents and children who tried to
invoke this right it is rather a dead letter than a real right (by the 1980ies only
4% pupils at elementary schools had religious education at school, mostly in
rural areas, whereas since the 1970ies religious education at church premises
was tolerated to some extent). During the four decades of communist rule
(1949-89) education was totally controlled and provided by the state (only ten
denominational secondary schools prevailed due to agreements concluded
with the Bishops’ Conference in 1950 and the Reformed Church as well as
the Alliance of Jewish Communities in 1948). Churches made huge efforts
to overcome the legacy of the communist system, but took the present social
context – the fact of secularization – in consideration. In this way church run
schools have become an important alternative to public schools but churches
did not aim at restoring their earlier role in education.
Funding is an important indicator of the relations between state and religion,

it does not, however, determine the nature of education in itself. Educational
institutions run by public entities (state, local communities, minority self-
governments) are bound by the principle of neutrality with regard to religion,
whereas institutions run by churches are not. The place of religion is quite
different in these institutions, but church run institutions are entitled to the
* Pázmány Péter Catholic University, Budapest, schanda@jak.ppke.hu
391
Balázs Schanda
national average of public spending on schools that means the local spending
besides the central subsidy – for this they cannot collect tuition. Private
schools (that may be neutral with regard to religion, but are not necessarily
neutral) are also entitled to certain public subsidies, but they are not fully
funded by the state budget.
II. Religious instruction in public schools
1. The possibility for children/students to participate in optional religious

education and instruction organised by a church legal entity in state and council
educational-teaching institutions has to be ensured. Church legal entities may
organise religious education and instruction on demand of the parents at
kindergartens and on demand of the parents and the pupils at schools and halls
of residence. Religious education and instruction at kindergartens may be
organised separately from kindergarten activities, also taking account of the
daily routine at the kindergarten. It may be organised at schools in conformity
as compulsory curricular activities. It is the task of church legal entities to
define the content of the religious education and instruction, to employ and
supervise religious education teachers and to execute the acts of administration
related to the religious education and instruction with special regard to the
organisation of the application for religious education and instruction, the
issuance of progress reports and certificates and the supervision of lessons.
The school, dormitory or kindergarten is obliged to provide the necessary
material conditions for religious education and instruction, using the tools
available at the educational-teaching institution, with special consideration
to the proper use of rooms and the necessary conditions for application and
operation. The kindergarten, school or dormitory shall co-operate with the
interested church legal entity in the course of the performance of the tasks
related to the optional religious education and instruction organised by the
church legal entity.1 The reality of religious education at public schools shows
great regional differences. In certain rural areas the large majority of children
at elementary schools follow religious instruction classes at school, whereas in
urban areas, especially at secondary schools level religious instruction is not
even offered, but held on church premises. Certainly at secondary school level
the offer of church run schools provides an alternative in most major cities.
Public schools (both primary and secondary) have to provide space for
religious communities to offer religious education at their premises in a
‘protected’ time frame, that is, after 7AM and before 3PM, when there are no
concurring obligatory classes (a school choir or a sports event could concur
with religion classes.)
1
Act LXXIX/1993, § 4 (4)
392
The place of religion in state-funded educational institutions in Hungary
Act IV/1990 on the Freedom of Conscience and Religion, and the Churches
§ 5. Parents and guardians are entitled to decide on the moral and

religious education of their minor children, and to provide for it
appropriately.
§ 17. (1) A church legal entity may pursue all educational, teaching,
cultural, social, health-care activities, as well as activities related to
sports and children’s or youth protection, which are not reserved by
law exclusively for the State or for a state agency (institution). Within
the sphere of these activities, the church legal entity may establish and
maintain institutions.
(2) A church legal entity may provide religious education in public
education institutions on a non-compulsory basis (as an optional
subject), according to the demand of the students and parents.
Act LXXIX/1993 on Public Education
§ 4. (4) It shall be rendered possible that the child or the student

may participate in an optional religious education organized by the
church legal entity at state and local government teaching-educational
institutions. The church legal entity may organize religious education
by considering the demands of the parents, in the case of kindergartens,
and in the case of schools and dormitories, by considering the demands
of students and parents. In the kindergarten, religious education shall
be organized in separation from other kindergarten activities, taking
into consideration the daily routine of the kindergarten, and in schools
it shall be organized in a way that accommodates to the compulsory
teaching hours. The church legal personality shall be responsible for
the contents of religious education, for employing and monitoring the
teacher of religious education, for the administration of tasks related
to religious education with special regard to application for religious
education, reports on the child’s progress, the issue of certificates
as well as the monitoring of the teaching process. The school,
dormitory or kindergarten - out of the devices and instruments at the
institution’s disposal - shall provide the necessary material conditions
for religious education, with special regard to the appropriate use of
premises, and the necessary conditions for application and operation.
Concerning the employment of the teacher of religion, provisions of
section 17 of this Act may be disregarded. The kindergarten, school
and dormitory shall, in the execution of the tasks related to optional
religious education organized by the church legal entity, cooperate
with the church legal entity concerned.
393
Balázs Schanda
2. All religious communities (at present close to 200) have the right to offer
religious education at public schools. Practically the traditional mainstream
denominations (the Catholic Church, the Reformed Church and the
Lutheran Church) may do so if the local circumstances are opportune.
III. State funded denominational schools and state supervision
3. Denominational schools run by registered churches or religious

communities, as well as their organs (religious orders, dioceses etc.) enjoy
full public funding.
The following charts show that church run schools have a relatively important
role as secondary general schools (a school type close to the German
‘Gymnasium’), where over 20% of pupils frequents a church run school.2
Number of institutions
Public Ecclesiastical Other
Kindergartens 2,216 on 3,992 sites 134 on 141 sites 212 on 222 sites
Primary schools 2,081 on 3,007 sites 183 on 213 sites 111 on 143 sites
Vocational schools 317 on 361 sites 24 on 32 sites 110 on 193 sites
Secondary general schools 410 on 431 sites 103 on 110 sites 108 on 294 sites
Secondary vocational schools 482 on 555 sites 28 on 42 sites 194 on 311 sites
Number of pupils (in full time education)

Public Ecclesiastical Other
Kindergartens 306,683 10,757 8,237
Primary schools 728,237 46,789 14,364
Vocational schools 105,847 3,874 15,144
Secondary general schools 155,831 35,051 12,720
Secondary vocational schools 201,221 4,846 30,451
So far no Islamic community has established a school. Over 60% of church

run schools is Catholic, 25% Reformed, 10% Lutheran, 1% Jewish. This
means, that the engagement of Protestant denominations in education is
stronger than their denominational share.
4. For financial reasons it is not likely that denominational schools would be

run by a private entity instead of a church legal entity. Private schools often
2
A bilingual (Hungarian-English) overview of the system of education is available at:
http://www.okm.gov.hu/letolt/statisztika/okt_evkonyv_2008_2009_091207.pdf
394
offer special pedagogic programs (languages, sports, arts), and may have a
special religious identity. As registering a religious entity is a merely formal
act, a school run by such an entity would enjoy significantly more favorable
financial conditions than a private school. So far there are no Islamic private
schools in Hungary.
5. How do the authorities control the teaching in state funded denominational

schools and are there any special questions about the control of the content
of teaching in state-funded denominational schools? Please refer to the
provisions in the law.
Denominational schools – run by churches, but funded from the state budget
– underlie the same control than public schools. All schools are bound by a
national core curriculum that, however, provides space for the curricula set
up by schools independently.
IV. Limitations on admission to confessional schools
6. Public (neutral) schools have to be available to all pupils without an undue

burden. Church run schools have the right to denominational exclusivity, but
usually do not make use of this right.
§ 81. § (1) If an educational-teaching institution is not maintained by

a local council or a state organ,
a) the educational-teaching institution may also operate as a committed
institution with regard to religion or ideology and, in compliance
with that, it may stipulate that children / students should accept a
certain religion or ideology as a precondition for admission, build the
philosophical, ethical and cultural knowledge corresponding to the
religious or ideological commitment into its pedagogical programme,
restrict or exclude the exercise of the right regulated in Subsection
d) of Section (1) of Article 19 of this Act and establish rights and
obligations in relation to the practice of religion for the children /
students in the rules of the house;
7. Church run schools had the right to limit admission, but in practice
parents from different faith communities are not likely to send their children
to a church run school.
V. Teaching of Islam in denominational education
8. Public authorities shall not organize any kind of religious instruction. It
395
Balázs Schanda
is up to the school to admit adherents from different denominations to the

school and to provide space for religious instructors of other denominations
to offer religious instruction. In practice, Catholic, Reformed and Lutheran
Churches enable mutually religious instruction in their schools. At present
there is no Islamic instruction neither in public, nor in denominational
schools.
As religious education is not part of the curriculum at public schools, there

is no alternative class of conception of life, philosophy or ethics provided.
Ethics classes can be provided at schools, but not as an alternative to religious
education, but alongside it.
There are no religious symbols at public institutions in Hungary, as public

schools are bound by the principle of neutrality.
Inmates, pupils and students, could, however, post religious symbols at their
own stake if these do not disturb others (like a cross above their bed in a
dormitory).
With regard to teachers it could be argued that a religious-neutral appearance

could be regarded as a general condition of their profession, but there were
no cases or disputes on the issue so far. Teachers, in general may manifest
their religion, but shall not advocate for it in a public school.

§ 19. In relation with his/her job, the teacher is entitled to
d) carry out – by observing section 4, subsection (2) – his/her
educational and teaching activity in accordance with his/her own
world-view and set of values without forcing to or making the child,
the student accept it.
According to the law the pupil has the right to have his religious convictions
respected and to express his conviction or belief in ways that do not violate
the law, does not violate the similar rights of others and does not infringe the
right to study of his or her mates.3 Due to the limited number of Muslims in
the country headscarves have not yet become an issue in Hungary, but there
is no dress code that would rule them out.
Schools – the teachers’ conference upon the proposal of the director – have
the right to regulate certain aspects of appearance, and they do so with the
3
Act LXXIX/1993. § 11 (1) h)
396
consent of the parents’ union.4 Dress codes only rule out extreme appearance
(e.g. piercing) in schools, endangering the safety or the health of the pupil. In
Hungary there are no school uniforms.
Dress codes – passed by the schools – could be subject of court procedures.
In case of serious misconduct against the house rules an expulsion could be

the sanction. This last sanction with minors (under 18) can only be invoked
if there is an other school that provides place for the pupil. Disputes could
end up at courts.
There is no case-law in Hungary with regard to dress-codes of schools.
VII. Additional comments
The number of Muslims in Hungary is relatively small. At the census in

2001 only 2,907 persons declared to be Muslims.5 The real and present
number is likely to be higher (about 10% of the residents did no respond
to the question about religion at the census). Muslims in Hungary do not
constitute a homogenous group, besides Turkish and Arab immigrants there
are some Hungarians who converted to Islam. In the tax assignment system
the largest Muslim community got the support of 320 taxpayers, the two
further Muslim communities got 255 and 208 assignments respectively, 6
what means that not more than 1,000 taxpayers (out of more than 4 million
income taxpayers) declared to be part of a Muslim community. The issue of
Islamic education in schools has not been risen so far, and as long as religious
education in public schools is optional, it is not likely to become an issue.
VIII. Bibliography
• Office of the Commissioner for the Educational Rights – www.oktbiztos.

hu
• Act on Public Education – http://www.nefmi.gov.hu/letolt/english/act_
lxxxix_1993_091103.pdf
4
Act LXXIX/1993. § 40 (2)
5
Data were published indicating regions, settlements, correlation to marital status
and age. Központi Statisztikai Hivatal, 2001, évi népszámlálás, 5. Vallás, felekezet.
Budapest, Központi Statisztikai Hivatal 2002; Hungarian Central Statistical Office,
Population census 2001, 5. Religion, denomination, Budapest, Hungarian Central
Statistical Office, 2002; http://www.nepszamlalas2001.hu/dokumentumok/pdfs/
vallas.pdf.
6
http://apeh.hu/szja1_1/kimutat/2010_rend_egyh_kiem.html
397
The Place of Religion in Education in Ireland
Oliver Mahon*
I. Introduction and generalhistorical background information on

primary and post-primary (i.e. second-level) education in Ireland:
1.1 For a small country with a very small population, the Irish system of
education at first and scond-levels is highly complex. This is due in the main
to historical and economic factors which are too complicated to set out here
in any detail. Therefore these notes are merely the most cursory of outlines
which it is hoped will sketch in the general picture in order to make the answers
to the various questions hereunder reasonably comprehensible; without
some background knowledge many of the answers would either make little
sense or even mislead if read in isolation. For any understanding of the Irish
system and the tensions (religious, political, economic and social) that are
a feature of it, it is necessary to keep in mind at all times that it has been
evolving over a long period encompassing significant political and economic
change (from being part of a union with Great Britain to independence, first
as a Free State within the British Commonwealth and later as a republic and
through one significant famine abd a number of political rebellions), and
its complexity (which is itself a significant administrative burden) is largely
the result of competing interests, each trying to stake a claim for itself to a
piece of the national educational landscape. It has been a feature of Irish
history that education has been employed – successfully in some instances,
unsuccessfully in others – as a weapon to proselytise or subjugate persons of
other faiths or none, and this fact has left a legacy of ingrained attitudes that
is still a factor to be considered.
1.2 The tradition of formal instruction in a school-like setting (which is the

sense in which “education” is used in these notes and in this questionnaire)
in Ireland is a long one. Dr Farry1 begins his survey in pre-Christian times2
* Affiliation: former school principal & self-employed lawyer Ireland, specialising in

Education Law. Tutor in Education Law on the MAME programme at Waterford
Institute of Technology Ireland.
1
Farry, Michael,, Dublin, 1998, Chapter 1.
2
It is conventional but incorrect to say that St Patrick (d. 469) introduced Christianity
to Ireland. This cannot be correct, as it is established that Patrick was already a
bishop at the time he commenced his mission in Ireland in 432; it was the practice
only to dispatch a cleric of that rank to places where there was already an established
community of believers. It took a lengthy period before Christianity gained anything
like universal acceptance in Ireland, and so the expression “pre-Christian times” is
399
Oliver Mahon
and records that vocatinal training was provided for and regulated in detail
under the indiginous legal syatem known as the Brehon Laws3. The growth
of monastic settlements after approximately 500 A.D. was marked by the
establishment of monastic schools4 where students were instructed in a
variety of accomplishments. Many of these survived the ravages of the
Vikings and various inter-neicene and, after the commencement of the
Norman conquest in 1169, inter-racial conflicts until well into the Middle
Ages. Privately-organised formal structured education began to be used, with
very little success, as a means of conversion of the Catholic population after
the Reformnation, and later there was a period when Catholic teachers were
forbidden by Act of Parliament to practice and were forced into an unofficial
underground type (“system” would be a misnomer, as these schools were not
in any way systematised) of commercialised instruction known generically
as the “Hedge Schools”. This system of repressive laws, which affected other
areas of life also and was intended to impact on Protestant Dissenters as
well as Catholics, was gradually relaxed, repealed or allowed to lapse and
eventually the State, as much to get control of this impromptu and ad hoc
schooling as anything else (since it was unable to suppress it), and also as
a social and educational experiment for a similar initiative in Britain later,
stepped in and established a state-funded and centrally organised system, the
National Schools.
1.3 At the post-primary level, private initiative by the various churches

(principally Catholic and Church of Ireland) as well as by other bodies
established a number of independent voluntary schools, both before and
after political independence was obtained, and the State was generally
very happy to allow this administrative and financial burder to be taken
up by volunteers: hence the preponderance of voluntary schools in the
Irish second-level system in comparison to the number of State schools,
to which my colleague Dr Glendenning has already referred in her paper.
itself very vague, but would certainly mean before 400 A.D.
3
The native legal system that prevailed in Ireland from very early times before being
gradually displaced by English Common Law, as first Anglo-Norman and later
English influence spread cross the country. The final defeat of the remaining Gaelic
clans at the battle of Kinsale (1601) is generally regarded as the final nail in the cofin
of the native Gaelic administrative and legal order.
4
Ross, David, Writing of the monastic foundation at Clonmacnoise, Ross notes that at
its peak in the eighth century, “it possessed a school, a or writing room, and a library,
as well as numerous churches”. Clonmacnoise was only one of several establishments
of similar size and eminence. As to the standards of scholarship in the monastic
schools, he points out that “[T]eaching was an important aspect of their work, and
a high standard of literacy in Latin was maintained, which included the study of pre-
Christian writers such as Virgil. They imported books from far-off centres of learning
like Antioch and Alexandria and also created books” (p. 81).
400
Only with reluctance did the State come forward quite late in the process
with the system of vocational and technical education established by the
Vocational Education Act 1930 and which is at present in the process of the
first significant structural reorganisation since it was established. Within the
last thirty years there has been the development of the various school types
to which Dr Glendenning has referred, and the Irish education scene today
has a surpriosing diversity for such a small population of different models at
primary and post-primary levels.
II. Some significant features of the Irish education system:
A. Recognisesd and unrecognised schools:

All schols in Ireland fall into one of two categories, recognised and
unrecognised. “Recognised” means recognised by the Minister for Education
and Skills5 pursuant to section 10 of the Education Act 1998 (“the 1998 Act”).
The main practical effect of recognition is that funding from the State (in
the form of teachers’ salaries, capitation grants in rspect of eligible students,
grants towards on-going costs, capital funding etc) becomes payable to the
school. Another effect is that the various education statutes6 only apply to
recognised schools. Lack of recognition means that no form of state funding
is available to the school (s. 12(3) of the 1998 Act) and it must finance its own
activities from private sources and local initiative. Recognition can be lost
in certain defined circumstances, per s. 11 of the Act, and correspondingly
an unrecognised school can apply through its patron to the Minister for,
and gain, recognition (s.10(1)), provided certain conditions are met (s.
10(2)). The great majority of Irish schools are recognised schools, althoiugh
unrecognised schools are to be found at both the primary and post primary
levels. (The application of a rigid points system for admission to third-
level education until very recently led to the emergence of “grind schools”
at second level which specialised in cramming students for the Leaving
Certificate examination (the public examination taken at the end of second-
level education), which was used as the means by which entrance points to
third-level education were calculated. These schools are unrecognised.
B. School patronage:
A very important feature of Irish education is the system of school patronage,
which arises from the origins of the state-funded education system early in
the nineteenth century. Every recognised school must have a patron (s. 8 of
5
Currently Mr Ruairi Quinn TD, a member of the Labour Party which has formed a
coalition government with the Fine Gael party.
6
Of which there have been several since the end of the last century: the, the the, the, the
as well as other enactments that while not education acts nevertheless had an impact
on education to a greater or lesser degree.
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Oliver Mahon
the 1998 Act). The patron may be an individual (s. 8(1)), a group of persons
who may be recognised as joint patrons (s. 8(5)) or a corporate body (s.
8(4)). To be designated as a patron it is necessary to be recognised as such
by the Minister (s. 8(1)). It is possible for one person, legal or human, to be
the patron of a large number of separate schools; for example for national
schools in Catholic ownership, the Ordinary of the diocese (i.e. the bishop)
is normally the patron of almost all the national schools in that diocese.
One of the patron’s functions is to request the minister to rcognise a school
(section 8(2)), and so the role of the patron is vital in the preliminary stages
of the establishment of a new school. Other very significant functions are
the establishment of the board of management of a school (s. 14(1) of the
1998 Act), the appointment and removal of the members of the board and,
very significantly in the context of this paper, the determination of the
characteristic spirit (another expression for ethos) of the school (see below);
the board is answerable to the patron for the maintenance of the school’s
characteristic spirit (s.15 (2)(b)).
C. The imprtance of the school’s ethos or “characteristic spirit”:

The ethos of a recognisaed school is specifically provided for in the 1998 Act
in section 15(2)(b), where the expression “characteristic spirit” is employed;
it is stated that the “characeristic spirit of the school [is] determined by the
cultural, educational, moral, religious, social, educational, linguistic and
spiritual values and traditions which inform and are characteristic of the
objectives and conduct of the school..”. “Characteristic Spirit” is simply a
synonym for “ethos7”; it may be that the phrase was preferred to the word
because there is likely to be a wide perception that only denominational
schools can properly have an ethos, as the word has come through usage
and association to be particularly attached to church-owned institutions
such as voluntary hospitals and voluntary schools, and so the word “ethos”
is carefully avoided in the 1998 Act8, presumably to get away from the
association in the popular mind with denominational institutions. However
this is a misconception, and there is no reason why any school cannot have a
perfectly valid characteristic spirit, based on one or more of the other factors
listed in section 15(2)(b) of the 1998 Act and quoted above. Section 15(2)
7
The dictionary definitions of “ethos”, which is derived from a Greek word meaning
“habit”, are: “Characteristic spirit of community, people or system”. “The distinctive
character, spirit and attitudes of a people, culture, era etc”. Fowler’s note on “ethos”
is in part as follows: “It means the characteristic spirit informing a nation, an age, a
literature, an institution, or any similar unit…”.’ (H.W. Fowler, second edition, 1977)
8
Interesting, the word “ethos” is used in this context in the two equality acts: the section
7 and thesection 37and “characteristic spirit” doers not appear at all. Presumably
the reason for this is that the education legislation originated in the Department
of Education whereas the equality legislation emanated from the Department of
Justice.)
402
(b) states that the components making up the school’s “characteristic spirit”
are to “inform and [be] characteristic of the objectives and conduct of the
school…” (emphasis added). Any school, including a State school, can have
a characteristic spirit: there are seven possible components of such a spirit
listed in section 15(2)(b), of which “religious” is only one. (This means in
practice that a school’s ethos could be based on a combination of some or
all of the other six; it is not clear from the Act if this list is intended to be
exhaustive.) In other words, it is perfectly feasible for a secular school to have
an ethos which is just as real and binding as that of a religious school. Once
this ethos is reduced to writing and published by the patron, it must have the
same standing and effect as the ethos of a denominational school
Applied to a school, an ethos statement is essentially a statement of

fundamental values, and the statement of the “characteristic spirit of the
school” is to be based on at least some of the factors set out in section 15(2)
(b) of the 1998 Act. Determining it is a function of the patron, not the
board, and the board’s only function in relation to it is to uphold it. (The
board must not and cannot in law vary this ethos.) This is clear from section
15; subsection (1) requires the board “to manage the school on behalf of
the patron…” and subsection (2)(b) obliges the board to “uphold, and be
accountable to the patron for so upholding, the characteristic spirit of the
school..”.
The ethos statement once formulated is supposed to be the philosophical

basis on which the school operates, encapsulating (as it should if properly
drafted) the values which the school states that it most respects; the school
is intended to be conducted day-to-day in the light of that ethos, and it
should at all times inform the work of the school. In view of its fundamental
importance in the general scheme of school governance, many patrons are
surprisingly casual in relation to formulating the ethos statement for the
school
If the statement is included in the school’s Admission Policy, brought to the

attention of parents so that they can familiarize themselves with it before
committing their child to the school, and they have had the opportunity to
appraise themselves of the school’s characteristic spirit, are informed that
this statement of ethos colours all the work of the school, and then enrol their
child in that knowledge, the theory is that they are doing so in full knowledge
of what the nature of the school is and therefore cannot take issue with it
afterwards.
The school’s ethos is also very relevant to and for incoming teachers, so that
they fully appreciate that they are being employed by an institution which has
a clear character, values and aspirations. While this might be presumed to be
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Oliver Mahon
obvious in relation to a school owned and operated by and on behalf of one

of the churches, it is also important for the (much smaller) number of state-
owned schools. Just because a school is a state school does not mean that it is
in some way values-free and may not have a valid characteristic spirit; there
are secular values as well as religious ones.
Ethos statements are not empty formalities requiring a mere token obeisance,
but each one is a legal document in its own right with real significance for
the way the school is operated. An example of this significance would be the
provision in the Equal Status Act 2000 (section 7(3)(c)) that one of the few
grounds on which a school may refuse to admit a student is where such a
refusal “is essential to maintain the ethos of the school”. The ethos statement
has implications in relation to teachers, boards of management and students
and their parents.
D. The preponderance of denominatinal voluntary schools in

Ireland:
In Ireland, although all recognised schools are funded by the State, the
number of state schools proper is small in coimparison with the total, and
the preponderance of schools are voluntary foundatins (at second-level) and
denominatinal national sdchools at primary level. Until relatively recently
the preponderance of the denominatinal model was much greater, but
the trend particularly at scond level is towards the establishment of non-
denominational schools.
III. Mainstream9 first and second-level education in Ireland:
A. Primary schools:
(a) The National School system: Ireland saw the establisdhment of a state-
funded system of primary education earlier than most European states.
In 1831 the Chiel Secretary for Ireland E.C. Stanley wrote a letter to
the Duke of Leinster inviting him to become10 President of the Board
of Commissioners for Education in Ireland. This led ultimately to the
establishment of the system of National Schools: a system of schools to be
established and funded by the State and aministered through a dedicated
body, the Commissioners, established for that purpose. Subsequent to
the writing of the Stanley letter, the system of national education was
established and gradually extended across the island. This was anything
but a simple matter of educational administration, as might have been
imagined, but was fraught with difficulties and confrontations that
9
Special education and special schools are being omitted from these notes for the sake
of brevity.
10
The text of the “Stanley Letter” is reproduced in Glendenning, ., pp. 571 – 574.
404
might have caused the project to collapse at various times during the
inception phase. (Details of the battles fought, and the identities of the
chief protagonists, can be read in any of the standard works of hgistory
listed in the bibliography, and do not need be recited here.) It is sufficient
to note that the national school system was originally designed by Stanley
as a non-denominational one, but by the middle of the century it had been
forced into becoming denominational. Dr. Glendenning summarises the
outcome as follows: “As a result of the demographic pattern in Ireland, the
schools catered almost entirely for pupils of one faith. With the passage
of time, therefore, each denomination stamped its individual character
on the body of schools under its jurisdiction.11” As the churches became
progressively dissatisfied with the system they gradually withdrew their
support and if it was to survive at all it had to adapt to the realities of inter-
church rivalries. The outcome of all this was the forced evolution (forced
that is by agents outside the system itself) of the national schools into the
firmly denominational mould, which was the model inherited by the Irish
Free State when it assumed control of the system in 1922. Relatively little
has changed since as regards the essential denominational characcter of
the system, and the National Schools provide primary education to the
great majority of children throughout the State. Until 1975 the manager
of the individual school was usualy a local clergyman, answerable to
the patron; since that date a local board of management, appointed by
and also answerable to the patron (see note on “patronage” above) has
discharged management functions; this arrangement was oly put on a
statutory footing by section 14 of the Education Act 1998.
(b) The Educate Together School System: Established as a humanist alternative

to denominational education in Ireland, the Educate Together movement
originated in Dublin and has since spread throughout the State, although
the number of schools, all at primary level to date, is tiny in comparision
to those controlled by the principal religions. The movement is really
an off-shoot of the national shool system, and indeed the schools are
officially national schools, established by persons who were broadly
happy with the academic and curricular content of primary education but
unhappy with the denominational aspect and particularly the fact that
the influence of the religious denomination is supposed to be pervasive
throughout the other subjects of the ciurriculum. The Educate Together
organisation (a company limited by guarantee with charitable status)
secured recognition as a school patron as a necessary preliminary to
establishing its own system of schools (see note on “patronage” above). At
the time of writing there are sixty functioning Educate Together National
Schools throughout the State with others in the pipeline, and there are
11
Glendenning, D.,, Dublin, 1999, par. 2.30, p. 20.
405
Oliver Mahon
advanced moves to establish its first post-primary school; it is unlikely

to be its last. The movement was slow to grow in its early years mainly
due to the quite homogenous nature of Irish society and the high levels
of religious (particularly Catholic) belief and practice. However there
has in recent years been an accelerating tend away from the adherence to
and pracice of organised religion; the 2006 census resuts show 186,000
pesons stated “no religion” as their option in that section and a further
70,000 declined or omitted to answer. In addition substantial numbers of
immigrants, who were not the traditional returned emigrants of earlier
years but rather “real” immigrants, began to become a significant feature
of society, and Educate Together undoubtedly received an impetus from
this as the numbers of its schools has increased significantly in recent
years. The ethos of the Educate Together that the schools are multi-
denominational with an equal right of access for all, co-educational, child-
centred and democratically-run with active participatin by local parents
in school organisation and management. A core code of ethics is taught
as a formal subject and facilities are made available after school hours
for those who wish to organise formal dernominational instruction. The
long-term aim is to expand the movement further, and particularly into
second-level and pre-school education.
(c) Gaelscoileanna (Irish-language schools): These are also recognised

national schools delivering the normal range of subjects across the
curriculum but the distinguishing feature is that the everyday language of
the school and the medium of instruction is the Irish language. Admission
to the school is on the understanding and acceptance that this is part of
its characteristic spirit. There are a number of Irish-language schools
at the post-primary level also. The popularity of these schools has been
growing and due to parental demand there has been an expansion in
numbers across the State.
(d) Community National Schools: this type is the most recent to come into
being, and arose out of necessity. Due mainly to bad planing and lack
of school provision, the situation arose that some children, mostly the
children of immigrants who could not find a place in denominational
schools, were left with no options at all, and the Community National
School was created to meet this need. They are owned and operated
by the vocatinal education committees (see below) and five have been
established to date. They are national schools but without denominatinal
control and so there are no priorities of religious belief at the point of
entry. They are the only mainstream State schools at the primary level.
406
B. Second-level schools:
(a) Voluntary secondary schools: See par. 1.3 above. They are private schools
owned and operated by a church, religious order or other body; the
majority are in Catholic ownership and management but other churches
and bodies also maintain voluntary sdchools. They deliver the currriculum
prescribed by the Minister pursuant to section30 of the 1998 Act and
in return are recognised by the Minister, with the financial and other
consequences of recognition as explained above. The Islamic community
has recently announced that it plans to expand its faith-based education
at second level by means of its first voluntary school.
(b) Vocational schools: When it became aparent that the economic development
of the Irish Free State was being retarded by the lack of workers with
technical and voocational skills (there was a more than adequate supply
of the academically proficient from the voluntary schools) the State
rather reluctanntly enacted the Vocational Ediucation Act 1930 (“the
1930 Act”) to establish a system of schools providing continuation and
technical education. The state was divided geographically into vocational
education areas, each under the control of a local vocational education
committee (colloquially “a VEC”) which was funded and charged with
the responsibility of establishing “vocational schools” to remedy the
national deficiency in technical skills. These schools initially provided
a rather rudimentary level of education and training at the lower end
of the second-level cycle but were enormously empowered when they
were permitted to put candidates forward for the state examinatins
(Intermediate Certificate12 and Leaving Certificate) and in that sense
put them on a par with the voluntary schools. Today they are largely
indistinguishable from the more plentiful voluntary schools as regards
the provision of the prescribed curriculum and are the only truly State
schools at second level in Ireland.
(c) Commmunity colleges: an amendment13 to the 1930 Act provided for

the amalgamation of vocational schools with one or more voluntary
secondary schools to form a composite entity known as a comunity
college. This was done as a practical response to a particular problem: the
great number of very small vocational and voluntary schools situated in
small towns which were becoming less viable on foot of changes to and
the expansion of the national curriculum. These amalgamations allowed
for the creation of more rational school units. They are under the control
and management of the local VEC.
12
Since re-configured and renamed the Junior Certificate.
13
The, section 1.
407
Oliver Mahon
(d) Comprehensive schools: this type was essentially a copy of an English

model; only thirteen have been built. They are all under denominational
patronage and whatever about the name are as regards the delivery of
educational services pretty well indistinguishable from any other second-
level schools.
(e) Community schools: this is another amalgamated type, again taking in

a vocational dchool and one or more voluntary secondary schools. It
is under religious patronage and again delivers the regular prescribed
curriculum.
(Types (d) and (e) are generally classified together and cooperate as
regards representation at management level nationally.)

I.1. All recognised schools are state-funded and so this question refers to
all of the school types, both primary and post-primary, set out above. The
expression “public school” is unhelpful in an Irish context since all recognised
schools are to an extent “public” in that they are subject to inspection and
evaluation by the State and receive public money, as explained above.
(a) Primary:
National schools and gaelscoileanna: religious instruction takes place during
the school day.
Educate together national schools: religious instruction is delivered to those
who want it outside the school day using school facilities, as explained above.
Community national schools: ccccccccccccc
(b) Post-primary:
Voluntary schools: Religious instruction along denominational lines is
delivered during the school day but some schools are moving towards a more
generalised ethics-type of instructional material.
Vocational schools, community schools, community colleges &
comprehensive schools: the state-prescribed religious education programme
is taught during the day. This is Religious Education rather than Religious
Instruction.
I.2. In relatin to the use of “public”, see answer to Q. 1.1 above. Choices
are generallly not offered in voluntary schools, Gaelscoileanna or national
schools, which, being denominational in character, teach the faith of that
denomination. Religious Education (as distinct from religious Instruction)
is offered in vocational, community and comprehensive schools and
community colleges; this is a non-denominational course prescribed by the
State. Educate Together schools offer an ethics-based course during sdchool
hours with options after school for those who want them.
408
II.1. Yes, at primary and post-primary levels. (All recognised schools are
state-funded.)
(a) Primary: there are 3165 state-funded primary schools, of which 2 are
Islamic, 60 are Educate Together and describe themselves as “multi-
denominational” and 5 are community national schools. This leaves by
my calculation 3100 state-funded denominational primary schools.
(b) Post primary: there are 729 state-funded post primary schools, of
which 383 are voluntary schools, 254 are vocational schools and 92 are
community-comprehensive schools.
There are two Islamic primary schools funded by the State and no second-
level Islamic school; please see the explanatory notes above.
II.2. The private (i.e. unrecognised schools of which I am aware are

mainly at second level and are very much examination-oriented. They
are not denominational. I am not aware of the existence of unrecognised
denominational schools and since they would be unrecognised and therefore
outside the remit of the State, information of this sort is not available. I am
unaware of any private (i.e. unrecognised Islamic schools.)
II.3. In order to qualify for recognition as a school by the Minister (please

see note on “recognition” above) it is necessary for the patron of the
proposed school to give certain undertakings to the Minister. One of these
is that the curriculum prescribed by the Minister will be delivered and that
regular inspection and evaluation of the school will be permitted. However
this inspection relates to the prescribed (i.e. secular) curriculum only.
State inspectors do not examine or evaluate the programmes of religious
instruction where delivered.
Statutory provision: Section 10 of the Education Act 1998:

“10(2) The Minister may designate a school or a proposed school to be a school
recognised for the purposes of the Act where the Minister is satisfied that ....
(c) The patron undertakes that the school shall provide the curriculum as
determined in accordance with section 30;
(d) The patron agrees to permit and co-operate with regular inspection and
evaluation by the Inspectorate....

school
III.1. This would only arise where a school was over-subscribed (i.e.
where there were more applicants for places than the school is able to
409
Oliver Mahon
accommodate). In that situation the practice currently is that school draws

up a table of priorities and then allocates places based on those priorities. In
a denominational school, either primary or post-primary, one of these might
be religious adherence. If the school has places available however this could
not arise and would be illegal. This area is governed by the Equal Status Acts
2000 – 2004. Section 3 of this Act prohibits discrimination on any one of ten
stated grounds (“the discriminatory grounds”) one of which is religion. The
provision is:
“3 – (1) For the purposes of this Act, discrimination shall be taken to occur
where –
(a) On any of the grounds specified in subsection (2) (in this Act referred
to as “the discriminatory grounds”).... a person is treated less
favourably than another person is, has been or would be treated....
(2) As between two persons the discriminatory grounds (and the
descriptions of those grounds for the purposes of this Act) are
(e) that one has a different religious belief from the other, or that one has a
religious belief and the other has not (the “religion ground”).....
Where a school has more applicants than places, a table of priorities is

drawn up. The first priority is invariably in my experience given to siblings of
students already attending the school, and next to children of staff members;
this is done as a means of supporting the Family unit. Next, children living
within the school’s traditional catchment area (defined in various ways)
and then usually the faith criterion is applied. There is no prescribed way of
doing this scheme of priorities, and any refusal to admit an applicant can be
appealed to an appeals committee established by the Secretary General of he
Department of Education and Skills pursuant to section 29 of the 1998 Act.
Statutory provision:
“29 – (1) Where a board or a person acting on behalf of the board-
(c) Refuses to enroll a student.....
The parent of the student, or in the case of a person who has reached the
age of 18 years, the student, may.......appeal the decision to the Secretary
General of the Department....and that appeal shall be heard by a committee
appointed under subsection (2)”.
III.2 No, and a refusal of a place on foot of the imposition of a quota of that
nature would be in breach of the law and would be overturned on appeal.
(See the provision of the Equal Status Act set out above under Q III.1.)

course
410
IV.1. Currently there is no such legal obligation and it would be at the

discretion of the board of management of the school in question. (This is
true of all the denominations not just in relation to Catholic schools.)
IV.2. There is no such obligation.
IV.3. As there is no obligation, no debate has taken place as yet.
IV.4. I am unaware of the existence of any material of this nature.

V.1 At present there is no such guideline of which I am aware. I understand

that the mater may be under discussion.
V.2. Not applicable; please see previous answer.
V.3. There is no guideline, but I have been told that at least one Catholic
school has or is about to embark on such a course (i.e. arranging for the
teaching of Islam to those who want it.). No statistics or data are available
on this point.
VI.1. The use of the expression “public school” is rather unhelpful in relation
to Ireland as all recognised schools are publicly funded and to that extent are
“public”. There is no regulation or law on this point of which I am aware
and such matters are at the discretion of the individual school authority.
Such symbols would be a very much a feature of denominational schools
both primary and post-primary. One would not expect to find them in multi
or non denominational schools, although artworks with a religious theme
might occasionally be found.
VI.2. There is no regulation by the State on this point. If it arose as an

issue it would be a matter for the individual school authority. (As Islamic
headscarves are worn without problems by staff working in hospitals, both
public and private, I doubt if it would be an issue in a school.)
VI.3. The State has not issued any guidelines or regulations in relation to
headscarves. There have been no issues of which I am aware and the general
attitude appears to be laissez faire and general tolerance. Headscarves
are regularly worn by Islamic students in denominational and non-
denominational schools without any problems.
411
Oliver Mahon
VI.4. Dress codes and school attire generally are a matter for the board of
management of the individual school. In practice the Parents’ Association of
the individual school appears to be the main driver of this process in most
schools, although certain of the religious orders that own and control some
of the denominational schools have a traditional association with a particular
colour. Irish law does not address this point.
VI.5. It would be a matter for the board of management of the individual

school. There is no law or state regulation on this point. In the case of a VEC
school, it would be for the VEC to set down a policy for its area.
VI.6. The board of management of the school, or the VEC in the case of a
VEC school.
VI.7. There have been no such disciplinary issues in relation to teachers that
have come into the public domain. Breaches of rules on school uniform would
be taken up first with the pupil and if necessary with the parents/guardians.
It would not be a problem to be exempt from such rules on religious grounds.
VI.8. None to date.

VII.1. As explained, the terms “public” and “private” are unhelpful in an

Irish context. “Recognised” and “unrecognised” are much more appropriate;
please see the explanatory notes above in the Introduction to this document.
I am not aware of any school that has done this, but as it would be a matter
for local management, there are no statistics and no information available.
VII.2. Apart from the two Islamic primary schools that exist at the moment,
I am not aware of any.
VII.3. None of which I am aware.
VII.4. I am not aware of any.
VII.5. No information to hand and I am not aware of any such.
VII.6. There is no control or inspection of such instruction if it even takes

place
VII.7. There is no public debate.
412
There is significant diversity of school types in Ireland and a great number of

bodies involved in the delivery of Education. It has long been State policy to
provide for education rather than to provide it directly, and this was written
into the Constitution when it was enacted in 1937 and has not been changed.
Article 42.4 opens by saying:
“The State shall provide for free primary education and shall endeavour to
supplement and give reasonable aid to private and corporate educational
initiative...”. and this model of provision is firmly ingrained in Irish life:
hence the preponderance of denominational and voluntary schools at both
primary and secondary levels.
IX. Bibliography
•• Akenson, Donald, The Irish Education Experiment, London, 1970.

