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2010-03-18 - Council of State, n. 202.039

Public space · Belgium · Dress code · Religious symbol

Suspension of the Flemish Education Council decision to ban the wearing of religious symbols in schools

Key facts of the case - On 23 June 2009 a school in Antwerp, where the plaintiff was enrolled, took a decision that it would no longer allow the wearing of headscarves. This school, together with one other, was the last of the state (Flemish) schools in Antwerp to allow headscarves. The other school also introduced a ban. A student applied for the annulment of this decision with the Council of State.
Before the Council of State’s judgment, the Flemish Education Council, on September, 11th 2009, to introduce an overall ban on religious and philosophical signs at school. The ban addresses the staff members, the teachers and the pupils. The Council emphasized, in its decision, the importance of active pluralism, namely the positive appreciation of difference and diversity based on mutual respect, the separation between church and state, universal human rights, freedom of the individual, the freedom of expression, equality between men and women and between homo and heterosexual, scientific research. It added that the pedagogical goal of the Flemish Education undeniably promoted active pluralistic interaction between staff members and pupils. For schools in which the ban did not already exist, it would be implemented on 1 September 2010.
A Muslim student lodged an appeal with the Council of State. She argued that the decision had the result that she would no longer be welcome in her school and that she would not be able to go elsewhere since a general ban had been imposed. She added that it could not be expected of her to enroll in a private school where the religious views clashed with her own. She also pointed out the effects of the decision to stigmatise and socially exclude a certain group of pupils who feel compelled by their religion to respect a certain dress code.
For the Flemish Council of Education it was argued that there were alternatives for the pupil: other public and private schools exist. Moreover, the individual interests had to be considered, but the collective interests of the neutral character of education (enshrined in the Constitution, Art 24) and its inherent values must remain intact and may not be endangered by the sum of the individual interests.

Main reasoning of the court - The Council of State decided to suspend the Flemish Education Council decision and to apply for a preliminary question before the Constitutional Court. The first question is whether the Flemish Education Council was entitled to adopt such a decision without a preliminary legislative act (decree of the Flemish Community) regulating this matter. The Constitutional Court is asked to assess the conformity of the Flemish special decree on Public Education (of 14 July 1998) with various principles enshrined in Article 24 of the Constitution: principle of legality, of freedom of education, the neutrality required for public education and the autonomy granted to the Public education as the administrative body of the public education.

See the decision (in Flemish): 2010-03-18 - Council of State, n. 202.039.