The International Center for Advocates Against Discrimination (ICAAD) submits this report to highlight concerns regarding Frances Law No. 2004-228 of 15 March 2004 (the Act), which prohibits students in public primary schools, secondary schools, and lycée from wearing symbols and clothing manifesting a religious affiliation. French schools implementing the Act have expelled students who manifest their religion by wearing articles of faith to school.
The French government has taken the position that such expulsions do not constitute discrimination because the Act does not single out any religion, because it furthers the ideal of secularism, and because expelled children may pursue alternatives such as home schooling, correspondence courses, or private schools. French courts and the European Court of Human Rights have agreed: on December 5, 2007, the French Council of State ruled that given the importance attached to the principle of secularism in public schools, the permanent expulsion of a pupil who refuses to comply with the legal prohibition to wear external symbols denoting religious affiliation is not a disproportionate infringement of the freedom of religion as guaranteed by article 9 of the European Charter of Human Rights (ECHR), nor does it violate the principle of non-discrimination set forth by article 14 of the ECHR since it aims at ensuring compliance with the principle of secularism in public schools without discrimination between pupils faiths. However, these defenses were resoundingly rejected by the U.N. Human Rights Committee in the case of Bikramjit Singh v.France, Communication No. 1852/2008, CCPR/C/106/D/1852/2008, ¶ 8.7 (Feb. 4, 2013), which took the view that the expulsion of the author from his lycée was not necessary under article 18 paragraph 3 of the Covenant, infringed his right to manifest his religion and constitutes a violation of article 18 of the Covenant. In fact, the Committee held that the enforcement of the Act by the French Council of State violated Article 18 of the International Covenant on Civil and Political Rights (ICCPR) because it discriminated against a student for manifesting his faith, without any sound justification relating to public health or safety. Nevertheless, the government has adhered to the view that the Act is a legitimate expression of the ideal of secularism”including in its Fifth Periodic Report to this Committee. Indeed, the government”in statements both before and after this Committees decision”has not only reaffirmed its commitment to the Act, but has proposed measures further restricting religious freedom in public spaces, all based on the same logic that this Committee rejected.
The Act and the governments defense of it raise grave concerns. Although the Act, on its face, does not single out any religion, several minority religions”including Judaism, Islam, and Sikhism”require manifestations of faith, while other religions, including the majority Catholic faith, do not. Children in these religions are therefore disproportionately affected. Moreover, the history of the Act demonstrates that its primary purpose is to prevent Muslim girls from wearing a khimar, or headscarf, and the law is commonly referred to as the œHeadscarf Ban. That history and shorthand belie the notion that the Act constitutes a general expression of secularism, as opposed to a targeted measure against minorities.
Indeed, the Acts broad scope makes it all the more pernicious. When facially neutral laws disproportionately affect minorities, discrimination masquerades as equality. But like the victims of more blatant forms of intolerance, children expelled from school under the Act face the stigma of being excluded from mainstream French society. Moreover, their identities are focal points for adverse treatment, a fact that surely signals to them, to other children, and to society more broadly that it is appropriate to discriminate on the basis of religious affiliation. Thus, far from upholding the pluralistic ideal of secularism, the Act disadvantages minority religions in violation of international law, isolates children from their peers, and thus contributes to the very religious compartmentalization that France still seeks to prevent.Indeed, the evidence bears this out. The Act has not only resulted in marginalization for minority children, but it has also failed to abate social tensions, which have been exacerbated in recent years.
Although the Act contains measures ostensibly designed to soften its effect, these in fact only heighten the adverse impact on children. First, before expelling a child, school officials are required to hold a dialogue with her. But as explained in a circular issued in May 2004, that dialogue is one-sided: the school official is commanded to explain the rules to the child, and to attempt to convince the child to conform with the Act. If the child cannot be persuaded to forego his or her religious observance, Frances position is that the Act requires expulsion.
The dialogue therefore does not require schools to compromise, but instead constitutes an ultimatum to the child. Second, France has taken the position that in lieu of public education, expelled children may attend private schools or take correspondence courses. But segregation on the basis of religion is neither lawful nor just. By closing the public schoolhouse door, the Act discriminates against minority children. That discrimination calls out for scrutiny and rebuttal from this Committee.