Neureither, Georg

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Mo 9 Jan2012Praying at school? “Anyplace, anywhere, anytime!” verfassungsblog.de /praying-at-school-anyplace-anywhere-anytime/Georg Neureither Mo 9 Jan 2012By GEORG NEUREITHERThat’s how you could characterize the unsettling decision rendered by the German Federal Administrative Court. ABerlin high school student performed his ritual Islamic prayer on the school corridor, outside class hours. The schoolfound that was not ok. The German Federal Administrative Court conﬁrmed. So what’s unsettling?No balancing…All major premises formulated by the Administrative Court (which are completely in line with the FederalConstitutional Court’s case-law) consistently lead to the following statement: “With regard to the freedom of religionenshrined in Article 4.1, 4.2 of the German Constitution, the student…is entitled to do his prayers at school outsideof class hours” (First Premise). Nonetheless, the appeal was not successful because “this entitlement is subject tolimitations necessary for preserving school peace” (Second Premise). The result: “The restrictions to thefundamental right pursue an aim that is to be valued higher than the constraints on the fundamental right…preserving school peace takes precedence over exercising one’s freedom of religion.”In the realm of fundamental rights, it is actually quite common that although a speciﬁc conduct is generally coveredby a basic right, an individual claim to that conduct might not be granted because the legal interests protectedthrough the restrictions to the basic right prevail. Quite common? For the past 50 years, didn’t interpreting theconstitution require “practical concordance”, that is to arrange the legal interests protected by the Constitution insuch a way as to avoid realizing one interest at the expense of another? So as to materialize all of them? Evenmore: to give optimal eﬀect to each legal interest? In this spirit, the Federal Administrative Court subscribed to the“principle of careful balance” in its major premise, but then lost sight of it. While rhetorical appraisal of the pros andcons might be important communicatively, words are not suﬃcient; from a constitutional standpoint, much moreneeds to be “delivered”. But let’s leave it at this as an introductory obiter dictum – unfortunately, we all got used tothe ABBA-principle that in the end, someone wins and the other looses: „the winner takes it all.“ None of this hasactually much to do with the ﬁne arts of legal reasoning. That’s unsettling.… because the school can’t be „schooled“So what news on school peace? It’s not doing so well. In fact, it’s doing so badly that we cannot really speak ofschool peace anymore, but rather of school strife. Just a few examples: amongst students, “there have beenconﬂicts, some of which were rather violent, because some students accused others of disrespecting certain rules ofconduct ﬂowing from a speciﬁc interpretation of the Qur’an. Those rules included wearing a headscarf, fasting, doingprayers, not eating pork meat, and avoiding ‘indecent behavior’ and ‘indecent clothes’ as well as personal contactsto ‘impure’ fellow students”. This resulted in “mobbing, insults, in particular with anti-Semitic intentions, threats andsexist discrimination.” The overall climate was such that “displaying religious conduct, or openly distancing oneselffrom religious precepts could easily fuel conﬂict, even if the conduct was rather insigniﬁcant.” That’s unsettling. TheFederal Administrative Court (and the Berlin-Brandenburg Administrative Court as Court of Lower Instance) deservecredit for describing the situation at the school in unsparing detail. What is irritating in this context is the need felt bythe Federal Administrative Court to repeat time and again that it is bound by the Berlin-Brandenburg Court’sstatements. While this is correct from a legal point of view, it is also common knowledge and does not need to berepeated more than ten times. On the one hand, this creates an impression of distance – as if the Berlin judges had1/3to decide the case, and not the judges in Leipzig. On the other hand, it seems as if the Federal AdministrativeJudges wanted to get rid of the case as quickly as possible – either through appeal to the Constitutional Court, or byputting an end to it.Fate of the circumstancesOn the whole, the Federal Administrative Court is portraying a school where classes may still be held, but wheregenuine school life does not happen anymore. How did it get to this point? And what measures are taken to remedythis? Those questions are important, as they build the basis for the Court’s knockout argument: because things areas bad as they are, praying is not allowed, or things are going to get worse. In other words: the circumstances sealthe claimant’s fate. Well, something is wrong with that! First: the claimant argued that he did not contribute to theoppressive conditions; his prayers did not cause any irritation. From a regulatory law point of view, he is a “non-disturber” and not liable – the others bear the liability. Max Steinbeis provided a straightforward and accurateanalysis on this issue (in reaction to the Court of Lower Instance’s decision); the Federal Administrative Courtformulates more subtly: “It is not the student exercising his freedom of religion, promised (sic!) to him by the GermanBasic Law, who disturbs the peace of the school, but the others who take oﬀense by this in a way incompatible withtolerance.”Second: there is a school, and there is a state. The state has an educational mandate. (So that we learn how totreat our freedom and the freedom of others well.) The state is also neutral, i.e. it does not privilege or discriminateagainst a speciﬁc religion or faith, but is open to all beliefs. That’s why everyone is coming! But not everyone treatshis or her freedom or the freedom of others well. So what options does the state have? “Where the school has beenable to bring students involved in conﬂicts together to talk, these talks did not yield any results.” Step 1: They tried tohave students talk to each other. Unfortunately without any results. Step 2: negative! Steps 3, 4, 5 (and so on):negative! Didn’t happen! Reason: “the school’s possibilities of solving religiously motivated conﬂicts througheducational measures are limited”, especially in an environment where “dealing with single incidents does not seemvery promising in view of the eﬀort that each incident requires.”  I am not in the education business, but I can think ofmore options once talks have failed. The school also has the possibility of applying disciplinary measures. Then,there is the law of administrative oﬀences. And lastly, the decision spoke of “insults, in particular with anti-Semiticintentions”. That’s where (juvenile) criminal law comes into play. There are diﬀerentiated means on all levels, butthey need to be applied, too!So what is the state doing? It doesn’t do anything! It surrenders and thus denies protection to those who wanted todo what the state “wanted” them to do, and what they have a right to. And it leaves the disturbers undisturbed. Froma regulatory law point of view, the state thus transforms into a disturber: “disturber by status”[1]. The FederalAdministrative Court’s decision means exactly that: what’s right is yielding to what’s wrong.[2] That’s unsettling. Infact, that’s state bankruptcy of quite a unique nature!“Anyplace, anywhere, anytime”So what’s left for the claimant in view of the circumstances? He could change schools, because he does have aright to pray in a healthy school environment. Just not at his school. Can this be right?The Federal Administrative Court’s decision might enter legal history as the “Nena-decision”: You can pray –“anyplace, anywhere, anytime”.(Translation: Hannah Birkenkötter) 2/3[1] German regulatory law diﬀerentiates between two types of “disturbers” (“Störer”; a disturber is a person who isliable for violation of a regulatory provision [tortfeasor, but in regulatory terms]), namely “disturber via action”(“Handlungsstörer”, a person who violates regulatory norms by his or her actions) and “disturber via status”(“Zustandsstörer”, a person who is responsible for a speciﬁc situation which does not comply with regulatory normsby his or her legal status, e.g. the owner of a contaminated property)[2] This is a variation of the phrase “What is right does not have to yield to what is wrong”, a modern translation of“Vim vi repellere licet” used in (German) criminal law to explain the concept of self-defense.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Neureither, Georg: Praying at school? “Anyplace, anywhere, anytime!”, VerfBlog,2012/1/09, http://verfassungsblog.de/praying-at-school-anyplace-anywhere-anytime/.3/3

Praying at school?: “Anyplace, anywhere, anytime!”

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Praying at school?: “Anyplace, anywhere, anytime!”

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