On March 15th 2004, the French parliament passed a law that forbids the use of the Muslim headscarf, the hijab, in public schools. This move by French lawmakers, heeded by former President Jacques Chirac, created immense controversy inside and outside of France, a country that has Europe's largest Muslim population. People for and against the law took the streets, while some foreign governments, including the Americans, argued that this "headscarf ban" violated the right to religious expression. On their side, the law's supporters maintained that the ban was necessary in order to preserve the secular essence of the French public school system.
Recently, I wrote a paper about this issue, making some policy recommendations and assessing the impact of the law. I decided to put up some excerpts (the first part of the paper and the conclusions) from it here. If everything does not make perfect sense it may be because some sentences refer to other parts of the paper not shown here:
After March 15, 2004, when the French government passed a law that forbids the use of the Islamic headscarf1 in public schools, many inside and outside France expressed their concern. The Union of French Islamic Organizations (UOIF in French), for instance, encouraged girls to test the new law and to go to class “in the clothes they have decided to wear.” On its part, Human Rights Watch, the New York-based advocacy group, stated that banning the use of the hijab was both “discriminatory” and “an unwarranted infringement on the right to religious practice.” Other governments in Western Europe, and some women's and Muslim organizations in France reacted similarly against the so-called headscarf ban.
At the time, however, surveys showed that around 69 per cent of French citizens were in favor of the new law. Even more than 40 per cent of French Muslim respondents declared to be supporters of the ban. Clearly, the way the law was perceived in Paris was very different from the way people in Washington or London understood it. For the French, the ban put an end to a nation-wide debate that had been on the spotlight for fifteen years; in other parts of Europe and across the Atlantic, the law should have never been passed in the first place. Today, four years after the implementation of the headscarf ban, France remains the only major Western country to impose such a rule on its students.
It must be noted that, although the text of the law forbids the use of all “conspicuous” (ostensible) signs that indicate a student's religious affiliation, thus banning also the Jewish kippa and large crucifixes, the law was almost exclusively meant to target the Muslim headscarf.1 This paper also explores the causes of this understanding of the law. Thus, the analysis offered here revolves around the following main questions: What ideas, events and actors, social, political or otherwise, led to the proclamation of the headscarf ban? Is the law an obstacle to France's commitment to protect freedom of religious expression? How has French society assimilated the law throughout the past four years? And ultimately, should the headscarf ban be upheld?
The first dispute about foulards (foulard is another name in French for the Muslim headscarf) in public schools that got national attention occurred in Creil, near Paris, on September 1989. That month, three Muslim girls of North African origin were expelled from the local middle-school after they refused to remove their headscarves inside the classroom.1 French mass media took the incident at heart and gave it ample coverage, putting the issue at the top of the political agenda of the time. Both the President François Mitterrand and the Prime Minister Lionel Jospin gave their general opinion of the matter, although in the end the case was resolved by the State Council, France's highest administrative court. The Council ruled that the girls must be readmitted by the school, for they had the right to wear the foulard in the classroom as long as they did not alter “the normal functioning” of student life.
However, the number of incidents and their complexity kept growing with time. Throughout the 1990s more veiled girls were expelled from public schools and, in some cases, groups of teachers went on strike to express their support for the headscarf measures while the cases were being evaluated by the courts. By the late 1990s, there were around 150 headscarf incidents per annum; the number had been much higher by the middle of the decade. There were other instances in which veiled mothers were not permitted to accompany their children in school trips. In some schools, principals and school boards simply forbade the use of all types of head coverings, including bandanas and smaller, more discreet scarves.
In the meantime, the number of organizations, work unions and social groups that took a stake in the incidents kept growing, as well: at first sight, the issue seemed to concern only the affected students, their families and the staff at their specific schools; in reality, however, the debate became heavily influenced by teacher unions, French intellectuals, the media, Muslim organizations such as UOIF, feminist leagues, and anti-discrimination advocacy groups like SOS-Racisme. Of course, politicians and the French state also became involved in the issue: cabinet ministers and party leaders often gave opinions regarding the expulsions and the use of the headscarf, while judges followed a case-by-case approach in trying to solve the numerous disputes. More often than not, the judges reaffirmed the girls' right to wear the hijab in class and ordered their readmission to the schools.
