French Law On Secularity and Conspicuous Religious Symbols in Schools - Law Creation and Interpretations

Law Creation and Interpretations

In December 2003, President Jacques Chirac decided to act on the part of the Stasi report which recommended banning conspicuous religious symbols from schools. This meant that the legislature could adopt the recommendations, according to the emergency procedure, in January or February, ready for application at the start of the next school year in September 2004.

On 10 February 2004 the lower house voted by a large majority (494 for, 36 against, 31 abstentions) in support of the ban, which includes the caveat that the ban will be reviewed after it has operated for one year.

The initiators of the law are said to have particularly targeted two items of clothing: the headscarf and the veil (French: foulard and voile respectively); however the law mentions neither and just addresses "ostentatious" ("conspicuous") symbols. Because of its terse, broad, vague terms, the law will leave a lot of its interpretation to the administrative and judicial authorities.

The headscarf (sometimes referred to as the hijab in both French and English) covers the hair, ears, neck, and sometimes the shoulders, but not the face. Most Muslim girls who cover their heads in school wear such a headscarf. More rarely, girls may also wear a complete dress covering their body (djelbab). The full or Afghan burka, which covers the entire body except for a slit or grille to see through, occurs more commonly as the dress of an adult woman than that of a schoolgirl. A recent controversy occurred when a mother who wore a full burka became a representative of parents in a city school. Rather than encourage public participation of such women, her participation in school deliberations while entirely covered was highly criticised. It was finally tolerated.

In order to enforce the law, effective decisions whether certain items are "ostentatious" or not will have to be taken. In order to achieve that:

• the Minister of Education will issue circulaires, or instructions for its services; it seems that large crosses, full hijabs or yarmulkes would be banned, while small symbols such as small Stars of David or crosses in pendants would not be;
• headmasters will have to judge whether particular attire is or not acceptable with respect to the law;
• if necessary, families will go to administrative courts to challenge the school authorities' decision; a final decision may not be reached until the Conseil d'État at litigation (supreme administrative court), decides some points of jurisprudence.

The law itself may not be challenged before French courts (since this would have warranted action before the Constitutional Council before the signing of the law); however, the courts may significantly curtail its application — especially given the inherent margin of appreciation of what is ostentatious or not.

The law will apply in France and its overseas territories (which France administers as a part of its metropolitan territory), but it is likely that appropriate enforcement measures will depend on the local context, given the margin of appreciation offered by the law. Overseas Countries and Territories with a large Muslim community will receive some exemptions. For example, it was suggested that Mayotte girls may wear small bandanas (salouva) and light veils (kishall).