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Article Germany: Court Allows Student to Wear Niqab at School

(Feb. 25, 2020) On January 29, 2020, the Higher Administrative Court of Hamburg (OVG Hamburg) held that a 16-year old girl is allowed to attend school dressed in a niqab face veil that leaves only the area around the eyes open. The Court stated that there is no legal basis in Hamburg law for the prohibition on attending classes in a niqab.

Facts of the Case

The applicant has sole custody of her 16-year old daughter. The daughter graduated from school after tenth grade and currently attends a vocational school. In sixth grade, she started wearing a headscarf. She now wears a niqab. When she was asked by the school to remove her niqab in class and on school property, she refused, invoking her freedom of religion. (OVG Hamburg, para. I.1.)

After discussions with the student failed, the school administration issued an order requesting the mother to ensure that her daughter would not attend classes wearing a niqab; a headscarf would be permissible. The school prohibited her from attending classes until she complied with the order. The school explained that the educational task of the school is not limited to transmitting knowledge; it also includes an exchange of ideas between students and between students and teachers. According to the order, proper communication is not possible when one cannot observe the facial expressions of the other person. (Para. I.1.)

The applicant objected to the order and filed an appeal with the administrative court, seeking to order or restore the suspensory effect of her objection. On December 20, 2019, the administrative court ruled in her favor, stating there was no legal basis for the order. The respondent school appealed the decision to the Higher Administrative Court of Hamburg, which confirmed the decision of the lower court. (Para. I.2. & 3.)

Decision

The school based its order on a provision of the Hamburg School Act, which states that legal guardians are required to ensure that a child attends school regularly. In the opinion of the lower court, with which the appeals court concurs, this provision is insufficient as a legal basis for the order as the provision does not specify “how” a child should attend school. Participation in classes understood as physical presence in class is also possible in a niqab. In addition, if participation also included willingness to communicate, wearing a niqab would only impede communication but not make it impossible. (Para. II.2.2.) The appeals court added that nonverbal communication (eye contact) remains possible because the niqab leaves the eyes uncovered. Furthermore, the respondent did not provide sufficient evidence why a person wearing a niqab would not be able to communicate with teachers or peers. (Para. II.2.2.b.)

The appeals court also rejected the respondent’s argument that based the order on the general clause of the Police Act of Hamburg. The general clause allows measures to fight threats to public security or public order. The appeals court held that it was not clear how wearing a niqab would threaten public safety or order. Public order is defined as the unwritten rules whose observance current social and moral views consider necessary for having harmonious relationships between people. Public safety consists of the inviolability of the legal system, the institutions and events of the state or other public authorities, and the subjective rights of the individual. In the court’s opinion, the evidence does not support the respondent’s argument that by not attending classes and graduating with a degree from the vocational school, the daughter will be forced to become dependent on social security payments from the state and thereby violate public order or safety. The court states that, on the one hand, the daughter already graduated from school, which qualifies her to do an apprenticeship. On the other hand, the respondent is keeping the applicant’s daughter from attending class because of her niqab on the grounds that it is legal to do so; however, this is the question that the court must decide and cannot be presupposed. (Para. II.2.2.c.)

Lastly, the appeals court stated that the order could also not be enforced against the daughter herself because this would infringe her freedom of religion as guaranteed by the German Basic Law. Any restrictions to this right require an explicit legal basis, which currently does not exist in Hamburg. The legislature must find a balance between freedom of religion and the state’s educational mandate codified in article 7, paragraph 1 of the Basic Law when it enacts such a law. (Para. II.2.3.)

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Chicago citation style:

Gesley, Jenny. Germany: Court Allows Student to Wear Niqab at School. 2020. Web Page. https://www.loc.gov/item/global-legal-monitor/2020-02-25/germany-court-allows-student-to-wear-niqab-at-school/.

APA citation style:

Gesley, J. (2020) Germany: Court Allows Student to Wear Niqab at School. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2020-02-25/germany-court-allows-student-to-wear-niqab-at-school/.

MLA citation style:

Gesley, Jenny. Germany: Court Allows Student to Wear Niqab at School. 2020. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2020-02-25/germany-court-allows-student-to-wear-niqab-at-school/>.