But, why did the French public become so concerned with the fact that some girls decided to attend school wearing a Muslim headscarf? Why did teachers and school principals order these students to remove their foulard in the first place? Broadly speaking, there are two answers to the questions above. The first one relates to both the history and the values of the French Republic. Among Western countries, France is special in that it spouses a very strict form of secularism, which the French refer to as laïcité. Under laïcité, which is enshrined in the first article of the 1958 Constitution, the French state is supposed to remain neutral vis-a-vis all religions. By extension, laïcité implies that public spaces in France, such as hospitals, government offices and schools, must remain neutral in this regard, as well. In the late 19th Century, for example, Catholic priests were banned from teaching and crucifixes were removed from public schools in the name of laïcité. Nowadays, French nurses, doctors, teachers and public servants are generally obliged to take off any elements that may indicate their religious affiliation. Furthermore, public schools hold a sacrosanct place in the French social imaginary. The Republican school (“l'école républicaine”) is meant to be the one place where children are educated to be good citizens, growing up equal to one another. After 1989, when school principals expelled Muslim students who refused to remove their headscarves, they did so by invoking the principle of laïcité, which the girls were allegedly undermining with their deliberate expression of their religious affiliation. Indeed, much of the debate about the voile focused on whether the laïcité of the Republican schools was being threatened. In order to achieve a good republican education, so the argument goes, students need to study in a difference-free environment, one in which their belonging to different religions should not become evident.
Nonetheless, there is a second reason behind the widespread concern with the hijab between 1989 and 2004: a worsening in the way Islam was perceived by French mainstream society correlated with a rise in the visibility of Muslims in France. Starting with the Iranian Revolution of 1979, the final decades of the 20th Century saw the rise of radical interpretations of Islam. Events such as the assassination of the Egyptian president Anwar Saddat by the Muslim Brotherhood in 1981, the rise to power of the Taleban in Afghanistan in 1996, and the crude civil war in Algeria involving the Islamic Salvation Front and other Islamist groups, caught the attention of Western audiences.10 Images and stories of Muslim women entirely covered in dark robes, and obliged to preserve strict codes of behavior, became more frequent for people in France and other nations. Al Qaeda's terrorist attacks on the United States on September 11, 2001 only exacerbated the problem, leading many Westerners to adopt a warier attitude towards Muslims, and making them perceive Islamic values as incompatible with their own. Of course, this change in perception charged a high toll on the large majority of Muslims who rejected the radical and often violent interpretations of Islam spoused by the groups mentioned above. Tensions between Muslims and non-Muslims in the West were bound to increase.
France, home of Europe's largest Muslim community, was to be particularly affected by this state of affairs. John Bowen has collected testimonies of veiled Muslim women in France who maintain that they were the target of offensive behavior in the days following the attacks on the Twin Towers and the Pentagon. Doubtless, fears about the threat to laïcité allegedly posed by the hijab, were affected by the increasing suspicion shown towards French Muslims. Furthermore, this evolution in the French perception of Islam coincided with an increase in the number of Muslims in France, as immigration from Muslim countries rose sharply in the second half of the 20th century: between 1962 and 1999, for example, the number of Maghrebians doubled as a percentage of the total number of immigrants in France. There was a less pronounced increase in the number of immigrants from Turkey and from countries in Africa outside the Maghreb, many of which have Muslim populations, as well. Clearly, this led to an increase in the number of Muslim students and a to multiplication of foulards in public schools by the end of the century. There was growing anxiety among many school teachers, and many of them mobilized to demand that the headscarves be kept out the classroom. The combination of these elements brought the issue of the foulard to the fore of the political debate.
It was in mid 2003 that a commission named by President Jacques Chirac produced an influential report that first suggested the imposition of the headscarf ban. This 'Stasi report', nicknamed after Bernard Stasi, the leader of the commission and France's ombudsman at the time, was supposed to give advice regarding the principle of laïcité and the way it should be applied inside the French Republic. At the time, however, it was understood that the commission's main task was to decide upon the steps the State should take regarding foulards in public schools. The commission interviewed school principals and teachers, police officers, religious leaders, representatives from several political parties, NGO directors, work union members, journalists, parliament deputies, and government ministers. In its 77 page long report issued in December 2003, the commission recommended “the adoption of a law regarding laïcité”, whereby all elements indicating “political or religious membership (appartenance)” would be forbidden in public schools. Besides, the Stasi report also made secondary and more general recommendations, such as the “destruction of urban ghettos”, the construction of public schools in each town, and the creation of an “authority to fight against discrimination”.
That same month, President Chirac saluted the job of the commission and decided to push for a law that banned the use of conspicuous religious signs in schools. There were voices that maintained that Chirac's actions were the result of his need to appeal to unionized workers from the left, fond of strict definitions of laïcité, as well as to those voters from the right who had been seduced by the racist rhetoric of the Front National in the last presidential election.21 In any case, three months later Parliament passed the law by an ample majority, although its final text differed somewhat from the one proposed by the Stasi report. Starting September 2004, French Muslim girls were not allowed to enter public schools wearing their foulards.
Conclusion and Policy Recommendations
France's headscarf ban approved on March 15, 2004 is an unnecessary piece of legislation. For fifteen years before the ban, the many disputes regarding veiled Muslim girls who were expelled from public schools had effectively been resolved by the French judicial system. In the early 2000s, the number of such disputes had decreased markedly from its peak in the early 1990s, and so, the need for a headscarf ban in order to avoid further confrontation was comparatively low in 2004.
