RELIGIOUS EDUCATION IN PLURALIST SOCIETY: HOW DOES ARTICLE 9 FIT IN? Introduction 1. In this talk I will be considering the impact of Article 9 in the sphere of education and addressing two key questions: (i) How, and with what degree of success, has Article 9 been invoked in order to challenge decisions or policies affecting the nature or content of education? (ii) How is Article 9 jurisprudence in this area likely to develop domestically and in particular, what potential is there for future judicial reviews of the faith schools policies that are currently causing so much controversy? 2. By way of introduction, I briefly summarize certain aspects of the case law in this area that are worthy of note. 3. Firstly, the ECtHR has been manifestly reluctant to pronounce any decisions on Art 9 points in cases where the Applicant has simultaneously invoked other Convention rights - which, of course, is the usual approach taken by Applicants in Strasbourg jurisprudence in order to maximize their chances of success. Accordingly, in their judgments, the ECtHR frequently declares it unnecessary to consider the Art 9 point, in favour of other Convention Articles the relevant Article in these education cases being, more often than not, Article 2 Protocol 1 ( Art 2 P1 ). 4. Art 2 P1, as a reminder, is the right to education. Its second sentence intersects with Art 9, stating: In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions.
5. Secondly, where the ECtHR has made decisions on Art 9 in these cases, it has tended to adopt a restrictive approach - closing down rather than opening pathways to successful claims. This is notable for its contrast to the fairly open approach the Court has taken to developments in the realm of Art 8. 6. Thirdly, as for domestic courts application of Art 9 in this area in the UK: as yet they have proved at least as reluctant as the ECtHR, if not more reluctanct, to allow claims against schools on points of religion in education. 7. However, at a time where the debates on faith schools admissions and curricula are reaching new levels of intensity, in particular as they intersect with related debates about immigration and multiculturalism in modern society, and as cases such as the Jewish Free Schools case are progressing through the courts in the eye of the media, it seems likely that this type of judicial review challenge is going to be increasingly probed, explored and tested over the coming years. 8. In considering this topic, I will first discuss three ECHR cases which deal with Art 9 in the education sphere. They are all concerned with parents contesting school policies relating to lessons and activities which have religious elements or implications. Efstratiou v Greece (Application no. 77/1996/696/888) 18 Dec 1996 9. The Applicants in this case were Jehovah s Witnesses who complained that their daughter s school had punished her with suspension for refusing to participate in the national parade. The daughter had refused because she claimed participation was incompatible with her belief in pacifist principles as a Jehovah s Witness. The school s punishment of the pupil was in accordance
with a Government Circular. The Applicant s case was that this infringed their rights under Art 9, and also under Art 2 P1. 10. The parade at issue was one of the school and military parades organised around Greece on National Day, to commemorate the outbreak of war with Fascist Italy in 1940. The school and military parades are held simultaneously in a small number of municipalities in Greece. The Applicants argued that the parade was militaristic in character; but the Government contended that the National Day commemorated Greece's attachment to the values of democracy, liberty and human rights which had provided the foundation for the post-war legal order. 11. In making her case on Art 9, the Applicants asserted that it guaranteed the daughter s right to the negative freedom not to manifest, by gestures of support, any convictions or opinions contrary to her own. They disputed both the necessity and the proportionality of the interference, having regard to the seriousness of the penalty, which they said stigmatised and marginalised her. 12. In the Government's submission, Art 9 protected only aspects of religious practice in a generally recognised form that were strictly a matter of conscience and the State was not obliged to take positive measures to adapt its activities to the various manifestations of its citizens' beliefs as was being required here. 13. The Court found that there was no breach of Art 2 P1, or Art 9. Its reasoning in this judgment is interesting in the way it links these two rights together. On Art 2 P1, the Court said that it did not consider that it must rule of its own motion on the question of whether Sophia s right to education was respected. It justified this by reference to the established principle that Art 2 P1 must be interpreted in light of other rights - including Art 9.