•• Casey, James P., Constituional Law in Ireland, Dublin, 2000.
•• Coolahan, John, Irish Education, History and Structure, Dublin 1981.
•• Farry, M., Education and the Constitution, Dublin, 1996.
•• Farry, M., Vocational Teachers and the Law, Dublin, 1998.
•• Foster, R.F., Modrn Ireland 1600 – 1972, London 1989.
•• Glendenning, D., Education and the Law, Dublin, 1999.
•• Gldenning, D., Religion, Education and the Law, Dublin, 2008.
•• Gaire E., and Mahon O., Primary Options, Dublin, 2005.
•• Kelly, J.M.., The Irish Constitution, ed. G Hogan and G Whyte, Dublin
2003.
•• Lee, J.J., Ireland 1912-1985, Politics and Society, Cambridge, 1989.
•• Lyons, F.S.L., Ireland Since the Famine,
•• Mahon, O., The Principal’s Legal Handbook, Dublin, 2002.
•• Ross, David, Ireland, History of a Nation, New Lanark, 2005.
413
414
Religious education – Israeli Perspectives
Asher Maoz
The interrelation between state and religion in Israel does not easily lend
itself to traditional classification1. Although Israel was established as a
Jewish state, there is no state religion in Israel. It is not a religious state yet
it is certainly not secular. Moreover, 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. Religious courts
enjoy an impressive jurisdiction in their respective communities, though the
jurisdiction of Sharia (Muslim) religious courts is substantially wider than that
of Rabbinical (Jewish) courts. The same goes for Muslim religious law.
I. National and religious affiliation
On the eve of its 65rd Independence Day (April 2013) the permanent
population of the State of Israel consisted of 8,018,000 people: 75.3%
(6,042,000) Jews (including Israeli settlers in the Occupied Territories);
20.7% (1,658,000) Arabs; 4.0% (318,000) ”other people” (which include
people not classified by religion and non-Arab Christians)2 - out of which
the Druze population, including residents of the Golan Heights, was
approximately 133,000. On top of them there were 177,000 foreign workers.
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,
which numbered about 230,000 people at the end of 2011, 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 14 April 2013, http://www.cbs.gov.il/www/
hodaot2013n/11_13_097e.pdf.
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Asher Maoz
There were also some 55,000 illegal immigrants from Africa, mainly from
North-Sudan and Eritrea.3 In spite of the substantial Jewish immigration
to Israel the percentage of Arabs grew from 18% at the establishment of the
State of Israel to 20.7%. This is due to several reasons such as the annexation
of East Jerusalem in 1967 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%, the growth of the Jewish population
was 1.7%, including Jewish immigration. On the other hand, Arab growth
was at the rate of 2.4%. There is a distinction also within the Arab population:
while the Moslem growth was at the rate of 2.8% the growth of the Christian
population was merely 1%. This tendency is expected to continue. It is
expected that by the year 2030 the Jewish population will drop by 0.53%-
1.23% and constitute 71.3%-72.2% of the total population. At the same time
the Arabs will constitute 23.7%-24.3% of the population. According to the
Israeli Central Bureau of Statistics, within the Arab population the Moslem
population will grow to 20.4%-21.1% of the population while the Christian
Arabs will decrees to 1.4%-1.6%. The Druze population will grow to 1.7%-
1.8% of the total population.4
II. Religious education5
A. 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
3
Immigration and Border Authority, Monthly report on Foreigners in Israel, April 2013
(in Hebrew). http://www.piba.gov.il/PublicationAndTender/ForeignWorkersStat/
Documents/%D7%90%D7%A4%D7%A8%D7%99%D7%9C%202013.pdf
4
Central Bureau of Statistics, Population in Base Year 2005 and Projection for 2015
and 2030, by Variant, Population Group and Religion, http://www1.cbs.gov.il/www/
hodaot2008n/01_08_056t4.pdfSome challenge this forecast pointing out at the
constant growth in the Jewish birthrate combined with a sharp drop in the Arab
birthrate; Yaakov Faitelson, (Jerusalem: The Institute for Zionist Strategies, 2011),
44-45; On line: http://izsvideo.org/papers/Education%20Demography-Full.pdf. For
an English abstract see: http://izsvideo.org/papers/Education%20Demography%20
English%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 ed., Carmen Asiaín Pereira (Madrid: Asia in Fundación Universitaria
Española, 2010), 495–548.
416
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”.
B. State religious education

Religious education is defined by law 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.
C. Arab, Druze, and Circassian state schools

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 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.
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.
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
417
Asher Maoz
country, to be loyal citizens of the State of Israel, to respect their parents and
family, their heritage, their cultural identity, and their language”. Since then,
some binational and bilingual schools have been established.
D. 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
enjoy the sponsorship of the Schechter Institute for Jewish Studies, which
provides pedagogical and educational support with an orientation towards
Conservative Judaism. 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 was created with the goal of ”combining in its curriculum
intensified Judaic studies, while emphasizes Jewish identity teaching”. The
supplementary curriculum for such schools includes comprehensive study of
Judaic sources emphasizing Jewish identity and values of tolerance in Jewish
inheritance and ”the coexistence and common destiny and fate of all parts of
the nation in Israel and in the Diaspora”. A request by the parents of at least
two thirds of the student body of a specific school is required in order to
designate the school as a combining state school. A combining state school
will receive additional funds in order to train its team and implement the
special curriculum, and will be required to appoint a coordinator for Judaic
studies in the school. The Ministry of Education expects a few hundred
schools to join the combining school category. The Minister of Education,
an orthodox rabbi, expressed support for this stream.
E. Recognized non-official schools and non-recognized schools6

Alongside the state schools there operate schools the state recognizes, yet
considers them as “non-official”. This category includes various types of
schools- most of them are religious, both Jewish and Christian (which
include schools that are operated by the Greek-Catholic Malachite Church,
the Latin Patriarch, and the Anglican Church). Muslim and Druze students
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.
418
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.
In 2012 20% of primary school students (grades 1–6) attended non-official

schools. 80% of the recognized non-official primary schools were religious
Jewish schools, almost all of which were ultra-Orthodox. 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. There are at least 15
variants of these schools’ networks, belonging to various religious communities
and denominations. 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). These
networks enforce a strict sexual division among the students. In recent years
such division spread also among religious state education schools, signifying
rigidness within this system. 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.
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 in an old fashion, 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.
419
Asher Maoz
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 over their
educational system. In 1969 the Knesset enacted the Inspection of Schools
Law, which introduced an important innovation in the subjection of schools
to state control, and subjected the curriculum and textbooks to the inspection
of the ministry of education. It also empowered the minister to ensure that
the education given in these schools is based on the principles set out in
the State Education Law. 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 manner, 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
III. State funding and school curriculum
State schools are fully funded by the state and local authorities. Recognized
schools, on the other hand, need to comply with some regulation for
budget participation. However, under provisions of the law, the Minister of
Education may fix in regulations the state’s participation in the budget of
non-official schools. From the very first days, the state financially supported
recognized non-official schools, including church schools, though the scope
of supported institutions, as well as the amount of support, changed 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
7
HCJ 4298/93 Jabareen v. Minister of Education, [1994] IsrSC [Official Hebrew
reports of the Supreme Court] 48(5) 199.
420
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, the two main streams of the

recognized schools, 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’s recommendations
were endorsed by the minister, who thereafter 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 today as “the Core Curriculum Scheme” for
primary education in Israel. 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. The extent of
the requirement differs between schools; 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
8
HCJ 2751/99 Paritzky v. Minister of Education [2000], <http://elyon1.court.gov.il/
files/99/510/027/a02/99027510.a02.pdf>.
421
Asher Maoz
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. The minister also
declared that as for intermediate schools and high schools, 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 did accept, 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 to halt the allocation of funds
to schools that do not fulfill the conditions and criteria set by law for the
recognition of ultra-Orthodox schools. The Court postponed, however, its
order as requested by the minister..
422
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. The concern was not only due to their spiritual
leaders regard of secular studies as a waste of precious time that may be
dedicated to religious studies, but also because of a concern about exposing
ultra-Orthodox children to a different culture. It is interesting to note that
this concern is mostly about boy’s schools, while 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. On the one hand, the ultra-
Orthodox education system 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 its students are spread all over the country and
due to the wide range of schools, the classes in the ultra-Orthodox schools
are small, which may lead to a loss of 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
for it. Moreover, the Ministry came up with the idea of changing the status
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>.
423
Asher Maoz
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”.
424
The constitutionality of the Unique Cultural Education Institutions Law

has recently been challenged. In a petition submitted to the Supreme Court
in 2010,10 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. Recognized
schools that fulfill only one of the latter requirements will receive 70 percent
of the budget. If it fails to fulfill 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 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.
IV. 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 “micro-level”. 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
10
HCJ 3752/10 Rubinstein v. The Knesset.
425
Asher Maoz
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
“[the 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 children’s rights in international law. The gap
between these documents might be, however, smaller than appears at first
sight. Thus, the Covenant on Economic, Social and Cultural Rights subjects
the parents’ right to 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.
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.
426
The Place of Religion in Education in Italy
Roberto Toniatti* 1

I.1. In Italy, the teaching of catholic religion is provided in state funded

schools, as stated by law 25 March 1985, n. 121, ratifying the 1984
agreement between Italy and the Holy See (modifying the previous
agreement concluded on 11 February 1929).
According to art. 30 of the 1984 concordat, state funded schools provide
for the teaching of catholic religion both in primary as well as in secondary
educational institutions (the article explicitly refers to “every public school,
except for Universities”).
State funded schools provide only for Catholic religion and students have
right to choose whether they want to attend religious classes or not, as stated
by the law, “without any discrimination”.
It must be underlined, that this law has a “quasi-constitutional status”, as it may
infringe the provisions of the Constitution, except for its “basic features”, as
it has been stated by the Italian Constitutional Court (see for example: dec.
n. 30/1971 and dec. n. 18/1982). This “quasi-constitutional status” derives
from Article 7 of the Constitution, which explicitly considers the agreement
between Italy and the Holy See as it follows: “The State and the Catholic
Church are independent and sovereign, each within its own sphere. Their relations
are regulated by the Lateran pacts. Amendments to such Pacts which are accepted
by both parties shall not require the procedure of constitutional amendments”.
I.2. State funded schools provide only for Catholic religion, but the students
have right to choose whether they want to attend religious classes or not.
In its 1989 (dec. n. 203) and 1991 (dec. n. 13) decisions, the Italian
Constitutional Court stated that non-attending students were not compelled
to attend an alternative teaching, as their choice was to be considered as an
expression of religious freedom, which is constitutionally protected by art.
19 of the Constitution.
If it is clear that an alternative teaching to religion is not to be imposed by
the school, yet it is questioned if an alternative teaching could be claimed by
non-attending students.
For example, a recent decision of the Council of State (n. 2749 of 2010)
stated that schools must provide for alternative teaching to religion, although
* University of Trento, Italy
427
Roberto Toniatti
they cannot compel students to attend them.

This same year, a Tribunal in Padova condemned a primary school as well
as the State department for education to pay 1.500 euro to a couple, for the
school had not provided for any alternative teaching for their non-attending
child (see Tribunal of Padova, 30 july 2010).
It should be underlined that some of the agreement between the State and
other religious denominations foresee the possibility to provide for religious
teaching as a part of “cultural activities” by members of their own church,
if requested by students, their families or school bodies and provided that
they entirely bear the cost (see art. 11, Law 29 November 1995, n. 520
agreement with the Evangelical Lutheran Church in Italy; art. 9, law 12
April 1995, n. 116 agreement with the Christian Evangelical Baptist Union
of Italy; art. 12, L. 22 November 1988, n. 516 agreement with union of the
Adventist Italian Churches; art. 9 L. 22 November 1988, n. 517 agreement
with the Assembly of God Church in Italy; art. 11, law 8 March 1989, n. 101
agreement with the Union of Italian Jewish Communities).
II.1. According to law 10 March 2000, n. 62, issued in implementation of

Article 33 of the Constitution, primary and secondary private schools can
ask the State for the recognition of the “equality” and to become part of the
“public” national educational system.
These schools now receive public money in different forms (see, for example,
Decree of Ministry of Education, n. 34 of 2009).
There are direct subsidies for the management of kindergartens and
primary schools (formerly officially recognized). The State (but not only:
some municipalities too) finance projects aimed at uplifting the quality and
effectiveness of educational offerings (in general) and secondary schools (in
particular). In addition there are contributions (vouchers from State and
Regions too) for families: formally, these contributions are used to facilitate
the “right of choice” of the school.
The majority of the state funded schools is made up of catholic institutions:

currently (2008-2009) there are 7.116 catholic schools in Italy (students:
587.806 units; teachers: 50.000 units; non-teaching staff: 15.000 units).
There are 12.532 (students: 920.214) private schools.
At this moment there aren’t in Italy Islamic state funded schools. There was
in 2005 an attempt to establish an Islamic state funded school in Milano. But
that institution didn’t receive recognition from the State.
http://www.istat.it/lavoro/sistema_istruzione/tavolescolastico.html
428
II.2. Yes and there are also non-denominational private schools like, for
example, culturally motivated schools (e.g. Steiner schools or Montessori
schools) or for-profit schools (e.g. language schools).
According to an “old” report (2007) of the Italian Government, there are in

Italy 88 Islamic private schools.
http://archivio.pubblica.istruzione.it/anagrafica_scuole/non_statali.shtml
II.3. According to law n. 62 of 2000, primary and secondary state funded

denoiminational schools might be recognized by the State (with a formal
administrative act) if they respect some principles (e.g. educational
programs respecting the Constitution, convenient spaces and structures,
representative boards, respect of disability laws and so on: see art. 4 of the
law).

school
III.1. If the private school aims at being officially recognized by the State, it
has to comply with law n. 62 of 2000, whose article 3 provides that private
schools which are recognized by the State are free to choose their cultural
and educational trend, according to constitutional freedoms. Enrollment
approval is given upon the compliance with the educational project.
III.2. If pupils accept the educational project of the specific private institution,
it’s forbidden for the single school to limit the numbers of students from
other religious beliefs.

course
IV.1. No.
IV.2. No.
IV.3. There isn’t any obligation.
IV.4. None.
429
Roberto Toniatti

V.1. No.
V.2. There is no guideline.
V.3. The first alternative is correct; the second is theoretically possible.
VI.1. In Italy, article 118 of Royal Decree no. 965 of 30 April 1924 states
that in each school there should be the national flag, a crucifix and the King’s
portrait and article 119 of Royal Decree no. 1297 of 26 April 1928 listed
crucifix among the necessary equipment in classrooms. These two provisions
have been considered still in force for example by the Italian Council of state
(in its 15 february 2006 opinion).
According to the Council of State (n. 556 of 2006), the displaying of crucifix
in public schools is not to be deemed unconstitutional as it does not infringe
the basic value of “laicità”, being an expression of Italian culture, more than an
expression of catholic religion itself. Indeed for the Council of State crucifix
is a sort of material and substantial symbol of the Italian Republic, because
its story represents values of equality and solidarity (wich are estabilished in
Articles 2 and 3 of the Constitution too).
Anyway, in 2009 the European Courts of Human Rights ruled that the
displaying of crucifix was to be considered as a violation of Article 2 of
Protocol No. 1 taken together with Article 9 of the Convention (see Lautsi
v. Italy, application no. 30814/06). Yet, this is not the final decision as the
referral to the grande chambre is still pending.
VI.2. In Italy, the only regulation of religious symbols at school regards the
crucifix. There are no laws prohibiting “personal” religious symbols, which are
included in the constitutional protection of religious freedom (art. 19 of the
Constitution).
VI.3. In Italy, the only regulation of religious symbols at school regards the
crucifix. There are no laws prohibiting “personal” religious symbols, which
are included in the constitutional protection of religious freedom (art. 19 of
the Constitution).
VI.4. At present, the law does not provide for dress code at school: there is a
case-by-case approach by schools, failing a general legal regulation.
430
VI.5. At present, the law does not provide for dress code at school: there is a
case-by-case approach by schools, failing a general legal regulation.
VI.6. There aren’t specific rules.
VI.7. There aren’t specific rules.
VI.8. The attempts of some mayors to ban burqua and chador have been
deemed unlawful, exceeding their jurisdiction; but they did not entail
educational aspects as the ban regarded all citizens (see e.g. TAR Friuli-
Venezia Giulia, decision n. 645, 16 October 2006).
XI. Bibliography
•• R. Botta, Bibbia, bibbie e l’insegnamento della religione nella scuola

pubblica: profili sostanziali, in Corriere giuridico, 2009, 253.
•• O. Chessa, La laicità come uguale rispetto e considerazione, in Rivista di
Diritto Costituzionale, 2006, 27.
•• F. Cortese, Brevi osservazioni sul crocifisso come simbolo «affermativo e
confermativo del principio della laicità dello Stato repubblicano», in www.
costituzionalismo.it
•• F. Cortese, Il crocefisso egli “imbarazzi” del giurista, in www.forumcostituzionale.it
•• M. Luciani, La problematica laicità italiana, in Democrazia e diritto, 2008,
2, 105.
•• E. Minnei, Scuola pubblica e scuola privata. Gli oneri per lo Stato, I e II,
Padova, Cedam, 2004
•• B. Randazzo, Il crocifisso come simbolo di laicità: un paradosso. Quando è
oltrepassato il confine tra diritto e politica, in I diritti dell’uomo, 2006, 3, 78.
•• Sandulli, Istruzione, in S. Cassese (Edited by), Dizionario di diritto
pubblico, IV, Milano, Giuffrè, 3305.
•• Travi, Simboli religiosi e giudice amministrativo, in Foro italiano, 2006, I,
181.
•• J.H.H. Weiler, Il crocifisso a Strasburgo: una sentenza imbarazzante, in
Quaderni costituzionali, 2010, 148.
431
The Place of Religion in Education in Latvia
Ringolds Balodis*

I.1.
I.2.
Under Article 6 of the Law on Religious Organizations1, the Christian

religion may be taught in state and municipal schools to persons who have
requested it in a written application. It is important to note that according
to the law Christian religion in accordance with the curriculum approved
by the Ministry of Education and Science may be taught by teachers of the
Evangelical Lutheran, Roman Catholic, Orthodox, Old Believers or Baptist
denominations, if not less than 10 students of the same school have expressed
their wish to study the religious teaching of the relevant denomination.
Applications by minors to be taught Christian religion must be approved
by parents or guardians. If the minor is under 14 years of age, the minor’s
parents or guardians submit the application.
* University of Latvia
1
Article 6. Religious organisations and education
(1) Everyone shall be entitled to acquire religious teaching, either individually or
together with others in the educational institutions of religious organisations.
(2) In the state and municipal schools Christian religion may be taught to persons
who have expressed such wish in a written application. Applications by minors to be
taught Christian religion shall be approved of by parents or guardians. If the minor is
under 14 years of age, the minor’s parents or guardians submit the application.
(3) Christian religion in accordance with the curriculum approved by the Ministry
of Education and Science may be taught by teachers of Evangelic Lutheran, Roman
Catholic, Orthodox, Old Believers or Baptist denominations, if not less than 10
students of the same school have expressed their wish to study the religious teaching
of the relevant denomination. The teachers shall be selected by the denomination
leaders and shall be approved by the Ministry of Education and Science.
(4) In national minority schools supervised by the state or municipalities, if such is the
wish of the students and their parents or guardians, it is allowed to teach the religion
typical to the particular national minority in compliance with the procedure set by the
Ministry of Education and Science.
(5) The teaching of Christian religion and ethics shall be financed out of the state
budget.
433
Ringolds Balodis
Students at state‑supported national minority schools may also receive

education in the religion “characteristic of the national minority” on a
voluntary basis.2 Other denominations may provide religious education
in private schools only. Those organisations that have no rights to teach
religion in schools put their emphasis on Sunday schools. For example,
on Sundays parents go to mass while children aged 3 -10 years are taught
in Sunday school.3 Many denominations have developed comprehensive
system of Sunday Schools. For example the Baptist congregations in Latvia,
embracing more than 6 200 members have Sunday Schools attended by
approximately 5 000 children.4 Thus, for example, Jews or Muslims, whose
religion is not mentioned in the Law on Religios Organizations, can ensure
religion classes for their children.
Because of the historical predominance of Christianity in Latvia, this law

provides only for the teaching of the Christian religion.5 The concept of
Christian religious instruction does not include and cannot include the Islam
or other denominations. However, it is only a question of time that we shall
encounter a problem related to non-Christian religion instruction. Due to
the very small amount of Muslim and Jewish students, neither the parochial
management of the Muslim nor Jewish parish has been interested in teaching
their faith in schools, but there are other religious organisations which have
expressed interest in teaching their religion in schools, i.e. Latvian pagans
(Dievturi), Seven day Adventist and others.6
Ethics is offered as an alternative to religious instruction. In Latvia if a student

does not want to learn the religious teaching he has to choose teaching
of ethics. Religion as subject and other for Latvia untraditional religion
subjects, such as Islam are not compulsory in Latvia. Each school may offer
these subjects as electives.7 The Standard in these subjects is formed through
the coordination with the Ministry of Science and Education. Because of
2
Balodis R. Das Recht der Religionsgemeinschaften in Letland/ Wolfgang Lienemann.
Hans-Richard Reuter (Hrsg.) Das Recht der Religionsgemeinschaften in Mittel-, Ost
– und Südosteuropa/ Nomos Verlagsgesellschaft, Baden – Baden 2005. s. 246-249
3
http://www.priekavests.lv/lv/izglitiba/svetdienasskola?read=3730
4
Balodis R. School - Religion Relations: Republic of Latvia. - Revue. Europeenne de
Droit Public, 2005; Vol. 17 (1) spring p. 397 – 408
5
Balodis R. Church and State in Latvia. (Ed. Silvio Ferrari, W.Cole Durham).
PEETERS, LEUVEN – PARIS – DUDLEY, MA 2003 p. 168
6
Balodis R. State and Church in the Latvia/ State and Church in the Baltic States:
2001. - R.: Reliģijas Brīvības Asociācija, 2001.p. 36
7
Balodis R. The Constitutional and Administrative Aspects of State and Church
Regulation in the Republic of Latvia.Religion and the Secular State. The international
Center for Law and Religion Studies Brigham Young University Provo, Utah,
Washington, D.C. 2010 p. 484
434
Latvia agreement with Holy See8 for Bishops’Conference of Latvia have

some duties in these field.9 The contents of the education is regulated by the
Law of Education, adopted in 1998. Articles 32-35 of this Law state that the
contents of the subjects (lessons) is regulated by the standards of the subjects.
According to the generally approved order such subjects as Religion, History
of culture, Christian lesson, Ethics, Christian ethics are considered as value-
educational which help to form the paradigm of education.
From September 1, 2004, either of Ethics or Religion will be offered as

compulsory subjects to grades 1-3, where the parents of pupils have to
choose one of the mentioned subjects beforehand. The amount of the
compulsory subjects and their content10 in educational programmes of the
institutions run by the local governments providing general education and
private educational institutions that carry out licensed general elementary
or secondary education programmes of the Republic of Latvia is defined by
the Regulations No.1027 of the Cabinet of Ministers of December 19, 2006
“Regulations on the State elementary education standard and elementary
education subject standard” and Regulations No.715 of the Cabinet of
Ministers of September 2, 2008 “Regulations on the State general secondary
education standard and general secondary education subject standards”.
The standards of the subjects included in these regulations define the basic
demands for the subjects’ acquirement when finishing grades 3, 6, 9 and 12
but they do not define the order of their acquirement. In the examples of
the educational programmes publicized by the State Educational Content
Centre the order of the teachable subject themes is provided by school
years as well as information of methodological character, nevertheless
those are recommendatory documents and are not legally mandatory to
the educational institutions that do not act under the supervision of the
Ministry of Education and Science and for this reason are not considered as
instructions.
In the Christian teaching students gain knowledge and understanding

about the order of the world created by God; learn to master the skills of
8
Balodis R. Church and State in Latvia. . European Consortium for State and Church
research, Nomos Verlagsgesellschaft, Baden – Baden second ed., 2005. p.269
9
According to the Agreement between the Republic of Latvia and the Holy See Article
15 the teaching of the Catholic religion shall be conducted exclusively on the basis of
a programme approved by the Bishops’ Conference of Latvia, in agreement with the
Ministry of Education and Science, and shall be undertaken only by qualified teachers
who possess a certificate of competence issued by the Bishops’ Conference of Latvia;
the revocation of which signifies the immediate loss of the right to teach the Catholic
religion.
10
http://visc.gov.lv/saturs/vispizgl/standarti.shtml; http://visc.gov.lv/saturs/vispizgl/
programmas.shtml
435
Ringolds Balodis
the Christian life (praying, serving, and commonwealth); create motivation

of action based on Christian values. For example, the Evangelical Lutheran
Church declares that by learning the Christian teaching under democratic
circumstances students will be able to create their own world outlook.
According to the Law on Religious Organisations (Article 1.6.)11 Christian
teaching - the system of views, doctrines and ideas of certain Christian
denominations, but religious teaching (Article 1.7.) a system of certain
religious views, doctrines and ideas. According to the Law everyone shall
be entitled to acquire religious teaching, either individually or together with
others in the educational institutions of religious organisations, but in the
state and municipal schools only Christian religion may be taught to persons
who have expressed such wish. Since 1998 the Law has been supplemented
by Article 6(5), which provides that religious teaching and ethics classes
are financed from the state budget. By taking a broader perspective on the
interpretation of the Law on Religious Organisations – Christian teaching is
the teaching of the common Christian faith principles in the Bible, values and
manifestations in the development of the world culture of the 5 traditional
Christian confessions (Lutheran, Catholic, Baptist, Orthodox, Old-
believer). Christian teaching is interdenominational; it concentrates on the
essentials of Christianity, important to both the state and society. In Christ’s
teaching the open society model is with God in its centre and human as the
highest value in it. 12 The standard of religious teaching and ethics subjects
is coordinated with the Ministry of Science and Education, therefore free
practice of religion is regulated by the national Law of education.
II.3. Latvia has 8 private schools with religious specialization (Lutheran,

Jewish and Baptist). In Latvia the control of the content of teaching in state-
funded denominational schools is done by the Ministry of Education and
Science. The Ministry of Education and Science has the State Service of
Education Quality which controls the quality of education in Latvia and
monitor the observation of laws and regulations in the field of education,
licences educational programmes, assesses the professional activity of
teachers at the national level, gives recommendations to the State, local
governments and other institutions, to ensure, contribute and improve the
observation of laws and regulations in the field of education and science.
Such issues, which are currently on agenda in Scandinavia, e.g. co-
educational swimming instruction for Muslim girls, are still uncommon
in Latvia. According to the Ministry of Education and Science, it had not
received requests yet (situation as of May 201013) from Muslims to organize
11
25.09.2002., Nr.137 3.1995.gada 7.septembra Religisko organizāciju likums () //
Latvijas Vēstnesis 26.09.1995., Nr.146
12
http://www.lelb.lv/lv/?ct=skolas
13
The letter number 1.-12/3426 on 18 May 2010 by M. Gruskevics, the Secretary of
436
separate groups for boys and girls in the subject “Sports”14.

school or their point of view
Because of the small quantity of Muslim pupils, problems with teaching of

Islam in denominational (e.g. Catholic) schools have not arisen.
In the Constitution of the Republic of Latvia (Satversme) religion/church is

mentioned in the Article 99, where state declares that: “Everyone has the
right to freedom of thought, conscience and religion. The Church shall be
separate from the State”. The State does not associate itself with any specific
religion, but in practice it is clear that Latvia is a partial separation state,
where constitutionally declared separation of church and state does not
consistently work in practice.15 But anyway Latvia is multiconfessional State
and former Soviet Republic what’s make a difference and fress code for the
schools depend from the school administration and law are not interfered in
these sphere. The teachers as well as schoolchildren are allowed to wear the
Islamic headscarf and manifest their religion. In Latvia are no case-law in these
field. Disposition of religious signs and symbols is up to the administration
of each religion concerned school. The same rule applies also to Christian
public schools, private schools and Judaism private schools.16 The Ministry
of Education and Science admits17 that it is not legally able to determine the
norms of behaviour of students in comprehensive schools, or their internal
regulations, special requirements regarding teachers’ or students’ clothing,
times of festivities or meetings etc. The code of conduct, adhering to laws
and regulations, can be determined by the founders of each school – the local
State in the Ministry of Education and Science, to R. Balodis, the Chair of the State
Law Department of the Faculty of Law of the University of Latvia.
14
It must be noted that the current laws and regulations allow dividing students into
groups during lessons, including divisions based on gender. The division into groups,
given the funding allocated to each institution, falls under the authority of the founder.
15
Balodis R. The Constitutional and Administrative Aspects of State and Church
Regulation in the Republic of Latvia.Religion and the Secular State. The
international Center for Law and Religion Studies Brigham Young University Provo,
Utah, Washington, D.C. 2010 p.476
16
Education: Latvia/Sociological and legal dataon religions in Europe//http://www.
eurel.info/EN/index.php?pais=59&rubrique=658
17
The letter number 1.-12/3426 on 18 May 2010 by M. Gruskevics, the Secretary of
State in the Ministry of Education and Science, to R. Balodis, the Chair of the State
Law Department of the Faculty of Law of the University of Latvia.
437
Ringolds Balodis
governments or private bodies (for private schools), confirming the internal

regulations of each specific school. The use of religious symbols is up to the
administration of each religiously oriented school, both in Christian public
and private schools, and minority schools, for example, the Jewish private
school. These norms can be determined in greater detail by the principal of
each school.18
Prayer is a part of every religion, thus it is one of the practical actions to

be learnt by the student. Therefore, religiously oriented schools include
morning prayers, and, on religious holidays, students are welcome to go to
the church on a voluntary basis.
Latvian laws and regulations do not include requirements regarding the

clothing or the use of symbols by the academic personnel; these, including
norms of behaviour, can be included in the internal regulations of each
school by the founders of the institution of higher education or its main
administrative bodies. Religious ceremonies and rituals in comprehensive
schools can be done with the consent of parents, and, without their
permission, no actions of religious nature can be carried about in schools.
3. Statistical information on-line of schools

In the academic year of 2010 in total, there were 948 schools of
comprehensive curriculum in the state, 45 of these were primary schools,
463 – elementary schools, 377 – high schools, 63 – special schools. In
Latvia only 19 denominational educational institutions have received state
licence in 2009. All of them are Christian denomination. In Latvia there
are no registred Islamic schools. From these 19 schools 12 are state funded
schools.19 The others are preschool institutions (for example, the Christian
consultative and play centre of the Jesus parish “Lamb”). There are also
elementary schools of untraditional religions – elementary school of Prieka
vests “Harmonija” 20 which includes grades 1 to 6.
4. Requirements for teachers of religion

In order to be able to teach Christianity, the teacher has to have a degree
in pedagogy as well as they have to have graduated from or enrolled in one
18
Taking into consideration that the standard syllabus of each subject has to be
coordinated with the Ministry of Education and Science.
19
Baltinava Christian special boarding elementary school, Riga Christian high school,
Bauska city Christian elementary school, Talsu Christian high school, Dobele
Christian elementary school, Rezekne Catholic high school, Kalnezeru Catholic
elementary school, Liepaja Catholic elementary school, Riga Catholic gymnasium,
Aglona Catholic gymnasium, Ogre St.Meinard’s Catholic elementary school,
Graveru elementary school of Riga and Latvia Metropolitan Aleksander (Kudrjasov).
20
http://www.priekavests.lv/lv/izglitiba/privatskola_harmonija?read=131
438
of the aforementioned schools (until 2009, a B1 certificate from courses of

professional development was sufficient (36 hours), which were financed
by the state – 17 teachers were hired by the state to teach other teachers in
the whole country). Since 2004, more than 700 teachers have received the
certificate asserting their rights to teach Christianity. Until 2009, the teacher
had to receive a permit from the higher leadership of their denomination
under the responsibility of the parish priest (with the aim of not letting
representatives of different sects into the schools). When starting work, the
teachers are not asked about their religious leaning of beliefs.
It’s be added that according the agreement between Latvia and Holy See
Teachers and other employees in officially recognised Catholic Schools,
as well as students and their parents, shall enjoy the same rights and have
the same obligations as their counterparts in State and local government
schools.21

No information available
It must be noted that on the 4 June 201022 meeting of the Council of Spiritual
Affairs23, chaired by the Prime Minister, the agenda included ensuring the
teaching of Christian faith in schools. Discussing teaching of Christian
values in comprehensive secondary schools, the representatives of religious
denominations praised the cooperation with the Ministry of Education and
Science on developing the syllabus for the teaching of Christianity. At the end
of the discussion, the Council of Spiritual Affairs agreed on appealing to the
schools to find extra opportunities for the representatives of the traditional
religious denominations to organize guest lectures several times during the
school year, including Christmas and Easter.24
Additionally it should be mentioned that In Latvia, there are two types
21
Balodis R. Church and State in Latvia in 2003. – Volume 11// PEETERS, Belgium
2008. p. p.162
22
Prime Minister: Attending the meeting of the Council of Spiritual Affairs/ Latvijas
Vēstnesis, 6 June 2010
23
The Council of Spiritual Affairs is an independent, consultative institution for
coordinating the cooperation between the state and the church, with the aim to
promote harmony and understanding among the followers of different religious
denominations and beliefs in the Latvian society.
24
Prime Minister: Attending the meeting of the Council of Spiritual Affairs/ Latvijas
Vēstnesis, 6 June 2010
439
Ringolds Balodis
of legal agreements between the church and the State: international and
national. The international agreement - and in the Latvian case there is only
one – signed with the Holy See in 2000, unlike national agreements that were
signed with local churches in 2004, has higher rank (legal power) than laws.
Moreover we will see that the legal status of the agreements of 2004 can be
called into question and for them to work are implemented in laws.
International Agreement with Holy See. The Latvian Parliament on 12

September 2002 ratified the agreement with the Holy See. In accordance
with agreements article 15 of the agreement between the Republic of Latvia
and the Holy See, the teaching of the Catholic religion shall be conducted
exclusively on the basis of a programme approved by the Bishops’ Conference
of Latvia, in agreement with the Ministry of Education and Science, and
must be undertaken only by qualified teachers who possess a certificate of
competence issued by the Bishops’ Conference of Latvia; the revocation
of the certificate carries with it the immediate loss of the right to teach the
Catholic religion. In accordance with this agreement Article 9 (a) “With
respect to the laws of the Republic of Latvia and in view of its legitimate
pastoral undertakings, to the Catholic Church shall be guaranteed freedom
of access to the media and freedom of speech, including the establishment of
its own means of social communication and access to those of the State, in
accordance with the legislation of the Republic of Latvia”. According to this
agreement Articles 16, 18 and 19 in conformity with the legislation of the
Republic of Latvia, the Catholic Church has the right to found institutions of
higher formation for teachers of religion which will grant civilly recognized
diplomas. The Catholic Church has the right to establish and manage schools
at every level, in conformity with the laws of the Republic of Latvia and the
norms of Canon Law. The foundation of Catholic Schools shall be requested
by the Bishops’ Conference of Latvia the latter acting on behalf of the local
Ordinary. Catholic Schools, as well as institutions of higher formation, shall
observe the laws of the Republic of Latvia concerning the general norms
relating to the national curriculum, to their management and the granting
of civilly recognised diplomas. Catholic Schools are entitled to financial
support, in accordance with the laws of the Republic of Latvia. Teachers and
other employees in officially recognised Catholic Schools, as well as students
and their parents, shall enjoy the same rights and have the same obligations
as their counterparts in State and local government schools.25 Considering
that issues Roman Catholic church was interested in have been included in an
international agreement between the Holy See and the Republic of Latvia, no
agreement was made with the Catholics and thus no special law was adopted.
Agreements between the Latvian government and churches. Agreements
25
Balodis R. School - Religion Relations: Republic of Latvia. - Revue. Europeenne de
Droit Public, 2005; Vol. 17 (1) spring p. 397 – 408
440
of 2004, between the Cabinet of Ministers and churches were made due to
the discontentment of the traditional churches regarding the exclusiveness
of Roman Catholics that stemmed from the 2000 agreement with the Holy
See. Each of these agreements has a preamble recognizing the special role
of the Church in the existence of the legal system of the country and system
of values of the society, as well as its significant contribution to the morale
and process of socialization of the society.26 In every agreement there was
also implemented the right to teach religion in schools run by the state and
local government. For example according to the Agreement which signed on
June 8, 2004, between the Republic of Latvia and the Evangelic Lutheran
Church of Latvia [article 14. Religious lessons] the Evangelic Lutheran
Church of Latvia has the right to teach religious lessons in line with the
regulatory enactments of the Republic of Latvia according to a curriculum
jointly approved by the Ministry of Education and Science and the Evangelic
Lutheran Church of Latvia. In others agreements with the Churches we can
notice similar regulation. Although the agreements were made based on the
experience of Spain, Italy, Hungary and Poland in this sphere27, agreements
had to be implemented in laws so that in accordance with the demands of
the Latvian legal system they would acquire legal power. On the basis of the
request from the Saeima Legal Office, under the leadership of the author
of this article, the Ministry of Justice prepared 7 special laws which were
accepted in parliament in 2007 – 2008. 28 The primary reason for draft laws
was to strengthen relationship included in agreements of 2004 between
the Republic of Latvia and its traditional churches. After long and difficult
negotiations that took place between the representatives of church, deputies
and legal service of the parliament it was relatively accomplished. In the
end, questions regarding Sabbath were not included in the laws of Seventh-
day Adventists and Judaists and the Lutheran Church did not succeed in
including tax breaks in their laws.
26
General presentation: Latvia/Sociological and legal dataon religions in Europe//
http://www.eurel.info/EN/index.php?pais=59&rubrique=662
27
Balodis R. The recent developments of Latvian model of Church and State relationship:
Constitutional changes without revising of Constitution/ Jurisprudencija 2009, 3
(117), p-19.
28
Law on Latvian Association of Seventh-day Adventist Communities: LR likums.
Latvijas Vēstnesis, 2007. 12.jūnijs nr.93 (3669); Latvian Baptist Community
Association Law: LR likums. Latvijas Vēstnesis, 2007. 30.maijs nr. 86 (3662); Riga
Jewish Religious Community Law: LR likums. Latvijas Vēstnesis, 2007. 20.jūnijs 98
(3674); Latvian Joint Methodist Church Law: LR likums. Latvijas Vēstnesis, 2007.
6.jūlijs 91 (3667); Latvian Old-Believers Pomor Church Law: LR likums. Latvijas
Vēstnesis, 2007. 20.jūnijs 98 (3674), Latvian Evangelical Lutheran Church Law:
LR likums. Latvijas Vēstnesis, 2008. 20.novembris 188 (3972), Latvian Orthodox
Church Law: LR likums. Latvijas Vēstnesis, 2008. 13.novembris 188 (3972)
441
Ringolds Balodis
Special Law’s considering the long-standing existence and spread of the

Church as a traditional religious organisation in the territory of Latvia and
recognizing ’’its contribution to and rich experience in the areas of society’s
physical and mental health, education, culture, social support and other areas.’’29
Basically legal regulations regarding education in all special laws are
nalaogical. So according to the Latvian Old Believers’ Pomor Church Article
12. The Church and education. Church shall have the right to educate its
priests and the Church shall possess the right to provide religion lessons in
state or municipal educational establishments under the procedure stipulated
in the relevant laws and regulations.
Finally, when comparing the rights of traditional churches that have been
established by the law, it can be seen that the Roman Catholic Church has the
largest number of issues mentioned in the law regarding education, despite
the face that it does not have a special law.
No Issues in the law Adv Bapt. Met Jews Old-B Luth. Orth. Cath.
1. Education 14.§ 14.§ 12.§ - 12.§ 14.§ 15.§ 14-20.§
Autonomy of content of educ. 4. and

2. - - - - - 14.§ 15.§
inst. 15§
Educational instut. employees’
3. - - - - - - - 19.§
rights
4. Spiritual seminars - - - - - - - 20.§
Dept. of Theology of the

5. - - - - - - - 21.§
University of Latvia
Special laws and the comparative table of the Holy See regarding issues of
education.
Teaching religion in the institutions of higher education

Part 3 of Article 4 of the Law on Institutions of Higher Education states that
each institution can independently determine the content and standards of
their study programmes. Study programmes are regulated by the description
of their content and realization, which, according to the type and level of
education, includes the aim of each programme, planned results, the content
of offered education, compulsory subjects and electives, and the division of
time among them, and the means of control and their regulations. According
to Article 55 of the Law on Institutions of Higher Education, one fourth
29
Balodis R. LAS RELACIONES ENTRE EL ESTADO DE LETONIA Y LAS
ORGANIZACIONES RELIGIOSAS: DE LA REALIDAD SOVIÉTICA AL
MODELO DE ESPAÑA E ITALIA. Revista General de Derecho Canóico y Derecho
Eclesiástico del Estado 21 (2009) <http://www.iustel.com/v2/revistas/detalle_
revista.asp?numero=21&id=2>
442
of the total study programmes is determined by the senate of the highest

council of the institution. Hence, it is under the authority of the founders and
the highest organs of administration of each institution to include religious
themes in their study programmes, determining their content, extent and
order of teaching. Therefore, specific institutions should be consulted to find
the share of religious themes in the total body of all study programmes.
XI. Bibliography
• Balodis R. School - Religion Relations: Republic of Latvia. - Revue.

