Home > Workplace > Belgium > 2009-07-02 - Council of State, n. 195.044

2009-07-02 - Council of State, n. 195.044

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Dismissal of teacher in public school for wearing headscarf

Key facts of the case - A female Muslim teacher who taught Islam courses in two elementary public schools in Brussels requests the annulment of the decision of the council of appeals for the public school staff confirming her 2006 dismissal by the principals of the schools for urgent reasons for wearing a headscarf outside of her classroom. The teacher had a temporary part-time contract during the academic year 2005-2006 with the two schools, both part of the same ‘school group’.
The school regulations of both schools since 2005 prohibited the wearing of religious or ideological garb, signs or symbols for pupils and teachers, except for teachers of religious courses but only within their classrooms. The teacher also wears the headscarf outside her classroom. The two school principals dismiss the teacher for urgent reasons by letters of 14 and 16 March 2006, for reason that the teacher refuses to take off her headscarf outside of her classroom, “thereby showing a lack of respect for the neutrality of public education.”

Main reasoning of the court - The Council of State starts out by referring to art. 24 § 2 of the Constitution, the special decree of 14 July 1998 concerning community education and the neutrality declaration by the Council for the community education (the official education network in Flanders).
The Constitution requires the state to organize and offer public education that is neutral. The Decree gives the council for the Flemish community education (GO! Raad) the competency to specify the content of this neutrality, and to restrict the freedom of expression. That council had adopted a neutrality declaration (to be signed by all incoming teachers) which did not explicitly include a headscarf ban.
According to the Council of State, individual schools or school groups are not competent to determine what ‘neutrality’ of the public school systems means in practice, only the Council can determine for instance that neutrality includes not wearing a headscarf in certain conditions in schools.(*)
The schools had argued that the ban on headscarves was ‘directly’ derived from the general declaration of neutrality of the council organ. However, the Council of State did not agree and did not find it obvious that neutrality ipso facto includes a headscarf ban for teachers. In particular, it does not appear evident that a Islam teacher cannot wear a headscarf outside of her classroom. The teacher could just as well read into the neutrality declaration that the wearing of a headscarf is an element of “internal diversity” whereby students are made aware of the “plurality and diversity of values in society” and signify “respect for minorities” and the respect of a “pluralist value pattern” and “active tolerance.” (all terms appearing in the neutrality declaration)
Thus, a headscarf ban represents only one particular way of filling in the principle of neutrality (competency not reserved for individual schools or school groups).

The Council also states that there were no indications whatsoever that the wearing of the headscarf by the teacher had any negative influence on the way she was teaching in the schools. The prohibition did not seem to have been adopted due to some concrete circumstances present at the two schools. (e.g. safety concerns)
Here, the Islam teacher was dismissed based on a general prohibition in the regulation of the school group. Because the school group was not competent to take such decision, the dismissal on urgent grounds was annulled.

Comment - There have been important developments with regard to the headscarf worn in public schools both by teachers (including teachers of Islam) and by pupils. The decisions of individual schools and school groups as well as the council for community education (GO! Raad) have been challenged before the Council of State, with differing levels of success. On 11 September 2009 (after a headscarf controversy at the Athenaeum in Antwerp) the community education council (GO! Raad) adopted a network-wide ban on headscarves worn both by students and teachers except for religions teachers, but this ban that was to take effect 1 September 2011 (after a one year extension) was challenged in court and on 18 March 2010 suspended by a decision of the Council of State (pending decision on the merits)

(* Above it was stated that the Council of State in its 2 July 2009 decision held that the council for community education was competent to fill in the principle of neutrality of public education, and it will be important to see if and how the Council stands by that).