14. On Art 9, then, the Court went on to conclude that, although it accepted that Jehovah s Witnesses pacifist beliefs fell under Art 9, it could discern nothing in the parade or in the arrangements for it which could offend the appellants pacifist convictions to an extent prohibited by the second sentence of Art 2 P1 [para. 32] continuing that such commemorations of national events serve, in their way, both pacifist objectives and the public interest. The presence of military representatives at some of the parades does not in itself alter the nature of the parades. Ultimately, the Court held that the parade was a neutral event, and it was within the school s administrative discretion as to matters of discipline to require pupils attendance. It is notable that, in considering the Art 9 claim, the Court took into account the fact that the school had already allowed the pupil exemption from religious education lessons and the Orthodox mass in the past, after receiving written requests from her parents - albeit this was arguably a distinct issue from the matter complained of. 15. The Court was far from united in their judgment in this case: there were two dissenting judges, both of whom took the view that there had been a breach of both Articles. 16. As for Art 9, the dissenting judges noted that the girl had stated that the parade had a character and symbolism that were clearly contrary to her pacifist, and thus religious, beliefs and therefore, in their view, there was no basis for seeing her participation in it as necessary in a democratic society - even if most people just saw it as a public event which expressed national values and unity. These judges gave no weight to the argument that the parade should be seen as part of her education, because in their view it was not neutral in nature, and did not form part of the usual school curriculum. 17. As for Art 2 P1: in their view this right is breached where pupils are forced as part of their school duties to take part in organised events imbued with a symbolism that is contrary to the religious and philosophical convictions of
their parents a principle which applied even more strongly where the events are held in a public place, outside school, on a national holiday, with the intention of delivering a message to the community. It was not unreasonable, they thought, for the Applicants to be of the opinion that the parade required the pupils to show publicly that they adhered to beliefs contrary to those of their parents. And because the Applicants held this opinion, the judges found that the episode must therefore have been capable of disturbing that family and humiliating that pupil, irrespective of the value most other people in Greek society may place on such national events. 18. It could be said that the majority judgment of the Court in this case is at least questionable in its analysis. Its method for dealing with the whole matter boils down to making its own assessment of the respective views of the government (together with the assumed majority of the Greek population) and the individual applicants about the meaning and significance of the parade, in order to arrive at its own conclusions about the parade in light of Art 9 those conclusions being that the parade was a neutral event which should not be seen to have religious significance at all, and therefore that Art 9 was not even engaged. 19. By reasoning that Art 9 was not engaged, the Court was then able to sidestep any consideration of the qualification included in the Art 9: namely that state restrictions of individuals right to freely manifest their religious beliefs is only justified where necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Notably, this qualification was considered vital by the dissenting judges in coming to their opposite decision - following from their initial view that Art 9 was engaged. Similarly - by the reasoning of the majority of the Court that Art 2 P1 was essentially inseparable from Art 9 and stemmed from it, they were able to conclude Art 2 P1 was not engaged, and sidestep consideration of the fact that there is no
comparable qualifying provision included in Art 2 P1 to limit the rights of parents to ensure conformity of education with their convictions. 1 Folgero and Ors v Norway (App No. 15472/02), 29 June 2007 20. In this case, the applicants were non-christian parents, who were active members of the Norwegian Humanist Association. They complained about the refusal by authorities to grant their children exemption from religious education, and brought the claim under both Art 9 and Art 2 P1. 21. To briefly put the case in context: Norway has a state religion and a state church, namely Lutheran Christianity, which is enshrined in its constitution, together with a guarantee of freedom of religion. 86% of the population are members. Instruction in the Christian faith had been part of the Norwegian education curriculum since 1739. The curriculum was reformed between 1993-1997, and a new subject called KRL was introduced, with the intention of combining education on Christianity with education on other religions and philosophies, although retaining Christianity as the focus. The subject included religious activities including prayers and learning of religious texts, as well as bible study. There was a partial right of exemption, and which could only be granted after parents had specified reasons. 22. Many secular and other religious associations complained that the subject was dominated by Lutheran Christianity and included preaching, and therefore an allowance of partial exemption from the classes was not enough. They lodged a petition to the UN Human Rights Committee, under Art. 18 of the International Covenant (the parallel right to Art 9). The Committee agreed that 1 This particular point was not expressly considered in the dissenting judgment either, notwithstanding it theoretically renders Art 2 P1 an even stronger one for Applicants in these sorts of cases than Art 9. It seems that the ECtHR has still not considered this issue.