Europeenne de Droit Public, 2005; Vol. 17 (1) spring
• Balodis R. State and Church in the Latvia/ State and Church in the Baltic
States: 2001. - R.: Reliģijas Brīvības Asociācija, 2001
• Balodis R. Church and State in Latvia in 2003. European Journal for
Church and State Research 2004 – Volume 11// Peeters, Belgium 2008. p.
• Balodis R. School - Religion Relations: Republic of Latvia. - Revue.
Europeenne de Droit Public, 2005; Vol. 17 (1) spring p. 397 – 408
• Balodis R. The recent developments of Latvian model of Church and State
relationship: Constitutional changes without revising of Constitution/
Jurisprudencija 2009, 3 (117)
• State and Church in the European Union. European Consortium for State
and Church research, Nomos Verlagsgesellschaft, Baden – Baden second
ed., 2005.
• Law and Religion in Post-Communist Europe (Ed. Silvio Ferrari, W.Cole
Durham). PEETERS, LEUVEN – PARIS – DUDLEY, MA 2003
• Wolfgang Lienemann.Hans-Richard Reuter (Hrsg.) Das Recht der
Religionsgemeinschaften in Mittel-, Ost – und Südosteuropa/ Nomos
Verlagsgesellschaft, Baden – Baden 2005.
• Religion and the Secular State. Interim National Reports issued for the
occasion of XVIIIth International Congress on Comparative Law The
international Center for Law and Religion Studies Brigham Young
University Provo, Utah, Washington, D.C. 2010.
• Balodis R. LAS RELACIONES ENTRE EL ESTADO DE LETONIA
Y LAS ORGANIZACIONES RELIGIOSAS: DE LA REALIDAD
SOVIÉTICA AL MODELO DE ESPAÑA E ITALIA. Revista General
de Derecho Canóico y Derecho Eclesiástico del Estado 21 (2009) <http://
www.iustel.com/v2/revistas/detalle_revista.asp?numero=21&id=2>
• Education: Latvia/Sociological and legal dataon religions in Europe//
• http://www.eurel.info/EN/index.php?pais=59&rubrique=658
• General presentation: Latvia/Sociological and legal dataon religions in
Europe//
• http://www.eurel.info/EN/index.php?pais=59&rubrique=662
443
Region In total 1st year 2nd year 3rd year 4th year 5th year 6th year 7th year 8th year 9th year
41 Kurzeme region 3544 1157 1173 1168 46
42 Latgale region 3171 992 1003 1135 41
43 Riga region 7050 2443 2204 2303 27 11 20 9 16 17
44 Vidzeme region 4588 1530 1443 1555 54 3 1 1 1
45 Zemgale region 4058 1411 1237 1305 44 12 12 10 13 14
10 Jekabpils 609 188 191 225 5
in school year 2009/2010
25 Valmiera 1116 239 245 243 74 52 61 55 62 85

27 Daugavpils 2183 719 719 722 23
28 Jelgava 1350 457 454 435 4
29 Jurmala 1299 421 425 426 24 1 1 1
30 Liepaja 1543 568 469 506
31 Rezekne 708 237 214 257
32 Ventspils 884 265 258 323 38
444
Riga 14497 4727 4453 4375 246 129 123 194 129 121
34 Central district 1266 401 416 449
Ringolds Balodis
35 Kurzeme district 3132 886 805 763 126 111 98 101 122 120
36 Latgale suburb 3422 1049 1079 1117 51 14 22 86 4
37 Vidzeme suburb 3427 1228 1102 1097
38 Zemgale suburb 1792 633 619 518 4 4 3 7 3 1
39 Northern district 1458 530 432 431 65
In the State in total: 46600 15354 14488 14978 621 212 217 270 222 238
school year 2008/2009 44558 14892 14900 13971 418 93 67 145 21 51

school year 2007/2008 44551 15588 14033 13431 521 81 120 705 38 34
school year 2006/2007 46657 14684 13546 13215 529 214 198 3651 381 239
example, in the school year 2004/2005, 300667 students were registered)

school year 2005/2006 40428 14369 14092 243 138 102 166 10757 341 220
Number of students, who study in grades 1 to 9 in comprehensive daily education programmes
in the school year 2009/2010 (the number of students is decreasing, for

In total 226034 students have been registered in the State from grades 1-12
Teaching of Religion in Lithuania
Birutė Pranevičienė* and Agnė Margevičiūtė**1
I. Religious instruction organized during the school hours (in lower

I.1. Teaching of religion is organized during school time in public educational

institutions both in primary and in secondary levels.
Constitutional provisions:
Article 26 of the Constitution of Lithuania provides for freedom of thought,
conscience and religion; each human being has the right to freely choose
any religion or belief and, either alone or with others, in private or in public,
to profess his religion, to perform religious practices, to practice and teach
his belief; no one may compel another person or be compelled to choose
or profess any religion or belief; freedom of a human being to profess and
spread his religion or belief may not be limited otherwise than by law and
only when this is necessary to guarantee the security of society, the public
order, the health and morals of the people as well as other basic rights and
freedoms of the person; parents and guardians shall, without restrictions,
take care of the religious and moral education of their children and wards
according to their own convictions.
Article 29.2 of the Constitution states that the rights of the human being
may not be restricted, nor may he be granted any privileges on the ground of
gender, race, nationality, language, origin, social status, belief, convictions,
or views.
Article 40.1 of the Constitution also provides that state and municipal
educational institutions are secular, and on request of parents provide
religious education. Article 40.2 of the Constitution provides that non-state
establishments of teaching and education may be founded according to the
procedure established by law.
Article 41.1 of the Constitution also states that education is compulsory for
persons under the age of 16. According to Article 43.1 of the Constitution
the state recognizes traditional churches and religious organizations, and
other churches and religious organizations (if they have support within
community, and their teachings and practice does not confer with law and
moral).
* Head of Law department, Public Security Faculty, Mykolas Romeris university,

Lithuania
** lecturer of Law department, Public Security Faculty, Mykolas Romeris university,
Lithuania
445
Article 43.3 states that churches and religious organizations shall be free
to proclaim their teaching, perform their practices, and have houses of
prayer, charity establishments, and schools for the training of the clergy.
Article 43.6 provides that teachings proclaimed by churches and religious
organizations, other religious activities and houses of prayer may not be used
for purposes which are in conflict with the Constitution and laws. Article
43.7 of the Constitution of Lithuania provides that there is no state religion
in Lithuania.1
The Law on Religious Associations and Communities2 further provides
for a more detailed regulation of religious studies. Article 5 of the above
mentioned law states that there are nine traditional religious associations
and communities (based on historical, spiritual and social heritage): roman
catholic, Greek orthodox, evangelic Lutheran, evangelic reformat, orthodox,
old believers, Jewish, Muslim Sunnite, and Karait. According to Article 5.1
of the same law religious education is chosen as part of moral education.
Moral education is part of primary, main and secondary education. On
request of parents (guardians) the subject of religious education can be
included in the pre-school education on the child. Non-formal religious
education and self education can be carried out as well. Article 5.2 of the
same Law further provides that a student of primary, main and secondary
educational institution that has reached the age of 14 year has a right to
choose one of the compulsory subjects of moral education: religion of
traditional religious association or community, or ethics. Article 5.3 states
that parents (guardians); or state institutions that provide foster care (if the
child is an orphan), based on religious views practiced by the relatives of the
child, choose between the subject of religious education or ethics for the
students younger than 14 year of age.
I.2. Article 9 of the Law on Religious Associations and Communities

provides more detailed regulation related to the course of religious education
as such. The article states that religious education can be taught in prayer
houses, public and non-public educational institutions, as well as other
premises and places. Article 9.2 of the same law provides that religions of
traditional and other state recognized religious associations and communities
in public educational institutions can be taught on request on parents
(guardians). According to Article 9.3 the State also recognizes teaching of
religion of traditional and other state recognized religious associations and
communities in confessional educational institutions (Sunday schools or
other educational groups) provided that the religious education program is
registered in the ministry of Education and Science of Republic of Lithuania
and proof of teachers religious qualification is also provided along with the
1
http://www3.lrs.lt/home/Konstitucija/Constitution.htm
2
http://www3.lrs.lt/pls/inter2/dokpaieska.showdoc_l?p_id=363706
446
request from the senior member of the religious association or community.

The order of teaching of religious education is regulated by other laws of
education, as provided by article 9.5 of the same Law.
II State funded denominational schools and state supervision
II.1. II.1. There is few denominational schools that are partially funded by
the state. Such schools are supported from tuition paid by the students and
also receive a state subsidy for each student from the state. State funded
denominational schools comprise a rather small number of all state funded
schools. Statistical on-line information regarding this matter is currently
unavailable, because the State does not gather such information. Statistical
information related to religious matter is systematically collected only about
numeric outcome of traditional and other recognized religious associations
and communities, prayer houses clergy members. There are currently no
Islamic state funded schools. There are 5 prayer Islamic prayer houses, 7
Islamic communities and 7 clergy men3.
II.2. In general there are 7 so-called Sunday schools that teach Islamic
religion. However, these Sunday school are not state funded, therefore do
not fall within the framework of state funded educational system. These are
private denominational schools. Their numeric importance is not significant.
language and history of Islam are taught in these Sunday schools4.
II.3. According to Article 9.3 of the Law on Religious Associations and

Communities the State also recognizes teaching of religion of traditional
and other state recognized religious associations and communities in
confessional educational institutions (Sunday schools or other educational
groups) provided that the religious education program is registered in the
ministry of Education and Science of Republic of Lithuania and proof of
teachers religious qualification is also provided along with the request from
the senior member of the religious association or community. Article 5 of
the same Law contains provisions for the educational programs related to
religion. Article 5.4 of the Law states that the religious education program
in a formal educational institution (excluding higher education institutions)
is prepared by a corresponding traditional or other recognized religious
association or community, which is later evaluated by the senior member
3
h t t p : / / d b 1 . s t a t . g o v. l t / s t a t b a n k / s e l e c t v a r v a l / s a v e s e l e c t i o n s . a s p ?
M a i n Ta b l e = M 3 1 9 0 1 0 1 & P L a n g u a g e = 0 & Ta b l e S t y l e = & B u t t o n s =
&PXSId=13429&IQY=&TC=&ST=ST&rvar0=&rvar1=&rvar2=&rvar3=&rvar4=
&rvar5=&rvar6=&rvar7=&rvar8=&rvar9=&rvar10=&rvar11=&rvar12=
&rvar13=&rvar14=
4
http://www.islamas.8m.com/islamas_lietuvoje.html
447
of that association or community as well as the Ministry of Education

and Science and Minister of Education and Science. According to Article
5.5 a person is eligible to teach any formal education program (excluding
higher education) if he or she has higher or vocational education degree and
qualification of an educator, or has an adequate special training required. Such
person is required to have a permit to teach religion issued by and according
to order provided by the traditional religious association of community.
III Refusal or limitations on the number of pupils of another

school
III.1. The head of a state funded denominational school does not have a right
to refuse pupils from other religious beliefs. However, Article 29 of the Law
on Education provides that priority to get accepted to a state funded state or
municipal school remains with the students who live within the territory that
is serviced by that particular school.5
III.2. No, he does not have such a right.
IV Point of views of the authorities concerning the teaching of

course.
IV.1. Article 40.1 of the Constitution also provides that state and municipal
educational institutions are secular, and on request of parents provide
religious education. That means that it is compulsory for a state funded
educational institution to organize classes of Islamic religion in this case.
However, there is a requirement for a minimum quota of the students for the
class, which are at least 5 students.
According to Article 5.6 of the Law on Religious Associations and
Communities, a school which is unable to provide a class of religious teaching
of the traditional religion of association or community requested by the
parents (guardians) of the students, is required to accept as credit the religious
teaching provided at the Sunday school or other religious education group
according to requirements set forth in provisions 5 and 4 of the same Article.
5
448
IV.2.
(a) Yes, if it is one of the religions of traditional or other recognized religious
associations or communities.
(b) Yes.
IV.3. Organizing a class is strictly tied with the certain minimum requirements
that have to be met in order to register a new subject to be taught, like for
example, minimum amount a students, qualitative requirements for the
subject teacher etc. There are very few students with Islamic religion and
generally these students would acquire their knowledge in Sunday schools or
cultural centers or the like. Therefore there have been no opinions expressed
regarding the above mentioned obligation.
IV.4.
http://www3.lrs.lt/home/Konstitucija/Constitution.htm
V Teaching of Islam in denominational (e.g. Catholic) schools at

V.1. There is no precise guideline for teaching of Islam, but the Law on
Religious Associations and Communities provides for general guidelines
for religious teachings. Islam is among nine religions that are recognized
by the state of Lithuania, therefore the guidelines of the Law on Religious
Associations and Communities regarding the teaching of religious studies
apply to the teaching of Islam.
V.2. As stated above, any school, on request of the parents has to provide
for a religious study course, however, there is a minimum quota required for
a teaching course. Therefore, a separate class for any religion would not be
established upon request of solely one parent.
V.3. Both cases of a) and b) are possible. In general, there is no large

population of Islamic religion; therefore, the issue as such is not a frequent
one if at all possible. Depending on the need, any school individually would
be responsible for organizing classes of Islamic religion. More generally
religious education of such small religious communities is exercised in
cultural centers or similar.
449
VI Religious symbols in public schools
VI.1. Religious symbols are allowed.
VI.2. Teachers would be allowed to wear Islamic headscarf and manifest her
religion, because there are no rules at all regarding this matter.
VI.3 It depends whether the board of the school has confirmed rules of
wearing a uniform. If there are no confirmed rules regarding a mandatory
uniform, then the headscarf would be allowed. However, if there are confirmed
rules – the pupils would be required to wear a uniform. Manifestation of her
religion in other ways unrelated to headscarf would be allowed.
VI.4. The dress code of the school is usually chosen by the community of the
school and confirmed by the council of the school.
VI.5. Such described cases would be decided individually and it would

largely depend on the internal code of each school individually.
VI.6. The regulatory authority in this sphere is the council and or

administration of each school individually.
VI.7. That depends on the rules of each school individually.
VI.8. Specification of the case law needed – headscarves, uniforms – No,

case law regarding the latter.
VII After-school education in private religious institutions. Islamic

instruction organized after the school hours (age 6-18)
VII.1. Yes.
VII.2. Yes.
VII.3. Yes.
VII.4. 7 private institutions.6
VII.5. 133 children take part in religious teachings of such institutions. 7
6
7
450
The instructors are students from Turkey with certain degree of religious
background, and each institution individually is responsible for the quality
of teaching by their selected instructors.
VII.7. There is currently no public debate regarding the teaching of Islam.
XI. Bibliography
•• Constitution of the Republic of Lithuania, http://www3.lrs.lt/home/

Konstitucija/Constitution.htm
•• Law on Religious Associations and communities of the Republic of Lithuania,
•• Law on Education of the Republic of Lithuania, http://www3.lrs.lt/pls/
inter2/dokpaieska.showdoc_l?p_id=395640
•• Islam in Lithuania, http://www.islamas.8m.com/islamas_lietuvoje.html
451
The Place of Religion in Education in Luxembourg
Siggy Koenig*1

I.1. Enseignement fondamental (préscolaire et primaire)
A l’enseignement préscolaire une éducation aux valeurs se fait dans un cadre

transversal de la socialisation des petits
Loi du 6 février 2009 portant organisation de l’enseignement

fondamental
Art. 7. Le premier cycle de l’enseignement fondamental (préscolaire)
comprend les domaines de développement et d’apprentissage suivants:
1. le raisonnement logique et mathématique….
6. la vie en commun et les valeurs.
A l’enseignement primaire tous les élèves suivent soit le cours d’instruction

religieuse (catholique) soit un cours de formation morale et sociale
Les deuxième, troisième et quatrième cycles de l’enseignement fondamental

(primaire) comprennent les domaines de développement et d’apprentissage
suivants:
1. L’alphabétisation, les langues allemande, française et luxembourgeoise,
ainsi que l’ouverture aux langues…
6. La vie en commun et les valeurs enseignées à travers l’éducation morale et
sociale ou l’instruction religieuse et morale. Les élèves des classes primaires
sont inscrits sur demande des parents soit dans le cours d’éducation morale
et sociale, soit dans le cours d’instruction religieuse et morale.
Enseignement secondaire (également secondaire technique)

Tous les élèves du secondaire I ainsi que des 2 premières années du secondaire
II doivent suivre soit un cours d’instruction religieuse (catholique) soit un
cours de formation morale et social. La possibilité de ne suivre aucun de ce
cours (3e possibilité) a été abolie en 2001.
453
Siggy Koenig
Loi du 10 mai 1968 portant réforme de l’enseignement, titre VI: de

l’enseignement secondaire (modifiée par la loi du 2 juillet 2002)
Art. 48. L’enseignement secondaire comporte un cours d’instruction
religieuse et morale et un cours de formation morale et sociale. Sur
déclaration écrite adressée au directeur de l’établissement par la personne
investie du droit d’éducation ou l’élève majeur, tout élève est inscrit soit au
cours d’instruction religieuse et morale, soit au cours de formation morale
et sociale.
(classes de 7e à 11e)
2. Parmi les cultes légalement reconnus (catholique, protestant, juif,
orthodoxe), seule la religion catholique est enseignée dans le cours d’instruction
religieuse. Pour l’heure, le culte islamique n’a pas encore fait l’objet d’une
procédure de reconnaissance légale. Les élèves des confessions non catholiques
doivent s’inscrire soit dans le cours d’instruction religieuse (il n’existe pas de
disposition légale réservant l’accès à ce cours aux seuls élèves de confession
catholique) soit dans le cours de formation morale et sociale. Pour les élèves de
confession juive ou musulmane qui le souhaitent, les communautés organisent
une formation dans les lieux du culte (synagogue, mosquée).
II. State funded denominational schools (les écoles confessionnelles)

and state supervision
II.1. A l’école primaire l’importance de l’école confessionnelle est

insignifiante. A l’enseignement secondaire l’enseignement confessionnel
représente 5% ; son importance est en régression. A l’enseignement
secondaire technique la part des écoles confessionnelles est plus importante.
Les écoles confessionnelles (sauf une) accueillent exclusivement des jeunes
filles.
II.2. Il n’existe pas d’école confessionnelle islamique

Dans le tableau statistique les écoles confessionnelles figurent à la rubrique
«enseignement privé qui suit les programmes officiels de l’Education
nationale».
454
N o m b r e d’é l è v e s 2008-2009
Enseignement Enseignement Total public Ens. privé et
Ordre d’enseignement Total
public privé* et privé* international**
Éducation précoce 4036 - 4036 183 4219
Éducation préscolaire 9966 - 9966 972 10938
Enseignement primaire 32136 138 32274 2771 35045
Enseignement spécial 222 - 222 - 222
Éducation différenciée 663 - 663 - 663
Enseignement secondaire 11968 501 12469 3598 16067

Enseignement secondaire
21097 3226 24323 - 24323
technique
Total 80088 3865 83953 7524 91477
www.men.public.lu/publications/etudes_statistiques/chiffres_cles/
Il n’existe pas d’écoles confessionnelles qui ne sont pas subventionnées
par l’Etat. Les écoles privées qui suivent les programmes officiels peuvent
recevoir un maximum des subsides (90% des frais de personnel).
II.3. L’enseignement dans les écoles privées confessionnelles subventionnées

par l’Etat est soumis au contrôle de l’Etat. Pour l’enseignement primaire ce
contrôle est effectué par l’inspecteur
Loi du 6 février 2009 portant organisation de l’enseignement
fondamental
Art. 60. L’inspecteur de l’enseignement fondamental assure la surveillance
des écoles de l’enseignement fondamental, publiques et privées, et de
l’enseignement à domicile dans son arrondissement.
Pour l’enseignement secondaire et secondaire technique la supervision se

fait par une commission
Loi du 13 juin 2003 concernant les relations entre l’État et
l’enseignement privé
Art. 31. Il est institué auprès du ministre ayant l’Éducation nationale dans
ses attributions une commission de contrôle de six membres désignés par le
Gouvernement en conseil. Trois des membres sont désignés sur proposition
du ministre et trois autres sont désignés sur proposition du ministre ayant
le Budget dans ses attributions, dont un choisi parmi les fonctionnaires de
la Direction du contrôle financier et un choisi parmi les fonctionnaires de
l’Inspection générale des finances.

school
III.1. En principe le directeur d’une école confessionnelle subventionnée par
455
Siggy Koenig
l’Etat n’a pas le droit de refuser un élève au motif de sa religion ou conviction

philosophique.
Loi du 13 juin 2003 concernant les relations entre l’État et

l’enseignement privé
Art. 18. Les établissements privés dispensant un enseignement préscolaire,
primaire ou postprimaire et qui appliquent les programmes de l’enseignement
public luxembourgeois doivent:……
d) appliquer les critères d’admission et de promotion en vigueur dans les
classes correspondantes de
l’enseignement public.
Dans les faits :

a) Les écoles confessionnelles offrent uniquement un cours d’instruction
religieuse
b) il arrive que des parents musulmans préfèrent inscrire leur fille plutôt à
une école confessionnelle (catholique) plutôt qu’à l’école publique
III.2. Ce cas de figure n’est pas prévu.

course
IV.1.
IV.2.
Un cours d’instruction religieuse islamique n’est pas dispensé étant donné

que le culte islamique n’est, à ce stade, pas reconnu. Il n’y a donc pas
d’obligation légale de donner suite à une demande émanant de parents. La
Constitution luxembourgeoise n’évoque pas de droit des parents (ou des
enfants) à pouvoir suivre une cours d’instruction religieuse à l’école, ni
d’obligation pour l’Etat d’offrir des cours d’instruction religieuse à l’école
publique.
Ces questions ont fait et font toujours l’objet de vifs débats.

Historiquement :
- La formation morale et sociale (morale laïque) a été introduite dans
l’enseignement dans les années 60.
- Dans les années 80, le débat a tourné autour de la question si les élèves
qui ne souhaitaient pas suivre les cours d’instruction religieuse devaient
s’inscrire dans le cours de formation morale. Vers la fin des années 80 on a
456
introduit la possibilité d’opter pour aucun de ces cours (3e possibilité).

- En 2001 cette 3e possibilité a été abolie.
- Pendant la législature 1999-2004 la question s’il fallait un jour ouvrir
l’instruction religieuse à d’autres confessions a du moins été posée
théoriquement. Dans la législation il n’est plus question du chef du culte
(qu’on assimilait autrefois implicitement au chef du culte catholique) mais du
chef du culte concerné. Toujours est-il qu’il n’y a pas de demande de la part
des cultes reconnus d’introduire un enseignement religieux correspondant
à l’école.
- À ce stade, les règlements régissant aussi bien l’instruction religieuse que
le cours de formation morale stipulent expressis verbis que les religions les
plus marquantes doivent être étudiées. (Règlements grand-ducaux du 10
aout 1991).
- Pendant la législature 2004-2009 (gouvernement de coalition parti
chrétien-social et parti socialiste) une expérience d’une éducation aux
valeurs se substituant à la fois à l’instruction religieuse et à la formation
morale et sociale a été mise en œuvre dans un lycée pilote à journée à temps
plein (Ganztagsschule).
Loi du 25 juillet 2005 portant création d’un lycée-pilote,

Art. 4. À l’exception des cours de formation morale et sociale et d’instruction
religieuse et morale dont les contenus et finalités sont assurés par l’éducation
aux valeurs, les matières enseignées sont les mêmes que celles prévues pour
les classes de septième à quatrième de l’enseignement secondaire et de
septième à neuvième de l’enseignement secondaire technique. L’éducation
aux valeurs, prenant en compte aussi bien la diversité croissante des cultures
et des convictions religieuses et philosophiques que la nécessité de veiller
à l’intégration de ces diversités dans un climat de respect et de tolérance
réciproques, a pour mission de transmettre aux élèves une connaissance
appropriée des grandes religions et familles de pensée au plan mondial.
Elle tient spécialement compte des réalités de la société luxembourgeoise
en réservant une place adéquate à la présentation authentique des
divers courants de pensée religieuse et humaniste présents dans le pays.
La mise en place de ce cours a été accompagnée par une commission

composée de représentants des religions catholique, juive et musulmane
ainsi que de personnalités oeuvrant pour la laïcité.
IV.4.
www.legilux.public.lu/leg/textescoordonnes/compilation/code_education_
nationale/PAGE_DE_GARDE.pdf
Voici les principales dispositions légales qui ont fait l’objet de débats
parlementaires ces dernières années/
457
Siggy Koenig
Loi du 12.07.2002 portant réforme de l’enseignement secondaire et

secondaire technique : abolition de la 3e possibilité. Dossier parlementaire
4894
Loi du 25.072005 portant création d’un lycée pilote : introduction d’un

cours d’éducation aux valeurs. Dossier parlementaire : 5434
Loi du 6.02.2009 relative à l’obligation scolaire : interdiction pour les

enseignants de manifester par la tenue vestimentaire ou le port de signes leur
appartenance à une doctrine religieuse ou politique. Dossier parlementaire :
5758
Les dossiers parlementaires peuvent être consultés sur le site de la Chambre

des députés
www.chd.lu –Travail à la Chambre – Rôle des affaires – No du dossier

V.3. Comme les écoles confessionnelles suivent les programmes de

l’école publique, l’instruction religieuse qui y est dispensée s’oriente sur le
programme du cours prévu pour l’école publique. Le règlement grand-ducal
du 10 août 1991 concernant les lignes directrices du programme, la durée
et l’organisation du cours d’instruction religieuse et morale ainsi que la
formation des enseignants chargés de ce cours.
Art.1………2. Dans les classes de la division supérieure, l’élève étudiera
le phénomène religieux en général, ses expressions dans les différentes
croyances et la mise en question de la religion par les athéismes, les idéologies
et les courants philosophiques et scientifiques. Le cours insistera sur les
raisons de croire, d’espérer et d’aimer.
VI.1.
Les écoles primaires appartiennent aux communes ; il n’existe pas de
réglementation interdisant le crucifix dans les écoles primaires. Les lycées
d’enseignement secondaire appartiennent à l’Etat. Dans les bâtiments
publics la neutralité est exigée.
VI.2. Le port du voile islamique ou d’un autre signe religieux par des
enseignants autres que ceux qui enseigneraient l’instruction religieuse est
interdit dans l’école publique
458
Loi du 6 février 2009 relative à l’obligation scolaire.

Art. 4. Dans le respect de la liberté de conscience des élèves et à l’exception
des cours d’instruction religieuse et morale, la formation scolaire ne privilégie
aucune doctrine religieuse ou politique.
Art. 5. À l’exception de l’enseignant titulaire d’un cours d’instruction
religieuse et morale, l’enseignant ne peut manifester ostensiblement par sa
tenue vestimentaire ou le port de signes son appartenance à une doctrine
religieuse ou politique.
Pour faire passer cette disposition il fallait éviter de déclencher une

discussion sur les droits fondamentaux à savoir si le fait de porter une tenue
vestimentaire particulière était un droit fondamental et si le fait de prescrire
à l’école des tenues vestimentaires à tous les membres de la communauté
violerait un droit fondamental;
C’était la discussion qui avait été menée en France (signe ostentatoire
d’appartenance religieuse) et en Turquie (arrêt de la cour européenne des
droits de l’Homme du 10.11.2005 concluant que le fait que les universités
turques prescrivaient une tenue vestimentaire particulière ne constituait pas
une violation des Droits de l’Homme)
L’argumentaire se fondait exclusivement sur la déontologie professionnelle
1. la personne qui se décide à devenir enseignant fonctionnaire se range

en premier lieu du côté de l’État dont la mission la plus noble consiste
à sauvegarder à l’École les droits fondamentaux des élèves (droit à un
enseignement objectif). Le fonctionnaire ne peut donc pas invoquer ces
mêmes droits pour les mettre en question auprès d’autrui
2. son devoir consiste à promouvoir la mise en œuvre des lois

démocratiquement votées et des mesures prises par le Gouvernement
démocratiquement constitué. Il doit donc postposer ses aspirations
individuelles lorsque son développement personnel risque d’entrer en conflit
avec la mise en œuvre de la volonté démocratiquement
Dans le commentaire des articles de la loi cette argumentation pédagogique
est illustrée pqr les mots qu’a employés Jules Ferry dans sa lettre du 27
novembre 1883 aux enseignants: „… Vous êtes l’auxiliaire et, à certains
égards, le suppléant du père de famille. Parlez donc à son enfant comme
vous voudriez qu’on parlât au vôtre. Au moment de proposer aux élèves un
précepte, demandez-vous s’il se trouve un seul honnête homme qui puisse
être froissé de ce que vous allez dire. Demandez-vous si un père de famille,
je dis un seul, présent à votre classe et vous écoutant, pourrait de bonne foi
refuser son assentiment à ce qu’il vous entendrait dire. Si oui, abstenez-
vous. Vous ne toucherez jamais avec trop de scrupule à cette chose délicate et
sacrée, qui est la conscience de l’enfant.
459
Siggy Koenig
VI.3. Une élève peut porter le foulard islamique. L’attitude de l’école et de

la direction est ici dictée par le pragmatisme qui vise à fidéliser les personnes
originaires de l’immigration à la société luxembourgeoise. Il s’agit de ne pas
heurter dès le début des personnes fraîchement immigrées ou de mettre une
jeune fille dans une position impossible entre l’école et les exigences de sa famille.
On part de l’idée que tôt ou tard la jeune fille renoncera au port du foulard. Le seul
cas connu qui aurait pu dégénérer dans une « affaire » était le cas d’un enseignant
qui refusait d’enseigner devant une jeune fille qui portait le foulard.
Les réactions des autorités devant le port du voile ou de la burka seraient
certainement moins pragmatiques. Il se peut qu’en ayant été souple quant
au port du foulard, les autorités n’ont pas eu besoin jusqu’à présent d’être
catégoriques sur le port du voile ou de la burka .
VI.4. La tenue vestimentaire dans les écoles est déterminée par la législation
et la réglementation de la discipline et l’ordre intérieur dans les écoles
Règlement grand-ducal du 23 décembre 2004 concernant l’ordre
intérieur et la discipline dans les lycées et lycées techniques.
Art. 6. La tenue vestimentaire des élèves doit être correcte. Des tenues
spéciales peuvent être prescrites pour les cours d’éducation physique,
d’éducation artistique et les séances de travaux manuels et de travaux
pratiques.
VI.5.
VI.6.
VI.7. La problématique ne se résout pas aux questions vestimentaires.
Il existe des cas où des élèves souhaitent ne pas participer au cours de
gymnastique ou au cours de biologie. Il existe des cas où les conflits entre
groupes d’élèves dans les cours de récréation sont autrement plus graves que
ceux qui se déroulent avec les autorités scolaires dans les salles de classe. Des
dispositions correspondantes ont été introduites à titre préventif dans les
nouvelles lois.
1. Les élèves sont obligés de participer à toutes les activités scolaires
Loi du 6 février 2009 relative à l’obligation scolaire Art. 8. La formation
scolaire obligatoire s’accomplit dans les établissements scolaires publics. Elle
consiste en la participation régulière à tous les cours et activités scolaires.
2. La législation énumère les infractions qui peuvent faire l’objet de la sanction

maximale c’est-à-dire le renvoi de l’école. Parmi celles-ci on trouve aussi -
l’incitation à la haine raciale, à la xénophobie et à l’intolérance religieuse
Loi du 25 juin 2004 portant organisation des lycées et lycées techniques Art.
42
VI.8. À ce stade il n’existe pas encore de jurisprudence à Luxembourg.
460
The Place of Religion in Education in
The Netherlands
Anneke de Wolff* and Pieter Huisman**1

I. On 1 August 1998 a new Primary Education Act (WPO) went into effect in
the Netherlands, replacing former Education Acts. In 1993 ‘core objectives’
(kerndoelen) were established. Since 1 August 2006, under the terms of
the revised Primary Education Act, Dutch primary schools must provide
teaching in six curriculum areas. The attainment targets relate to, among
other things, healthy living, social structures (including political studies) and
religious and ideological movements.
According to current legislation, all primary schools (public and private)
have to pay attention to the religious, philosophical and social current values
in the Dutch society. Pupils (in public education) should learn to understand
and to recognize the diversity of those values (see Article 46 of the WPO, the
Primary Education Act). This command includes the obligation of primary
schools to offer a subject called ‘religious and other spiritual movements’.
State funded schools for lower secondary education are also obliged to pay
attention to the different cultural and religious worldviews in the Dutch
society.
In both cases, it concerns education with a strong cognitive perspective (i.e.
‘teaching about religion’). The most important aim is to get pupils acquainted
with current religious and ideological movements. In case of public state
schools this education should have no preference in favour of one specific
religion of worldview. Schools are free to choose how they organise the
teaching of cultures and worldviews, for instance as a part of ‘history’ or as a
part of ‘society and culture’. Several public schools for secondary educations
offer subjects like ‘religion/ worldviews’ and ‘philosophy’ as optional
subjects. Students are free to choose one of those subjects, in addition to the
compulsory core curriculum.
Since 1857 parents have the right of religious education or humanistic

education on public primary schools. This is enshrined in article 50 and
* Dr., Dutch Education Council, the Netherlands

** Professor, Erasmus School of Law, senior lecturer The Hague University of applied
sciences, the Netherlands.
461
51 of the Primary Education Act, which states that parents can request for
education in their chosen religion or belief. Thus, parents whose children
visit a non-denominational (public) primary school, may still ask for extra
lessons religious or worldview education in line with their own religion or
convictions. Provided that a sufficient amount of parents want a specific kind
of religious education, such education is delivered by churches and religious
organisations. In practice Catholic, Protestant, Humanistic, Islamic, and
Jewish religious education is delivered at public state schools, at the request
of the parents. This kind of religious education is paid by local authorities
(the municipality). The instruction itself is beyond the responsibility of the
public school. Teachers delivering this religious education do have to meet
some qualifications, as well as a certificate of good character. For more
information: see http://www.gvoenhvo.nl/wat-is-gvo-en-hvo.html and:
http://www.ikoslandelijk.nl/Basis.htm
Muslim parents use this legal opportunity only in exceptional cases. Some
municipalities (like Rotterdam), however, subsidize religious education.
School authorities retain the power to choose which language courses are
taught in, which has limited the development of Islamic religious instruction.
Private state funded schools, i.e. denominational schools, offer religious
education in line with their denominational basis (see appendix for more
information about the legal basis of these schools). In primary education
17 religious types (denominations) are distinguished: Catholic, Protestant,
four varieties of more conservative Protestant, Anthroposophic (Steiner);
Orthodox Jewish, Liberal Jewish, Platonic, Rosicrucian, Orthodox
Muslim, Liberal Muslim, Orthodox Hindu, Liberal Hindu, evangelical,
and Hernhutter.1 At the secondary level there are currently six religious
varieties: Catholic, Protestant, two varieties of more conservative Protestant,
Muslim and Orthodox Jewish.
II.3. As stated above, denominational schools in the Netherlands are fully

public funded (see also the appendix). At primary and secondary level two
thirds of the schools are privately run. In 2009 there were 6.882 primary
schools in the Netherlands; 32% of these are public schools; 30% are Catholic
schools and 26% are Protestant schools. For more detailed information, see:
http://www.stamos.nl/index.bms?verb=showitem&item=3.24.3
Further on, there were 657 secondary schools in 2009. 30,8% of these are
Protestant schools; 20,9% are Reformed schools (more orthodox Protestant)
and 28% are so called ‘Collaboration schools’ (Samenwerkingsschool).
This is an integrated cooperative providing for public (neutral) education
1
Postma, Andries (1995), The Principle of Subsidiarity in Dutch Educational Law’. In:
J. De Groof(ed.) Acco: Leuven (Belgium), p. 128.
462
The Place of Religion in Education in The Netherlands
and private denominational education within one and the same school.2
1,3% of all secondary schools is Catholic and only 0,2% are public
schools. For more detailed information, see: http://www.stamos.nl/index.
bms?verb=showitem&item=5.24.3
The amount of private, non-state funded schools in the Netherlands
(whether denominational or not) is very small, international schools
excluded. Only 0.04 % of all pupils in primary and secondary education
visit a private, non-state funded school. Based on information of the Dutch
Educational Inspectorate, in 2010 there are about 20 private schools for
primary education and about 12 private schools for secondary education.
For more information: see: http://www.onderwijsinspectie.nl/onderwijs/
Particulier+onderwijs/B3-scholen
The Dutch Constitution provides that independent schools will be funded

by the same standards as public schools; this has been taken to mean that
independent schools should be funded fully, provided that they provide
a level of education corresponding to, but not identical with that in public
schools.
Section 5 and 6 of Article 23 (see appendix) describe the regulations
concerning quality standards for denominational schools. Section 6 states
that any conditions attached to funding independent schools must respect in
particular the freedom of private schools to choose their teaching aids (that
is: educational materials), and to appoint teachers as they see fit.
As a consequence, state funded denominational schools in the Netherlands
do not have to meet additional requirements. In this respect, formally
speaking, the authorities do not control the content or way of teaching in
denominational schools. It would not be appropriate for government to
include attitudinal or desired opinions among the required goals of schooling,
even for public schools, which are required to respect each pupil religious or
other convictions about life. Prescribing particular books or materials could
lead in the same direction.3
However, denominational schools have to meet the same requirements as
public state schools and the Constitution gives legislators the competence to
impose quality standards in education. The government is responsible for the
quality of education. In 1993, for instance, the Parliament established a series
of national outcome standards, so-called ‘core goals’ (kerndoelen), for which
schools are to be held accountable. And teachers in all state funded schools
must have the necessary academic qualifications, as well as a certificate
of good character. During the last decades, these requirements have been
extended considerably. At the moment there is a large body of requirements
2
Vermeulen, B.P. (1998), Country report: Recent developments in Dutch legislation
and case law on education’. In:, Kluwer Law International 155-57.
3
Postma, A. (1995), ib id, p. 136.
463
(national outcome standards, aims and criteria) for state funded schools laid
down in statutes and regulations.
We can conclude that in exchange for the full financial support that privately-
run schools in the Netherlands receive, schools are restricted by many rules
and requirements. It can also be concluded that there is a considerable
tension between the responsibility of the government for educational quality
on the one hand, and the freedom to organize teaching as the school wishes,
on the other hand.
The Dutch Ministry of Education recognizes and finances 37 Islamic primary

schools and one secondary school in Rotterdam, established in August 2000.
The majority of the day in these schools must offer courses that follow the
national curriculum, and a few hours per week may be allotted to religious
lessons and ceremonies. In the beginning of 2007, all Dutch Islamic primary
schools were provided with an official Islamic teaching curriculum for pupils
ages 4 through.

