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Integration: Religion and Teaching -- Ulf Häußler

Integration: Religion and Teaching

Ulf Häußler

Preface 1

The Muslim Teacher's Case 1

The Bhagwan Cases 2

Neutrality and the State School System 3

Freedom of Religion vs. Neutrality 4

Neutrality and Integration 6

Conclusion 8


Preface

Immigration statutes generally do not expressly deal with the issue of integration albeit usually a certain understanding of integration underlies their framing. The idea of the U.S. society being a "melting pot" is legendary in this respect. The situation in Germany, however, is somewhat different. German politicians used to declare their country a non-immigration country for long and at least with respect to the concept of integration Germany indeed indulged the luxury of behaving if reality were of that kind. Accordingly, German law as it stands has never been searched by Federal and Länder legislators for potential obstacles to integrative behavior of both the German society and their would-be members, viz. all aliens lawfully residing in the country. Except for the naturalization directives issued by the Federal Ministry of the Interior: until recently they have required that an alien turn to Germanness if willing to be formally admitted to the German nation. Yet naturalized Germans turn out to be not as German as some people would expect them to be. Recently the lack of almost any substantial integration policy whatsoever has given raise to a rather delicate case - a case related to an issue which stands for clashes of diverging values: freedom of religion in state schools.

The Muslim Teacher's Case
In July 1998 the Baden-Württemberg education authorities decided that Fereshta Ludin, one of the applicants for a primary school teacher's post, should not be appointed because, as a believing Muslim, she wanted to wear her religious scarf during school hours. In a number of press articles attention was drawn to numerous objections raised by parents during the young lady's period as a teaching assistant. The Baden-Württemberg minister of education supported the decision as to non-appointment. In a press release she argued that teaching while dressed with the scarf were inconsistent with the principle of religious neutrality which were binding not only on the state, but also on teachers in their function as civil servants.

At first sight this case resembles the Bhagwan cases decided by German courts in the 1980s. Teachers had appeared in schools in their sanyasin dress, parents had objected, and the education authorities had imposed a ban on this dress. Like then, in the Ludin case the issue at stake is whether teachers may exercise their freedom of religion in state schools. At the same, however, time thinking about this case affords thinking about the integration of naturalized immigrants from a non-European background into the German society which has never been a "melting pot" of the American kind.

The Bhagwan Cases
In the Bhagwan cases the courts denied a right of sanyasin teachers to be dressed in red for religious reasons, and to wear their religious chain (the Mala). On the one hand the courts based their reasoning on the neutrality principle. On the other, they stressed that the sanyasins' dress were designed for meditation and hence functioned as a religious uniform. However it is a teacher's job to teach, and not to meditate at school. The courts ruled that the purpose of being dressed in red and wearing the Mala during school hours were contrary to a teacher's professional duties and, conclusively, not capable of being protected by the freedom of religion against enforcement of those duties. - This reasoning is slightly different from the one based on neutrality because it is derived from the objective that freedom of religion may only be exercised at school to the extent compatible with the necessary institutional framework of the state school system as established by law. On comparison of these ways of arguing it turns out that when applying neutrality the courts have not truly balanced the constitutional provisions governing the Bhagwan cases. Unless freedom of religion were capable of being entirely inferior in rank to other legal interests the neutrality principle can only limit individual religious freedom but not preclude its exercise.

Before I can address the idea of integration underlying this way of reasoning it is necessary to outline the neutrality concept of the German Basic Law and the relation between neutrality and freedom of religion.

Neutrality and the State School System
When assessing the meaning of the neutrality principle one must have due regard to the fact that this principle is not mentioned in the German constitution but has been induced from a number of constitutional provisions. Accordingly, it has not got a uniform meaning but must be construed dependent on the normative context it is applied to. In other words no genuine deductions can be made from the notion of neutrality in German constitutional law but neutrality is not capable but of functioning as a means of either affirming deductions from express constitutional provisions, or of closing loopholes of the Basic Law. The Basic Law however, as a matter of principle, has not established strict separation of state and church, and it has not entirely excluded expressions of religiosity from state institutions either.

German constitutional law - including the notion of neutrality - does not prohibit that the state establishes schools in which, though they are not religious schools, the Christian tradition and value heritage function as bases for teaching all subjects including the non-religious ones (Christliche Gemeinschaftsschule - interdenominational school). School matters fall within competencies of the Länder legislatures. A number of German Länder have indeed introduced interdenominational schools. Baden-Württemberg and Bavaria have even done so by constitutional amendments in the late 1960s. These amendments have been approved in referendums. By virtue thereof the provisions establishing confessional state schools were repealed. Both the confessional school system and the interdenominational school are based on the principle that the school system is open to expressions of religiosity. For instance school prayers may be offered and services be held during school hours on a voluntary basis. Also the state may attach the Christian symbol of the cross to the walls of classrooms unless an individual explains in a serious and convincing way that this were in violation the negative aspect of his freedom of religion. In other words the school as an institution is the place where the cultural heritage, including the religious heritage, of the German society is handed down to further generations, and renewed. The state may implement a general educational objective to this extent and may give room for individual or collective religious behavior at school.