the system of partial exemption was a burden on parents and not practicable, and parents should not have to give reasons in order to apply for it. In response to the Committee s opinion, the Norwegian Government took steps to modify the subject, including a clear division of the practical and theoretical elements of the lessons, and increased flexibility in relation to parents wishes. 23. However, the applicants complained to the ECtHR that the subject was still neither objective nor pluralistic in its content, and that full exemption was still not granted; they had to give brief reasons even for partial exemption. They alleged a breach of Art 2 P1, together with art 14 in conjunction with Arts 8 and 9 for discrimination on the basis of non-religion. 24. The Government argued that, when designing this subject, it had carefully considered the problem that it was likely to include elements which could run counter to philosophical or religious convictions of parents, but took the view that it was in the interests of the pupils to acquire knowledge of religions and philosophies of life, and that the Convention adequately safeguarded against indoctrination. They pointed to the traveaux preparatoires to assert that the subject reflected a well-balanced compromise between the competing interests of parents and the interests of children in acquiring knowledge of religions. 25. The Court decided that the complaint fell most suitably to be examined under Art 2 P1 than under Art 9 (although gave no specific reasons for this). The explanation for the fact that the reverse approach was taken to that in Efstratiou v Greece (above) is probably that the matter complained of here was the substance of the educational curriculum, whereas in Efstratiou the parade was outside the curriculum. In any event, the Court noted that A2P1 must be interpreted in light of Art 9, and that the two were inextricably connected.
26. After setting out certain governing principles, they set out the key question as being whether the State had taken care that the information or knowledge in the curriculum for the subject be conveyed in an objective, critical and pluralistic manner or whether it had pursued an aim of indoctrination not respecting the applicant parents religious and philosophical convictions and had thereby transgressed the limit implied by Art 2 P1. 27. As for the facts, the Court noted that whilst stress was laid in the curriculum upon the teaching being primarily knowledge-based, teachers of the subject were also required take as a starting point the Christian object clause : a specified aim to give pupils a Christian and moral upbringing. It was also a stated aim in the curriculum to transmit thorough knowledge of the Bible and Christianity, and there was a clear preponderance of Christianity in the composition of the subject. Looked at in the round, the Court concluded that the curriculum and legislative framework suggested that not only quantitative but qualitative differences applied to the teaching of Christianity as opposed to other religions and philosophies. 28. On the issue of the exemption mechanism, the Court found that the partial exemption permitted by the State was practically difficult in that, for example, it presupposed parents to be adequately informed of the lesson plans in advance. The Court found that the requirement for parents to give reasonable grounds for requesting it was also invasive of their private life. It was also insufficient in strength, as schools were not bound to allow a pupil exemption in any event. 29. Consequently the Court held that it does not appear that the State took sufficient care that information and knowledge was conveyed in an objective, critical and pluralistic manner for the purposes of Art 2P1, and that accordingly the refusal to grant parents full exemption was a violation of that Article. Again, the Court found it unnecessary to carry out a separate
examination in relation to Art 14 in conjunction with the other Convention Articles, including Art 9. 30. A joint dissenting opinion was issued by 8 judges, stating that in their view a review of the case required consideration of modern Norwegian society with its centuries of history as an important background, in particular the long tradition of Christianity. In its view this history must be reflected in the curriculum which should be both inclusive and broad. 