The Stasi commission recommended an approach that was, explicitly, an impartial effort meant to protect the laïc values of the French Republic and of the public school system. Implicitly, however, their recommendations and the ensuing law, were tainted with rising fear and anxiety about Muslim customs and behavior. These rise of these fears within French society are explained by the rise of Islamic fundamentalism in Iran and Afghanistan, for example, events like the terrorist attacks in New York and Washington, and the aftermath of the end of French colonization in North Africa, among other factors. Moreover, the adequateness of recommendations made by the Stasi commission is debatable, given that the commission effectively excluded veiled Muslim women from its deliberations.
Nevertheless, the law banning all conspicuous religious signs does not constitute an overwhelming violation of human rights and freedoms. The scope and reach of the law are fairly limited and a similar ban has been upheld by the European Court of Human Rights. France did not become considerably less free or considerably less just because its lawmakers approved the headscarf ban. With the way the law is drafted, it is hard to demonstrate that there is something overtly discriminatory and unjust about the ban. Furthermore, restrictions and guidelines regarding attire and clothing are commonplace in many other schools around the world. The impact of the law is also attenuated by the fact that Muslim students have still may wear the foulard in private schools.
Certainly, the French approach to issues surrounding the hijab is an exception within the Western world. The British, the American and the German governments tolerate headscarves in their public schools. However, the political histories and constitutions of these four nations are also different in a good number of ways, and France's extraordinary commitment to secularism, essential to understand this issue, is also an exception within the Western world.
This is not to say that the headscarf ban was either desirable or beneficial. On the contrary, the law helped to increase conflict with French Muslims, a community that was already at a disadvantage within France, and one whose integration with mainstream society has been particularly difficult. In proclaiming the law, French politicians opened more wounds in the thorny relationship between Muslims and the rest of French society. In this sense, banning the headscarf in public schools was an irresponsible and counterproductive act. Given the low number of disputes regarding headscarves, it is difficult to see why and from whom French laïcité needed to be protected by means of a headscarf ban. In addition, arguments that the law was necessary in order to prevent parents from limiting their daughters' freedom of choice can be dismissed on the grounds that the ban may also constitute an obstacle to the independence of the young women who have opted freely for wearing the hijab.
Hence, the following are the policy recommendations regarding this issue:
1.In the short-term, there should be no attempts to revise or repeal the law of March 15, 2004 banning all conspicuous religious signs in public schools. Although it seems that there was no real need to pass this law in the first place, it would be unwise to relive the controversy around this issue. Today, four years after its implementation, the law has been assimilated as a fait accompli by the French society as a whole, including Muslims. Bringing the subject to the surface once again is likely to reopen the same wounds and trigger the same disagreements of the beginning of this decade. However preferable a revision of the law may be, France would risk creating greater polarization with a new nationwide discussion about the issue at a time when there is no certitude that a change in policy will ensue.
2.In March 2014, when the law reaches it's tenth anniversary, name a new commission to assess the impact of the headscarf ban and decide upon its continuity. The previous recommendation does not imply that the France should never revise the headscarf ban. There is little doubt that the law of March 15, 2004 has been successful in lowering the number of disputes related to the hijab in France's public schools, but this effect may be reversible and should not be taken for granted. If there is little improvement or a worsening of the economic and political status of Muslims in France, there is a high probability of unrest in the future, perhaps including a new series of incidents regarding the hijab. Moreover, and although at present there is no political will to revise the ban, this is also prone to change in the future. This is why it is recommended that a new commission be named to reflect upon the adequateness of the law after its first ten years of implementation.
3.As soon as possible, the French state should give fiscal and economic incentives for the creation of Muslim schools. It is recommended that the number of years needed for a Muslim private school to become eligible for public funding be reduced from five to two years. Muslim schools that decide not to receive public money should benefit from tax breaks, while all private donations given to these schools should, automatically, become tax deductible. The French state may decide whether to extend these benefits to all private schools, confessional or otherwise, or to make them exclusive for the creation of Muslim schools, in which case the state should set a limit of 300 new institutions that would benefit from these incentives. The above need not imply a relaxation in the other sorts of controls that the French state imposes upon private schools.
These incentives are needed in order to minimize the adverse effects that the law of March 15, 2004 has on Muslim female students and to reach parity regarding the numbers of private religious schools.
4.Every time a new commission is set up in order to propose policy and legal recommendations, a small group of scholars should be appointed to assess the objectivity of the commission's work. Although commissions are usually composed of educated people, with knowledge of the subjects they are treating, their influence and their methodology often go unchecked. This was the case of the Stasi commission, whose approach to the issue of the application of laïcité in public schools was objectionable. Hence, it is recommended that a small body of four to five scholars be appointed to oversee and review the work of every future commission. These overseers, who should be appointed by someone other than those appointing the commissions, should look for and warn about biases and lack of thoroughness in the methodology followed by commissions.