school
III.2. While government must accept the sincerity of a parent’s choice for
a particular religious or philosophical schooling, the obligation does not
extend to publicly-subsidized independent (denominational) schools. The
board responsible for each independent school or group of schools has the
authority to admit or deny admittance.
This right was upheld in the case of a Jewish school which, on religious
grounds, refused admission of a pupil to the school. The Maimonides-
judgment of the Supreme Court stated that article 23 of the Dutch
Constitution guaranteed a freedom for school boards to preserve a
distinctive religious or philosophical character (vrijheid van richting), taking
into account article 6 Constitution and article 9 ECHR. Unless there are
special circumstances -which was not the case here-the parents of a child
must meet the institution’s standards of religious nature “and are not eligible
for admission, even if those parents (…) have a strong preference and even
though the institution concerned is the only one providing the education
concerned”. 4 The ruling of the Maimonides lyceum was affirmed in a case
concerning the Hoornbeek College in Amersfoort, a Dutch-Reformed
educational institution of secondary vocational education. The school board
refused a 16-year-old pupil enrolment because the parents didn’t subscribe
the identity of the school, due to a divergent view on Christian lifestyle. The
4
Maimonides case Dutch High Court, 22 jan. 1988, administratiefrechtelijke
beslissingen, 1988, 96.
464
disagreement focused on the fact that there was a television and an open
Internet connection in the family home, that the parents thought differently
about co-determination in the school and the biblical distinction between
man and woman (the sister wore pants). The refusal of admission led to the
case in which the Maimonides-judgment from 1988 was acknowledged.
The Court of Appeals in Amsterdam ruled that the policy was not
consistent.5 The Court notes that other students were admitted in the past,
while their parents also had another vision considering the identity of the
school. The school stated in defense that it is not possible to start their own
research into whether the questionnaire by the parents is filled in correctly
and whether the parents during the admission interview are telling the truth,
but the Court rejected this argument. In the first place, the parents in this
case demonstrated that in the past pupils were allowed, in which cases the
school knew that there was a different conception of the identity. Apart
from that, the Court argued that it is required that denominational schools,
based on religious grounds, have a consistent admission policy, which they
consistently maintain, having regard to the great value that they claim to this
policy.
The conclusions in the Hoornbeeck judgement are far reaching. For example,
the admission standards of religious nature extend apparently in principle
also to the autonomous private living rules, for example by stating that girls
should not wear pants and that families should not possess a television at
home. Besides, it must be remembered that in the Hoornbeek-case there
was no disagreement about the Reformed disposition of the parents. On
the other hand, at the Maimonides-judgment the question was whether the
competent authority of the Orthodox Jewish school had the right to refuse a
student because in the view of the school board his mother was not Jewish,
although the father of the boy was a former pupil of the school.
Also relevant in this matter is the General Equal Treatment Act (GETA),
with an exception clause for denominational education: article 7, second
paragraph, GETA provides that institutions for denominational education
are entitled to the admission and participation requirements, which for the
purposes of the institution are necessary for the achievement of its base,
where these requirements should not lead to discrimination on the grounds
of the mere fact of political adherence, race, gender, nationality, sexual
orientation or marital status. The equal treatment Commission adheres to
a strict criterion (following the Maimonides ruling). Religious schools are
required to have a very clear and consistent policy aimed at preserving the
religious identity of the school, f.i. concerning the appointment of teachers.
If not, the school board may not rely on the exception clause.
An example was a case on admission to a Catholic School of a pupil who
had not been baptized. The Commission stated that the policy “may be
5
Court of Appeals Amsterdam 25 juli 2007, NJCM-Bulletin 2008, nr. 4, p. 498-506.
465
deemed appropriate for the achievement of the base, but is not consistently
implemented and maintained”. Neither the website nor the school guide
mentioned the fact that only baptised pupils were admitted. Although the
school argued that they had followed a strengthened policy in recent years,
there was no practical evidence of this claim. Moreover, because teachers did
not have to meet the explicit requirement of being Catholic, and because it
was not required that the Members of the Board were in majority Roman
Catholic themselves, the Equal Treatment Commission concluded that there
was a violation of the Equal Treatment Act.
Limitation of the number of pupils in order to support the specificity the distinctive
identity of the school
Schools are free to limit the admission of pupils, but only when certain,
restricted criteria are met. In a case that met the Equal Treatment
Commission, the Commission considered it generally legitimate for a school
to take restrictive measures to confirm its basis as this is reflected in the
policies of the school and the consistent implementation.6 In sum: schools
have the right to refuse pupils, when they have clear rules and do apply these
rules consistently. In a particular case, a Catholic secondary school favoured
pupils from Catholic and Protestant elementary schools. The Commission
considered that in respect of its basis, the board did not follow a very clear
and consistent policy. Besides, it was argued that in daily practice the school
paid little specific attention to its religious identity. The Commission noted
that the admission policy of the school was not consistent with its aims. This
policy resulted in the fact that certain groups of Catholic pupils were not
admitted, namely Catholic pupils coming from a public elementary school.
Moreover, the admission policy of the school was inconsistent, as non-
Catholic pupils were also eligible for admission, in the case they came from a
Catholic elementary school. As a result, Protestant pupils were given priority.
The commission did not understand how the Catholic denomination of the
school could be preserved, by favouring Protestant pupils from Protestant
primary schools, over Catholic children from public elementary schools.
The Commission “considers that the defendant can also choose another
selection criterion rather than the signature of the elementary school where
a pupil originated”.
Sometimes the law explicitly states that selection on denominational
grounds is not permitted. If within a certain distance no opportunity exists
to follow for public education (i.a a ‘regional monopoly’), admission to the
(denominational) school cannot be refused on the basis of religious affiliation
or belief, according to for instance article 58 of the Primary Education Act.
6
Decision 2003-134.
466

course
IV.4. Because of the variation of denominational schools in the Netherlands

(Catholic, Protestant, Reformed, Muslim, etc.), there is no necessity to
offer parents of denominational schools a possibility for specific religious
education, different from the one the school is based on. Denominational
schools in the Netherlands offer religious education or religious instruction
which is in line with their denominational basis. In case of ‘Collaboration
schools’, two options are offered, e.g. Catholic or Protestant religious
education and a more general ethical education, e.g. from a humanistic
perspective.
Catholic and Protestants school boards are free to make their own admission
policy. Many Catholic and Protestant schools have an open admission
policy: they don’t ask parents to endorse the Catholic or Protestant faith nor
to subscribe the religious identity of the school. As a consequence, many
Catholic and Protestant schools have numerous Islamic pupils, especially in
urban areas. As far as is known, these schools do not offer Islamic religious
education. In practice, religious education of these schools frequently has a
broad character, but the schools do not provide specific religious education
for religious minorities.
The only exception is – as far as we know- the Free University in Amsterdam.
When it was founded in 1880, it had close links with the Dutch Reformed
Church. Since then the University developed as an open, liberal Christian
(Oecumenical) institution. Today, students and staff of all faiths and religious
traditions are welcome. Driven by respect for one another’s convictions and
standpoints, the university offers students a range of religious facilities and
services. These include the Student Chaplaincy, a meditation room and an
Islamic prayer room. The faculty of Theology also offers master’s courses
in Islam.

V.3. There is no guideline. In a document delivered by the Dutch Bishops

Conference, titled Animated and Confident, a policy memorandum with a
view to a new dynamism and a shared vision of Catholic education (2002)7, are
some statements about how Catholic schools should deal with pupils with
7
http://www.katholieknederland.nl/documents/kn_698427_bezield%20en%20
zelfbewust.pdf
467
other religious beliefs (but there is no explicit reference to Islam or Islamic

pupils). According to the document, it should be avoided that the catholic
identity is imposed upon these pupils of other faiths. On the other hand, the
Catholic identity should not be covered, because of (large numbers of) these
pupils in the Catholic school. Religious instruction should not be ‘a melting
pot’, in which differences between religions are ‘neutralized’. Inter religious
celebrations should be restrained, according to the document. Apart from
the Free University (mentioned above), there are no examples known of
teaching Islam in denominational (non-Islamic) schools.
VI.8.
Religious symbols
Article 23, section 3 of the Dutch constitution states that public education
shall be regulated by law, paying due respect to each person’s religion or
belief (see appendix). Article 46 of the Dutch Primary Education Act, as an
elaboration, states that “Public education contributes to the development of
the pupils with attention for the religious, philosophical and social values
which are present in the Dutch society and in recognition of the importance
of the diversity of those values”, and second: public schools are open to all
children without discrimination of religion or belief. Third: public education
is given with respect for everyone’s religion or belief.
It is forbidden for teachers of public schools to convert pupils or trying to

do so. Teachers in public schools can, in the name of the neutrality of public
education, be required to refrain from starting class with a prayer. There
are no specific rules on religious symbols. In a case that was brought before
the Equal Treatment Commission (case 2000-51), two Islamic students of
a public secondary school requested a classroom for prayer during breaks.
The school board refused. The Commission argued that the provision
of education in general also includes the use of premises for educational
activities and related activities for and by the students. The law prohibits
discrimination on the grounds of religious expressions, such as praying.
The Commission believes that the neutral character of a public school does
not imply that the law on equal treatment is violated. The deprivation of
opportunities or space for prayer may be a case of direct discrimination.
But the Commission also argued that neither the text nor the parliamentary
history of the General Equal Treatment Law or any other law puts a positive
obligation on the school board of a public school to provide a room for
prayer. The governing board, also of a public school, has the pedagogical and
organizational freedom to run the school in their own way, and therefore, to
provide a room for prayer or not.
468
Wearing headscarves
The General Equal Treatment Act prohibits both direct and indirect
discrimination. Direct discrimination is prohibited, unless the Act itself
makes an exception. Indirect discrimination is permitted only if there are
good reasons (an ‘objective justification’) for such discrimination. If a school
refuses admission to students or refuses appointment to teachers, because
of the religion of these persons, this is a case of direct discrimination.
Denominational schools have the right to impose requirements which,
having regard to the establishment’s aim, are necessary for the fulfilment
of its principles (Section 7, subsection 2 of the Equal Treatment Act). This
means that denominational schools may prohibit expressions in clothing
of students or teachers, f.i. headscarves and niqaabs, that are viewed as
incompatible with the school’s religious principles.
The exception made for denominational education does not apply to public
non-denominational schools. This means that public non-denominational
(public) schools may not require that teachers and students do not wear
headscarves. However, these schools are free to ask for an attitude of
neutrality of the teachers in line with the public nature of these schools. If a
teacher wears a headscarf this does not necessarily mean, however, that she
is unable to teach in a manner that is in accordance with the public nature of
the school (opinion 1999-18).
Indirect discrimination is at stake when the school does not admit students or
does not appoint teachers, because of an apparently neutral rule, but which
actually mainly affects the adherents of one specific religion.
The law imposes stringent conditions on the objective justification which

makes indirect discrimination permissible. First of all the aim of the rule must
be sufficiently important and non-discriminatory. Secondly, such a rule must
be appropriate and necessary to achieve that aim. This means that the rule will
actually serve to achieve the aim and that the rule in question must be reasonably
proportionate to the aim. Moreover, it must be clear that the aim cannot be
achieved with another rule, which is less injurious to the affected group. This
means that the school must prove that it is impossible to make another rule which
does harm adherents of one specific religion. Only when all these conditions
have been satisfied then an objective justification can be said to exist.
Recently, much attention has been paid to schools prohibiting their

pupils from wearing veils covering the entire face - known as niqaabs - or
headscarves.8 The school board may formulate a dress code, but must be
aware that some clothing regulations may harm/ disadvantage adherents of a
8
The next paragraphs are derived from the Commission on Equal Treatment, www.cgb.nl
469
specific religion. Prohibiting niqaabs, headscarves and other headgear worn

for religious reasons (such as a turban) may be at odds with equal treatment
legislation, because such a prohibition results in discrimination on the
grounds of religion. Unlike wearing a baseball cap or a balaclava, wearing a
headscarf, turban or niqaab is a manifestation of religion and a prohibition
will in particular affect the adherents of the religion in question. This means
that in such cases there is indirect discrimination on the grounds of religion
(Section 1, subsection c of the Equal Treatment Act). This is not affected
by the fact that not all adherents of the religion consider this manifestation
as an obligation. Because the courts and the Equal Treatment Commission
(so the Supreme Court has ruled) may not review differences of opinion
on theological doctrines, they will only examine whether a manifestation
may constitute a manifestation of religion. In principle, therefore, it is not
permitted to prohibit headscarves and niqaabs. There are some exceptions
to this general rule.
A school board is allowed to make requirements on clothing. Dress codes and
codes of conduct are even quite ordinary. But if those rules restrict religious
expressions, they are only allowed if there are serious interests at stake. It is,
for example, in cases where the rights and freedoms of others are at stake. In
cases where by the way they wear their clothes pupils hamper the learning
process, the school may lay down restrictions.
In education (non-verbal) communication plays a major role. Pupils and
teachers must be able to talk with each other and see each others facial
expressions. That is why fully face covering accessories, such as a chador
or a burqa can be prohibited by the school. Safety in schools can benefit
from certain clothing requirements. Schools may continue to draw up, for
example, pupils dress codes in order to be able to identify students or fraud
in examinations and examinations.
The Equal Treatment Commission has examined clothing regulations by

these criteria more than once. Recently, it discussed a case in which a school
prohibited students to wear a niqaab.
The reason for the ban the school put forward was that a niqaab was an
obstacle to good communication. Another reason was that students wearing
a niqaab could not be identified. As a consequence, unauthorized persons
could enter the school building. The Commission concluded that in this case
discrimination was justified (opinion 2003-40). In another case, however, the
Commission held that the school had insufficient arguments to substantiate
its allegation that wearing a niqaab caused a problem (opinion 2000-63).
These opinions are available on the web site (www.cgb.nl).
In a case of the Equal Treatment Commission on admission to a Catholic

school, there was a ban for students to wear clothing, which could be
associated with non-Catholic or non-Christian religious beliefs, such as a
470
headscarf. This ban was included in the school guide in the school rules, and
pupils had received a copy. The Equal Treatment Commission concludes the
dress code was necessary to maintain the specific religious identity of the
school) and was also founded on a consistent, statutory policy.
In 2005, the issue on burqas surfaced when Parliament adopted a resolution
urging the Government to ban the public wearing of face coverings.
However, the integration minister stated that a comprehensive ban was not
possible under the law-instead, he said that the ban may be permissible in
case-specific scenarios such as in public schools9.

VII.7. There are Koranic schools active in the Netherlands, mainly in the
(larger) cities.There is however no systematic research into Koranic schools
in the Netherlands. We think this is partly due to the not so well-cut definition
of a Koranic school. Recently, an attempt to investigate on behalf of the
government, got stuck because the mosques refused to cooperate.
A research report from 200410 indicates that a large majority of Turks and
Moroccans are in favour of Islamic teaching in Koranic schools. The report
states that ‘the actual range of children visiting religious [Koranic] schools was
estimated from 20% to 25% of all Turkish and Moroccan children’. Research
from 200811 in Rotterdam indicates that the pedagogical quality of education
provided in mosques is not adequate. There is for instance no connection
between education provided in regular (state funded) schools and religious
instruction in mosques. The Inspectorate has no jurisdiction concerning the
quality of religious instruction. There might be a criminal investigation if
religious instruction is violating the law (that is: inciting hatred).
The debate around religious instruction in mosques is characterized by

suspicion and incidents.Youth Health Care of the Health Service in The
Hague (YHC) for instance began early 2009 a systematic inquiry of signs
of child abuse during Koran lessons.12 The reason for this was the striking
number of signals of such abuse in late 2008 during regular targeted
prevention research. The municipality used two tracks to stop the abuse:
first by actions aimed at individual children and families, secondly by urging
governing boards of the mosques to stop the abuse. For some parents, this
9
A bill on face covering clothing in education is still to be submitted.
10
Palet, K, Ter Wal, J. (2004). . Sociaal Cultureel Planbureau, The Hague (the
Netherlands).
11
Pels, T, Gruijter, de, M, Lahri, F. (2008 Verwey Jonker instituut, Utrecht (the
Netherlands), p.88.
12
See Aanhangsel Handelingen II, 2009-2010. nr. 1232 (questions asked by members
of parliament)
471
led to action, such as switching to another mosque or raising questions

about the behaviour of the teacher. The municipality has however noted
that despite the calls and promised measures, still signals are coming from
different districts. Following the investigation of the Director of the Public
Health Service, the Public Prosecutor conducted a criminal investigation
(with no results, so far).
Recently, there are indications13 that providing religious Islamic instruction

in public schools is not a success; parents still prefer religious instruction
provided by the mosques, although the discussion concerning abuse of
children and a possible ‘breeding ground’ for radicalization is still present.
XI. Bibliography
•• European Commission (Eurydice). Organisation of the education system in the

Netherlands 2008/09. Downloaded from: http://eacea.ec.europa.eu/education/
eurydice/documents/eurybase/eurybase_full_reports/NL_EN.pdf
•• Glenn, Ch. and J. de Groof (2002). Finding the Right Balance. Freedom,
Autonomy and Accountability in Education. Utrecht: LEMMA publishers
(the Netherlands).
•• Huisman, P.W.A (2010).’Van wie is de onderwijsvrijheid? Een
grensverkenning in een tijd van botsende (grond)rechten’, Tijdschrift voor
onderwijsrecht en onderwijsbeleid (T.O.R.B), mei-juni 2010, p. 401-424.
•• Mentink, D. (1995). Artikel 23 van de grondwet: de vrijheid van richting
en de dragers van de vrijheid van onderwijs. Onderwijs-juridisch preadvies in
opdracht van de Onderwijsraad, The Hague (the Netherlands).
•• Palet, K, Ter Wal, J. (2004). Moslim in Nederland. Een onderzoek naar de
religieuze betrokkenheid van Turken en Marokkanen. Sociaal Cultureel
Planbureau, The Hague (the Netherlands)
•• Pels, T, Gruijter, de, M, Lahri, F. (2008). Jongeren en hun Islam. Jongeren
over hun ondersteuning als moslim in Nederland. Verwey Jonker instituut,
Utrecht (the Netherlands).
•• Postma, A. (1994). ‘The Principle of Subsidiarity in Dutch Educational
Law’. In: J. De Groof (ed.) Subsidiarity and Education Aspects of
Comparative Educational Law. Acco: Leuven (Belgium).
•• Vermeulen, B. P. (1998). ‘Country report: Recent developments in Dutch
legislation and case law on education’. In: European Journal for Education
Law and Policy 2, Kluwer Law International. (pp 155‑157).
13
http://www.eo.nl/programma/ditisdedag/2009-2010/page/Islamles_op_school_
verliest_het_van_koranschool/articles/article.esp?article=12502412
472
Appendix: Article 23 of the Dutch Constitution, ‘Freedom of

Education’
Freedom of education, included in the 23rd article of the Dutch Constitution,
has been a basic civic right in the Netherlands for one and a half century now.
This freedom allows denominational organisations to found schools based
on their own system of beliefs. Private schools that satisfy the conditions laid
down by law are financed from public funds according to the same standards
as public-authority schools.
Article 23 of the Constitution (last amended in 2002) provides that:
Section 1: “Education shall be the constant concern of the Government.
Section 2: All persons shall be free to provide education, without prejudice
to the authorities’ right of supervision and, with regard to legally-designated
forms of education, its right to examine the competence and moral integrity of
teachers, to be regulated by law.
Section 3: Education provided by public subsidies shall be regulated by law,
paying due respect to each person’s religion or belief.
Section 4. The authorities shall ensure that primary education is provided in a
sufficient number of public schools in every municipality. Deviations from this
provision may be permitted under rules to be established by law on condition
that there is opportunity to receive the said form of education.
Section 5. The standards required of schools financed either in part or in full
from public funds shall be regulated by law, with due regard, in the case of
private schools, to the freedom to provide education according to religious or
other belief.
Section 6. The requirements for primary education shall be such that the
standards both of private schools fully financed from public funds and of
public-authority schools are fully guaranteed. The relevant provisions shall
respect in particular the freedom of private schools to choose their teaching
aids and to appoint teachers as they see fit.
Section 7. Private primary schools that satisfy the conditions laid down by law
shall be financed from public funds according to the same standards as public-
authority schools. The conditions under which private secondary education
and pre-university education shall receive contributions from public funds
shall be laid down by law.
Section 8. The Government shall submit annual reports on the state of
education to Parliament”
473
The Place of Religion in Education in Norway
Svein Egil Vestre*1

I.1. According to The Education Act and The National Curriculum shall
Religion, Philosophies of life and Ethics be an ordinary school subject
normally attended by all pupils. The teaching in Religion, Philosophies of
life and Ethics shall provide knowledge of Christianity, other world religions
and philosophies of life, knowledge of the significance of Christianity as a
cultural heritage and of ethical and philosophical topics.
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 and ensure their right to an equal education.
(Education Act § 2-3 and §2-4).
I.2. 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. It is not necessary to give grounds for notification
of exemption. (Ed. Act § 2-3a)
II.1 No, only private schools (see hereunder)
II.2. Yes. Private schools are state funded 85 pct. at fixed subsidy rates; and
parents/pupils pay the rest.
Less than 3 pct. of the pupils are in private schools. We have two types
of private schools: (A) religious schools: 63 christian schools primary/
lower secondary (10 years) and 28 secondary schools (3 years). 3 muslim
* Institute of Educational Research, University of Oslo
475
Svein Egil Vestre
schools have asked for approval. (B) Pedagogical alternatives: 33 Steiner-/

Waldorfschools and 47 Montessori schools. (Year 2010)
II.3. Question: How do the authorities control the teaching in state

funded denominational schools and are there any special questions about
the control of the content of teaching in state-funded denominational
schools? Please refer to the provisions in the law.
Answer:
Private schools must follow The National Curriculum with some exceptions.
The Ministry provides advice and guidance in order to ensure the provision
of good and equivalent educational facilities in compliance with statutes and
regulations.
The Ministry supervises activities pursuant to the Act and shall in this
connection have access to school premises and documentation. (Education
Act § 14-1)

school
III.1. No. State funded private schools must be open to all and accept
applicants from the whole country. (Act about private schools, § 3-1).
III.2.

V.1. Not known.
VI.1. Allowed.
VI.2. Teachers can wear religious symbols.
VI.3. Pupils can wear religious symbols.
VI.4.We have no dress code in Norwegian schools.
476
The Place of Religion in Education in Norway

VII.1. Information not open/ available.
XI. Bibliography
•• Reference to the legal basis, with Website address:
•• http://www.regjer ingen.no/en/doc/Laws/Ac ts/education-ac t.
html?id=213315
477
The Place of Religion in Education in Poland
Katarzyna Górak-Sosnowska*

I.2. In Polish state funded schools is organised according to the Ordinance

of the Minister of National Education on terms and forms of organizing
religious instruction in public kindergartens and schools of 14th April 1992.
In case of primary school (6/7–12-year-olds) and lower secondary schools
(gymnasium; 13–16-year-olds) the classes are organised at parents or legal
guardians’ request, in case of post-primary and post-gymnasium education
the request can be expressed by the parents (or legal guardians) or by the
pupils themselves, after attaining majority (18 years of age). According to
the Ordinance the request shall be submitted as a statement and does not
have to be renewed in next years, though it can be changed (§1.2). Pupils
can choose between religious instruction and ethics, but they are also free
to abstain from any of the classes (§1.3); if needed school shall provide them
with guidance (§3.3).
Poland is a homogenous country in terms of its ethnic and religious structure,

with 90% Christians (including 88% Catholics)1. This translates into the
practice of religious offer. Catholic instruction is offered ‘automatically’
as the religion of the majority of the population. The classes are usually
attended by the majority of pupils. Most of them participate in the class
for religious reasons, but some might have no other option: there might be
no teacher for ethics, or religious classes are organized in the middle of the
timetable, so that the pupil would have a 45 minutes of free time between
the classes, or participation in the class is a social norm one tends to obey.
This might be the case in small cities and villages, especially in Eastern and
South-Eastern part of the country, traditionally more conservative and
religious. While class attendance used to be very high reaching around 80–
90% of all pupils, it started to decrease in mid-00s, when the generation of
young Poles born after the transformation of 1989 reached post-gymnasium
education. While pupils of primary schools and gymnasiums are still sent to
Catholic religion class, after attaining majority they can decide on their own.
However, abstaining from Catholic religion instruction by a whole class is
* PhD, Department of Economic Sociology, Warsaw School of Economics, and

Department of Arabic and Islamic Studies, University of Warsaw.
1
Own calculation basing on the Concise Statistical Yearbook of Poland (2011: 133).
479
still an exception, as such information reaches even national media2.
The choices among religious education have not been enumerated in the
Ordinance, which only refers to ‘religion’ and ‘ethics’. If there are more than
seven pupils of a particular denomination in a class, a separate religious
instruction should be organized for them by the school; if there are more
than seven pupils in the whole school – an inter-class religious education
should be organized (§2.1). If there are less than seven pupils of a particular
denomination in the whole school it shall organize – in collaboration with
the respective religious community or Church – an intra-school religious
education in so called religious education point, REP (punkt katechetyczny).
The number of pupils in such class shall not be less than 3 (§2.2). These
classes can take place at school after regular classes and the school shall
provide the room free of charge to the religious communities or Churches.
The Ministry of Education does not collect the data on the type of religious
offer provided at schools. The offer is shaped on the demand of pupils of
respective denominations (if willing to apply for a class of their own).
II.3. Churches and religious communities, if they acquired the status of a

legal entity and have respective regulation in their statute, can run their own
schools. This refers among others to the Catholic Church, which signed a
Concordat of 28th July 1993 with the State of Poland (ratified on 23rd February
1998). According to §14.1 the Catholic Church has the right to establish and
run educational institutions, including schools and kindergartens. However,
they have to fulfil the educational standards in obligatory subjects (in other
subjects they follow church regulations) and in terms of the teaching staff
(§14.3). Their public character is defined by Polish law (§14.2). These
schools are funded by the State of Poland or municipal governments (§14.4).
There are two types of schools in Poland – public and non-public. The latter
have started to emerge from late 80s, after the transformation. The Law on
the education system of 7th September 1991 regulates the conditions which a
non-public school has to fulfil in order to obtain the entitlements of a public
school (i.e. issue school certificates recognized by the state), which are:
fulfilling the curricula in scope and time not shorter than in the respective
type of a public school, classification and promotion of pupils – as defined
by the respective minister (except for the entrance exam), collect documents
on the teaching process like in public schools, and employ teachers of
obligatory courses, who have proper qualifications (§7.3). Since education is
2
One of the early examples was a first grade class of a post-gymnasium school in the
city of Łódź, which collectively chose ethics, see Hodak (2008).
480
obligatory up to the 18 years of age, and not below the level of gymnasium,
in practice all primary schools and gymnasiums – regardless if public or
non-public – have to fulfil the regulations of the Law of 7th September 1991.
Their denominational character can only be reflected in their educational
guidelines which might refer to a particular value system.
Most of denominational schools are Catholic, what reflects the dominant position
of Catholic Church in the society. There are currently 539 Catholic schools
with around 58 thousand pupils, all assembled in an umbrella organization
Council of Catholic Schools (Rada Szkół Katolickich, a church organ established
in 1994, see: http://www.rsk.edu.pl). They constitute only a small fraction of
around 28.5 thousand schools in Poland (primary, up to secondary level)3. Other
denominations run only a dozen or so of schools Poland-wide, e.g. the second
biggest denominational group in Poland, the Orthodox community, established
its first school only in 2007 (a non-public one in the city of Białystok); on the
other hand the Evangelic education is quite well developed, comprising around
15 schools on all levels, mostly in southern Poland.
Around half of all denominational schools constitute private (non-public)
schools. There are neither any Islamic public or private schools. There used to
be at least two schools at embassies of Islamic countries (Iraq, Libya), which
provided Islamic educations, but they are closed now, due to lack of pupils
and funding. Islamic instruction is apparently offered to Turkish pupils at
Meridian International School (a non-public bilingual school with Turkish
capital seated in Warsaw, with a branch in Łódź), however no mention about
religious instruction as such, nor about Turkish language class is to be found
on the school’s website.

school
III.2. As mentioned above (II) denominational schools have to follow the

same rules as the state ones when it comes to learning outcomes, grading
and enrolment; they only differ in the ‘ethical added value’. Therefore they
cannot refuse any pupil basing on his/her denomination. However, while
being enrolled pupils of other denominations are aware of this ‘added value’,
reflected in the school approach (even if there is supposedly no compulsion to
religious observance at school, as stated in one interview; however, another
interviewee mentioned that at one Catholic school every class started with a
prayer and that they were compulsory).
3
Own calculation basing on the Concise Statistical Yearbook of Poland (2011: 234).
481

course
IV.4. Considering the marginal number of denominational schools in Poland

and the marginal number of Muslims (around 35 thousand in a country of 38
million citizens, i.e. less than 0.1%) it would be hard to imagine a significant
number of Muslim pupils entering a Catholic school. The whole Islamic
education in Poland takes place outside the classrooms, in REPs. For that
reason there has not yet been any debate in Poland on teaching other religions
or convictions in denominational schools. The debate focuses rather on the
place of Catholic religion in the educational system. The argument is whether
religion should be taught at schools or outside the school system (which was
the case before the transformation till 1990), and whether Catholic religion
ought to maintain the dominant position (there are some voices raised that
one has to declare unwillingness to participate in religious – i.e. Catholic –
instruction, against regulation states in the Ordinance, which was mentioned
in point I). Another angle of the discussion is the decreasing ratio of pupils
participating in religious education.

V.3. As mentioned above the marginal number of Muslim pupils in Poland

and small number of denominational schools in Poland makes it unnecessary
to propose Islam in a Catholic (or any other denominational) school. Current
efforts are rather focused on developing teaching materials for Islamic
education carried out by the two Islamic religious communities with the status
of legal entities, that is the Muslim Religious Union (MRU, Muzułmański
Związek Religijny) and the Muslim League (ML, Liga Muzułmańska).
VI.8. A crucifix is allowed in schools according to the Ordinance of the

Minister of National Education on conditions and ways of organizing religion in
public kindergartens and schools of 14th April 1992 (§12). There might also be
prayers said at the beginning and end of each class, at pupils collective wish.
The Ordinance doesn’t mention symbols of any other religion.
There are probably not more than two dozen or so teachers wearing Islamic
headscarves in Poland, what has to do with the marginal number of Muslims
in Poland and the fact that many of them tend to assimilate (i.e. women don’t
cover their hair). The majority of teachers wearing a headscarf are native
482
Polish converts to Islam (most of the Tatars don’t cover their hair except for
religious purposes, while the immigrants do not speak Polish fluent enough
to work in Polish schools, and many of the second generation immigrants
are assimilated and don’t cover their hair). Teachers are allowed to wear
the Islamic headscarf and there are no legal restrictions. However, the
practice depends on individual situation. In several cases the teacher came
to the interview wearing the headscarf, got the position and still could wear
the headscarf. However, at least in one case the teacher had to remove the
headscarf while entering the school building.
Pupils are also allowed to wear Islamic headscarves and some of them do
so. The individual practice is also worked out by the school and the parents,
e.g. in physical education, at swimming pool etc. No cases of bullying have
been officially reported (what doesn’t mean they don’t exist), even though
pupils wearing headscarves or looking ethnically different do stick out (see
e.g. Grzymała-Moszczyńska and Trojanek 2011).
There are no universal regulations on dress code in public schools. The dress
code might be regulated by school’s statue (e.g. a school uniform), but this
refers to non-public schools (if at all). In any case there are no regulations
prohibiting the Islamic headscarf and it has never been a direct reason of
exempting a teacher or a pupil. In the above-mentioned case of the teacher,
who had to remove the headscarf, her work contract has not been renewed
(despite of good teaching results as she claimed) without mentioning the
reason. There was also one case of a teacher wearing headscarf who wanted
to run for elections for the school director but was told not to do so. In this
case the scarf/Islam argument was used, but in an informal setting.
So far there have been no court cases in this matter, nor any other school
problem related to Muslims. The community is too small and the adopted
strategy – form what could be observed from the few interviews conducted
on this purpose – is to adjust as much as possible and negotiate individually
with school authorities. This refers predominantly to the converts and
immigrants, comparing with the Tatars who have been living in Poland for
over 600 years and grew into local communities.

VII.7. Every religious community that enjoys the status of a legal church
entity is entitled to teach religion. The community itself designs the teaching
programme and provides its own teachers. The programme is forwarded to
the Ministry of Education, but only for information, since the Ministry is
not entitled to interfere in the teaching content.
There is at least one (but not much more) private Islamic religious institution
that provides religious instruction – the Iqra Foundation based in Warsaw.
The foundation started its activity only recently. It combines Arabic classes
483
with Islamic instruction and serves the youngstest (around primary school
age).
Most of the Islamic teaching (if not whole) takes place in REPs in several
Polish cities. It is based either at schools or in local Islamic centres and carried
out by two biggest religious communities with legal entitlement (MRU
and ML). Since the number of REPs is limited, and the points serve also
pupils from surrounding areas, cover all educational levels (from primary
to secondary), and sometimes even organise parallel classes for the parents.
Pupils who live far from the closest Islamic education point take part in the
classes occasionally and study more on their own.
In at least one case Islamic education takes place in a private house, even
though the class is subscribed to a religious educational centre in other city.
According to one of the informants, the parents tried to established a REP in
their own city, but were refused by the respective department of education,
even though they fulfilled the criteria of having over 7 pupils interested in
such class. These pupils are subscribed to an existing religious education
point in a city over 70 km away from the city in which they live. The parents
had tried to drive their children to the religious instruction for around a year,
but gave up and decided to set up the class on their own. It is the only known
case of refusal to establish a REP.
MRU provides after school Islamic education in the cities of
Białystok, Bydgoszcz, Gdańsk, Poznań and Warszawa (two communities
– at the prayer house in Wiertnicza St. and Warszawa-Fatih community),
and in the village of Bohoniki. The courses take place either on Saturdays
or Sundays, usually 2 hours per week at local schools or in prayer houses. In
some cases, as in Białystok and Bohoniki (where the largest Tatar community
lives) there are also activity clubs and courses on Tatar history and culture.
In Warszawa classes are attended by non-Tatar students, while in Warszawa-
Fatih – by local Turkish community. In other places Tatar and other Muslim
pupils are attending the class together. The ML runs currently five REPs
in the cities of Lublin, Katowice, Poznań, Warszawa and Wrocław. In all
cases except for Warszawa, education takes place in local Islamic centres; in
Warszawa it is a primary school (Kopeć 2010).
The number of institutions providing Islamic after school education in
Poland is probably around five, but only two (ML and MRU) run a network
of REPs (five and seven respectively). The other are the Iqra Foundation and
Meridian International School both seated in Warsaw.
The number of children is hard to estimate, since no institution collects
data on the types and number of religions taught at schools or by private
institutions. In fact, even both Islamic religious unions don’t have any
accurate data on the exact number of pupils. These numbers are known
only on the local level of a particular REP. From the data collected it seems
484
that each religious education point has from around 15 up to 70 pupils4, i.e.
around 400 pupils in the whole country. The number used to be far higher in
the case of the Tatar population – e.g. in Białystok there used to be over 200
pupils in early 90s. After the general decline of population began the number
of pupils shrank to around 50.
Both Muslim religious communities developed their own curricula only
recently. In the case of the MRU it was in 2009. A group of Islamic religion
teachers, an imam and an educator prepared a curriculum which was accepted
by the Mufti of Poland and the Highest Council of the MRU (Nalborczyk
2011: 172). The ML also developed its own curricula (the main difference is
the lack of focus on Tatars, since the League unites mostly immigrants and
converts to Islam) and published a textbook.
A REP it is a joint initiative of a school and a legal church entity, in
whcih the religion teacher is sent by the religious community, but employed
by the school. Both MRU and the ML state that their teachers are university
graduates (often in pedagogical studies) with religious knowledge. In order
to secure the quality of education the ML provides their teachers with a
(facultative) course. The teachers are appointed by the Highest Council
of the MRU or the Board of Imams of the ML. Therefore the quality is
maintained predominantly at the level of the religious community itself, but
also partly on the school level – since it employs the teacher.
So far there has been no public debate on teaching Islamic instruction after
the school hours or about Muslims pupils in the educational system. Most
of the current debate on Islam can be qualified as ‘transplanted discourse’
(Górak-Sosnowska 2011) – i.e. referring predominantly to issues and events
related to Muslims living in Western Europe and/or countries with Muslim
majority.
This survey provides rather an insight into theory than diagnoses the
reality. With around 35 thousand Muslims constituting less than 0.1%
of the total population there are not many Muslim pupils entering the
educational system. Moreover, out of the 35 thousand 3–5 thousand are
Tatars (assimilated, perceived as autochthonous population) and around 5
thousand – Chechens (who fit into the category of ‘refugee’). This means
that the number of cases involving interaction between Muslim pupils and
non-Muslim school environment is limited and the legal framework not fully
explored and tested in practice yet.
There is hardly any written information on contemporary Islamic instruction
4
For Muslim League: 70 in Warsaw and 30–40 in the four Islamic centres; for Muslim
Religious Union: 30 in Bohoniki, 50 in Białystok, 15 in Bydgoszcz, 15 in Gdańsk, and
20+10 in Warsaw.
485
in Polish schools (except for Nalborczyk 2011). That is why a significant

source of information were interviews carried out by phone or e-mail with
representatives of the Ministry of Education, Catholic Schools Council and
two Islamic religious communities which – as legal church entities – have the
right to conduct religious education in Polish schools. They are:
• Iwona Abi Issa, plenipotentiary for education of the Muslim League,
12.12.2011 (phone).
• Musa Czachorowski, spokesman of the Muslim Religious Union,
7.12.2011 (e-mail).
• Jolanta Kopacz, head of the Women and Children Department of the
Muslim League, 8.12.2011 (phone).
• Grażyna Płoszańska, Department of General Education, Ministry of
National Education, 8.12.2011 (phone).
• Dagmara Sulkiewicz, Islamic religion teacher, Muslim Religious Union,
14.12.2011 (e-mail).
• Halina Szahidewicz, head of the Islamic community of Białystok,
Muslim Religious Union, 8.12.2011 (phone).
• Sister Maksymiliana Wojnar, secretary of the management board of the
Catholic Schools Council, 8.12.2011 (phone).
Since the interviews have not been recorded (just noted down) or authorized,
none of the interviewees is mentioned in the main text, or directly quoted. As
additional source an online Internet forum for Muslims on Facebook was
used.
XI. Bibliography
Legal documents:
• The Constitution of the Republic of Poland of 2nd April 1997.
• The Law on the education system of 7th September 1991.
• The Ordinance of the Minister of National Education on conditions and
ways of organizing religion in public kindergartens and schools of 14th April
1992.
Other references:
• Concise Statistical Yearbook of Poland (2011). Warsaw: Central Statistical
Office.
• Górak-Sosnowska, K. (2011). ‘Muslims in Europe: different
communities, one discourse? Adding the Central and Eastern European
perspective’. In: Muslims in Poland and Eastern Europe. Widening the
European Discourse on Islam. K. Górak-Sosnowska (ed.). Warsaw:
University of Warsaw.
• Grzymała-Moszczyńska, H. and Trojanek, M. (2011). ‘Image of the
world and themselves built by young Chechens living in Polish refugee
centers. Intercultural conflict’. In: Muslims in Poland and Eastern
486
Europe. Widening the European Discourse on Islam. K. Górak-

Sosnowska (ed.). Warsaw: University of Warsaw.
• Hodak, M. (2008, September 18th). Dzieci coraz częściej rezygnują z religii.
“Polska”, http://www.polskatimes.pl/stronaglowna/46048,dzieci-
coraz-czesciej-rezygnuja-z-lekcji-religii,2,id,t,sa.html.
• Kopeć, J. (2010, March 13th). “As Salam Alejkum” – zajęcia z religii
muzułmańskiej, “Gazeta”, 13.03.2010, http://warszawa.gazeta.pl/
warszawa/1,34875,8367303,_As_Salam_Alejkum____zajecia_z_
religii_muzulmanskiej.html.
• Nalborczyk, A.S. (2011). ‘Islamic religious education in Poland –
curricula and textbooks’. In: Islamic textbooks and curricula in Europe, E.
Aslan (ed.), Frankfurt: Peter Lang, 181–196.
487
The Constitution of the Republic of Poland5

2nd April 1997
Article 53 (an excerpt)

3. Parents shall have the right to ensure their children a moral and religious
upbringing and teaching in accordance with their convictions. The
provisions of Article 48, para. 1 shall apply as appropriate.
4. The religion of a church or other legally recognized religious organization
may be taught in schools, but other peoples’ freedom of religion and
conscience shall not be infringed thereby.
5. The freedom to publicly express religion may be limited only by means of
statute and only where this is necessary for the defence of State security,
public order, health, morals or the freedoms and rights of others.
6. No one shall be compelled to participate or not participate in religious
practices.
The Ordinance of the Minister of National Education on conditions

and ways of organizing religion in public kindergartens and schools6
14th April 1992
Basing on the article 12, section 2 of the Law of 7th September 1991 on the
education system (Journal of Laws from 1996 no. 67, entry 329 and no. 106,
entry 496 from 1997 no. 28, entry 153 and no. 141, entry 943 and from
1998 no. 117, entry 759 and no. 162, entry 1126) it is ordered as follows:
§1
1. In public kindergartens religious instruction is organised within the
school timetable, at wish of the parents (legal guardians). In public
primary, lower-secondary, post-primary and post-lower-secondary
schools, referred further to as ‘schools’, relgious instruction and ethics
is organised within the school timetable:
1) in primary and lower-secondary schools – at wish of the parents
(legal guardians),
2) in post-primary and post-lower-secondary schools – at wish of either
parents (legal guardians), or the pupils themselves; after attaining
majority the pupils decide on their own on taking part in religious
instruction or ethics,
2. The wish, mentioned in section 1, is expressed in the simplest form of a
statement, which does not have to be repeated in the next school year, it
can however be changed.
3. Participation or non-participation in kindergarten or school religious
5
Official translation.
6
Own translation.
488
instruction or ethics cannot be the reason of discrimination by anyone

and in any form.
§2
1. The kindergarten and school are obliged to organize religious
instruction for a group not lower than seven pupils of a particular class
or unit (foster children of a kindergarten group). For a lower number of
pupils in a class or unit (foster children in a group) religious instruction
in kindergarten or at school ought to be organized in an inter-unit or
inter-class group.
2. If in a kindergarten or at school less than seven pupils (foster
children) come forward to learn religion of a particular denomination
or denominations which teach jointly, the authority heading the
kindergarten or school, with approval of respective church or religious
union, organizes religious instruction in an inter-school group or in an
after school (after kindergarten) religious education point. The number
of pupils (foster children) in a group or religious education point shall
not be lower than three.
3. If in an inter-school group or an after school (after kindergarten)
religious education point participate pupils of schools (foster children
of kindergartens) ran by different authorities, these authorities set up,
by the way of agreement, the rules of running the groups or religious
education points.
4. In special cases the authority in charge of a kindergarten or school,
within the frames of funds at its disposal, can – at the request of a
church or a religious union – organize teaching religion of a particular
denomination in different way than defined in section 1–3.
5. It is allowed to make the school classes available free of charge for
religious purposes, in periods free form school classes, to churches and
religious unions, also which do not organize teaching religion within
the framework of the educational system.
§3
1. Pupils, whose parents or who themselves express such wish (§1 section
1), school organizes ethics classes basing on the programmes admitted
to school use on the regulations stated in article 22 section 2, entry 3 of
the law on the educational system.
2. Depending on the number of pupils registered the classes can be
organized according to the rules mentioned.
3. Not involved in religious instruction or ethics are pupils, who according
to the statement of their parents or themselves (§1 section 1) learn
religion beyond the educational system or consciously resign. If needed
they shall be provided with care or tutoring.
489
The Place of Religion in Education in Portugal

I.2. In Portugal, religious instruction is organised during the school hours, in

lower and in secundary education.
In public educational institutions students and parents has the opportunity
to choose religion instruction. Called “moral and religious instruction” is
opcional and not alternative. The function of this lecture, in any religious
confession, depends of a minimum number of students (after 16 years old,
the student decide) or parents (untill that age) to ask for it.
II.3. We don’t have state funded denominational schools. Our state is non
confessional and can not pronounce about any kind of religious issues. Our
constitutional law (article 41.º) establish religious freedom, and refer that
no one can be asked about their religion; establish also the non confessional
state, and assure that everyone can be instructed on their own religion.
We have private funded denominational schools, most of all catholic ones.
However, many times, these schools are chosen because their instruction
quality. The religious instruction is optional at private catholic schools.
We have only one Islamic private school, but students are not obliged to
follow the lectures of Islamic instruction; these lectures are optional.

school
III.2. As I told Portugal don’t have state funded denominational schools.