31. They raised the issue of whether the part of the Norwegian Constitution setting out Christianity as the state religion even raised an issue under Art 2 P1 or Art 9, and took the view that it did not. They did not accept that what they called the mentioned requirement in the curriculum to take the Christian object clause as a starting point for the lessons would actually give the subject a strong Christian leaning. Whilst they agreed that Christianity represented a greater part of the curriculum than the other world religions and philosophies, they pointed out that others represented about half, and values to be promoted in the curriculum included humanist values. Unlike the majority, then, they concluded that there were not qualitative differences as to the teaching of Christianity relative to other religions. 32. As for the partial exemption scheme: in the dissenting judges view it did take into account parents needs, and was not unreasonable in requiring them to give reasons. If a school were to refuse a request, they pointed out that there was a safeguard by way of an appeal procedure. 33. Consequently they were satisfied that the State had taken care that the curriculum was conveyed in an objective, critical and pluralistic manner, and therefore did not think it violated Art 2 P1. Hasan and Elyem Zengin v Turkey (Application no.1448/04) 9 Oct 2007
34. In this case decided not long after Folgero - the applicants, a religious family, complained that the manner in which lessons in religious culture and ethics were taught to their children in Turkey infringed their rights under the second sentence of A2 P1 and Art 9. These lessons were compulsory on a national level, under the Turkish curriculum. The applicants had asked for exemption from the religious culture and ethics classes under the official mechanism, by submitting a request to the Directorate of National Education, but this request had been refused. 35. The applicants were adherents of the religious movement Alevism. Alevism is considered by many to be a branch of Islam, but considers itself to be a belief or philosophy influenced by various other cultures, religions and philosophies particularly Sufism. Alevis reject Sharia law, and the rituals of Sunnism including pilgrimage to Mecca and they defend values such as freedom of religion, women s rights, humanism and tolerance. The applicants contended that the compulsory classes were based on the rules of Hanafite Islam, that no teaching at all was given about their own faith, and that ultimately the classes were not being taught in an objective, critical or pluralist manner. 36. The Turkish government pointed out that the legal basis of national education was officially secularism, and contended that this principle ultimately underpinned the classes. 37. The Court again outlined certain governing principles, in particular emphasizing that Art 2 P1 must be read in light of Arts 8, 9 and 10. They commented that it seems very difficult for many subjects taught at school not to have, to a greater or lesser extent, some philosophical complexion or implications.
38. However, they emphasized, as in the previous cases, that part of the aim of Art 2 P1 was to encourage pupils to develop a critical mind by conveying knowledge pluralistically, avoiding misplaced proselytism. They emphasized the importance of pluralism in this context, stating: the Court considers that, in a democratic society, only pluralism in education can enable pupils to develop a critical mind with regard to religious matters in the context of freedom of thought, conscience and religion. 39. As for the facts of the case: the Court considered a range of evidence about the classes, including the fact that pupils were required to learn parts of the Koran by heart. They noted that the Alevi faith was indeed not included in the curriculum, despite its deep historical roots in Turkish society, and noted that the Government accepted that the religious diversity in Turkish society was not really taken into account in these lessons. They acknowledged that according to the curriculum, these classes had been devised for the very purpose of promoting understanding, tolerance and respect among pupils from differing backgrounds. However, they questioned whether the priority given to the teaching of Islam in the syllabus in practice could in truth be considered as remaining within acceptable limits for the purposes of Art 2 P1. 40. In relation to the second sentence of Art 2 P1, the Court noted that it was necessary for states, as far as possible, to avoid conflict between schools and parents on matters of religious education, and that, with this in mind, most contracting states included an opt-out mechanism for religious education classes - yet Turkey made these classes compulsory. The only route Turkey provided for parents to opt out was by making a prior declaration of their religion to the school, and schools still had the discretion to refuse such a request. The Court took the view that this mechanism was ultimately not appropriate for some parents, as it placed an unduly heavy burden upon them. (Notably this is similar to the exemption system in place in Folgero.)