Freedom of Religion vs. Neutrality
Generally the neutrality principle has not been applied for the purpose of limiting individual religious freedom but in order to strengthen the effect of this human right on the determination of the respective case. In the sanyasin cases the opposite phenomenon occurs. Neutrality there has been applied as a limitation of the freedom of religion. Given the requirement to contextualize the notion of neutrality one might ask which neutrality is at issue but can at least allege that the application of this principle is not wrong ab initio. Article 33(5) of the Basic Law provides that "[t]he law of the public service is regulated with due regard to the traditional principles of the professional civil service". And indeed one of these traditional principles amounts to a duty in terms of which a civil servant must conduct state affairs in a neutral way. In this context, however, acting neutrally means acting without prejudice in favor of, or against any political party, or, as the case may be, impartial and for the best of the general public. Obviously this understanding of neutrality prohibits partiality and prejudice in religious matters but does not generally preclude religious behavior of a civil servant during work hours. Nevertheless missionary expressions of religiosity, or behavior related to a religious belief which is particularly dangerous for young people because the respective denomination renders its members psychologically dependent, would be contrary to this principle. Maybe even religious behavior which inhibits the respective person from performing a good job in accordance with the professional duties might fall within the ambit of this verdict. On the other hand, mere obedience to religious duties which does not adversely affect somebody's professional attitude and ability does not make a person become a partial civil servant.

Besides neutrality in service one might also think of a civil servant's being bound by the same obligations under constitutional law in religious affairs as the state, as a traditional principle of the professional civil service. According to a proper understanding of the Federal Constitutional Court's decision of 16 May 1995 a teacher then were placed under the obligation to dress in a way incapable of being identified with any religious dress code within the same circumstances in which the state must not make use of the symbol of the cross in a classroom. However this construction would result in treating a religiously-dressed teacher as a religious symbol used by the state. It would not only be a pretty out-dated view to identify the state with one of its civil servants in the mentioned way. It would also make the respective teacher a mere tool of the educational system. However teachers are not only representatives of the state and bound as such by the obligations resting on the state towards the parents who have the right to determine the education of their children at school to the same extent than the further. When acting within the scope of the state's educational competence teachers also enjoy a certain pedagogic freedom. Enjoying this freedom but means that in their legal relationship with the state teachers are entitled to comport themselves in accordance with their own ideas and values unless these are contrary to the values enshrined in the constitution or pose a danger to the pupils' best. Accordingly, a teacher who complies with the relevant curricula and does not try to indoctrinate, or manipulate his pupils may also express his religiosity at school in a cautious way. From this point of view Muslims who want to wear a scarf during school hours should be appointed teachers. The scarf is not a meditation dress which would symbolize that they take their religion more serious than the teaching job in spite of the professional duties pointing to the opposite. If the scarf really is nothing but a dress Fereshta Ludin must wear according to her personal understanding of her religious duties the state were to respect this understanding not only outside the field of employment of civil servants but also within. Parents and pupils are bound to accept Muslim teachers dressed religiously the same way the do (and must) respect monks and nuns as teachers dressed in their habit in state schools.

Neutrality and Integration
The different neutrality concepts I have discussed stand for different ideas of integration. Fereshta Ludin is not only a Muslim but she is also a naturalized former alien viz. she was born as an Afghani girl and only came to Germany as a political refugee after the Communists had taken power in her home country (as it then was). Naturalization is but more than a mere grant of citizenship. Naturalization means for the respective person that he is formally integrated into the German society. This admission requires a certain substantive standard of integration which depends on the category of cases to which a given application for naturalization belongs. In general terms any applicant for naturalization must either adjust, or have adjusted himself to the living conditions in Germany. As far as long-time residents are concerned a presumption of adjustment is underlying the relevant naturalization provisions. In other words generally German law construes an application for naturalization as an act by which an alien ties the knot after a long-time process of integration while naturalization itself is the official confirmation that this process has been successful.

Unless aliens have a right to be naturalized on application the respective decision must be made on a discretionary basis. Then key facts must be established which indicate that the applicant has really accommodated himself to the German living-conditions. As a matter of principle an alien may be naturalized unless his behavior deviates substantively from the fundamental principles of the German legal and value order which form characteristics of these living-conditions. Additionally an applicant for naturalization must have a minimum knowledge of the German language. In cases of aliens who are married to a German citizen the ability to speak and understand German for everyday purposes has been regarded as sufficient. On the other hand, according to the framers' motives for the provisions establishing a right to be naturalized the state must respect the cultural identity of the to-be-naturalized alien.

Conclusively, German naturalization law does not establish the requirement of assimilation but allows for a certain cultural diversification of the German society as a consequence of naturalization of aliens.

In my view an understanding of neutrality in terms of which teachers must breach their religious duties, including a dress-code, calls for assimilation. This neutrality concept is a typical product of the Enlightenment in general, and of secularization in particular. Many immigrants from outside the Western hemisphere do however arrive from non-secularized societies and apparently do not even want to change their mind as far as the role of religion in their public life is concerned if they have been happy to accommodate themselves to the other developments derived from the Enlightenment. (That also means that they do not want to move Western societies back to a pre-enlightened state but that they want to balance their cultural heritage with the new culture they are adapting in a way different from the lines drawn by 19th century secularization.) Respecting their cultural identity must particularly amount to respecting their religious identity unless the respective belief were contrary to the values enshrined in the German Basic Law. I have already drawn attention to the fact that the Basic Law has not established strict separation of state and church, and that it has not entirely excluded expressions of religiosity from state institutions either. Accordingly though secularized in principle Germany as a state is open for religiosity's playing a certain role in public life. A concept of law which equates integration with assimilation to the extent that somebody is placed under a duty to act on a basis of comprehensive secularization is therefore inconsistent with the principle of openness included in the constitutional value order.

Conclusion
The legal questions related to immigration reach significantly further than the scope of immigration law. Immigration lawyers, and legislators, must have due regard to this fact even though the law is not capable of guaranteeing integration. For it is the constitution that sets the framework for integration (even though it might be inapplicable to certain aspects of immigration itself, according to the plenary power doctrine) it is possible, and necessary, to determine the minimum constitutional standards for integration and to scan the law as it stands as to whether it contains obstacles to integration. Such obstacles must be removed from the body of the law because no immigration policy can serve its purposes unless it is twinned with an integration policy.