However, even the private ones, can not refuse pupils from any religious
beliefs. They are not obliged to ensure religious instruction. Catholic schools
can provide religious instruction as an optional lecture. They are not obliged
to ensure instruction of other religious beliefs.
491

course
IV.4. The Catholic private schools can provide religious instruction as an

optional lecture. They are not obliged to ensure instruction of other religious
beliefs; teaching other philosophical conviction is always optional, and not
alternative.
The Portuguese Constitutional Law (C.R.P.), is very clear about religious
instruction: the 41.º article, sais that every one has the right to their
philosophical convictions or religion; religious communities are free to be
organised as they want, respecting the Portuguese laws; The Portuguese
State ensures the freedom to teach all the religions according to their
confessional rules and believes.
We have another law called “Religious freedom law” (Law n. º 16/2001, from
22t June). In this law (article 4.º) is said that Portuguese Sate can not organise
culture and education under any religious confession; but must cooperate
with churches and religious communities according to their representativity
in Portugal (article 5.º); parents has the right to educate their children in the
same religious convictions in respect of moral, health and physical integrity
(article 11.º);

V.3. Islam, or another confessional religion must be teach according to the

rules and believes of the religion and teachers are nominated by the religious
authority. However, a religious teacher can not teach, at the same time, to the
same students, another areas even they have the qualification for that (for
example, a catholic teacher can not teach Math, or History at the same time,
to the same students): article 24.º
Religious instruction (e.g. Catholic), on public schools, depends on a
minimum of students who expresses the wish to attend religious instruction
(article 24.º);
Students can have their religion holidays and are allowed to miss school
according to that. If an exam occurs on a holiday for them, they have the
possibility to remark it (article 14.º).
VI.8. It is forbidden any religious symbols in public schools, because Portugal

is a non confessional sate.
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The Place of Religion in Education in Portugal
Teachers and students are allowed to wear Islamic headscarf or any other
religious symbol, because the constitutional law sais that no one can be
forbidden to express their philosophical beliefs or religion. Everyone has the
right to assume, in public, their believes.
There is no dress code in public schools, only in some private ones. Even on
privates schools teachers and students are allowed to wear Islamic headscarf
or any other religious symbol.

VII.1. I suppose there is Islamic teaching organized after school hours at the
Islamic community.
VII.2. Yes, at the private Islamic school (optional) and at the Islamic
community.
VII.3. Yes, I suppose, at the Islamic community, and at the only Islamic
private school we have in Portugal.
VII.4. I can not respond. The Ministry of Education and Science don’t have
that information
VII.5. I can not respond. The Ministry of Education and Science don’t have
that information.
VII.6. Teachers are nominated by the religious authority, and programs are
made by religious authorities, after permission of the Ministry of Education
and Science and according to the main rules of Portuguese education.
VII.7. In spite Portugal don’t have, yet, a large Islamic community, it is

accurate to have a public debate on this issue. We don’t have any control about
the instruction organized after school hours in Islamic community (as well
as other religious communities) and it might be a problem in order to assure
that all children must have instructing according to the values defending by
the Portuguese constitution.
XI. Bibliography
• Portuguese Constitutional Law
• “Religious freedom law” – Law n.º 16/2001, of 22 June
• www.gepe.min-edu.pt – site for the Portuguese education statics
493
The Place of Religion in Education in Romania
Liviu Andreescu*

I.1. All primary, lower-secondary, and upper-secondary public and private

schools in Romania must offer religious education classes during school
hours.
Since early 2011 Romania has a new Law on National Education (henceforth
“the Law on National Education”, the “new Law”, or the “2011 Law”),
replacing the first post-communist education law adopted in 1995. Despite
the convoluted and contested nature of the old law’s provisions on religious
education (RE), the new act has not changed anything in the way RE is
organized and taught in the schools of this country. Indeed, the stipulations
on religious education in primary and secondary schools are one of the more
conservative parts of the new Law.
As it is difficult to understand the organization of religious education in

Romanian schools without reference to the 1995 education law, both the
new and, where necessary, the old law will be mentioned below, together
with other relevant legal provisions.
The 2011 Law on National Education contains a mere three paragraphs (Art.
18) on religious education in primary and secondary schools (this statement
does not refer to the so-called “theological” schools, which are typically
public, train church personnel, and are not the subject of this presentation).
The article in question reads as follows:1
(1) The framework curricula for primary, lower secondary, high school
and professional education include the subject Religion as a part of the
core curriculum. Students who belong to state-recognized religious
denominations [culte] are ensured, irrespective of their number, their
constitutional right to attend Religion classes in accordance with their
own religious faith.
(2) Upon the written request of students of the age of majority, or of the
parents or legal guardians in the case of minors, students shall be entitled
* Associate Professor, Spiru Haret University, Bucharest, Romania.

1
Author’s translation. I have done my best to remain true to the original wording.
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Liviu Andreescu
not to attend Religion classes. In such cases, the general average grade
is computed without said subject. The same shall be true of students for
whom the conditions necessary for the attendance of Religion classes
could not be ensured.
(3) The subject Religion may be taught exclusively by qualified teaching staff,
as provided in this Law and under the protocols concluded between the
Ministry of Education, Youth and Sports and the officially recognized
religious denominations.
In order to better grasp the full meaning of the rather sketchy provisions
above it is necessary to provide some additional explanations. The fact
that Religion is “part of the core curriculum” in all forms and levels of pre-
tertiary education means that all schools and high schools, private and
public, must offer this subject. The phrase “part of the core curriculum”
carried over from the 1995 education law and reflects the strange status of
RE in Romania: while the “core curriculum” consists exclusively of subjects
that are “compulsory” (Art. 65 of the 2011 Law), in the sense that they must
all be taken by any student in order to advance through school, Religion is
evidently not compulsory in this sense, as attendance is optional.2
Secondly, the phrase “part of the core curriculum” also implies that the
subject Religion is not offered as an alternative to other subjects, whether
somehow educationally related or not (more on this below).
Finally, although this is not immediately evident from the wording, paragraph
(1) of Art. 18 also sets out that Religion is a confessional subject, that is, it
consists of the teachings and doctrines of one particular denomination.
The other relevant legal norm in force, the Law on Religious Freedom and
the Status of Denominations (no. 489 of 2006, henceforth “the Religious
Freedom Law”), similarly provides that only the officially acknowledged
denominations or culte may offer Religion classes. In other words, children
belonging to other religious associations and groups, as these entities are
defined under the abovementioned Religious Freedom Law, do not enjoy
the “constitutional right” enshrined in Art. 18 of the Law on National
Education.3 (How an organic law can proclaim a constitutional right – the
2
The 1995 education law originally defined Religion as an “obligatory” subject
which was “part of the core curriculum”. This provision was challenged before the
Constitutional Court in the year of the law’s adoption. The Court decided (ruling
no. 72 of 18 July 1995) that the term “obligatory”, in the context of the law, referred
not to the obligation of students to attend Religion classes, but to the obligation of
schools to offer them. In effect, the decision saved the constitutionality of the term
“obligatory” by re-interpreting it to mean something different from what the drafters
of the law had in mind.
3
Art. 32 of the Religious Freedom Law sets out: “(1) The teaching of religion in the public
496
Romanian Constitution itself does not mention this right4 – is another

matter.)
Under the second paragraph of said article, students may be exempted from
attending RE classes on the written request of the parent or, if they are of
the age of majority, upon their own written request.5 This, again implicitly,
sets forth that – as it has always been the case over the past two decades –
students are registered for Religion classes by default. They are not formally
requested to opt in or out, and may only do the latter subsequently, i.e., after
being “presumed enrolled” in RE.
Last but not least, under Art. 18(3), which repeats an older provision of the
Teaching Staff Law (no. 128/1997) that the Law on National Education
abrogated, religion is taught by trained teaching staff recognized by both
the Ministry of Education and the denominations. In practice, this suggests
that (confessional) Religion is taught in schools of all levels by graduates
of (confessional) Theology Schools in the country’s public and private
universities, specifically by graduates of “Didactic [i.e., Teaching] Theology”
programs. However, under the pre-existing arrangement “qualified teaching
staff” also included clergy with or without real educational training.
I.2. Religious education in Romanian schools is open to, and only to all of
the currently 18 acknowledged religious denominations.6 These include
and private education system is guaranteed by law for recognized denominations. (2)
The religion-teaching staff in public schools shall be appointed in agreement with the
denomination they represent, under the law. (3) In case a teacher commits serious
violations of his denomination’s doctrine or morals, that denomination can withdraw
its agreement that he teach religion, which will lead to the termination of that person’s
labor contract. (4) On request, in the situation where the school cannot provide
teachers of religion who are members of the denomination the students are members
of, such students can produce evidence of studies in their respective religion that is
provided by the denomination they are members of.” Official translation, available on
www.culte.ro.
4
According to the relevant provision of the Romanian Constitution, “The State
shall ensure the freedom of religious education, in accordance with the specific
requirements of each religious cult. In public schools, religious education is organized
and guaranteed by law.” (Art. 32(7)). Official translation. The term “religious cult”
refers to recognized denominations.
5
The Religious Freedom Law states under Art. 3(2) that “The religion of a child who
has turned 14 years of age cannot be changed without his/her agreement; a child who
has turned 16 years of age shall have the right to choose his/her own religion.” This
implies that at 16 (rather than 18, the age of majority) students may request to be
exempt from Religion classes.
6
The Romanian Orthodox Church; Serbian Orthodox Bishopric of Timisoara;
Roman-Catholic Church; Romanian Church United with Rome, Greek-Catholic;
Archbishopric of the Armenian Church; Russian Old-Rite Christian Church of
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Liviu Andreescu
both so-called “traditional” and more recent churches, as well as numerically

large and (sometimes very) small churches. Religious associations (asociatii
religioase), which under the Religious Freedom Law are defined as an
intermediary category between acknowledged denominations (culte) and
religious groups (grupuri religioase) and must comply with specific terms
such as a minimum of 300 members, do not have access to RE in schools, at
least not during school hours.
Two matters are worth mentioning in this context. First, some religious
associations with an important worldwide following (such as the Baha’i) and
with a small but significant presence in Romania (such as, for example, the
Church of Jesus Christ of Latter-day Saints), do not qualify for RE under
the current terms and organization. This is the case despite the fact that
some exceed in size several of the numerically modest culte. Secondly, while
becoming a religious denomination was an under-regulated and confusing
process until a few years ago, the Religious Freedom Law, which came into
force in early 2007, established a clear process and unambiguous criteria to
this end. But the new standards for becoming an acknowledged denomination
are rather onerous.7 The conditions concerning membership in particular
are not met – not even remotely – by many of the current denominations.
In other words, it will be extremely difficult for religious groups and
associations, including those which are well-established worldwide, to be
treated on an equal footing with the recognized denominations as far as RE
is concerned.
II.2. In the matter of public funding, the status of denominational schools

is rather intricate, so II.1 and II.2 will be discussed together. In Romania,
denominational schools are theoretically private, that is, church-affiliated,
yet there is at least one type of faith school that is “public” in name (i.e., a
“state school”) – so-called “theological” high schools (not to be confused
with the university-grade theological institutes or faculties) for seminarians
and other church personnel. These are in effect vocational institutions run
by the churches for their own purposes and funded by the state under special
Romania; Reformed Church of Romania; Evangelical Church of Romania; Evangelical

Lutheran Church of Romania; Unitarian Church of Transylvania; Union of Christian
Baptist Churches of Romania; Christian Church of the Gospel in Romania – Union
of Christian Churches of the Gospel in Romania; Romanian Evangelical Church;
Pentecostal Union – The Apostolic Church of God of Romania; Adventist Seventh-
Day Christian Church of Romania; Federation of Jewish Communities of Romania;
Muslim Denomination; and the Religious Organization Jehovah’s Witnesses.
7
See Andreescu, L. (2008), ‘Romania’s New Law on Religious Freedom and Religious
Denominations’, Religion, State & Society, 36.2, pp. 139-161.
498
mechanisms, though they offer a diploma equivalent to the baccalaureate

(high school diploma). The matter is further complicated by the existence of
nominally “theological” high schools which are funded by the state and run
by the churches, but which also enrol elementary-grade and lower-secondary
pupils. Furthermore, there are private denominational schools which, though
they may not receive dependable state funding under the schemes reserved
for either public schools or theological schools, do get public funds through
either the State Secretariat for Religious Affairs8 or the local authorities.
The final and most serious complication, as far as the public funding of
denominational schools is concerned, is of recent date: under Art. 8 of the 2011
Law on National Education the state shall provide basic funding for all students
in accredited public and private schools, including denominational schools.
This type of “basic funding” is based on a per capita scheme. Another relevant
provision sets out that accredited “private and confessional” educational
institutions “will be supported by the state” under terms “to be defined through
Government Decisions” (Art. 60(5) of the 2011 Law). Presumably, this refers to
support beyond the “basic funding” available to all schools.
The per capita basic-funding system, which is yet to be implemented,
constitutes a radical change from the previous arrangement, in which the
state did not typically fund private educational institutions (but see the
preceding paragraphs). In other words, since early this year, in theory all
private schools are state-funded simply by matriculating students (unless
they explicitly refuse public money). Since this change is far-reaching, it is
likely that it will affect denominational education quite significantly. On the
other hand, the extent and direction of the coming changes are impossible
to estimate at this point, as the Law is merely a few months old and the new
funding scheme has not been introduced yet.
With regard to the current situation of denominational schools, until early

this year they were governed by Art. 9(4) of the (now superseded) 1995
education law, which is therefore responsible for the current organization.
Under said article, all culte could establish their own private schools, which,
like all private schools in Romania, were obligated to follow the relevant
national school curricula (more on this in a subsequent section). Most of the
numerically important denominations, including the majority Romanian
Orthodox Church (ROC), have established denominational primary, lower-
secondary and high schools. However, the number of students enrolled in
denominational schools is quite low if judged against the country’s total
student population (and often even against the membership of the individual
8
An agency in the Ministry of Culture which, among others, disburses funds for the
recognized denominations for a variety of purposes, from church construction and
maintenance to support for other denominational institutions, including schools.
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Liviu Andreescu
denomination in question). Unfortunately, statistical data on denominational

schools are not easily available. Some of the figures below were requested
and obtained from the churches themselves in 2010. To serve as a reference
point, there were some 4,700 schools in Romania in 2010 matriculating
some 3 million students.
Another clarification is in order at this point. Romania is a multi-ethnic

country, and some religious communities are in fact part of national groups
or ethno-religious groups with a faith different from the majority (the
Hungarians, for instance, are typically Roman Catholic or Reformed, while
Turks and Tatars are generally Muslim etc.). Under the current legislation on
national minorities, there are both public and private schools with teaching in
the national minorities’ languages. Most students in public schools and high
schools with teaching in national minorities’ mother tongues study the faith
associated with their ethnic community as part of regular RE curricula (e.g.,
in Turkish-language schools or classes many pupils study Islam). Arguably,
this reduces the need for denominational schools, especially since the latter
have had to follow the same standard national curricula anyway.
As far as Romanian Orthodox denominational schools are concerned, they

enrolled a mere 80 students in primary and lower-secondary grades in the
2009-2010 academic year (exclusive of the additional 10 vocational schools
for religious singers). The Orthodox Church nominally accounts for 87
percent of the country’s population of 22 million according to the latest
(otherwise very problematic) census. The ROC also operates 5 Orthodox
high schools (not including the 33 upper-secondary theological seminaries
and high schools).
The Pentecostal church, the fifth-largest denomination and the second-

largest Protestant church in Romania, operates several schools and six high
schools (in Oradea, Baia Mare, Arad, Timisoara, Pitesti and Bucharest)
enrolling several hundred students. Several of these high schools also teach
elementary-grade and lower-secondary pupils.
The Seventh Day Adventist Church operates 7 accredited schools (of which
three primary, and four primary and lower-secondary), enrolling a little over
570 students. There are also 5 Adventist high schools in the country with
some 750 students. A little over half of the primary and lower-secondary
pupils, and a little over three quarters of high school students have at least
one Adventist parent.9
Baptist churches independently operate 7 Baptist high schools in as many
9
Data obtained directly from the Adventist Church’s Union of Conferences.
500
cities, and a dozen schools. All Baptist high schools enrol students belonging
to one or more different Christian denominations.
Besides relatively numerous theological high schools for seminarians and

other church staff, the Roman-Catholic Church operates a few schools
and non-theological high schools and one vocational high school for social
workers.10 The Greek-rite Catholic Church also runs non-theological
denominational high schools in Bucharest and Oradea.
There are two private Islamic schools, established specifically to cater

to Muslim children: the elementary Crescent School (with teaching in
Romanian and/or Arabic), and the Jordanian Ar-Rahman primary and
secondary school, with teaching in Arabic.
II.3. According to the New Law on Education, private schools in Romania

must meet the same criteria and standards – down to the same performance
indicators – as public schools. Under Art. 65(8), the curricula in private
schools are the same as in public schools, i.e., the national curricula
approved by the Ministry of Education. However, the new Law introduces
a novel option in this respect, which was absent from the previous legal
arrangement: alternative curricula for private education (which must also
secure an approval from the Ministry). Also, Art. 60(6) states that “The
State shall support and coordinate private and denominational education...”
As with other matters pertaining to the 2011 Law, the impact of the option
to draft alternative curricula for schools will only become apparent over the
coming years. As of this writing, the curricula in all private schools, including
denominational ones, are still the same as in public schools, i.e., based on a
national standard.
Under Art. 9(5) of the (old) 1995 education law, all private (including
denominational) schools had to comply with the general provisions applying
to educational curricula, for which the Ministry of Education held the
primary responsibility (under Art. 13(3)). Under Art. 105 of said law, the
curricula of private schools had to meet the same criteria (including criteria
concerning the organization of educational processes, size of study groups
etc.) as those in public schools, and had to be approved by the Ministry of
Education. Given the markedly centralized nature of Romanian primary
and secondary education, a guiding principle of which has been that every
student everywhere in the country should study in very similar institutions
very similar things at very similar times,11 these restrictions have not raised
10
Data for each of the 6 Roman Catholic (arch)dioceses is available at http://www.
catholica.ro/biserica-romano-catolica/.
11
While efforts have been recently made towards decentralization, including more
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Liviu Andreescu
special problems as far as religious discrimination is concerned. Most

significantly, in the design of RE curricula and textbooks used in public as
well as denominational schools, the Ministry of Education has systematically
deferred to the denominations.
Indeed, if there is any concern with respect to RE, it is the reverse of that
suggested by the question: the Ministry of Education does not control
enough the teaching of Religion in public schools. As currently taught, RE
betrays an educational approach that is at odds with modern educational
philosophies, and in some cases (frequently in Orthodox textbooks, but
occasionally also in Catholic ones) is disparaging of other denominations or
religious traditions (see below).12

school
III.1. Under Art. 12(2) of the 1995 education law denominational schools
were exempted from the provision prohibiting discrimination on religious
criteria in education.13 That is to say, these schools could in principle
discriminate in admissions on the basis of religious faith. However, such a
stipulation no longer exists in the new Law on National Education. This may
or may not be due to the fact that under the 2011 Law all schools, public and
private, non-denominational as well as confessional, receive basic funding
from the state. This being said, the implications of the absence of such a
stipulation cannot be determined until the relevant case law arises.
Nonetheless, even under the previous arrangement, which exempted

denominational schools from the non-discrimination clause, many
denominational schools accepted children of a different religious persuasion
room for institutional choice in curricular matters, so far decentralization has

remained mainly theoretical.
12
See Enache, Smaranda et al. (2007), Educatia religioasa in scolile publice (Religious
Education in Public Schools), Targu-Mures, Pro Europa; Moise, E. (2004), ‘Relatia
stat-biserica in privinta educatiei religioase in scolile publice din Romania’ (‘Church-
state relations from the perspective of RE in Romanian state schools’), Journal for
the Study of Religions & Ideologies, 7, pp. 77-100; Stan, L. and Turcescu, L. (2005),
‘Religious Education in Romania’, Communist and Post-Communist Studies, 38.3,
pp. 381-401.
13
Art. 13(2): “The organization and contents of education may not be structured on
the basis of exclusivist and discriminatory criteria, be they ideological, political,
religious, or ethnic. The educational institutions established to respond to religious
and linguistic needs, in which the teaching is in accordance with the choices of parents
or legal guardians, are not considered structured on the basis of exclusivist and
discriminatory criteria.”
502
than the one of the governing church (see II.1 and II.2).
III.2. As discussed above, denominational schools were, until 2011,

expressly exempted from the clause mandating non-discrimination in
education. No such express exemption exists now, but it is difficult to predict
how this will affect the freedom of religiously-affiliated schools to impose
quotas on pupils from other religious faiths, especially in the new context of
public funding for all schools. In the view of this author, it is likely that this
will not pose a significant practical problem in the near future.

course
Since the teaching of Islam is not a particularly relevant or pressing problem

in Romania at this moment, the questions under IV will be addressed in the
context of all religious denominations (Islam included).
IV.1. While establishing that all students who are members of recognized
denominations shall be provided with RE classes in their faith, the new Law,
unlike the old one, is completely silent on the exemption of denominational
schools from the non-discrimination clause (see III.2). In other words, it
appears that denominational schools will not be free to discriminate in
admissions based on faith. This suggests that denominational schools (e.g.,
Catholic) will be obligated to offer RE classes in, for example, Islam to
Muslim students upon their request. More will be known when relevant case
law builds up.
As to the minimum number of students required for RE classes, as discussed

under I.1 this is a problematic matter. A Ministry of Education Order dated
2005 (no. 19283) specifies that the obligation of schools to provide RE is
conditional on the existence of a group of 10 students of the relevant faith,
yet the Order also admits of groups consisting of 7 pupils “under special
circumstances”. In practice, RE classes have occasionally been organized for
even smaller groups.
This numeric condition is not mentioned in the new Law. On the contrary, Art.
18(1) establishes that all students “who belong to state-recognized religious
denominations are ensured, irrespective of their number, a constitutional right
to attend Religion classes”. Nonetheless, Art. 18(2) stipulates immediately
thereafter that the general average grade is computed without the Religion
grade in the case of “students for whom the conditions necessary for the
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Liviu Andreescu
attendance of Religion classes could not be ensured.” Also, Art. 32(4) of the
Religious Freedom Law sets out that, upon request, “in the situation where
the school cannot provide teachers of religion who are members of the
denomination”, students may produce evidence of religious studies provided
by their church. As a result, it appears that schools may comply with the
law even if, despite the relevant requests, they do not provide RE classes to
minority students – at least if they can prove that they were not able, despite
their best efforts, to secure the requisite teachers.
IV.2. Since the applicable laws (particularly, the Law on National Education
and the Religious Freedom Law) guarantee RE only to the 18 recognized
denominations, there is no obligation to offer RE classes in other faiths or
alternative classes in other philosophical worldviews – in either private or
public schools.
Ever since it was first offered in public schools in 1990, religious education
has been strongly confessional in nature and not offered as part of a system
of elective subjects; this is what is meant by RE being “part of the core
curriculum”. There are and have been no alternatives to Religion, whether on
religious or moral or philosophical issues or not, and systematic efforts have
been made by schools to enrol students in this subject (e.g., registration by
default, absence of an alternative option, administrative pressure, RE classes
placed in the middle of the schedule a.s.o.). This is, in fact, part and parcel
of the philosophy guiding the organization of RE in Romania, the main
justification for which is not educational (introducing students to religious
and philosophical issues, perhaps with a focus on their own religious faith),
but confessional (providing churches and parents with an opportunity to
ensure catechetical instruction).
IV.3. Question. Can you shortly mention the pro and contra standpoints
that have been expressed concerning the respect of fundamental rights
(among others, freedom of education and right to education) in relation
with this obligation?
Generally, debates on the nature of RE have revolved around two issues:

their quasi-mandatory status and the substance of what is taught (also see
“Additional comments”). As currently organized, RE has been accused of
being incompatible with freedom of religion and conscience, as exhibiting
a fear- and punishment-based educational philosophy (mainly in the case
of Orthodox Religion), and as painting an unfavourable image of other
denominations and faiths.
In relation to the “quasi-mandatory” status of religious education, it has

been observed that, though in theory a subject from which withdrawal is
504
permitted, RE is in practice difficult to avoid for a number of reasons, among

which:14
(a) the confusing wording in the original 1995 education law (thereafter
amended) and in a Constitutional Court decision of the same year (no. 72
of 18 July 1995), which defined RE as “compulsory” – a label which has
stuck (for example, until recently the website of the Romanian Orthodox
Patriarchate referred to RE as a “compulsory subject”);
(b) the puzzling status of RE, which is part of the core curriculum (the
nationwide set of compulsory school subjects), although attendance is
optional;
(c) the documented systematic peer, teacher, and administrative pressures
on students of all faiths and of no faith to study Religion, sometimes even
the religion of a faith which was not even nominally their own;
(d) other widespread arrangements favouring RE (Religion classes are
typically placed mid-schedule, grade inflation in RE is rampant, there are
no formal alternatives to RE, registration in RE classes is by default and a
formal request is needed to withdraw).
As for the contents of religious education as currently taught, RE has been

considered catechetical in style and substance15 and at odds with modern
educational philosophies. The moral outlook espoused in Orthodox RE
textbooks particularly has been described as based on fear and retribution,
and as frequently presenting other religious groups – the Evangelical
denominations especially, but also Greek-rite Catholicism – in a strongly
unfavourable light. Furthermore, changes have been made to other (secular)
subjects in order to bring them in line with a religious worldview (e.g., the
Ministry of Education simultaneously eliminated the theory of evolution
from biology curricula and the section on “God” from philosophy curricula).
IV.4. See section above and “Additional Comments”.

V.3. Since the teaching of Islam is currently not a particularly pressing

problem in Romania, all the questions under V are addressed together below.
First, it is important to point out that most of the Muslims in Romania are of
Turkish and Tatar descent (including Turkified Tatars) and that, furthermore,
they are members of traditional (historical), officially recognized “national
minorities”. In this latter capacity, they benefit from, among others, education
14
Enache et al., op. cit.
15
Stan and Turcescu, op. cit., p. 395.
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Liviu Andreescu
in their language, which is organized either in public schools with teaching

in the mother tongue or in special classes with teaching in the minority
language. Like all acknowledged denominations, Muslims have access to
religious education in public schools in their own faith. Equally importantly,
most Muslims (some 80 percent) are concentrated in the Dobrogea region.
This is significant because it means that it is easier to organize religious
education classes teaching Islam in public schools, whether elementary
or lower- and upper-secondary. As a result, there has been no significant
need to establish private denominational schools for Muslim children in
the areas where the majority of these children are located. The rest of the
Muslim community, consisting mostly of immigrants, already operates its
own private educational institutions, some accredited and some not (such as
those in Bucharest).
Moreover, wherever there are sufficiently many Muslim children (around 7)

to organize an Islamic RE class in a public school, the latter is obligated to
provide this service (or to acknowledge religious education provided in other
environments). Last but not least, as a (mostly) historical ethno-religious
minority, the Muslims have not usually – in communist and post-communist
times – been the subject of adversity from other traditional religious
groups, as has been the case with the Evangelical churches or the Jehovah’s
Witnesses. More recently, concerns have been occasionally expressed over
Islamic fundamentalism in Romania, but this is still far from reaching the
status of a public issue comparable to what is happening in Western Europe.
Once again, the nature of the Muslim community in Romania – a traditional
ethno-religious community without a fundamentalist tradition, with many
non-theistic members and strong Turkish connections – and of its religious
leadership (particularly a moderate Mufti)16 are most likely responsible for
this state of affairs.
As far as the question of guidelines for the teaching of Islam is concerned,

as with every other religious denomination there are national RE standards
with which all public and private schools must comply. A part of these
standards is confession-specific and established by the Ministry of Education
in cooperation with each relevant denomination – and so far the former has
systematically deferred to the latter. Indeed, the textbooks used in schools
must be jointly approved by the leadership of each denomination and the
Ministry. In other words, the official representatives of each cult, the Muslim
Denomination included, closely control religious education in their faith,
with little substantive interference from the state.
16
For example, after the Danish cartoons scandal the Mufti of the Muslim Denomination
invited his followers to exercise restraint; and, unlike the head of the ROC, he stopped
short of explicitly condemning Salman Rushdie’s visit to Romania on a book tour.
506
VI.1. Religious symbols are allowed in Romanian public schools – and, in

fact, Eastern Orthodox icons but also Christian crosses more generally
are virtually ubiquitous. There is no provision on this issue in the Law on
National Education just as there was none in the old education law. In spite
of a 2006 resolution by the National Council for Combating Discrimination
to the effect that religious symbols may only be displayed in public schools
during RE classes (see below), schools have remained in practice free to
decide whether they will display such symbols or not. Furthermore, there is
no formal procedure for such decisions; symbols are commonly placed on
school premises by individual teachers, students, or parents, often without
official or explicit approval from the school.
In Romania the Supreme Court set aside a decision of the National Council
for the Prevention of Discrimination of 21 November 2006 recommending
to the Ministry of Education that it should regulate the question of the
presence of religious symbols in publicly run educational establishments
and, in particular, authorise the display of such symbols only during
religious studies lessons or in rooms used for religious instruction. The
Supreme Court held in particular that the decision to display such symbols
in educational establishments should be a matter for the community formed
by teachers, pupils and pupils’ parents (11 June 2008; no. 2393).
VI.2. The wearing of Islamic headscarves does not constitute a problem

and does occasionally occur in areas with a substantial Muslim minority
(but mostly in Bucharest, with immigrant Arabs and Kurds, rather than in
Dobrogea). Dress code in public schools is a matter for the school’s decision
and is often relatively liberal, so adding a headscarf would not be considered
a violation.
VI.3. Same as above.
VI.4. Dress code in public and private schools is decided by the school. The
Law on National Education does not contain any stipulations on this matter,
which is regulated through lower-level instruments.
VI.5. To the knowledge of this author this issue has not been raised (although
Romania as a very active National Council for Combating Discrimination
which receives numerous complaints on all sorts of issues). As of this writing,
a headscarf would not be considered contrary to a school’s dress code. Such
codes are never that restrictive.
VI.6. As noted, it is the school which takes such decisions.
507
Liviu Andreescu
VI.7. N/A.
VI.8. In the matter of religious displays, a complaint was lodged in 2006

with the National Council for Combating Discrimination by professor and
religious freedom activist Emil Moise, who alleged (inter alia) that such
displays constitute a form of discrimination on the basis of religion and
conscience.17 The Council found with the plaintiff, underlining that the
presence of crucifixes and other religious iconography is permitted only
during religious education classes, and ordered the Ministry of Education
to pass an order to that effect. The Ministry refused to comply. The NCCD
decision was appealed in two separate cases. In the first, the High Court of
Cassation and Justice overturned the Council’s decision. In the second, the
Bucharest Court of Appeals upheld the NCCD decision and, since this ruling
was not appealed, it is now binding. Therefore there are, at present, two final
court decisions in Romania concerning the display of religious icons in public
schools – and they contradict each other. Mr. Moise has complained to the
ECtHR after the High Court decision and is currently awaiting an answer.
As far as the Islamic headscarf is concerned, so far this has not been an issue in
Romania. Teachers wearing headscarves may and do teach in public schools.
The only complaints I am aware of in this respect are that sometimes militant
Islamic women wearing headscarves in public institutions are allegedly
regarded with suspicion – but they have not been subjected to vilification,
harassment, or exclusion.