41. The Court concluded that there was a breach of the second sentence of A2 P1, and it was not necessary to make a separate finding on Art 9 notwithstanding that they expressly noted earlier in the judgment that the inadequate exemption procedure may have been in conflict with Art 9. 42. It is interesting to consider the reasons why the Court was united in this case, with no dissenting votes, when it is clearly very factually similar to Folgero, in which there were eight dissenting judges. This may be due entirely to the fact that there was a precedent on a similar case, although it could be argued that a factor in Hasan was that the religion in question happened to be Islam, whereas in Folgero it was Christianity. And politics aside, it is interesting to consider whether the increasing emphasis on cultural and religious pluralism within modern society as a whole is behind this shift in Court s jurisprudence in the direction of applicants in these cases. Domestic law: JR 43. How, then, is this ECHR jurisprudence relevant to domestic education law, and in particular to the hot topic of faith schools and their admissions policies? 44. Clearly the above cases are precedents for potential challenges to the content of religious education lessons in schools, on the basis of Art 9 or Art 2 P1. But as for the issue of faith school admissions: could there be Art 9 issues here? Could Art 9, for instance, be invoked in an argument that no statefunded school should be able to refuse a pupil admission on the basis that she manifests a religion contrary to the religion of the school? 45. To give a bit of background to this issue: as you will doubtless be aware, the Government s School Admissions Code came into force in February last year, and the new School Admission Appeals Code came into force in January this year. These Codes have force, and can be the subject of legal challenge.
Admissions authorities (usually local authorities) are responsible for devising admissions policies for their area and for operating them. They and all the other authorities involved in the discharging of admissions policies must comply with the Codes, or will be in breach of their statutory duty. Legal challenges can be mounted in respect of compliance with the Codes - there are procedures both allowing parents to appeal specific admissions decisions, and allowing both parents and other groups and authorities to challenge the admissions policies themselves. 2 46. Both the Admissions Code and the Admission Appeals Code have been controversial, and have been made open to public consultation, with amendments being discussed. Unsurprisingly, faith schools admissions have proved to be particularly controversial within the public consultations, as these schools of course have much more freedom over their own admissions arrangements and requirements. This freedom has been modified somewhat - for example, under the Admissions Code the governing body of a new faith school must consult with their religious authority when considering admission arrangements, and they are subject to the same Admission Appeals Code as state and other maintained schools. However, there is still much discussion over the degree of flexibility that should be left open to faith schools regarding admissions. There has been discussion in the consultations as to whether they should be able to expressly exclude applicants from a particular social or religious group, or state that only applicants of a particular social or religious group will be considered - and whether they should be able to take account of factors associated with some religious beliefs such as the marital status of parents. The interpretation of the Codes is open to question in various respects. 2 Where parents wish to appeal specific decisions on admissions, they can lodge an appeal from 14 days after notification of the decision, and their case will be heard by an independent Admissions Appeal Panel. Legal challenges to the admissions policies themselves can be mounted by parents, local authorities, admission authorities, school governing bodies, Admissions Forums and some religious bodies - by objecting to the Schools Adjudicator under the 2007 Admission Appeals Regulations.