VII.1. Not typically, assuming the question concerns denominational

schools belonging to other religious schools. This is most likely because there
is no such demand (the relevant ethno-religious communities have their own
public and private schools – see above), and because religious instruction
received in the church is recognized for school purposes.
17
See Andreescu, G. and Andreescu, L. (2010), ‘The European Court of Human
Rights’ Lautsi Decision: Context, Contents, Consequences’, Journal for the Study of
Religions & Ideologies, 9.26, pp. 47-74; Horváth, G. and Bakó, R. (2009), ‘Religious
Icons in Romanian Schools: Text and Context’, Journal for the Study of Religions and
Ideologies, 8.24, pp. 189-206.
508
VII.2. Yes: in public and private schools where there is sufficient demand,
as well as in Turkish-language public and private schools and other schools
belonging to the various Muslim communities.
VII.3. Same as above.
VII.4. N/A.
VII.5. N/A.
VII.6. N/A.
VII.7. As absent (not an issue).
As far as the author of these lines is concerned, the main problems arising in
connection with the place of religion in Romanian schools chiefly pertain to
the organization of religious education and the presence of religious symbols
in public educational institutions.
As currently organized, RE is catechetic, that is, it aims to impart religious

beliefs rather than to educate about a variety of religious doctrines and
religious history, about relevant moral and political issues, or about pertinent
philosophical and lifestyle questions. Not only do religious curricula fail to
conform to broader educational goals, it is the latter which have been tailored
to fit confessional beliefs (e.g., the elimination of the theory of evolution from
biology curricula and of the section on God from philosophy curricula; the
teaching of a variety of creationist or young-earth theories during RE classes
as the scientific truth). In part as a result of this by now two-decade old
system of religious instruction, recent sociological surveys have identified a
worrying lack of basic scientific knowledge among Romanians.18
Furthermore, religious education is organized in such a manner that, despite

a formal possibility to request an exemption, such an act is systematically and
actively discouraged. Not only has RE been formally defined as “obligatory”
for a number of years, but it has been labelled as such by the majority
church for more than a decade, and is still believed to be so by a majority
18
Vlasceanu, Lazar et al. (2010), Stiinta si societate: Interese si perceptii ale publicului
privind cercetarea stiintifica si rezultatele cercetarii. Raport de cercetare (Science and
society: Public interest in and perception of scientific research and findings. Research
report), Bucharest.
509
Liviu Andreescu
of teachers.19 Pupils are enrolled in Religion classes automatically and need

to file a special request in order to obtain an exemption. Numerous cases of
pressure from administrators and other teachers to enrol in RE have been
documented through the years.
The question of religious symbols in public schools – both crucifixes and

(mostly Eastern Orthodox) icons – is directly relevant to the matter above,
as the religious impregnation of schools constitutes a direct pressure on
students to attend Religion classes. Many public classrooms used for teaching
a variety of subjects are virtually wallpapered with religious symbols.
Not only may these symbols offend the sensibilities and convictions of
some religious minorities (e.g., those who consider the worship of images
inappropriate) and of non-religious or atheist students and parents, but they
convey the general idea that schooling and religion are closely connected,
and that religious ideals must inform and even govern educational ones.
XI. Bibliography
•• Andreescu, G. and Andreescu, L. (2010), ‘The European Court of

Human Rights’ Lautsi Decision: Context, Contents, Consequences’,
Journal for the Study of Religions & Ideologies, 9.26, pp. 47–74.
•• Andreescu, L. (2008), ‘Romania’s New Law on Religious Freedom and
Religious Denominations’, Religion, State & Society, 36.2, pp. 139–161.
•• Enache, Smaranda et al. (2007), Educatia religioasa in scolile publice
(Religious Education in Public Schools), Targu-Mures, Pro Europa.
•• Horváth, G. and Bakó, R. (2009), ‘Religious Icons in Romanian Schools:
Text and Context’, Journal for the Study of Religions and Ideologies, 8.24,
pp. 189–206.
•• Moise, E. (2004), ‘Relatia stat-biserica in privinta educatiei religioase in
scolile publice din
•• Romania’ (‘Church-state relations from the perspective of RE in
Romanian state schools’), Journal for the Study of Religions & Ideologies,
7, pp. 77–100.
•• Stan, L. and Turcescu, L. (2005), ‘Religious Education in Romania’,
Communist and Post-Communist Studies, 38.3, pp. 381–401.
•• Vlasceanu, Lazar et al. (2010), Stiinta si societate: Interese si perceptii ale
publicului privind cercetarea stiintifica si rezultatele cercetarii. Raport de
cercetare (Science and society: Public interest in and perception of scientific
research and findings. Research report), Bucharest.
19
See Enache et al., op. cit., chapter 3.3.
510
The Place of Religion in Education in the Russian
Federation
Maria Smirnova*

I.1. Both in primary and secondary education in state-funded schools

religious instruction cannot be introduced into the compulsory part of the
curriculum, i.e. in the federal educational standard.
Article 14 of the Russian Constitution1
1. The Russian Federation is a secular state. No religion may be established
as a state or obligatory one.
2. Religious associations shall be separated from the State and shall be equal
before the law.
Federal Law on Education2 Article 1.5.
Any religious activity in state-owned and local public educational
establishments, as well as in regional and local educational authorities, is
prohibited.
Article 5 of the Federal Law on the Freedom of Conscience and Religious

Associations3
Everyone is entitled to receive religious education of own choice in individual
or collective manner. Upbringing and education of children are carried out by
their parents (or their legal substitutes) with the view of the child’s freedom
of conscience. Religious organizations are entitled to act as founders of
educational institutions according to their charters. Upon parental request
and with the child’s consent administration of state-owned and local public
schools enables a religious organization to conduct extra-curriculum religion
classes, subject to the local authorities’ agreement.
I.2. As stated above, a religious component of a certain religion in compulsory

education, i.e. in the federal educational standard, cannot be introduced due
* Federal Center for Educational Legislation, Russia

1
Adopted at National Voting on December 12, 1993, officially published in Rossiiskaya
Gazeta newspaper as of December 25, 1993.
2
The Federal Law on Education No. 3266-1 of 10 July 1992 (as amended by the Federal
Law No. 121-FZ of 17 June 2010), hereinafter referred to as “Law on Education”.
3
Federal Law on the Freedom of Conscience and Religious Associations No.125-FZ
of 26 September 1997 (as amended by the Federal Law No. 160-FZ of 23 July 2008).
511
Maria Smirnova
to Constitutional guarantee of secularity. Nevertheless, certain attempts were

made lately by Russian Orthodox Church and the Ministry of Education and
Science to introduce “Basics of Orthodox Religion” (later changed to “Basics
of Orthodox Culture”) as a compulsory discipline in all public schools.
Since the late 90-ies this initiative brought about heated discussions among
teachers, politicians and civil society leaders, as well as serious concern of
parents. After a series of research on the history and culture of Orthodox
religion in education the Ministry of Education and Science issued a letter No.
03-1584 of 13 July 2007 addressed to regional educational administrations,
enclosing a standard cooperation agreement to be concluded with the
regional branch of Russian Orthodox Church with a view to “form integral
outlook and conception of Orthodox culture as an important area of Russian
and worldwide culture, develop a spiritual and ethical approach in education,
and elaborate the pedagogical tradition in the system of education”.4
Later on, despite the contradictions of the supporters and opponents of

the religious-oriented compulsory discipline, a Concept of introducing the
“Basics of Orthodox Culture” discipline into the new part of state secondary
education standard “Spiritual and Ethical Culture” was approved at a
dedicated conference with official participation of Ministry of Education
and Science representatives.5 Several textbooks on the new discipline
were collectively written by clergymen, not by educational specialists, and
approved by the Ministry. The main requirement for such approval was a
lack of statements that could be used as an argument to prove superiority or
dominance of any religion. The course was therefore renamed as “Basics of
Religion and Secular Ethics” and approved as a compulsory part of the state
standard since 1 April 2010. It includes 6 separate modules allowing the
children and/or their parents to choose either Orthodox, Islam, Buddhist, or
Jewish culture basics, or either an overview of all world-spread religions, or
secular ethics.
II.1. No, due to the guarantees of separation of the church and the state.
II.2. Yes. According to Data from the Unified State Register of Legal
4
Letter of Ministry of Education and Science No. 03-1584 of 13 July 2007 On sending
a standard cooperation agreement to be concluded between regional educational
administrations and a centrally-controlled religious organization. // Official
Documents on Education, No. 31, 2007.
5
The Resolution of the Conference was published on the official website of Ministry
of Education and Science as of 26 December 2007 // http://mon.gov.ru/press/
reliz/4376/
512
The Place of Religion in Education in the Russian Federation
Entities of the Federal Revenue Service6 there are 14 068 Russian Orthodox
educational institutions including around 200 in Moscow.7
Orthodox educational institutions traditionally include Sunday schools

and Orthodox gymnasiums for children and higher Orthodox educational
institutions - for ministry-oriented professionals. These educational
institutions are established either by religious organizations – churches,8 or
by individuals.
Strictly speaking Sunday schools are not considered educational institutions

by Russian legislation, for they do not issue any certificates or diplomas and,
therefore, are not subject to obtaining a license.9 Sunday schools aim to tell
children, usually in an easy and narrative form, the basics of religion, teach
them the main commandments and how to strengthen in faith. They bear
more cultural approach than educational.
In opposition to a Sunday school, an Orthodox gymnasium is an educational

institution of general education. It normally has a license and operates just
like a common primary, secondary or high school. It may be state-accredited
and carry on the educational activity according to the federal standard of
general education, while adding supplementary religious disciplines and
maintaining overall Orthodox-oriented atmosphere, including appropriate
appearance, collective prayer, manifestation of religion by pupils and
teachers, abstentious meal, etc. If the gymnasium does not obtain a state
accreditation, its students may graduate with a state-recognized high school
certificate from any secular state-accredited high school.
Once state-accredited, an Orthodox gymnasium may apply for state funding

on common basis.
According to Data from the Unified State Register of Legal Entities of the
Federal Revenue Service10 there are 223 Islamic educational institutions
including 106 Madrasahs (arab.: “a place to learn”).
Madrasahs for children are not considered educational institutions if they do
6
Data from the Unified State Register of Legal Entities of the Federal Revenue Service
as of 21 May 2010 http://egrul.nalog.ru/fns/index.php
7
Official list of Moscow Sunday schools http://www.voskresnayashkola.ru/index-
spisok.html
8
Religious organizations are entitled to establish educational institutions provided the
Federal Law on the Freedom of Conscience and Religious Associations article 18.2.
9
Regulations on Educational Activity Licensing as approved by Government Decree
No. 277 of 31 March 2009, article 2.
10
Data from the Unified State Register of Legal Entities of the Federal Revenue Service
as of 21 May 2010 http://egrul.nalog.ru/fns/index.php
513
Maria Smirnova
not issue any certificates or diplomas.
Data from the Unified State Register of Legal Entities of the Federal Revenue
Service as of 21 May 2010 http://egrul.nalog.ru/fns/index.php
Official list of Moscow Sunday schools http://www.voskresnayashkola.ru/

index-spisok.html
II.3. State funded denominational schools are prohibited by Russian

legislation. As for private denominational schools, they are subject to regional
and local control as are any non-denominational private schools. There’re no
additional areas of control for religious instruction in such schools.

school
III.1. State funded denominational schools are prohibited by Russian

legislation.
According to the Law on Education article 16.1.1. “Enrolment regulations of

any educational institution are defined by the founder of the institution and are
fixed in the charter of the institution. Enrolment regulations of both state-funded
and local-funded educational institutions of general education and vocational
training must ensure enrollment of all children residing on a certain territory and
are entitled to obtain education of the mentioned level”.
As for private denominational schools, they are entitled to issue their own
enrolment procedures, complying with the general provisions of the Law on
Education.
Therefore, private schools are not obliged by law to admit all of the residents
of a certain territory regardless of their religious beliefs. A denominational
private school may accept enrollment regulations allowing the principle to
refuse a pupil’s application on the basis of his or her religion.
III.2 See above.

course
514
IV.1. As long as there are no state funded denominational schools in Russia,

all privately owned religious schools are of a single confession. Therefore, a
Catholic private school will not open an Islamic class and vice versa.
Non-denominational public schools may introduce classes of a certain

religion only within the framework of the “Basics of Religion and Secular
Ethics” compulsory course or as an extra-curriculum non-compulsory
activity.
According to the Law on Education article 7.1. “In Russian Federation federal
state educational standards are set forth, outlining the compulsory requirements
for the basic educational programs of general education, professional training,
higher and postgraduate education, executed by the state-accredited educational
institutions”.
According to the Law on Education article 29.1.5.2. “Regional authorities of

the federal subjects of Russian Federation are entitled to participate in working
out of the model basic educational programs of a certain level and specialization
(including regional, ethnic, and cultural peculiarities) on the basis of federal state
educational standards”.
Considering the possibilities of the newly introduced “Basics of Religion

and Secular Ethics” compulsory course, any public school may organize
classes of Islamic education upon request of an unspecified number of
parents. However the initiative of introducing Islamic religious component
in schools (both compulsory and facultative) more often comes from the
religious community.
For example, in traditionally Islamic regions of North Caucasus the “Basics of

Islam” is taught as an elective course in public schools within the framework
of the regional component of the basic educational program, based on the
federal state educational standard since 2005.11
IV.2. The situation is the same for other main religions.

The course “Basics of Religion and Secular Ethics” includes 6 separate
modules allowing the children and/or their parents to choose either
Orthodox, Islam, Buddhist, or Jewish culture basics, or either an overview of
all world-spread religions, or secular ethics.
IV.3. The compulsory course “Basics of Religion and Secular Ethics” is the
consensus-based result of a very long and hard dispute over both the name
and the contents of the course, as well as its obligatory status.
11
Article in the Rossiyskaya Gageta http://www.rg.ru/2005/01/12/islam-anons.html
515
Maria Smirnova
It includes: basics of orthodox religion, basics of orthodox culture, spiritual

and ethical culture, to end with basics of religions and secular ethics.
The fiercest discussion surrounded the first version of the course – “Basics
of Orthodox Religion”, later renamed as “Basics of Religion and Secular
Ethics” (without major changes). In general terms this discussion represents
the concentrated concern of the basic rights, including the right to education
and the freedom of conscience:
Pros Contras
The course “Basics of Orthodox Religion” Russia is a country of religious diversity, people
doesn’t provide religious instruction, but is a practice many different religions and the intro-
source of cultural knowledge. duction of a certain religion-oriented compul-
sory course will be a certain breach of the fun-
damental freedom of conscience of the children
practicing other religions.
The Constitution guarantees the principle of Russian Orthodox Church has no border to
separation of the church and the state. Howev- stop at in the idea of penetration in the state
er, most of public schools in Russia are funded educational system.1 Accepting the “Basics of
by the local authorities, that do not belong to Orthodox Religion” course will be followed by
the state power, as clearly stated by the Consti- expansion of this course in terms of both depth
tution. School teachers do not have the status and theology, and then – by adding religious as-
of state civil servants. Therefore, religious in- pects to all school disciplines.
struction may be introduced in locally-owned
public schools.
Despite the presence of different national and Introduction of the “Basics of Orthodox Reli-
ethnic groups, the majority of population (ap- gion” compulsory course without consulting
prox. 80 %) are Russians. Therefore, getting to children and their parents as well as most of the
know the culture and religion of the titular eth- teachers leads to rejection and opposition, ac-
nic group is the step to reduce intolerance and companied with violent behavior.
violence through understanding.
IV.4.
- Verbatim report of the press-conference “Basics of Orthodox Religion”
as a concept of life and creativity” (http://scepsis.ru/library/id_525.html)
- The full text of the textbook of the compulsory course “Basics of Religion
and Secular Ethics” (http://www.pravmir.ru/osnovy-pravoslavnoj-
kultury-%E2%80%93-polnyj-tekst-uchebnika/)
- “Basics of Orthodox Religion” in Wikipedia (http://ru.wikipedia.org.)
- The letter by 10 academicians (short of “Open letter from the Members
of the Russian Academy of Sciences to the President”) is an open letter
to the President of the Russian Federation in which 10 notable scientists
express their concern about rapid clericalization of Russian society. It
was published on July 22, 2007 (http://scepsis.ru/eng/articles/id_8.php,
English)
- List of textbooks on the “Basics of Orthodox Religion” (http://
ru.wikipedia.org/wiki/
516
- Parliamentary texts are not available, because the decisions were made on
executive, not legislative level.

V.3. As stated above regardless of the initiative, as long as there are no state
funded denominational schools in Russia, all privately owned religious
schools are of a single confession. Therefore, the answers concern only
private religious schools. Teaching Islam or another religion in an Orthodox
private school is impossible, while doing so in a state-owned or local public
school within the framework of the state standard, namely the “Basics of
Religions and Secular Ethics” compulsory course, is possible on the equality
basis. Therefore, there is no guideline explaining how to propose teaching
Islam in Orthodox school, however, there are general guidelines on choosing
one of the six modules of the course.
As demonstrated by the experience of several of experimental regions,

parents’ choice of the modules ranges as follows12:
Parental choice of the modules of the “Basics of Religions and Secular
Ethics” compulsory course
Secular ethics: 14646 (58,2%)
Overview of all world-spread religions: 5417 (21,5%)
Orthodox culture: 4804 (19,1%)
Islam culture: 231 (0,92%)
Buddhist culture: 26 (0,1%)
Jewish culture: 22 (0,1%)
Russian Orthodox Church is a very powerful and wealthy organization in

Russia, what makes it hard to maintain the basic constitutional principle
of secularization. Participations of Russia’s chief executives in the main
Orthodox celebrations heavily covered by mass media, as well as their public
meetings with the Church leaders are negatively referred to by most Russians
(74 % of respondents),13 who do not believe in genuine religious feelings
expressed on public, but rather consider such behavior as political publicity.
12
As reported by the Federal Educational Portal, http://www.edu.ru/index.php?page_
id=5&topic_id=3&date=&sid=11613&ntype=nuke and http://www.edu.ru/index.
php?page_id=5&topic_id=3&date=&sid=13138&ntype=nuke
13
Public Opinion Foundation Database. “State and Religion”, results of national urban
and rural opinion poll, 7-8 April 2001 // http://bd.fom.ru/report/cat/cult/rel_rel/
religion/dd011431.
517
Maria Smirnova
All these political actions, therefore, prove obviously ineffective, for absolute
majority of Russians (53 % of respondents) believe that the Church and the
State must remain separated.
The issues of religious education in a secular country with no officially

recognized state religion but with ideological, cultural, and ethnic diversity
remain sharp and up-to-date and should be provided with adequate and
consistent legal groundwork. The public outrage accompanying any
measures concerning religious and ideological aspects of education should
also be taken into consideration.
Russian educational system ensures the right to education for everyone,

despite religious beliefs. Public schools and professional educational
institutions established by federal, regional, or local authorities must be
kept ideologically and politically neutral. The federal educational standard
must not contain any statements, describing any religion as having
dominance above the others, or being an absolute truth. At the same time,
various disciplines equally outlining the basics of wide-spread religions
and cultures may be introduced in the federal educational standard. The
overall atmosphere of a secular educational institution is normally tolerant
to believers, but doesn’t ensure his or her special religious needs. Religious
reasons for opting out the compulsory educational process are generally not
considered sufficient.
Privately-owned schools and professional educational institutions may

be established by individuals and/or by legal bodies, including religious
organizations, churches. Private schools may either introduce religious
disciplines in addition to the compulsory educational component according
to the Federal standard, or provide totally religion-oriented education.
Professional religious (ecclesiastical) educational institutions aim at
preparation of priesthood and clergy of a certain religion. State-accredited
ecclesiastical educational institutions issue qualification diplomas equivalent
to a university or non-university professional degree.
The freedom of choice is legally guaranteed to all parents, who decide to

provide either secular or religious education to their children according to
their own beliefs and cultural traditions of the region. As long as Russia is
proclaimed a secular state, a balance must be maintained between the right
to education and the freedom of conscience, both guaranteed by Russian
Constitution.
518
XI. Bibliography
••Russian Constitution, Adopted at National Voting on December 12, 1993,

officially published in Rossiiskaya Gazeta newspaper as of December 25,
1993.
••Federal Law on Education No. 3266-1 of 10 July 1992 (as amended by the
Federal Law No. 121-FZ of 17 June 2010).
••Federal Law on the Freedom of Conscience and Religious Associations
No.125-FZ of 26 September 1997 (as amended by the Federal Law No.
160-FZ of 23 July 2008).
••Letter of Ministry of Education and Science No. 03-1584 of 13 July 2007
On sending a standard cooperation agreement to be concluded between
regional educational administrations and a centrally-controlled religious
organization. // Official Documents on Education, No. 31, 2007.
••Regulations on Educational Activity Licensing as approved by Government
Decree No. 277 of 31 March 2009, article 2.
••Basics of Religions and Secular Ethics course official portal, Russian
http://www.prosv.ru/umk/ork
••Federal Educational Portal, Russian http://www.edu.ru
••Nikolai Mitrohin “Clericalism in Education in Russia: On Public
Discussion on Introducing of the “Basics of Orthodox Religion”
as a compulsory course in secondary schools”, http://krotov.info/
history/21/1/2006mitrohin.htm
1 Nikolai Mitrohin “Clericalism in Education in Russia: On Public Discussion

on Introducing of the “Basics of Orthodox Religion” as a compulsory course
in secondary schools”, http://krotov.info/history/21/1/2006mitrohin.htm
519
The Place of Religion in Education in Slovakia
Daniela Drobna*

I.2. Despite the fact that religion was not accepted in state doctrine of
the socialist regime before 1989, there was the Church department at the
Ministry of Culture of the Slovak Socialist Republic which dealt with church
matters at the national level, it controlled way of religion services and paid
operation costs as well as salaries of registered churches . The religion
education was not a part of curricula at primary and secondary, neither
tertiary education institutions during socialist regime.
Situation in Slovakia in terms of religion and free expression of belief has
been changed after the ´Velvet revolution´, the fall of iron curtain and
totalitarian regimes in all countries of Central and Eastern Europe.
From 1989 there were evident various problems depending on the particular
sectors in the state. In the beginning of nineties there was very important
for the educational sector to establish new- more democratic institutions, to
set up new pedagogical objective and trajectories, to start with the reform
process in educational area, changes in curricula, in the methodology of
teaching and learning, initial and in-service training of teachers and open
the opportunities to give chance to children and their parents to decide on
religion instruction being potentially placed directly at school.
Slovak constitution (1992)1 and the following legislation i.e. the Concord
with the Vatican, signed in 2003 and the Agreement of all registered churches
with the state, signed in 2004 – creates a legal basis for the cooperation
between the state and churches in the provision of Religious Education. The
churches have the right to educate the whole range of generations via
a) church education in church parishes;
b) establishing their own schools;
c) teaching religious education to all children that are registered for this
subject by their patents, in public schools;
d) influencing young generation via leisure/out of school activities.
* PhD. Faculty of Political Sciences and International Relations, University of Matej

Bel in Banska Bystrica
1
Constitution of the Slovak Republic No. 466/1992 Coll. has entered into force on the
1st of October 1992, the complete version is available at : http://www.vop.gov.sk/en/
legal_basis/constitution.html
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Daniela Drobna
In the Article 24 of the Slovak Constitution there is expressed that freedom of

thought, conscience, religion and belief shall be guaranteed. This right shall
include the right to change religion or belief and the right to refrain from a
religious affiliation. Everyone shall have the right to express his or her mind
publicly. In general it means that everyone has the right to manifest freely his
or her religion or belief either alone or in association with others, privately or
publicly, in worship, religious acts, maintaining ceremonies or to participate
in teaching. Churches and ecclesiastical communities shall administer
their own affairs themselves; in particular, they shall establish their bodies,
appoint clericals, provide for theological education and establish religious
orders and other clerical institutions independent from the state authorities.
In the Constitution there is also mentioned that exercise of rights may
be restricted, but only by a law, if it is regarding a measure necessary in a
democratic society for the protection of public order, health and morals or
for the protection of the rights and freedoms of others.
Nowadays the practice in Slovakia is that there are two parallel alternatives for
all children in public schools: Religion Education (further on RE)and Ethical
Education (further on Ethics). At the level of lower secondary education (age
10 - 15) and the first two years of the upper secondary education level (age
15 - 17) the choice of the families between these two alternative subjects for
their children has been compulsory. At the beginning both RE and Ethics
were electives in the early primary years (age 6-10) and the last years at the
secondary school (age 17 - 19). According to the School Act from 2004 the
compulsory choice between RE and Ethics applies already to the primary
level (age 6-10). In the last two school years at the secondary level RE lessons
are still voluntary. Until 2008 the number of RE lessons used to be one lesson
per week. Since 2008 when the new school reform started to take place the
state education programme guarantees only one lesson once in two weeks.
More lessons can be added according to the particular school education al
programme which reflects more freedom for any given school. Each school
can decide in close cooperation with wider community, parents, teachers,
representatives of local employer organisations, public authorities and other
stakeholders on more flexible educational programme of a specific school.
Religious education (RE) in Slovakia has always been confessional. It has
been focused primarily on teaching into a specific religious confession. It has
always resembled the way of teaching religious education in church schools
and even the church catechesis in parishes. For years the Slovak curricula of
religious education have been aiming to develop children’s involvement in a
certain, just Christian denomination – nowadays they can practically choose
from Roman Catholic, Greek Catholic, Lutheran, Orthodox or Reformed
religious education. But also there are very rare exceptions (in cities) when
the school decided to fulfil children’s spiritual needs by a wider and more
general approach to religion. Anyway, the children in Slovak schools are
expected to learn their faith not only cognitively, but mainly “from inside“.
522
The partial aims are to develop children’s inner religiosity, their personal
relation to God through Jesus Christ, not only on cognitive but as well non-
cognitive dimension of acquiring Christian faith, on the experiential learning
about God and the Bible, on the positive concept of truth, etc. This approach
requires the implementation of a wide range of adequate cognitive, affective
and expressive teaching methods. The teachers, though paid from the state
budget, should be members of a certain denomination. The evidence of it is a
canonical commission from their own church who they represent.
From 2009 there are available syllaby and national standards for Roman
Catholic, Greek Catholic, Lutheran, Orthodox or Reformed religious
education which have been prepared by expert teams and these documents
serve as the pedagogical tools for teaching and learning religion at all
leveles of primary and secondary education.2 In the educational area “Man
and valueô we can find except above mentioned four curches also Ethics.
Parents and their children are allowed to choose either Ethics or one of the
churches as the specific subjec related to values which might be the part of
the competences of human being in the nowadays societies
II.3. Education and training at clerical and private schools and

school facilities that may be established by the churches or religious
communities recognized by the state, or by another legal entity or natural
person: Education obtained in these schools is equivalent to the education
provided at other schools and tuition can be charged. The goal of clerical and
private schools is to provide, in addition to quality education and training,
alternative content, methods, and formats in education and training.
The financing of regional education is established on normative

principles, with the goals of :
- introducing a normative system of financing per student,
- changing the centralized system of financing to a two-level decentralized
system,
- motivating founders to more effectively use existing capacities and financial
sources,
- introducing multi-source financing of regional education,
- supporting equality of all school founders.
2
National standards and description of educational framework are composed in so
called national educational programme which can be used for the further development
in school educational programmes. All subjects are composed in educational areas.
There are as follows: Language and communication, Math and the work with
information, Man and nature, Man and society, Man and value, Man and the world
of labour, Art and culture and Health and movement . The detailed information is
available at : www.statpedu.sk but unfortunately not in English.
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Daniela Drobna
Budget chapters of the Ministry of Education of the Slovak Republic

finance apply to:
- all schools regardless of their founder,
- school facilities within the foundation scope of the Regional Education
Office
Since January 1, 2005, the school facilities within the foundation scope of
municipalities and VÚC are financed via share taxes in terms of the Act No.
564/2004 Coll. and regulation of the government No. 668/2004 Coll. and
since January 1, 2007, the school facilities within the foundation scope of
clerical and private founders financed via share taxes in terms of the Act No.
596/2003 Coll. As amended3.
Public authorities can control the teaching in state funded denominational
schools especially regarding the quality of teaching process, progression of
pupils and other issues determined by the law in state-funded denominational
schools. The main body responsible for this is State school inspection State
School Inspection in the Slovak Republic has been set by law on the 1st
January 2000.
The State School Inspection (further on SSI) is independent in its work
and acts in accordance with laws and other valid legal norms, acts and
decrees, especially Act No 596/2003 . The school inspectorate supervises
and observes the quality of education and it is responsible for evaluating
the quality of school management, the teaching and learning process, the
material and technical conditions including practical training in schools and
other educational facilities.
SSI registrated headquarters are situated in Bratislava and 8 regional SSI
centres which are the executive branches of the State School Inspection in
the Slovak Republic. SSI and its branches are financed from the budget of the
Ministry of Education.

school
III.2. Criteria for admission of pupils are approved by the school founder,
founder also determines number of pupils who will be admitted..
Denominational schools are regulated by the legislation of specific church
(church acts and decrees) as well as by public educational legislation.
According to the Act on state administration in education and school
autonomy and the Act on financing schools from 20034 the co-governing
3
The Act No. 596/2003 on State administration in education and school autonomy
4
The Act No. 597/2003 on financing primary and secondary schools and educational
facilities, the Act No. 179/2009 on the changes in financing denominational schools
from public sources
524
body is also school governing board which can be established also at the
denominational school and can contribute to the methodology of school
admission - criteria and number of pupils for the schooling. The second act
and its amendment is very closely related to the methodology of financing
the denominational schools from public sources .In fact in Slovakia there is
no separation of state and church and some disparities between financing of
public and private/denominational schools are deepened.

V.3. In Slovakia there are either general, or even specific guidelines for
teaching of Islam in denominational or public schools. Community of
Muslims is however small in Slovakia. Those living in Slovakia established
Islamic foundation in Slovakia. They act as a confessional organization of
Muslims and provide space to all Muslim people in the country including
converted Slovak citizens. The foundation is financed from its own sources.
Main activities of Islamic foundation in Slovakia are related to the religion:
it organizes worships, increases knowledge about Muslim community in
Slovakia, informs about Islam, and alike. The foundation operates its own
internet web page, organizes cultural activities, works with the Slovak media,
helps applicants for asylum from Muslim countries, and cooperates with the
initiative People against racism.
Muslims in general do not have in Slovakia enough space for practising
of their religion education and services. They do not have a mosque in the
whole country, only in Bratislava (the capital of the Slovak Republic) are
some rooms to the disposal in the building which serves to other occasions.
Islam is not registered church in Slovakia. According to existing national
legislation only in case of at least 20000 members of the given church there
is possible to achieve approval for building up own temple. As in Slovakia
lives approximately (according to unofficial information) 7000 Muslims,
they do not have their own temple. At present there is initiative to decrease a
number of believers up to 10000.
VI.8. No religion symbols are used in public schools. The same is valid
regarding demonstration/manifestation of faith, presentation of belonging
to any kind of belief, religion by using special wearing . Teachers are
considered as representatives of public authorities and they are obliged to
promote understanding of diversity and value for it.
525
Daniela Drobna

VII.7. Muslim community can organise its own Islamic teaching in leisure
of children in after school hours. They are not monitored by any public
authority because of freedom of expression religion.
We do not have official data on the number of children who take part in such
events.
XI. Bibliography
•• DROBNÁ,D. (2005)Author of the report in charge of Slovakia in:

EURYDICE Comparative stidy Citizenship education at school in Europe.
EURYDICE 2005. Brusssels. ISBN 92-894-9467-0
•• HANESOVÁ, D. (2001) Náboženská výchova v školách (Religious
Education in Schools). Banská Bystrica : PF UMB. 200 s. ISBN 80-8055-
494-3.
•• HANESOVÁ, D. (2005) Náboženská výchova v školách. 2nd revised
edition. Banská Bystrica : PF UMB, 2005. 212 s. ISBN 80-8033-121-1.
•• HANESOVÁ, D. (2008). Slovak Churches and Education after Collapse
of Communism. In Dynamizing Evangelical Witness in Post-Communist
Era. Praha : ECM, 2008, s. 15-34. ISBN 978-80-73656-019-5.
•• HANESOVÁ, D. (2008). The Educational Role of Church-maintained
Education in Slovakia after 1989. In
•• PUSZTAI, G. (ed.) Education and Church in Central- and Eastern-Europe
at First Glance : Region and education III (Régió és Oktatás III). Debrecen
: University of Debrecen, CHERD, 2008, s. 54-71. ISBN 978-96-3473-
102-3.
•• JURAN, J.: Religion in Slovakia. (2001). http://www.slovakia.
culturalprofiles.net/?id=-6841
•• http://www.eureca-online.org/en/news/index.html European
EducatorsĆhristian Association
•• http://www.islamweb.sk/stranky/start.html
•• http://www.facebook.com/IslamOnline.sk
•• http://www.minedu.sk/index.php?lang=en&rootId=29
•• www.statpedu.sk
526
The Place of Religion in Education in Slovenia
Blaž Ivanc*

I.1 Question: Religious instruction organised during the school hours

(in lower and in secondary education) in state funded schools. Is – and
if affirmative please refer to the provisions in the law (add the text
separately) – the teaching of religion in your country organised during
school time in public educational institutions: in primary education, in
Answer:
The question concerning the role of religion and religious education in public
schools has been and remains one of the most disputed issues in Slovenia.
Slovenia, together with Bulgaria, Ireland, Latvia, Lithuania, Romania and
Turkey, is among the countries where almost all pupils/students (98 % or
more) attend public institutions. Only 1.5 % of all educational institutions
are private institutions. Most of them are government - dependent (Source:
Eurostat, UOE; data extracted July 2008). The basis for the modern
Slovenian School Law is given by the relevant fundamental constitutional
provisions which regulate the education. The Constitution of the Republic of
Slovenia (hereinafter: the Constitution)1 in the Art. 57 ensures the freedom
of education and sets up a compulsory primary education, which is publicly
financed. The state has to create the opportunities for citizens to obtain a
proper education.2 Thus, the State has a duty to create the necessary legal
framework for the establishment and operation of private schools and to
recognize the public validity of an education obtained from private schools.
The prohibition of private schools would not be consistent with the notion
of a democratic society.3 In Slovenia, basic education (ISCED level 1 and
ISCED level 2) lasts 9 years and overlaps with compulsory education. The
* Assistant Professor, Pro-dean of the Faculty of Health Sciences, University of

Ljubljana, Slovenia
1
The Constitution of the Republic of Slovenia (1991).
2
Art. 57 of the Constitution: » (1) Freedom of education shall be guaranteed. (2)
Primary education is compulsory and shall be financed from public funds. The state
shall create the opportunities for citizens to obtain a proper education.«.
3
Šturm (2002), p. 582.
527
Blaž Ivanc
same institution (Grammar School) provides education in all 9 grades. The

structure of upper secondary education in Slovenia includes: general upper
secondary education (»gimnazija«), technical education and vocational upper
secondary education.4
The Organization and Financing of Upbringing and Education Act (hereinafter:

the Education Act)5 regulates the relations between public and private school
systems, the internal organization of schools and their financing.6 According
to the Education Act, religious communities may establish kindergartens
and schools under the same conditions as other private-law subjects. Private
educational institutions may be financed in two ways: they are either granted
licenses or financed directly under statute. In order to receive a license the
private school (or kindergarten) has to include itself in the public network
and execute only a public programme. Non-licensed private kindergartens,
private elementary and music schools and private general secondary schools
(but not also professional schools), which carry out public programs and
comply with statutory conditions, have the right to public funds to the extent
of 85% of the funds that the State or local community designates for salaries
and material costs per student in public schools.7
The status of religious instruction is first determined by the article 41 of

the Constitution, which provides for freedom of conscience and belief
(hereinafter: the right to religious freedom). The provision broadly protects
the freedom of self-definition and it refers not only to religious beliefs but
also to moral, philosophical and other worldviews. This article gives the
assurance of freedom of conscience (the positive entitlement), the right of
a person not to have any religious or other beliefs, or to not manifest such
beliefs (the negative entitlement), and the right of parents to determine their
children’s upbringing in the area of freedom of conscience.8 The Article 7
4
See Structure of Education System in Slovenia: http://www.eurydice.si/images/
stories/Diagram_Tatjana_Plevnik__1564.pdf
5
Organization and Financing of Upbringing and Education Act (Zakon o organizaciji
in financiranju vzgoje in izobraževanja), Official Gazette RS, Nos. 12/96, 23/96
- corr., 101/1999, 22/2000, 64/2001, 101/2001, 108/2002, 34/2003, 79/2003,
65/2005, 117/2005, 129/2006.
6
The Education Act is supplemented by the Kindergartens Act (Official Gazette RS,
No. 12/96 et seq.), the Primary School Act (Official Gazette RS, No. 12/96 et seq.)
and the Technical Education Act (Official Gazette RS, No. 12/96 et seq.).
7
Art. 86 of the Education Act. About transitional rules on funding of the private religious
schools and their staff that were granted licenses before adoption of the Education Act
and were/are provided with 100% state funding see detailed in: Šturm (2004), p. 632.
8
Art. 41 of the Constitution: » (1) Religious and other beliefs may be freely professed
in private and public life.
(2) No one shall be obliged to declare his religious or other beliefs.
(3) Parents have the right to provide their children with a religious and moral
528
of the Constitution of the Republic of Slovenia9 enshrines: (1) the principle

of separation of the state and religious communities, (2) the principle of
equality among religious communities, and (3) the principle of free activity
(autonomy) of religious communities within the legal order.10
Statutory provisions concerning the status of religious instructions are

enshrined in Chapter XI. of the Education Act. The chapter has only one
article (Art. 72) that regulates the “Autonomy of School Premises”. The
stated provision is highly controversial, because of imposed prohibition of
not only religious teaching, but also of any other kind of denominational
activity in public schools and kindergartens. The Paras. 3 and 4 of Art. 72 of
the Education Act (as first enacted by the National Assembly) determined
as follows:
“(3) Denominational activities are not permitted in public kindergartens and
schools or in licensed kindergartens and schools.
(4) Denominational activities determined in the previous paragraph of this
article encompass:
- religious lessons or denominational religious lessons aimed at raising
students in that religion,
- lessons in which a religious community decides on the substance, textbooks,
teachers’ education and the suitability of individual teachers for teaching,
- organized religious rites.”
From the relevant statutory provision follows that the Legislator did not first
regulate the manner of ensuring the positive aspect of religious freedom
and consequently introduced also some limitations or measures in order
to protect the negative aspect of religious freedom (e.g.: the prohibition of
mandatory attendance of religious lessons; the organization of religious
lessons to be organized prior to the beginning of or after lessons so that the
students who do not want to take part in such lessons may uninterruptedly
leave etc.).11 On the contrary, the Legislator not only embraced the idea of
French secular school (l’école laïque)12 or the United States of Americas’
model,13 but surpassed them by introducing an ultra-strict model of
separation of religion and state/school, which is quite different from that
upbringing in accordance with their beliefs. The religious and moral guidance given
to children must be appropriate to their age and maturity, and be consistent with their
free conscience and religious and other beliefs or convictions. «
9
The Constitution of the Republic of Slovenia (1991); Para. 1 Art. 41.
10
Art. 7 of the Constitution: » (1) The state and religious communities shall be separate.
(2) Religious communities shall enjoy equal rights; they shall pursue their activities
freely. «.
11
Umek, S. (2004) p. 22.
12
Detailed about the notion of Läicité and the current development towards a Läicité
nouvelle: Robert, J. and Duffar, J. (1996), p. 552.
13
Kodelja, Z. (1999), p. 153.
529
Blaž Ivanc
of the majority of European countries where the laws guarantee religious

instruction within the framework of the public school.14
In the case Mihael Jarc et al. No. U–I–68/98 (November 2001) the Court
reviewed the question of whether the provisions of the Education Act
interfere with the positive aspect of the freedom of religion15, the principle
of equality16, the right of parents17 and the right to free education18.
The Court first declared that the general prohibition of denominational
activities in public schools19 is not inconsistent with the Constitution and
the ECHR. The only inconsistency with the Constitution is the prohibition
of denominational activities in licensed kindergartens and private schools in
regard to the denominational activities which take place outside the scope
of the execution of a valid public program financed from State funds.20
The Court instructed the National Assembly to remedy the established
inconsistency in a time limit of one year and the Legislator consequently
changed the provision of the Art. 72 of the Education Act by allowing the
licensed kindergartens and schools to carry out denominational activities
which take place outside the scope of the execution of a public service.
The Principle of Separation vs. the Right to Religious Freedom
The Court first acknowledged that the Constitution »does not specially
regulate denominational activities in (public and licensed) schools, which
means that it neither prohibits nor requires such…«. This would (rightly)
suggest that the matter was left to be regulated by the Legislator. However,
the Court then argued that the general principle of the separation of the
State and religious communities (on the basis of which the State is bound
to neutrality, tolerance and a non-missionary manner of operation)21 means
that in the school area the religious content cannot be part of public lessons
(i.e. neither part of lessons in a public school, nor part of teaching in the
framework of the public service of a licensed private school). For the Court,
14
Judge of the Constitutional Court F. Testen in his separate opinion stressed that:
“Ultimately also the traditionally lay-oriented France allowed e.g. the founding of
vicariates in public (secondary) schools, and the U.S. Supreme Court ordered the
New York public school district to enable a student group to organize on the premises
of the public school outside school hours meetings for students to pray and study the
Holy Bible. In these countries school premises as State symbols were not thereby
given religious connotations.” See the decision of the Constitutional Court Mihael
Jarc et al. No. U–I–68/98.
15
Para. 1 Art. 41. of the Constitution.
16
Art. 14 of the Constitution.
17
Para. 3 Art. 41. of the Constitution and Art. 2 of Protocol No. 1 to Convention for the
Protection of Human Rights and Fundamental Freedoms.
18
19
Para. 4 Art. 72 of the Education Act.
20
Para. 3. Art. 72 of the Education Act.
21
530
teaching of religion in as well as by public schools would be intolerable.
As a consequence of the Courts’ initial standpoint a dilemma regarding the

criterion for review turned up: whether the principle of separation should be
interpreted in the light of the right to religious freedom or is the main criterion
for review the right to religious freedom, (which ought to be interpreted in
the light of the principle of separation).22 Since the constitutional right to
religious freedom is one of few most hierarchically protected rights and
unconditionally protected constitutional values (it may in no case be abolished
and it can only be limited under very strict conditions),23 there should not have
been any doubt that it cannot be outranked by to the principle of separation.
Thus, the Court’s above mentioned conclusion could not be deduced from
the principle of separation alone. However, as the main criterion for judicial
review of the general prohibition of denominational activities in public
kindergartens and schools served the principle of separation.24
In reviewing the provision prohibiting the denominational activities

in public kindergartens and schools the Court did refer to the right to
religious freedom, but failed to make a consistent test of proportionality,
which includes a careful and profound balancing between the positive
and the negative aspect of the right to religious freedom. In the Courts’
argumentation prevailed strict interpretation of the principle of separation,
which pushed aside a full-scale balancing of both constitutionally protected
aspects of the right to religious freedom;
»According to Art. 41.2 of the Constitution, citizens have the right not
to declare their religious beliefs and to require that the State prevent any
forced confrontation of the individual with any kind of religious belief. A
democratic State (Art. 1 of the Constitution) is, on the basis of the separation
of the State and the Church (Art. 7 of the Constitution), obliged in providing
public services and in public institutions to ensure its neutrality and prevent
one religion or philosophical belief from prevailing over another, since no
one has the right to require that the State support them in the professing
of their religion. To reach this goal it is constitutionally admissible that
the State takes such statutory measures as are necessary to protect the
negative aspect of freedom of religion and thereby realize the obligation
of neutrality. … Furthermore, the interference with the positive aspect of
freedom of religion cannot be considered inappropriate as thereby the forced
22
Orehar Ivanc, M. (2000), p. 48.
23
Art. 16. of the Constitution.
24
Judge Tresten opposed to the selected mode of review (Para. 1 Art. 7 of the
Constitution) insofar as it referred to the premises of public kindergartens and schools.
In his opinion, in the case of licensed kindergartens and schools, the freedom of the
founders of these schools to profess the religion should also have been considered as
a necessary criterion for review.
531
Blaž Ivanc
confrontation of non-religious persons or persons of other denominations

with a religion they do not belong to can be prevented. This interference is
also proportionate, in the narrow sense of the word, in so far as it relates
to the prohibition of denominational activities in public kindergartens and
schools. These are namely public (State) institutions financed by the State
and are as such the symbols which represent the State externally and which
make the individual aware of it. Therefore, it is legitimate that the principle
of the separation of the State and religious communities and thereby the
neutrality of the State be in this context extremely consistently and strictly
implemented. Considering the fact that a public kindergarten or a public
school do not represent the State only in carrying out their educational
and upbringing activities (public services) but also as public premises, the
principled prohibition of denominational activities does not constitute an
inadmissible disproportionality between the positive aspect of the freedom
of religion and the rights of parents to raise their children in accordance with
their religious persuasion on one hand and the negative aspect of freedom of
religion on the other hand.«
However, in reviewing the general prohibition of denominational activities

in licensed kindergartens and schools which take place outside the scope
of the execution of a valid public program financed from State funds, the
Court relied on the right to religious freedom as the main criterion for
review. In order to determine a proper balance between the negative and
the positive aspect of religious freedom the Court now carried out the test
of proportionality more accurately. According to the Constitution, human
rights and fundamental freedoms are limited only by the rights of others
and in such cases as determined by the Constitution.25 The Court reviewed
whether the interference, as enacted by the Education Act, with the positive
aspect of the freedom of religion (conscience) of an individual and the right
of parents is admissible to ensure the protection of the constitutional rights
of others. The Court stressed that:
»in reviewing proportionality in the narrow sense we must weigh in a
concrete case the protection of the negative aspect of the freedom of religion
(or freedom of conscience) of non-believers or the followers of other
religions on one hand against the weight of the consequences ensuing from
an interference with the positive aspect of freedom of religion and the rights
of parents determined in Art. 41.3 of the Constitution on the other. There is
no such proportionality if we generally prohibit any denominational activity
in a licensed kindergarten and school. By such prohibition the legislature
respected only the negative freedom of religion, although its protection,
despite the establishment of certain positive religious freedoms and the
rights of parents to provide their children a religious upbringing, could as
25
532
well be achieved by a milder measure.«
For the Court, teaching of religion in licensed schools as a matter of principle

is tolerable. However, teaching of religion by licensed schools is only being
tolerable in the case it is not performed in the scope of public service.
However, the legislator decided that teaching about religion should not be
entirely set aside. The provision of the article 17 of the Primary School Act
determines that the subject Religions and Ethics has to be included into
the primary school curriculum as a mandatory optional subject. According
to the provision every school is obliged to offer the subject as an optional
subject, but its realization basically depends on the number of applications.
A pupil may decide to take the subject Religions and Ethics in last three years
of grammar school. Also in the area of upper secondary education the subject
Religions and Ethics remains an optional subject (having totally 15 hours
per year). Churches and religious communities do not have any influence on
the content or the execution of the mentioned subjects.
In the 2006/07 school year, the optional subject Religions and Ethics was
taught in 65 out of 447 primary schools and was attended by 1,774 pupils.
Forty primary schools taught the subject Religions and Ethics in one of the
three classes of the last triennium, 18 primary schools in two of the three
classes, and in 7 primary schools in all three classes. Religious content is
also learnt in mandatory subjects, such as Slovenian language, history, civic
education and ethics, geography, fine arts and foreign languages.26
I.2. A non-confessional subject Religions and Ethics enshrines all major

religions and worldviews. The emphasis is on the dominant or traditional
religion (Christianity).
II.1. In Slovenia denominational schools can only operate as private schools.

Private schools, which are set up by private entities (e.g. Churches or other
religious communities) and provide education according to state approved
programmes, are subsidised by the state (according to the article 85 of the
Education act the grant rate is approximately 85 % for non-licensed private
schools; licensed schools receive full funding). In the school year 2009/10,
there were 849 compulsory schools of which three were private (two Waldorf
schools, one Catholic). In the area of upper secondary education there were
136 public and 6 private schools.27 In 2009 only 468 pupils out of 161.805
26
Movrin, p. 23.
27
Source: Http://eacea.ec.europa.eu/education/eurydice/documents/eurybase/
national_summary_sheets/047_SI_EN.pdf
533
Blaž Ivanc
were enrolled in primary school with regular curriculum (Source: Statistical

Office of the Republic of Slovenia). Despite the poor numeric importance
of state funded (denominational) private schools, the Education act in the
provision of the article 87 provides that the state funding should stay, if the
existence of the only public school in the school district is endangered by the
enrolment of pupils to the private school.
Islamic schools have not yet been established in Slovenia.
Http://eacea.ec.europa.eu/education/eurydice/documents/eurybase/
national_summary_sheets/047_SI_EN.pdf
http://www.stat.si/
II.2. See answer above.
II.3 The School Inspection has the power to control the teaching in state
funded denominational schools.28

school
III.1 The head of a licensed (this is fully state funded) denominational school
does not have the right to refuse pupils from other religious beliefs. The
pupils have to be enrolled according to the article 48 (para. 1) of the Primary
School Act, that determines that enrolment of pupils is of mandatory nature.
The bill does not regulate the situation when a pupil or his/her parents
oppose to the declared educational programme of a denominational school.
A non-licensed private school is not obliged to enrol a pupil (last paragraph
of the article 48 is an exception from the first para.).
III.2. See answer to the question no. III. 6.

number of pupils requesting it) and alternative ethical course
IV.1. The School bills do not impose a legal obligation to organise (if parents
ask for) classes of Islamic religion in denominational schools. In licensed
denominational schools such classes would be contrary to the article 72 of
28
See articles 2 and 12 of the School Inspection Act (http://www.uradni-list.si/1/
objava.jsp?urlid=199629&stevilka=1827).
534
the Education act, if they would take place inside the scope of the execution
of a public service. Thus, statutory provisions do not regulate a minimal
number of pupils etc.
IV.2 The issue of regulating the same obligation in respect of other religions
and/or philosophical convictions or an alternative class of conception of life,
philosophy, ethics, is not addressed by the statute, which is inadequate.
IV.3 The Education act and its provisions on religious instruction reflect
mainly the views of libertine thinkers that were in favour of strict separation.
E.g. the Catholic Church was not in favour to move religious instruction
from parish to school, but demanded that instruction in religion should be
acknowledged as an optional subject. The Catholic Church was in favour of
the subject Religions and Ethics and it is critical, because the subject is not
provided for on the national level.
IV.4.
http://zakonodaja.gov.si/
The National Assembly:
http://www.dz-rs.si/index.php?id=69

V.3. No sufficient data to provide an answer.
VI.1. The public school law does not enshrine specific provisions that
regulate religious symbols at public schools. The article 72 of the Education
Act prohibits organized religious rites (e.g. religious service) in public schools
and does not address other manners of religiously motivated behaviour of
pupils, teachers and staff.
VI.2. There are no specific provisions in the public school law concerning
religious garments at public schools. The statute deals with religious elements
within the framework of working conditions of teachers and other staff.
VI.3. There are no specific dress codes in public and private schools in
Slovenia. The issue is not legally regulated.
VI.4. See answer above.
VI.5 See answer above.
535
Blaž Ivanc
VI.6. There are basically two regulatory authorities that might engage in the
relevant issue: 1. the head of a school and 2. the Ministry of education. The
head has a certain field of autonomy (especially in the case of non-licensed
private school), but the School Inspection, being a special organ of the
Ministry of education, lacks concrete legal provisions that would regulate
dress code and its powers in this respect.
VI.7. No disciplinary measures and proceedings are foreseen by the school

legislation against a pupil or teacher that would fail to comply with the rules
on dress codes.
VI.8. At the moment there is no relevant case-law.
Concerning the religious instruction in public schools the legislator with

the provision concerning the “Autonomy of School Premises” (Art. 72. of
the Education act) opted for favouritism of the negative aspect of religious
freedom, which turned out to be a very elusive approach. It is a great tool to
run down the constitutional right of parents to determine their children’s
upbringing in the area of freedom of conscience.
XI. Bibliography
• Zdenko KODELJA, The Teaching about Religion at Slovene Public Schools,

The School Field, Vol. X, No. 3/4, 1999, pp. 153-158.
• Barbara NOVAK, Šola in otrokove pravice (The Schoool and Childs›
Rights), Zbirka Pravna obzorja št. 26, Cankarjeva založba, Ljubljana,
2004.
• Drago ČEPAR, Blaž IVANC (Eds.): Legal Aspects Of Religious Freedom
– Les Aspects Juridiques De La Liberté Confessionnelle, International
Conference, September 15 and 18, 2008 – Conférence International,
15 – 18 Septembre 2008, Office of the Government of the Republic of
Slovenia for Religious Communities – Bureau du Gouvernement de la
République de Slovénie des communautés religieuses, Ljubljana, 2008.
• Blaž, IVANC.: A values dilemma in Slovenian public school law: missed
balancing of negative and positive aspect of religious freedom in public
schools in: Secularism and Beyond : International Conference, May 29th to
June 1st 2007. Københaven: Københavns Universitet, 2007, http://www.
ku.dk/satsning/Religion/sekularism_and_beyond/pdf/Paper_Ivanc.pdf
• Gerhard ROBBERS (ed.), State and Church in the European Union,
Second Edition, Nomos, Baden-Baden, 2005.
• Jacques ROBERT and Jean DUFFAR, Drotis de L’Homme et Libertés
536
fondamentales, Editions Montchrestien E.J.A., Paris, 1996.

• Metoda OREHAR IVANC, Svoboda religije proti ločitvi države in religije
(Freedom of Religion against the separation of the State and Religion) in:
Lovro ŠTURM (ed.), Cerkev in država. Pravna ureditev razmerja med
državo in cerkvijo (Church and State. Legal regulation of the relationship
between the state and the church), Comparative survey, Nova revija,
Ljubljana, 2000, p. 17–49.
• Metoda OREHAR IVANC, Commentary on the Art. 41 of the Constitution
of the Republic of Slovenia) in: Šturm, L. (eds.), Komentar Ustave Republike
Slovenije (Commentary on the Constitution of the Republic of Slovenia),
Faculty of Post-Graduate State and European Studies, Ljubljana, 2002,
p. 444-459.
• Lovro ŠTURM, Church-State Relations and the Legal Status of Religious
Communities in Slovenia, Brigham Young University Law Review,
Number 2, Volume 2004, p. 607-650.
537
The Place of Religion in Education in South
Africa1
Johan Beckmann* and Rika Joubert** and Chaya Herman***

I.1. It is possible but not organised by the government and not as part of the
formal school curriculum. Schools are encouraged to make their facilities
available for such instruction to be undertaken by clergy or certified members
of the religious persuasion itself (National policy para 54 – 57)
I.2 Theoretically there is no limitation but permission (concurrence) from

the school governing body is necessary (SASA, sections 7 (the power of the
governing body to make rules for religious observances), 20(1)(c) (the power
to develop the mission statement (ethos) of the school), AND 20(1))k) (the
discretion to allow the reasonable use under fair conditions determined
by the Head of Department of the facilities of the school for educational
programmes not conducted by the school).
II.1. In 2008 366 201 (2.6%) of South Africa’s learners (at all levels including
higher education) were in independent schools compared to 11 873 162 in
public schools (84.1%)2
There are subsidised and funded schools. Sections 29(3) and (4) of the
Constitution read as follows:
“(3) Everyone has the right to establish and maintain, at their own expense,
independent educational institutions that-
(a) do not discriminate on the basis of race;
1
The authors thank Mr Paul Colditz and Dr Huw Davies for their invaluable assistance.
* Professor, Department of Education Management and Policy Studies of the Faculty
of Education, University of Pretoria, South Africa
** Professor, Department of Education Management and Policy Studies of the Faculty
of Education, University of Pretoria, South Africa
*** Department of Education Management and Policy Studies of the Faculty of
Education, University of Pretoria, South Afric
2
Department of Education. 2010. Education statistics in South Africa 2008. http://
www.education.gov.za/emis/emisweb/08stats/Education%20Statistics%20in%20
South%20Africa%202008.pdf, accessed on 14 November 2010.
539
(b) are registered with the state; and

(c) 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.”
In order to qualify to receive subsidies independent schools need to be
registered in terms of section 46 of the South African Schools Act, 1996
(which registration may be withdrawn in terms of section 47). Section 48
of the Act provides as follows regarding subsidies to independent schools:
(1) The Minister may, by notice in the Government Gazette, determine norms
and minimum standards for the granting of subsidies to independent
schools after consultation with the Council of Education Ministers and
the Financial and Fiscal Commission and with the concurrence of the
Minister of Finance.
(2) The Member of the Executive Council may, out of funds appropriated
by the provincial legislature for that purpose, grant a subsidy to an
independent school.
(3) If a condition subject to which a subsidy was granted has not been
complied with, the Head of Department may terminate or reduce the
subsidy from a date determined by him or her.
(4) The Head of Department may not terminate or reduce a subsidy under
subsection (3) unless-
(a) the owner of such independent school has been furnished with a notice
of intention to terminate or reduce the subsidy and the reasons therefor;
(b) such owner has been granted an opportunity to make written
representations as to why the subsidy should not be terminated or
reduced; and
(c) any such representations received have been duly considered.
(5) The owner of an independent school may appeal to the Member of the
Executive Council against the termination or reduction of a subsidy to
such independent school.
No doubt some of the independent schools are faith-based but statistics on

exactly how many of them are faith-based as opposed to e.g. language based
are hard to obtain. From figures on the websites of the Jewish Board of
Education, the Association of Muslim Schools and the Catholic Institute of
Education it is clear that numbers seldom exceed 100 and seldom go beyond
300 nationally seen.
On reading the question put forward in the questionnaire a South African

could tends to conceive of denominational schools as independent schools.
540
The Place of Religion in Education in South Africa
However, Colditz3 argues that faith-based (denominational schools) need

not be private or independent and he argues compellingly that most public
(State) schools are denominational as they are “entitled to have a particular
religious ethos but without exclusion or discrimination of or against non-
believers or adherents of other religions. The so-called Catholic schools
have all been declared public schools and most of them continue to exist on
private property.
Schools with a particular religious ethos are not necessarily denominational

schools but can be – as is the case with the Catholic schools. Most of the
Anglican schools that were transferred to the state during the 60’s and 70’s
of the previous century also continue to exist as public schools but with a
very close link with the Anglican church.
Very much the same applies to many Dutch Reformed and (presently) Uniting
Reformed Church and schools established by the Islamic community.”
In the rest of our responses we will try and reflect both possible interpretations
of denominational schools.
In summary then: there are funded public denominational schools and

subsidized independent schools. Viewed against this background, the
majority of public schools are probably denominational while some
independent schools may be subsidized by the state although the state is not
compelled to subsidize (fund) them.
II.2. It is very likely, considering the money that has to be spent on expanding
the public system.
If affirmative, what is the numeric importance of private schools: between 2
and 3%4
If affirmative, what is the numeric importance of Islamic private schools:
fewer than 100 country wide
See the websites of the education departments (www.education.gov.za;

the Jewish Board of Education; the Catholic Institute of Education, the
“Christelik Volkseie” (“Christian National” – authors’ translation) schools,
international Christian schools like the Accelerated Christian Education
(ACE) schools, etc
3
E-mail to J Beckmann 14 November 2010.
4
The Catholic Institute of Education, for instance, is associated with 353 schools
country wide.
541
II.3. Two comments, one from Davies and one from Colditz, will suffice
here:
Davies:
“The mechanism is that independent schools have to be registered with the
authorities and have to satisfy the registration requirements laid down by
them (see eg Ch 5 of SASA). Some of the provinces also have promulgated
provisions in their provincial education legislation and policies - these would
have to be studied, for there will be differences between them.
“From our experience a requirement is that schools follow an approved basic
curriculum - in the case of South Africa the National Curriculum Statement
- and they add to that their own denominational concerns.
“The Gr 12 examination [school-leaving high school exam (Gr 12)]for
those with secondary divisions can be an important restriction as they write
under the aegis of one of the 11 public exam bodies approved by Umalusi
[the national examinations quality assurance body] - the Independent
Examinations Board is also quite popular. “Some of the schools don’t write
local exams, others do both local and foreign ones. In some provinces it
seems as though there is some limited attempt to check on quality, in others
not at all.” …
“My view is that “control of content of teaching” by the state in subsidised
independent schools is not direct and is probably not very systematised.
On “control the teaching” one could refer to the SACE Act which in theory
requires all teachers no matter where employed to be registered with them
and subject to their disciplinary and professional codes. … Going by what
happens in public schools, I’m not sure that there is a thorough-going
application of that legislation in the independent schools either.”5
Colditz
Colditz maintains that section 6A(1-2) of SASA encapsulates the
government’s approach in this regard. These sections provide as follows:
1) The Minister must, by notice in the Government Gazette, determine-
(a) a national curriculum statement indicating the minimum outcomes or
standards; and
(b) a national process and procedures for the assessment of learner
achievement.
2) The curriculum and the process for the assessment of learner
achievement contemplated in subsection (1) must be applicable to public
and independent schools.
Davies and Colditz talk to the same issue and strategy but Davies provides
considerably more practical detail.
5
E-mail to J Beckmann, 16 November 2010.
542

school
III.1. Yes but unfair discrimination on religious grounds is not allowed

(section 9 of the Constitution and section 5 of SASA)
III.2. Only if discrimination as set out in 5 above is avoided. The religious

profile and distribution of religions in South Africa may this highly unlikely.

number of pupils requesting it) and alternative ethical course
IV.1. See above. Such instruction is not a part of the formal curriculum and
school programme.
The law requires equitable treatment but there are no numeric provisions in
this regard. The discretion of the governing body is moiré important than
numerical issues.
IV.2. These are covered under the term religion education which is explained
above. Religion education is a study of religions whether they be majority or
minority without favouring any faith.
IV.3. Government’s point of view is contained in the National policy that

this is not the school’s responsibility but that of the parents and the faith
communities. Article 7 of the Charter contends that every person has the
right to be educated or to educate their children, or have them educated, in
accordance with their religious or philosophical convictions.
It also asserts (article 7.1) that the state, including any public school, has the
duty to respect this right and to inform and consult with parents on these
matters. Parents may withdraw their children from school activities or
programs inconsistent with their religious or philosophical convictions.
Article 7.2 makes the point that every educational institution may adopt a
particular religious or other ethos, as long as it is observed in an equitable,
free, voluntary and non-discriminatory way, and with due regard to the
rights of minorities.
In article 7.3 the Charter says that every private educational institution
established on the basis of a particular religion, philosophy or faith may
impart its religious or other convictions to all children enrolled in that
institution, and may refuse to promote, teach or practice any religious or
other conviction other than its own. Children enrolled in that institution
543
(or their parents) who do not subscribe to the religious or other convictions
practised in that institution waive their right to insist not to participate in the
religious activities of the institution.
The only significant differences between the National Policy and the Charter
appear to be the following:
- The Charter’s assertion that parents have a right to be consulted – in

terms of the National Policy Religion Education is compulsory for all
learners
- Likewise the Charter maintains that a private school may refuse to teach,
practise or promote religious practices other than their own – this runs
contrary to the National Policy’s proposal of Religion Education.

V.1. We are not aware of such guidelines which would, in our opinion, be
unnecessary and superfluous given the guidelines emanating from the National
Policy, SASA and the Constitution and also from the functions and powers of
governing bodies of public schools and trustees of independent schools.
V.2. Not applicable.
V.3. Not applicable. If there were such guidelines, it is unlikely that they
would only refer to Islam.
Islam forms part of Religion Education.
XI. Bibliography
Some websites:
•• Catholic Institute of Education: http://www.cie.org.za/
•• Association of Muslim Schools of South Africa: http://www.ams-sa.
org/
•• South African Board of Jewish Education: http://www.sabje.co.za/
•• Association of Christian National Schools (“Christelik Volkseie Skole”):
http://www.bcvo.co.za/pages/skole.php
•• Department of Basic Education: http://www.education.gov.za/
Further reading:
•• Chidester, David (2008). Unity in Diversity: Religion Education and
Public Pedagogy in South Africa, Numen, 55 (2-3):272-299.
•• Chidester, David (2003). Religion Education in South Africa: Teaching
544
and Learning about Religion, Religions, and Religious Diversity, British

Journal of Religious Education, 25(4 ): 261 – 278.
•• Kumar, P. (2006). Religious Pluralism and Religion Education in South
Africa Method & Theory in the Study of Religion, 18(3):273-293.
545
Annex: the following statistics about South Africa are worth noting:
2010 population estimate 49 991 300
Distribution of religions %
Christianity 79.8
Islam 1.5
Hinduism 1.2
Judaism 0.2
Other beliefs 0.6
No religion 15
Undetermined 1.4
Annex 2: with regard to religion and education policy and law in

south africa refer to four concepts that are not synonymous and
should be distinguished:
A. Religious instruction
This term refers to instruction in a particular faith or belief in order to
inculcate that faith or belief (National Policy on Religion and Education
(Annexure C), par 54). In terms of policy it is not the responsibility of
the school and should be offered clergy or persons accredited by faith
communities and may nor form part of the formal school programme
(National Policy on Religion and Education, par 55). However the policy
(par 57) encourages the provision of religious instruction by religious bodies
and other accredited groups outside the formal school curriculum on
school premises, provided that opportunities be afforded in an equitable
manner to all religious bodies represented in a school, that no denigration
or caricaturing of any other religion take place, and that attendance at such
instruction be voluntary. Persons offering Religious Instruction would do
so under the authority of the religious body.
B. Religious studies (which is named “religion studies” in the

latest Revised National Curriculum Statement) (para 2.1 and 2.2
of Section 2 of the Curriculum and Assessment Policy Statement
(CAPS) (Annexure D)
The subject Religion Studies (Grades 10 to 12) studies religion as a universal
human phenomenon and the religions found in a variety of cultures. It
neither favours nor discriminates against any religion and does not promote
adherence to any particular religion. It is intended to lead to the recognition,
understanding and appreciation of a variety of religions within a common
546
humanity and also aims to develop religious literacy.

The subject contains the following four topics:
(i) Variety of religions
(ii) Common features of religion as a generic and unique phenomenon
(iii) Topical issues in society
(iv) Research into and across religions
The four topics of Religion Studies allow for specialisation in a specific

religion in Grade 12. Specialisation in a religion must come after the various
religions have been explored.
The subject has the following specific aims namely to:

(i) enhance the constitutional values of citizenship, human rights, equality,
freedom from discrimination and freedom of conscience, religion,
thought, belief and opinion;
(ii) develop the learner holistically, that is, intellectually, physically, socially,
emotionally and spiritually;
(iii) inculcate knowledge, skills and values necessary for the enrichment of
each learner, interpersonal relationships and an open and democratic
society;
(iv) equip the learner with knowledge and understanding of a variety of
religions and how they relate to one another; and
(v) equip the learner with knowledge and skills for research into religion
as a social phenomenon, and across religions as well as to relate and
systematise universal dimensions of religion.
C Religion education6
Religion education is part of a compulsory formal examinable learning area
of the curriculum (National Policy on Religion and Education (Annexure C),
par 42). It is a curricular programme for learning about religion, religions
and religious diversity in South Africa and in the world (par 17). It teaches the
common values that all religions promote such as tolerance, understanding
and the reduction of prejudice (par 18).
D Religious observances7
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 (National
6
Also see Wittmann v Deutscher Schulverein, Pretoria and Others, 1998 (4) SA 423
(T)
7
Ibid.
547
Policy on Religion and Education (Annexure C), par 58). Although such
religious observances take place on the school property, they are not part of
the official educational function of the public school (par 60).
School Governing Bodies are required to determine the nature and content
of religious observances for teachers and pupils. They may also determine
that a policy of no religious observances be followed. Where religious
observances are held, these may be at any time determined by the school,
and may be part of a school assembly. An assembly is not necessarily the
only occasion for religious observance, which may take place at other times
of the day, and in other ways, including specific dress requirements or dietary
injunctions. 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 (par 61).
Appropriate and equitable means of acknowledging the multi-religious

nature of a school community may include the following:
•• The separation of learners according to religion, where the observance

takes place outside of the context of a school assembly, and with equitably
supported opportunities for observance by all faiths, and appropriate use
of the time for those holding secular or humanist beliefs;
•• Rotation of opportunities for observance, in proportion to the
representation of different religions in the school;
•• Selected readings from various texts emanating from different religions;
•• The use of a universal prayer; or
•• A period of silence (par 62).
Where the segregation of pupils is contemplated, a school must consider and

mitigate the impact of peer pressure on children, and its negative influence
on the willingness of children to be identified as “different” (par 62).
A school assembly has the potential for affirming and celebrating unity
in diversity, and should be used for this purpose. Public schools may not
violate the religious freedom of pupils and teachers by imposing religious
uniformity on a religiously diverse school population in school assemblies.
Where a religious observance is included in a school assembly, pupils may
be excused on grounds of conscience from attending a religious observance
component, and equitable arrangements must be made for these pupils (par
63)..
548
The Place of Religion in Education in Sweden
Lars Friedner*

I.2. In Sweden, teaching of religion is organized during school time in

public educational institutions, in primary education as well as secondary
education1. It must be noticed, however, that the teaching is supposed to be
comprehensive and scientifically based. The education aims at teaching about
religions, but no religious instruction or confessional elements are comprised.
The education goal is to give the pupils a good knowledge of the main world
religions (Christianity, Islam, Judaism, Hinduism, Buddhism)2. At the time
of writing, there is an ongoing discussion concerning the importance that
should be paid to the different religions. The Government has just decided
on new curricula for the primary and secondary schools3, and the Minister
for Education has publicly criticized the proposals from the Swedish National
Agency for Education for not paying enough attention to Christianity4. Thus,
the decision from the Government has somewhat changed the proposal. As
an effect of the system where all the main religions are covered, there are
no possibilities for the pupils to choose between different directions of the
teaching about religions.
II.3. The school system in Sweden is based on the obligation for the
municipalities to organize primary, secondary, and upper secondary schools
for all children and youth5. Historically, the municipalities have taken their
*
1
This report focuses on the primary, secondary, and upper secondary schools. The
Swedish school system also contains other kinds of schools: pre-school classes, pre-
school activities, welfare for school children, Sami schools, special schools, schools
for the people with learning disabilities, upper secondary education for adults, and
Swedish for immigrants.
2
I.e. Ordinance on Curriculum for the Primary and Secondary School, the Pre-School
Class, and the Leisure-Time Centre, SKOLFS 2010:37 (Sw. Förordning om läroplan
för grundskolan, förskoleklassen och fritidshemmet)
3
Ibid.
4
www.regeringen.se
5
1:4 School Act, 1985:1100 (Sw. Skollagen); a new School Act (2010:800) will come
into effect on July 1; 2011, it contains the same order in 2:2.
549
Lars Friedner
responsibility through the running of public schools. In recent years, however,

there has been a development towards more private schools. This has been
made possible as the School Act states that the municipalities are obliged
to give, in principle, the same economic support to the private schools as to
the public schools6. A couple of these private schools are denominational7.
There is no public information available on the matter, but – as the financing
of schools follow the mentioned pattern – it is not likely that there are any
private schools which are not publicly funded8.
All schools within the school system – public as well as private – are supervised
by the Swedish Schools Inspectorate and are obliged to take part in the follow-
up and evaluation arranged by the Swedish National Agency for Education9.

school
III.2 A denominational school – or any private school – has no right to refuse

pupils of other conviction or to limit the number of them. The education
in every school has to follow the state decided curricula, which means
that the education should be comprehensive and scientifically based. If a
denominational school, beside the activities that are stated in the curricula,
as well has confessional elements, these have to be voluntary for the pupils,
so that pupils of other conviction can abstain10. It is obvious, on the other
hand, that parents who want to have their child in a denominational school,
normally prefer this school because of the conviction of the family.
IV – V. As already mentioned, the curriculum for religious teaching in private
as well as public schools is based on comprehensiveness. The curriculum
contains teaching regarding Islam, and such teaching shall take place in all
schools. There has been no public debate on the matter.
VI. Religious symbols are not compulsory in public schools. The question
6
9:6 School Act 1985:1100; new School Act (2010:800) i.e. 10:38
7
The statistics point out that 1.8 percent of the primary and secondary schools have a
religious aim and that 0.9 percent of the pupils attend such schools; the statistics do
not mention any upper secondary school as having a religious aim; although some
of the schools with a religious aim obviously have an Islamic direction, there are no
statistics measuring this; www.skolverket.se
8
Different churches and other religious communities have often some kind of
education for their child and youth members. But this is no part of the school system
with primary, secondary, and upper secondary schools.
9
2-3 §§ Ordinance on Instructions for the Swedish Schools Inspectorate, 2009:1215
(Sw. Förordning med instruktion för Statens skolinspektion); 26:3, 19, 24 new
School Act (2010:800)
10
1:6-7 new School Act (2010:800); although included in an act of Parliament at first
through the new School Act, this is the standpoint of the law already today.
550
The Place of Religion in Education in Sweden
whether they are allowed or not has not been raised. As the education in
the public schools is intended to be religiously neutral, the answer would
probably be no, if the matter was brought up.
So far, the question of a teacher in a public school wearing the Islam headscarf
has not been raised. Probably some teachers in Islamic denominational
schools wear headscarves, but the matter has caused no public debate.
It has been stated by the Swedish National Agency for Education that a pupil
is allowed to wear the Islam headscarf at school, at least in primary and
secondary schools, which are compulsory11. There is as well a statement
from the Agency concerning a pupil wearing a burqa, i.e. a totally covering
dress, or a niqab, i.e. a dress where only free space for the eyes is left12. The
Agency states that it is necessary that the teacher can see the face of each
pupil, so that the teacher is able to recognize if the pupil has understood
what the teacher has said. It is also necessary that the teacher can identify
the pupil, so that the teacher continuously can judge the pupil’s knowledge
of the subject13.
There is no official dress-code for Swedish schools, although some private
schools may have some kind of dress-codes. In the above mentioned
statements by the Swedish National Agency for Education the Agency makes
the question of how the pupils are dressed to a matter of order. If a pupil (or
a group of pupils) dress in a way that disturbs the order of the school, the
head-teacher is supposed to act for bringing order in the school, either by
prescribing general rules or by enforcing individual pupils to change their
behavior14.
A pupil, who does not follow general rules of the school or rules given to
him or her individually, shall be reproved by the teacher15. The teacher has
also the possibility of sending the pupil out of the class-room for the rest of
a lesson16. In the primary and secondary school, the teacher can contact the
pupil’s guardian or let the pupil stay in school extra hours after (or before)
the lessons17. In the upper secondary school, which is not compulsory, the
11
Decision May 22, 2006 by Swedish National Agency for Education, 52-2006:689
12
Writ October 23, 2003 by Swedish National Agency for Education, 58-2003:2567
13
Ibid; the Equality Ombudsman has at the time of writing just decided a case, where a
lady wearing a niqab was ordered to take it off, if she would attend an upper secondary
school for adults – on the other hand, the school decided that she was accepted to
continue her education, when waiting for a decision from the Ombudsman; the
Ombudsman concluded that she would not bring the case to court, as the lady
had been able to fulfil her education at the school (decision November 30, 2010,
2009/103).
14
58-2003:2567, 52-2006:689
15
6:9 Primary and Secondary School Ordinance, 1994:1194 (Sw.
grundskoleförordningen), 6:21 Upper Secondary School Ordinance, 1992:394 (Sw.
gymnasieförordningen)
16
Ibid.
17
6:9 Primary and Secondary School Ordinance
551
Lars Friedner
pupil can be reproved by the head-teacher. The head-teacher may also give
the pupil a warning18. There the pupil can as well be excluded from school for
a limited time or banished from the schools of the municipality1920.
Labour law measures can apply to a teacher who does not follow the
instructions given to him or her by the head-teacher or other management of
the school, just as it can apply to any employee.
VII. There is an ongoing debate in Sweden, whether a school breaking-up
ceremony can be held in a church, which has been a tradition in Sweden. The
position of the Swedish School Inspectorate is that a breaking-up ceremony
of a school may be held in a church as long as it has its focus on being
together and tradition and does not contain any elements of prayer, creed, or
benediction. Some municipalities have been criticized by the Inspectorate for
having accepted “confessional elements”21.
18
6:22 Upper Secondary School Ordinance
19
6:23 Upper Secondary School Ordinance
20
The new School Act, 2010:800, in effect from July 1, 2011, changes the disciplinary
measures to some extent: The measures are mostly the same in the primary and
secondary schools as in the upper secondary schools – reproving, sending the pupil out
for the rest of a lesson, extra hours, warning, and exclusion. There are also some new
possible measures – temporary replacing to another class and temporary replacing
to another school. The current disciplinary measure of banishing a pupil will not
exist any longer. If a pupil in the primary or secondary school, which is compulsory, is
excluded, it is necessary that the school in another way gives the pupil the education
he or she has a right to (5:6-20).
21
Decisions by the Swedish School Inspectorate, i.e. November 23, 2010 41-
2010:3865, July 29, 2010 41-2010:3833
552
The Place of Religion Under Education Law in
England
Neville Harris*

I.1. Religious education is compulsory as part of the ‘basic curriculum’ that

all state maintained schools in England and Wales must ensure is provided
to pupils up to the age of 16. Another part of the statutory basic curriculum
is the ‘National Curriculum’, which is separate from religious education.1
The content of religious education is determined locally, unlike the National
Curriculum which is mostly imposed by central government. Schools must
also organise a daily act of collective worship for pupils which (unless the
school has applied for exemption) must, most of the time, be ‘wholly or
mainly of a broadly Christian character’. Parents have a right to withdraw
their children from both religious education and collective worship.2 Since
2006, pupils in years 12 and 13 (known as ‘sixth form’, basically ages 16-18)
enjoy the right to withdraw themselves from religious worship at school.3
I.2. The opportunity to receive religious instruction in Islam at school will

depend upon a number of factors.4 Generally religious syllabuses (‘agreed
syllabuses’) used in community (ie non-denominational) schools will cover
a range of different religions, on the basis that it is considered desirable for
pupils to learn about other faiths or belief systems to those of their own
families or community groups. Guidance on this has been published in the
form of The Non-statutory Framework for Religious Education (2004). The
same approach is also often applied in voluntary controlled (Church of
England) schools as well, some of which will follow the same locally agreed
syllabus as the community schools.
In 2007 the inspection agency ‘Ofsted’ (the Office for Standards in

Education, Children’s Services and Skills) published a review of religious
education (RE) in schools other than voluntary aided schools. (Many of the
* Professor of Law at the University of Manchester, UK. neville.harris@manchester.

ac.uk
1
Education Act 2002, s.80.
2
School Standards and Framework Act 1998, s.71.
3
Ibid.
4
School Standards and Framework Act 1998, schedule 19.
553
Neville Harris
Roman Catholic schools are voluntary aided.) It found the standard of RE to

be generally good, but made the following rather critical comment:
“The curriculum and teaching in RE do not place sufficient emphasis

on exploring the changing political and social significance of religion
in the modern world. As a result, the subject’s potential to contribute
to community cohesion, education for diversity and citizenship is not
being fully realized.”5
The report says that as a result of the broader religious education

syllabuses now used, “many pupils had acquired have a new view of
RE’s importance in helping them to understand religious diversity
and develop respect and tolerance”. However, it also notes that “on
occasion… some parents have made requests to withdraw their child
from visits to particular places of worship or from learning about
specific religions”,6 suggesting that some parents are not sympathetic
to multicultural religious education.
The religious education curriculum in Roman Catholic voluntary aided

schools may also cover other relgions such as Islam, but this is not a legal
requirement. Religious education in these schools is usually based on the
trust deed for the school. A small number of voluntary aided schools are
Islamic or Jewish schools, which will have their own approved religious
education syllabus usually based on the school’s trust deed and will clearly
focus on their own religion.
In relation to all state schools, parents also have the right to make arrangements
for their children to receive religious education away from school, during
school hours, if they cannot reasonably conveniently attend another school
where religious educaiton of the kind the parent prefers would be provided.7
Although, in some non-Islamic schools which are voluntary aided, Muslim
pupils may be given the opportunity to receive Islamic education as an
alternative to Christian education, it will often be the case that they are
more likely to receive most of their Islamic religious education in the local
community.
II.1. Of 20,303 state-funded primary and secondary schools (including

academies) in England in 2010, 13,471 (66 per cent) were non-religious in
5
Ofsted, Making Sense of Religion Ref 070045 (London: Ofsted, 2007), p.7.
6
Ibid
7
School Standards and Framework Act 1998, s.71(3).
554
The Place of Religion Under Education Law in England
the sense that they had no religious affiliation.8 There were 6,832 schools
which were affiliated to a religion. The latter schools fall into different legal
categories which reflect and influence their arrangements for governance
and the degree of autonomy that their governing bodies enjoy. Among these
schools there is a preponderance of Church of England and Roman Catholic
schools: see the table below.
Table: Voluntary schools and religiously affiliated foundation primary and

secondary schools in the state sector in England (2005 and 2010)9
Religious affiliation Total number of schools 2005

Church of England 4,669 4,616
Roman Catholic 2,064 2,012
Methodist 26 26
Other Christian 81 121
Jewish 36 38
Muslim 5 11
Sikh 2 1
Other 2 2
II.2. There were 2,375 independent (non-state funded, private) schools in

England in 2010.10 They educate approximately 7% of the school population.
Among them are over 100 schools described as following Christian
traditions, approximately 60 Jewish independent schools and approximately
150 Islamic schools, varying widely in the number of pupils.11 There are two
Sikh schools in the independent sector and a small number of Hindu schools.
All independent schools, including Muslim schools, must be registered

in a register kept by the Secretary of State for Education and must ensure
that they meet the prescribed standards.12 Although independent schools
8
Department for Education, Statistical First Release, Schools, Pupils and their
Characteristics, January 2010 (Provisional), SFR 09/2010 (Department for
Education, 2010): http://www.education.gov.uk/rsgateway/DB/SFR/s000925/
sfr09-2010.pdf [accessed 21 April 2011]. .
9
Ibid table 2B and Department for Education and Skills, National Statistics, First
release, Schools and Pupils in England, January 2005 (Final), SFR 42/2005 (London:
DfES, 2005), table 8.
10
See note 6, table 2A.
11
Ofsted, Types of Independent Schools (Ofsted, 2011), at http://www.ofsted.gov.
uk/Ofsted-home/Forms-and-guidance/Browse-all-by/Other/General/Types-of-
independent-schools/(language)/eng-GB [accessed 21 April 2011].
12
Education Act 2002, Part 10; Education (Independent School Standards)
555
Lars Friedner
are not as fully regulated as those in the state sector, those not operating to
appropriate standards can ultimately be de-registered and forced to close.
(State schools are also subject to a range of sanctions if the quality of their
education is below standard, ranging from warnings to loss of budgetary
autonomy and even closure, although this is rare.)
Individual inspection reports on all schools, including Muslim schools,

whether private or state schools, are published by Ofsted (see I.2 above). A
review by this writer of a selection of these reports has found that most of the
schools have been praised by inspectors for the quality of their education and
the way that pupils are offered a broad social and cultural perspective. One
of the few criticisms, in a report on one school, is that “[w]hilst tolerance
and harmony between different cultures are promoted not all pupils are
provided with the opportunity to fully appreciate different cultures and
traditions because current arrangements are inconsistent”.13 However, a
general report by Ofsted in 2009 found that within the independent faith
schools which were surveyed –
“There was general agreement that young people should know about
the city in which they lived, the country and its institutions, and the
wider world. Christian, Jewish and Muslim schools, to different
degrees, were striving to protect their young people from the perceived
negative influences of the wider secular society. All accepted and
taught about diversity and saw the promotion of community cohesion
as requiring respect and acceptance of other faiths while remaining
distinct in their own faith, rather than being a homogeneous cultural
mix.”14
Nevertheless, in relation to the above one of the requirements under the

2003 regulations on independent school standards, stating that independent
schools must “encourage pupils to accept responsibility for their behaviour,
show initiative and understand how they can contribute to community
life” (above), Ofsted found that “Each faith tradition had a range of views
about the extent to which pupils should participate in the wider secular
community and their understanding about ‘community life’ (Regulation 2c)
was different.”15
(England) Regulations 2003, SI 2003/1910, Schedule. This framework remains in

force, as the new framework in place of this one that has been created by the Education
and Skills Act 2008 is not yet in force.
13
Ofsted, Inspection Report, Abu Bakr Independent School, December 2007, p.5
14
para.14.
15
Ibid, para.16.
556
II.3. Teaching in state-funded denominational schools in England is covered

by the same legal requirements as those applicable to state-funded non-
denominational schools, with the exception of religious education (discussed
in I.2 above).
Local authorities have no control over the content of teaching. Head teachers
have a duty to formulate a policy on the secular curriculum at the school,
but this is subject to the policy agreed by the governing body.16 (Every state
school must have a governing body, comprising a board of around 12-20
people with representatives of various prescribed groups, such as teachers,
parents, representatives of the local authority, members of local community/
business and, if the school is denominational, religious foundation members.)
There is a separate duty on the school’s governing body to have a policy on
sex education at the school, and in primary schools the governing body must
decide whether sex education should form part of the curriculum.17
Despite the existence of these individual school policies, all state schools
are bound by a statutory framework. The framework establishes a basic
principle that the curriculum at a school must be “balanced and broadly
based” and promote the spiritual, moral, cultural, mental and physical
development of pupils and of society as well as preparing pupils for the
opportunities, responsibilities and experiences of later life.18 It also requires
every state-maintained school (whether denominational or not) to have a
“basic curriculum”, including religious education,19 sex education (at the
secondary education stage) and the National Curriculum.20 In Wales the
basic curriculum also includes (i) personal and social education for pupils
aged five or over; and (ii) work-related education for pupils aged 11-16.21
The National Curriculum in England and Wales comprises core subjects and
other foundation subjects. For each subject there are prescribed “attainment
targets” for pupils of different abilities and maturities, related to what
pupils would be expected to achieve by the end of the four key stages in
their education (that is, by the age of 7, 11, 14 and 16 respectively). Also
prescribed by law are the associated “programmes of study” and “assessment
16
School Standards and Framework Act 1998 Act s.38(3) and the Education (School
Government) (Terms of Reference) (England) Regulations 2000 (SI 2000/2122)
reg.8.
17
Education Act 1996, ss.371 and 404.
18
Education Act 2002, ss 78 and 79 (as amended).
19
Note that arrangements must be made so that so far as practicable every pupil
attending a maintained special school receives religious education unless withdrawn
by their parent: Education (Special Educational Needs) (England) (Consolidation)
Regulations 2001 (SI 2001/3455) reg.5A.
20
Education Act 2002, s.80 as amended.
21
Education Act 2002, s.101, as amended.
557
Lars Friedner
arrangements”.22
Separate arrangements apply to the education of children below compulsory

school age (that is, the age of five). In England, this stage is termed that ‘Early
Years Foundation Stage’.