For example, there is a requirement that oversubscription criteria be fair, but in the context of faith schools, what some members of the school s principal faith group might consider fair might seem highly unfair to others outside that group. Jews Free School Case 47. Indeed, the Jews Free School case - which has been in the eye of the media over the last few weeks - centres on the criteria the school applies when assessing applicant parents' religious credentials. (The trial has just finished, although the Court s decision has not yet been published.) 48. The parents challenged the school over its decision to reject their daughter. She was rejected on the basis that her mother was not born Jewish, but converted to the faith in the 1980s. Such conversions are not recognised by some British Jews, and indeed the school's interpretation of Jewish law on this point has been backed by the Chief Rabbi. 49. The Chief Schools Adjudicator refused to overturn the decision against the parents, accepting that the school is acting in accordance with Jewish law. He did order the school to alter some parts of its admissions policy, removing rules that could give priority to children with a Jewish father or grandparent under some circumstances. However, this did not affect the applicants. 50. The principal ground for the judicial review of the adjudicator s decision was that the school had racially discriminated against them and their daughter. The applicants have been backed by the local authority, which has also called for the JFS to change its admissions policy, and by secular groups including the British Humanist Association. The school insists that its admissions policy is based on religion, not race, and therefore it did not breach race discrimination laws. 51. However, school leaders, religious groups and secular groups will be watching the case keenly, as some believe a victory for the applicants could set a precedent with implications for religious schools across the country. Indeed, the British Humanist Association, which wants faith and education to be kept separate, believes the case could call into question the policies of many of the
thousands of state schools that base their admissions wholly or in part on the religious background of an applicant family. Art 2 P1 and Art 9: Grounds for a challenge to state funding of faith schools? 52. The Equality Act 2006 explicitly allows faith schools to be exempt from the UK s law against discrimination on grounds of religious belief, and is clearly designed to allow them freedom to determine admission criteria on the basis of religion. s.59 of the Act states: (1) Nothing in this Part shall make it unlawful for an educational institution established or conducted for the purpose of providing education relating to, or within the framework of, a specified religion or belief (a) (b) to restrict the provision of goods, facilities or services, or to restrict the use or disposal of premises. (2) But subsection (1) permits a restriction only if imposed (a) (b) by reason of or on the grounds of the purpose of the institution, or in order to avoid causing offence, on grounds of the religion or belief to which the institution relates, to persons connected with the institution. (3) In this Part a reference to the provision of facilities or services shall not, in so far as it applies to an educational institution, include a reference to educational facilities or educational services provided to students of the institution.
53. Although this provision clearly creates a domestic law exception for faith schools in respect of their education provision, there is no specification in s.59 as to the type of school concerned, i.e. the way in the schools are funded. Arguably the provision leaves room for an argument that the current system of state funding of such faith schools is in breach of Art 9, and that s.59 should be correctly interpreted as being limited to privately funded schools, in order to ensure that all parents free, non-discriminatory access to education under Art 2 P1. 54. These admission questions are linked to, and fuel for, the wider argument made by secular organizations, such as the National Secular Society, that publicly funding such a large number of faith schools as there is in Britain is itself a form of discrimination against pupils from non-religious families, and may even amount to indirect discrimination on the basis of wealth within state education. They point to statistics (which have made headline news in recent weeks) which show that religious schools admit a materially smaller proportion of pupils from less well-off families. They are cynical about the fact that, as they see it, it is becoming accepted as a chore of middle class life for aspirant parents to feign belief and attend church regularly simply to help gain access for their child to the local church school, when they wouldn t otherwise - in light of the fact that church attendance has been in decline for the last six decades. This in itself, they say, indicates that the system is going wrong, and is discriminatory. 55. Such an argument about the legitimacy of including faith schools within the state education system may seem radical in legal terms, but is not in fact beyond the realms of legal possibility as is illustrated in the recent landmark case of DH and ors. v The Czech Republic, in which the ECtHR held that the State had breached Article 14 of the Convention, in conjunction with Article 2 of Protocol 1, by way of indirect discrimination against Roma children in the system of state education provision in Romania, primarily on the basis of statistical evidence that a very high number of them, relative to the rest of the
population, were placed in special schools which restricted their ability to develop intellectually and integrate into mainstream society. However, whether this route of challenge will be explored in the courts remains to be seen. Conclusion 56. What is clear from all this is that the turbulent topic of faith in education is showing no signs of abating in the eye of the public, and that it looks likely to lead to a Pandora s Box of future developments in the realm of human rights and administrative law. 57. The extent to which the balance of decisions will shift in favour of individual applicants over the interests of the majority, in the context of the increasingly multicultural society in which we live, and the impact (if any) this may have on education systems and curricula, is yet to be determined. JEREMY HYAM* * I am deeply indebted to Ellen Wiles for her research for this paper.