school
III.1. The head teacher does not have responsibility for admissions to the
school. The school’s governing body will generally have this function, as
the schoool’s ‘admissions authority’. Pupils from other religious faiths (or
none) can be refused admission, but only if the school is oversubscribed and
its admissions policy permits it to give preference on the basis of religion.23
Decisions on admission to denominational schools with such policies are
exempt from the provisions of the Equality Act 2010 prohibiting religious
discrimination.24
III.2. It is very doubtful that it would be lawful to single out one particular
religious group in this way unless there was a specific justification based
on, for example, the constituents of the local population (see below).
Normally, while it would be lawful to restrict the number of non-Catholics
to a prescribed percentage, in order to preserve the character of the school,25
it may be of very dubious legality to restict the number of members of one
minority faith only.
However, the case of one school whose admission arrangements has imposed
restrictions is intereresting in this respect. The school is the Archbishop
Blanch School in Liverpool. It is a Church of England School, not a Catholic
school, but like most Catholic Schools it is a voluntary aided school and
22
Education Act 2002, ss 87 and 108.
23
Choudhury and Another v Governors of Bishop Challoner Roman Catholic
Comprehensive School [1992] 3 All ER 277.
24
This exemption is in the Equality Act 2010, s.89 and schedule 11.
25
It seemed to be sanctioned by the DfES, School Admissions Code (2007) and
implicitly falls within the exception to the non-discrimination duty under the Equality
Act 2010 (above). See also the Department for Education, School Admissions
Code (2010), which currently applies: “Where a faith school gives priority for a
proportion of places to those of other or no faith in their admission arrangements
they must be clear how this will work and what oversubscription criteria will be used
in their published admission arrangements for each group of places. If the number of
applications for one group is less than the number of places available for that group,
those places must be offered to other children” (para 2.54, original emphasis).
558
therefore in the same legal category. Its published admission arrangements

for 2009-10 stated that it would admit any number of children in public
care (regardless of religion) as the first priority; the law in fact requires such
children to be given first priority in all schools’ admissions policies. The
school’s policy then restricted the number of children admitted in other
different categorires, as follows:
• 104 Christians
• 10 Muslims
• 2 Other World Faith applicants
• 10 with Aptitude in Music
• 4 with Aptitude in Art
• 10 with special medical or social reasons.
This school therefore reserved more places for Muslim pupils than those
of other non-Christian faiths. That continued for admissions scheduled for
September 2011; this policy scheme has the same numbers in each category
as for 2009 although states that of places for Muslim children 8 are reserved
for Shia Muslims and 2 for Sunni Muslims.26 According to the school, the
policy’s preference for Muslim applicants over those of other world faiths
has reflected the make-up of and level of demand from the local community.
Although that preference might appear nevertheless to be discriminatory,
the Schools Adjudicator ruled in one case that denominational schools’
exemption from the the non-discrimination duty (applicable to religion)
under the Equality Act 2006 (now in the Equality Act 2010) meant that “such
a school [is] not prevented from giving priority to pupils of a faith other than
the school’s before pupils of no faith at all”. He also implied that a school is
not confined to giving priority only to those of the faith that is the designated
faith of the school.27 That certainly seems to be the effect of the Equality Act
exemption, which simply dis-applies the non-discrimination duty in relation
to admission decisions. Moreover, if the situation in this school were judged
with reference to Article 14 of the European Convention on Human Rights
(ECHR), the reasons behind the policy may enable the school to rely on the
justification argument in any event.

course
26
http://www.abblanch.com/Policies [accessed 27 April 2011].
27
Determination ADA/001396, 12 September 2008.
559
Lars Friedner
IV.1. There is otherwise no specific obligation on Roman Catholic schools

to make such arrangements for teaching specifically in Islam. As was stated
above, most Roman Catholic schools are in the category ‘voluntary aided’
schools. In these schools, if the parents of any pupils wish that these pupils
receive religious education based on the local ‘agreed syllabus’ (that is the
syllabus, generally multi-faith, adopted for non-denominational (community)
schools in the area), and cannot with reasonable convenience cause those
pupils to attend another school which uses that syllabus, the governing body
(or, in default, the local authority) must (unless special circumstances make
it unreasonable for them to do so) make arrangements for this to happen.28
As the ‘agreed syllabus’ for the local area will almost certainly be very broad
and non-denominational, it may cover aspects of the Muslim faith but will
also cover other faiths.
IV.2. As noted above (see IV.1), in the case of any children attending a Roman
Catholic voluntary aided school whose parents want them follow, instead
of the syllabus applied by the school, the agreed syllabus for the area, the
governing body of the school must normally make arrangements for them to
receive it.29 There is no right to receive religious education pertaining to their
own (as opposed to the school’s) faith, other than the right of withdrawal
of the child by the parents to receive such education during school hours
elsewhere.30
However, in some cases voluntary arrangements are made for religious

teachers to visit schools to teach pupils of minority faiths. Nevetheless, it has
been suggested that the lack of a duty to make alternative arrangements could
amount to unjustifiable discrimination for the purposes of the ECHR Article
2 of Protocol 1 read with Article 14, but that the additional cost involved in
making such arrangements might provide legal justification. In practice, it is
common for alternative moral education or the study of religions or ethics to
be provided for pupils of minority faiths.
IV.3. The main debates in this area have concerned the place of religion
in state funded schools. Some favour an approach of secularity, as in the
United States, on the grounds that it better reflects the less prominent place
of religion in much of society today and also prevents the priviliging of one
particular faith or belief system. Others believe that the inclusion of religion
is important in order to reflect its underpinning of many cultural traditions
and aspects of morality. Government in the UK has on the whole favoured
the latter perspective. There is also a wider debate about multi-cultural or
28
School Standards and Framework Act 1998, schedule 19 para.4.
29
School Standards and Framework Act 1998, schedule 19 para 4.
30
Ibid, s.71.
560
inter-cultural education which extends to religious education and also to the

question of how far the education system can and should cater for minority
faiths or wishes. This is discussed in detail in N. Harris, Educaiton, Law and
Diversity (2007), chapter 7.
IV.4 Relevant legal and other references have be made in footnotes. Acts of
Parliament can be accessed via http://www.statutelaw.gov.uk/
The Religious Education Curriculum Directory for Roman Catholic Schools,31

published in 1996, set out a framework for religious education across Catholic
schools. It did not make mention of arrangements for pupils of other faiths. It
nevertheless had been the case for some time that pupils in Roman Catholic
schools in some areas, such as some parts of London, included pupils from
other faith backgrounds such as the Muslim faith. In 1997, however, the
Bishop’s Conference published Catholic Schools and Other Faiths, which
contained guidance but placed a strong emphasis on the maintenance of a
Catholic ethos and made no requirement that religious education in Islam be
provided. Nevertheless, many Roman Catholic schools have copvered Islam
and other faiths within their religious education syllabus in accordance with
local Diocesan guidance.
Since 2007, governing bodies of all state-maintained schools in England

have held a general duty, in conducting the school, to “promote community
cohesion”.32 The introduction of this duty prompted, in 2008, guidance for
Roman Catholic schools published by the Catholic Bishops’ Conference
and the Catholic Education Service of England and Wales.33 The guidance
emphasises and promotes the idea that Catholic instituions need to have
“dialogue with other faiths” and it addressed “questions which are arising
from the increasing numbers of children of other faiths present in our
Catholic schools”.34 Rather than enabling pupils from minority faiths to
advance their religious knowledge and faith commitment through separate
arrangements, the guidance seeks to identify ways in which religious
practices and ideals can be used to further knowledge and understanding
among the entire school community. For example, it refers to “[g]iving
pupils knowledge and opportunity to be aware of one another’s religious
festivals and celebrations” and “inviting pupils and parents from other faiths
31
Bishop’s Conference for England and Wales (Catholic Education Service, 1996).
32
Education Act 2002, s.21(5), inserted by the Education and Inspections Act 2006
s.38(1).
33
Catholic Education Service, Catholic Schools and Community Cohesion (Catholic
Education Service for England and Wales, 2008); and Catholic Schools, Children of
Other Faiths and Community Cohesion: Cherishing Education for Human Growth
(Catholic Education Service for England and Wales, 2008).
34
Ibid (Children of Other Faiths), p.4.
561
Lars Friedner
to share their beliefs with various members of the school community in an

age-appropriate way, along with gatherings where pupils and parents could
be addressed by, and meet informally, faith leaders from the local community
(e.g. a ‘bring and share’ supper)”.
VI.1. Religious symbols are not expressly forbidden, but see the discussion
of the case law in VI.8 below.
VI.2 The question of employment and employers’ policies on the wearing of

religious dress would require a very long discussion for proper analysis, but
for a teacher the basic position can be stated as this: he or she would normally
have a right to wear the headscarf as a manifestation of her belief or cultural
background. The position might be different in relation to the niqab (veil
covering much of the face). In Azmi v Kirklees Metropolitan Borough Council35
the complainant was employed as a Bilingual Support Worker assisting
in helping with teaching support. This meant that she was working in the
classroom supporting the main class teacher. She was a devout Muslim. She
did not wear a face covering at her job interview, nor was any mention made
of her wish to wear it. After she was appointed to the post she asked the
school to be allowed to wear the veil when in the presence of a male member
of the school staff. However, the school formed the view that wearing the veil
reduced her effectiveness in her work. The Employment Appeal Tribunal
held, among other things, that the school’s requirement that she removed
the veil when teaching the children was proportionate, especially since the
school would enable her to wear the veil at other times, such as generally
when on the school premises.
VI.3. Yes, in relation to the headscarf, since such a restriction could amount
to religious or racial discrimination and it would be very difficult for a
school to succeed with a an argument that such a restriction is in pursuit
of a justifiable policy such as to downplay religious differences between
pupils in the interests of a harmonious environment. Such an argument was
unsuccessful in a case which reached the highest court in the UK in 1993,
Mandla v Dowell Lee, when a school had sought to ban a Sikh pupil from
wearing a turban to school.36 With regard to other forms of dress, such as
the niqab and jilbab, see the case law below.
VI.4. The school’s policy and rules on school uniform will be drawn up by the
head teacher in consultation with the school’s governing body. Ultimately,
35
[2007] ELR 339.
36
[1983] 1 All ER 1062.
562
the policy falls within the remit of the school governing body with regard to
the conduct of the school, its ethos and its disciplinary environment.
VI.5. As the wearing of the headscarf is not able to be prevented this question
does not apply. With regard to other forms of religious dress, see VI.8 below.
VI.6. Questions concerning the wearing of school uniform in school, where

the governing body is unwilling to accommodate the wearing of a particular
form of apparel, would have to be resolved either (i) via complaint to the
Secretary of State, who has a power to issue directions to a governing body
that is acting in default of its duty or unreasonably (in the sense of acting
beyond its powers – ultra vires); (ii) through a complaint of religious or racial
discrimination in the county court; or (iii) via an application for judicial
review in the Queen’s Bench Division (Administrative Court) of the High
Court.
VI.7. With regard to a teacher, it would fall under the standard disciplinary
procedure for employees. In the Azmi case (see VI.2 above), the assistant was
disciplined for breach of her employer’s instructions.
So far as a pupil is concerned, it would be dealt with under the individual

school’s disciplinary policy or rules. However, schools are also required
to have regard to the government’s official guidance on behaviour and
discipline.37 This states, among other things, that pupils should not be
excluded from school for “breaches of school uniform rules or rules on
appearance… except where these are persistent and in open defiance of such
rules”.38
VI.8. The case-law on the rights of pupils in respect of school uniform has
mostly centred on the Human Rights Act 1998 and European Convention
on Human Rights (ECHR), typically involving not only the right to
education under Article 2 of Protocol 1 – in particular the recognition of
individual religious or philosophical preferences under its second sentence –
and Article 9, on religious freedom. The 1998 Act in effect prohibits public
authorities (which term includes a state school39) in the UK from acting in
37
The Education (Pupil Exclusions and Appeals) (Maintained Schools) (England)
Regulations 2002 (SI 2002/3178), reg 7(2) (duty on governing bodies and LEAs to
have regard to official guidance).
38
Department for Education and Skills, Improving Behaviour and Attendance:
Guidance on Exclusion from Schools and Pupil Referral Units, DfES/02017/2006
(DfES, 2006), amended 2007 and updated 2008: http://www.teachernet.gov.uk/
wholeschool/behaviour/exclusion/
39
Ali v Headteacher and Governors of Lord Grey School [[2006] UKHL 14, [2006]
ELR 223, at 79 (per Baroness Hale).
563
Lars Friedner
a way that is incompatible with the Convention rights. It also requires the
courts to have regard to Strasbourg case law when interpreting any question
before it that concerns a Convention right; and it also requires UK primary
and subordinate law to be read and given effect to in a way that is consistent
with the Convention and the Strasbourg case law.40
The most important case to date concerning school uniform in the UK is

R (Begum) v Headteacher and Governors of Denbigh High School in 2006.41
Shabina Begum, a Muslim, was aged 15. The pupils at the school she
attended came from 21 different ethnic groups and nearly four out of every
five classed themselves as Muslim. The school’s governing body drew up its
school uniform policy in consultation with the local community. It decided
to permit the wearing of the shalwar kameeze but not to permit the wearing
of the jilbab, which is a full length garment also covering the legs and arms.
The school was concerned to prevent pupils from being placed under
pressure from others into wearing more extreme forms of religious dress.
Miss Begum wore the shalwar kameez during her first two years at the school
but by the age 14 she had formed a commitment to wear the jilbab. When
permission to wear the jilbab was not granted by the school she refused to
attend school. She contended that by virtue of the school’s decision she had
been unlawfully excluded contrary to the ECHR Article 2 of Protocol 1 and
that her right to manifest her religion under Article 9 had also been violated.
Her claimed failed in the High Court but she won an appeal to the Court of
Appeal, whose decision that was considered to have significant implications
for schools. It in effect meant that a number were at risk of being in breach
of the 1998 Act and the Court of Appeal had signified that they would need
more guidance on their duties under the Act from central government.42
The headteacher and governing body appealed to the House of Lords. The
House of Lords decided by a majority that there had been no interference
with Miss Begum’s Article 9 right, since she was free to transfer to a
different school in the area which permitted the wearing of the jilbab. (The
two minority judges considered that such a transfer would be problematic on
social and other grounds and that she did not therefore have complete liberty
to move school.) Nevertheless, their lordships were unanimous in agreeing
that the school’s rules on pupil uniform gave rise to an interference that
was justifiable for the purposes of Article 9(2). The House of Lords did not
consider that Miss Begum had been excluded from school, since it was her
40
Human Rights Act 1998, ss 2, 3 and 6.
41
[2006] UKHL 15, [2006] ELR 273.
42
R(SB) v Headteacher and Governors of Denbigh High School [2005] ELR 198, per
Brooke LJ at [82].
564
choice to wear the jilbab in contravention of the school’s rules and she had
the right to return to the school provided wore the approved form of dress.
Crucial to the outcome in Begum was the way in which the school had
approached the drawing up of its policy on uniform and had applied it. As
Lord Bingham said, it “did not reject the respondent’s request out of hand:
it took advice, and was told that the existing policy conformed with the
requirements of mainstream Muslim opinion”; and it “had taken immense
pains to devise a uniform policy which respected Muslim beliefs, but did so
in an inclusive, unthreatening and uncompetitive way…”43
Eleven months after Begum came another case concerned with the wearing
of Muslim dress at school by a pupil in the pursuit of religious faith: R (X) v Y
School.44 This time the pupil in question, X, a Muslim aged 12 years, wanted
to wear the niqab (veil) to school. Her two older sisters had previously been
pupils at the school and had been permitted to wear the niqab. X contended
that as a result she had had a legitimate expectation that she would be able
to wear it. This argument was rejected in the High Court by Silber J, in part
on the ground that there was a justifiable interference with this expectation.
So far as her right under Article 9 of the ECHR was concerned, the court
held that there had been no interference since she could attend another
local school which permitted the wearing of the jilbab, indeed she had been
offered a place there. The court also accepted that there was a justification
under Article 9(2) for the restriction. In particular, there was an educational
element, since teachers needed to see her face; there was also a social element,
as the uniform policy promoted “uniformity and an ethos of equality and
cohesion”; and there was a security-related factor, in enabling the school to
identify a pupil. The policy also aimed to avoid pressure on girls to wear the
niqab. The school uniform restriction was considered proportionate.45
As in Begum, therefore, the court in X considered that where the pupil has
an ‘exit’ option, in the sense that he or she may receive education elsewhere
without being prevented from wearing clothing that was consistent
with their religious beliefs, it is unlikely that they will be able to claim an
interference with their right to manifest their beliefs for the purposes of
Article 9. Moreover, even if there is considered to be such an interference, it
can be justified within the terms of Article 9(2) with reference to legitimate
aims that serve wider social purposes, where the school has adopted a
proportional approach.
43
Note 42 above, at [33]-[34].
44
R (X) v Y School [2007] EWHC 298 (Admin), [2007] ELR 278.
45
Ibid, at [78].
565
Lars Friedner
Two other cases decided subsequently have concerned the wearing of a

religious symbol. In the first, Playfoot,46 a 16 year old girl wanted to wear a
ring known as the ‘Silver Ring Purity Thing’, as a symbol of her Christian
belief in abstinence from sexual intercourse before marriage. The school’s
policy on jewellery prohibited all forms of it apart from plain ear studs. The
claimant argued that the school’s refusal to permit her to wear it violated
her right to manifest her beliefs under Article 9 of the ECHR. She also
contended that the school was discriminating against her as a Christian
(contrary to Article 9 read with Article 14) because, whilst she could not
wear her purity ring, the school permitted Muslim girls to wear head scarves.
The first question was whether the wearing of the ring was an expression
or manifestation of a religious belief. The court did not consider that it
was. Judge Supperstone QC considered that for the purposes of Article 9
the practice, in this case the wearing of the ring, needed to be “intimately
linked” to the belief. He did not consider that to be the case here, since she
was under no obligation, by virtue of holding the belief, to wear the ring. The
court did not accept that the ring was a religious artifact rather than an item
of jewellery per se. As in the earlier cases (above), the court also considered
that there were alternative means open to the pupil to manifest her belief, so
that for the purposes of Article 9 there had been no interference with it. She
could, for example, display the purity ring on a key ring or by attaching it to
her bag.
There is also a consistency with the earlier cases in how the court identified, for
the purposes of Article 9(2), a justification for the interference. The school’s
policy aimed to foster “the school identity and an atmosphere of allegiance,
discipline, equality and cohesion”; children were to “learn in an environment
which minimises the pressures which result from marking differences on
grounds of wealth and status”; the policy “reduces the risks from bullying at
school, which may arise where social pressures develop around clothes and
jewellery through peer expectations”; it also “assists in promoting the highest
standards of achievement in all aspects of a young girl’s life”; and there were
health and safety reasons for not allowing jewelry to be worn.47 The court also
rejected the argument that there had been religious discrimination, concluding
that the school did not practise blanket discrimination against Christians,
since it had permitted a member of the Plymouth Brethren to wear a scarf. The
judge found that the school had considered individual circumstances carefully
and had been sensitive to individual religious needs where human rights were
at issue, for example by permitting a Muslim girl to wear a headscarf and two
Sikh girls to wear a Kara bangle.
46
R (Playfoot) v Governing Body of Millais School [2007] EWHC 1698
(Admin), [2007] ELR 484.
47
Ibid, at [36].
566
The wearing of the Kara was in fact the subject of the second case concerned
with a pupil wishing to wear a religious symbol, Watkins Singh in 2008.48
This case was mostly argued under UK statute law, although Article 8 of the
ECHR (the right to respect for privacy and family life) was also invoked. The
claimant was a 14 year old girl. She followed the Sikh religion and in pursuit
of it wished to wear the Kara to school. The school had a similar policy to
the school in Playfoot (above), banning all jewellery apart from plain ear
studs but permitting the wearing of a wrist watch. The school’s view was
that if the claimant would be permitted to wear the Kara it would give rise
to discrimination against other, Christian, pupils who were not permitted
to wear a cross. The school contended that wearing the Kara was “roughly
similar” to wearing the Welsh flag: “something which engenders emotion,
perhaps strong emotion but is not something which either her religion or
culture requires her to wear”. The claimant was told that she could attend
school wearing the Kara but only if she was segregated from the other pupils
and taught separately. This, she later claimed, had upset her and violated
her right to private and family life for the purposes of Article 8 (a facet of
her claim that the court subsequently rejected due to evidence that she was
reasonably content at school notwithstanding the segregation, although she
may have been unhappy at home49). Meanwhile, a school panel refused her
request for exemption from the no-jewellery policy, on the grounds that it
did not consider that it was a religious requirement for her to wear the Kara
on her writst; that if she was singled out for exemption she might be bullied
by some of her peers; and there were health and safety reasons for the ban.
After a further attempt to secure an exemption and after further fixed term
exclusions, the pupil was informed that she could not attend school if she
wore the Kara.
The girl pursued an application for judicial review in the High Court.
Although part of her claim concerned the exclusion processes followed by
the school, the critical issues surrounded the claim that the girl had been
subjected to indirect unlawful racial and religious discrimination and that the
school had failed in its duty under the Race Relations Act 1976 to promote
racial harmony. In order for there to be discrimination there had to be “a
particular disadvantage” or a “detriment” suffered through being prevented
from wearing the Kara. Silber J said that it was not necessary, in order to
establish that there was such a disadvantage or detriment, for the wearing of
the Kara to be required by the religion in question. It would be sufficient if –
48
R (Watkins-Singh) v Governing Body of Aberdare Girls’ High School and
Rhondda Cynon Taf Unitary Authority [2008] ELR 561.
49
Ibid at [131]-[137].
567
Lars Friedner
“(a) the person genuinely believed that wearing it was of exceptional

importance to his or her racial identity or his or her religious belief;
and (b) the wearing of this item can be shown objectively to be of
exceptional importance to his or her religion or race.” 50
The court considered that on the facts of the case both (a) and (b) were
satisfied in relation to the wearing of the Kara by the claimant.
The court also differentiated between the Kara in this case and the apparel
in question in Begum, X and Playfoot. In contrast to the niqab and the jilbab,
the Kara was, according to Silber J, very small and unostentatious – 50mm
wide and not visible if the claimant had long sleeves. Therefore many of
justifications for the restrictions on dress which the courts had accepted in
the earlier cases were inapplicable where the Kara was concerned. Even the
health and safety argument did not hold sway, since the pupil was willing to
remove the bangle or cover it over securely in circumstances where health
and safety might an issue. The court also refused to accept the argument
that permitting the girl to wear the Kara would prevent bullying or avoid the
difficulty in trying explain such a exception to pupils. Bodies such as schools
had an obligation to remove tensions not by seeking to downplay pluralism
but by promoting tolerance. They were under a duty under UK law, when
carrying their functions, to have “due regard to the need… to promote
equality of opportunity and good relations between people of different racial
groups”.51
Silber J also offered some interesting comments about the role of a school in
a pluralistic society:
“There is a very important obligation imposed on the school to ensure

that its pupils are first tolerant as to the religious rites and beliefs of
other races and other religions and second to respect other people’s
religious wishes. Without those principles being adopted in a school,
it is difficult to see how a cohesive and tolerant multicultural society
can be built in this country. In any event, insofar as the intention of the
uniform policy is to eliminate bullying, there is no rational connection
between this objective and eliminating signs of difference.
“This shows clearly first that the defendant and the school should not
have sought to remove the potential cause of tension by refusing to
allow the claimant to wear the Kara, but second that instead it should
have taken steps to ensure that the other pupils understood the
50
Ibid at [56B], judge’s emphasis.
51
Ibid at [81] and [82], referring to the Race Relations Act 1976, s.71.
568
importance of wearing the Kara to the claimant and to other Sikhs so

that they would then tolerate and accept the claimant when wearing
the Kara”.52
The above cases have demonstrated the issues that schools need to weigh
up when determining their school uniform policies. An outright ban on all
religious dress is unlikely to be upheld by the courts in the UK, and while
restrictions may be considered lawful where there are cogent justifications
based on the pursuit of aims which are legitimate and serve wider social
interests, the courts will expect schools to have considered the matter
carefully and consulted appropriately among the communities they serve.
Schools are also likely to be expected to have had regard to the government’s
guidance on school uniform policies, whose publication seems, at least
in part, to have been prompted by the above cases. It recommends wide
consultation by schools in drawing up their school uniform policies and that
schools document the consultation process that they have carried out.53 The
guidance also emphasizes that schools must have regard to the Human Rights
Act and anti-discrimination legislation. With regard to the factors that might
outweigh the needs of individual pupils, the guidance identifies: health and
safety; security (capacity to identify pupils easily); teaching and learning
(face covering hinders teacher’s capacity to judge pupil’s engagement with
learning etc); protection from external pressure to wear particular form of
clothing; the desirability of promoting a strong, cohesive, school identity
and also a sense of identity among pupils; the need to “promote harmony”
between different groups. These are factors that were variously accepted as
legitimate by the courts across the above cases.

VII.1. Religious institutions commonly organize religious classes for

children. There are three forms of what are described as ‘supplementary
schools’ known as ‘madrassas’ operating in the UK: the largest group
comprises classes run by local mosques; secondly, there are madrassas run
by local volunteers in hired community centres or school halls; and thirdly
there are informal classes which are held in people’s private homes.54
52
At [84] and [85].
53
Department for Education, Guidance for schools on school uniform and related
policies (2011 edition) http://www.education.gov.uk/schools/leadership/
schoolethos/a0014144/guidance-for-schools-on-school-uniform-and-related-
policies [accessed 27 April 2011].
54
Reported in M. Cherti, A. Glennie and L. Bradley, “Madressas” in the British
media (IPPR, 2011) http://www.ippr.org.uk/publicationsandreports/publication.
asp?id=805 [accessed 27 April 2011].
569
Lars Friedner
VII.2. See II above.
VII.3. See II above.
VII.4. One report, by the Muslim Parliament of Great Britain, indicates

that there were approximately 700 madrassas, some with as many as 500
pupils.55 Another report states that according to the Mosques and Imams’
National Advisory Board there are approximately 2,000 madrassas in the
UK which are known to local authorities.56 Unofficial madrassas operated in
people’s homes are additional to this number.
VII.5. There are no official data on the overall numbers of children who
receive such instruction. According to a report in The Times, at the end of
2008, there were an estimated 200,000 children in Great Britain attending
madrassas on weekday evenings.57 It is reported that in one city with a
substantial Muslim population, Leicester, 80-90 per cent of local Muslim
pupils or students attend a local madrassa.58
VII.6. The pedagogic quality of the education provided in madrassas is not

subject to external regulation. Child protection legislation applies, however,
and the Independent Safeguarding Authority is to maintain a list of people
who are barred from working with children.59 Health and safety laws also
apply. However, these safeguards are not guaranteed in arrangements in
private homes. According to a recent report by the independent Institute for
Public Policy Research (IPPR): “Since so many madrassas in the UK operate
privately and are not subject to public oversight, the government has a fairly
limited ability to regulate the way in which they are run”.60
VII.7. The public debate about Islamic instruction outside the framework
of state or regulated private education has focussed on the need for greater
55
http://www.muslimparliament.org.uk/Childprotect_MuslimWeekly.html [accessed
8 October 2008].
56
‘Call for more checks on madrassas’ http://news.bbc.co.uk/1/hi/education/8305318.
stm [accessed 27 April 2011].
57
R. Kerbaj, ‘Teachers “beat and abuse” Muslim children in British Koran class’, The
Times Online, 10 December 2008: http://www.timesonline.co.uk/tol/comment/
faith/article5315021.ece [accessed 27 April 2011].
58
M. Cherti, A. Glennie and L. Bradley, “Madrassas” in the British media (IPPR, 2011)
http://www.ippr.org.uk/publicationsandreports/publication.asp?id=805 [accessed
27 April 2011], p.2.
59
See the Safeguarding Vulnerable Groups Act 2006 as amended by the Police and
Crime Act 2009.
60
M. Cherti, A. Glennie and L. Bradley, “Madrassas” in the British media (IPPR, 2011)
27 April 2011], p.2.
570
regulation to ensure suitable standards of provision and to prevent extremist

views being promoted to children and young people. It has also encompassed
the issue of whether participation in madrassas has a negative impact on
community cohesion. In the case of unofficial madrassas operated in private
homes there is an additional concern about child welfare, such as the risk
of physical punishment.61 The British media have generally presented a
negative view of madrassas and this seems to have influenced the tenor of
public debate. A report by the IPPR has, however, commented that media
coverage may not be presenting a wholly accurate picture and that there is
a lack of objective evidence on madrassas and their local impact, including
on the radicalisation of young people.62 The IPPR is currently conducting
an independent study of madrassas which is due to report in September
2011. The IPPR says that “In general, government initiatives to engage with
or support madrassas remain fragmented and often reactive to either child
protection or security concerns.”63
XI. Bibliography
Literature on this topic

• N. Harris, Education, Law and Diversity (Hart, 2007)
• J. Fortin, Children’s Rights and the Developing Law 3rd edn (Cambridge
University Press, 2009)
• See also footnote references.
61
See note 57 above. See also R. Kerbaj, ‘Teachers “beat and abuse” Muslim children in
British Koran class’, The Times Online, 10 December 2008: http://www.timesonline.
co.uk/tol/comment/faith/article5315021.ece [accessed 27 April 2011].
62
M. Cherti, A. Glennie and L. Bradley, “Madressas” in the British media (IPPR, 2011)
27 April 2011].
63
Ibid, p.3.
571
Part III
Schematic Comparative Analysis of
the Answers to the Questionnaire
Gracienne Lauwers
Schematic Comparative Analysis of the Answers to the Questionnaire
For details and exceptions we refer to the country reports.
For an online summary: https://www.youtube.com/watch?v=LdsmFb3odCQ
Religious instruction in public schools
Religious instruction is in principle compulsory during the school hours with the possibility to opt-out or to attend
alternative classes.
Where religious instruction in public schools is compulsory, three different models can be summarized in various
countries, which provide for:
- teaching only one single religion, with a possibility for pupils or through their parents to opt-out;
- confessional religious education of several religions and pupils or parents may choose the teaching they intend to follow.
Often this includes the choice of a course on ethics;
- a form of non-denominational religious education, focusing on learning the basic characteristics of the major religions.
In some countries it is compulsory, in other countries pupils or parents can opt out;
Some countries have a combination of these models in their educational system.
COMPULSORY VOLUNTARY, PROHIBITED

OFFERED AT
REQUEST OF
PARENTS/PUPILS
CONFESSIONAL ONE PARTICULAR RELIGION • Bulgaria • Albania
WITH OPT OUT OPTION • Italy • Russia
• Greece • Poland • Slovenia
• Turkey • Ukraine
CONFESSIONAL RELIGIOUS INSTRUCTION • USA
OR ETHICS
• Germany
• Latvia
• Lithuania
CONFESSIONAL RELIGIOUS INSTRUCTION
WITH OPT OUT OPTION
• Austria
• Romania
CONFESSIONAL RELIGIOUS INSTRUCTION • Netherlands
OR ETHICS WITH OPT OUT OPTION
• Finland
• Flemish Community of Belgium
• Germany - Brandenburg (Lebenskunde-Ethik-Religion”/LER )
• Norway
NON-CONFESSIONAL WITHOUT OPT OUT OPTION
• France
• Germany - Bremen and Region of Berlin
• Russia
• Sweden
NON-CONFESSIONAL • Bulgaria
WITH OPT OUT • Estonia
NON-CONFESSIONAL WITH OPT OUT • Netherlands
• Denmark
• Estonia
574
Islamic instruction in public schools
There are several ways to accommodate the request of Islamic instruction in schools.
- Some countries organize Islamic instruction depending on the number of Muslims attending the class or school. If this
number is too small, the pupils may have to have their religious instruction together with children from other classes or
other schools or the number of hours they spend in school is shortened;
- Some countries allow Muslim pupils and parents who are given the opportunity to receive Islamic instruction in school
to opt-out and eventually receive most of their Islamic instruction in their local communities;
- Finally, some countries allow Muslim parents to make arrangements for their children to receive religious education
away from school, during school hours.
Organize Islamic instruction Muslims get their Islamic instruction Muslims get their Islamic instruction
depending on the number of in their local communities during the in their local communities outside the
Muslims attending the class or school hours school hours
school or on the region
• Austria • USA • Albania
• Bulgaria • Denmark
• Finland • Estonia
• Flemish Community of Belgium • France
• Germany - some of the Länder, e.g. • Germany
Northrhine-Westfalia • Italy
• Greece – region of Trace • Lithuania
• Lithuania • Norway
• Netherlands • Russia
• Poland • Slovenia
• Romania • Sweden
• Ukraine
575
Wearing of religious attire or symbols in public schools
Countries have legislated on religious clothing or religious symbols in school.

- Some prohibit students from wearing religious attire or symbols.
- Other countries have dress codes which allows the wearing of religious attire or symbols unless if prohibited in the
school regulations.
- Others allow the wearing of religious attire or symbols as a fundamental right.
Prohibition Allowed unless if prohibited by Allowed

the school regulations
• France • Denmark • Albania
• Turkey • Flemish Community of Belgium • Austria
• Lithuania • Bulgaria
• Netherlands (safety reasons) • Estonia
• Russia • Finland
• USA • Germany
• Greece
• Italy
• Norway
• Poland
• Romania
• Sweden
• Ukraine
Are crucifixes in the classroom of public schools allowed or banned?
Compulsory Compulsary except if Allows crucifixes in Crucifixes are banned

objections are made the classroom except if from the classroom
objections are made
• Greece • Austria • Bulgaria • Albania
• Italy • Germany - depending • Denmark • Estonia
on the School Act of the • Finland • Flemish Community of
Region • Germany - depending Belgium
on the School Act of the • France
Region • Netherlands
• Lithuania • Norway
• Poland • Russia
• Romania • USA
• Sweden
576
State funded private schools
Less than 7% of total Between 7 and 12% of Between 12 and 25%% More than 40% of total
number of schools total number of schools of total number of number of schools
schools
Czech Republic Denmark France Belgium
Germany Finland Spain Ireland
Greece Hungary UK Netherlands
Italy Norway
Luxembourg Slovak Republic
Poland Sweden
Portugal
State funded Islamic schools
The number of Islamic schools differs significantly between European countries. In some countries with large Islamic
communities, few Islamic schools are recognized or few are supported by the State if they exist at all.
No Islamic schools recognized Few Islamic schools recognized

and/or supported by the state and/or supported by the state
• Albania (Islamic schools are not supported by the state) • Albania (few Islamic schools are recognized by the state)
• Estonia • Austria
• Finland • Bulgaria
• Flemish Community of Belgium • Denmark
• Lithuania • France
• Norway • Germany - only in Berlin
• Poland • Greece – only in Trace
• Russia • Italy
• Slovenia • Netherlands
• Sweden • Romania
• Ukraine • Sweden
• USA
577
Access to private state funded schools
One can distinguish four legislative models:

- obliges schools to accept all pupils;
- allowing state-funded denominational schools to refuse pupils of other beliefs;
- permitting state-funded denominational schools to refuse pupils of other beliefs; but if officials in these schools accept
such pupils, they are obliged to provide religious instruction in other denominations;
- obliging schools to accept all pupils but there is no obligation to teach denominations other than their own religion.
Allowed to reject Allowed to reject Legal obligation Legal obligation

pupils with another pupils with another to accept all pupils to accept all pupils
conviction/belief conviction/belief but but no legal obligation
if pupils are accepted, to provide religious
schools have the instruction except for
obligation to provide the own denomination
religious instruction in of the school
their denomination
• Bulgaria • Austria • Flemish Community of • Finland
• Denmark Belgium • France
• Estonia • Poland • Greece
• Germany • Sweden • Italy
• Netherlands • Lithuania
• Russia • Norway
• USA • Romania
• Slovenia
• Sweden
• Ukraine
578
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Religion and Education

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Gracienne Lauwers and Jan De Groof (eds.)

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Religious Conflicts and the Principle of State Neutrality 1

Muslim Schools in the Nordic Countries 135

This collection contains the essays and answers to questionnaires on

Characterized by rationalization, functionalism, and individualism, the

Apart from the Government, one can distinguish a number of other

There are the traditional Christian churches. However secular European

There are also communal frameworks with a religious character developed

This tension is also reflected in legal doctrines. European institutions and

Europe has come to understand its public life as functioning in a secularized

* Vrije Universiteit Brussel/ Università Di Trento/Vilnius University/Vytautas

Both, Thomas Jefferson’s and Frederick’s approach converge insofar as

* Advocate General at the Court of Justice of the European Union, Luxembourg,

their evaluation of the specific kind of state neutrality. Thomas Jefferson’s

II. What model of state-church relations in a modern society?

But what is the European answer to the question of how to accommodate

III. The European Dimension in religious conflicts and State

Article 10 of the Charter of Fundamental Rights6 guarantees the free

When dealing with freedom of religion and state neutrality in Europe, we

A. Laicism/Passive Toleration – The crucifix-ruling of the Strasbourg

B. Accommodating Religions/Active Appreciation

multi-cultural and multi-religious contexts, a school wall may not suffice to

A case pending before the German Federal Administrative Court exemplifies

The administrative court of appeals [OVG], to the contrary, considered that

IV. European Constitutions Compared

Monaco23, or San Marino24 have a state church or at least a state religion.

‘The State acknowledges that the homage of public worship is due to

B. The Example of Germany

The German system of friendly cooperation between Church and State

On 3 October 2010, when Germany celebrated twenty years of reunification,

Under German constitutional law, this partnership, this friendly cooperation,

a-religious society? As I just mentioned, Sweden abolished its state church

V. A European standard on state-church relations or subsidiarity?

The question is, whether there should be a common approach to state-church

1. Laicism/Passive Toleration as a common standard?

In order to grasp and evaluate the status of state neutrality in religious

2. Friendly Cooperation / Active appreciation as a common

Article 17 of the Treaty on the Functioning of the European Union (TFEU)

A. EU-wide solution or Subsidiarity?

Any European-wide approach in this area should therefore be particularly

While the chamber judgment in the Lautsi-case seemed to indicate a common

Freedom of Religion is granted by the ECHR and the EU Charter of

In Germany, in 1555 the so-called Peace of Augsburg established the

A. Primary sources / cases

• OVG Berlin-Brandenburg, NVwZ 2010, p. 1310 (1312).

I. Religious freedom and religious neutrality of the state

Religious freedom as an individual right justifies in principle the (often

However, a misunderstanding which is frequently encountered should

II. Today’s challenges

The new question which has arisen is whether the integration of

III. Indifferent neutrality or responsible neutrality in the face of the

A. First principle: Respect for pluralism

In the particular case of Muslims, it should not regard them as a monolithic

An example: public places, particularly courtrooms and classrooms of state

sacrificed? The answer is that the common identity of society should

Indeed, the cause of the cohesion of society can be satisfied by cohesive

All this means that we must accept multiculturalism as a necessary

By way of conclusion: we should accept multiculturalism both as an