Ingvill Thorson Plesner, Legal Limitations to Freedom of Religion or Belief in School Education

• Citation: Vol. 19 No. 2
• Publication year: 2005
• topic: Constitutional Law

LEGAL LIMITATIONS TO FREEDOM OF RELIGION OR BELIEF IN SCHOOL EDUCATION

Ingvill Thorson Plesner^*

I. INTRODUCTION

This paper examines the permissible scope of legal limitations on the right to freedom of religion or belief in relation with public school education. Aspects of public school education that are examined include the content of education, especially education about religion or belief, participation in (other) school activities, such as school parades, and visual expression of belief by teachers and students.

In this analysis, the rights of parents, children (students), and teachers come into question, and sometimes, as we shall see, also come in conflict with each other. Particular attention is given to the meaning of the terms "objective" and "neutral" in the legal argumentation in this field.¹This approach aims to discover whether the use of these terms provides adequate tools in defining the scope of freedom of religion or belief and its limitations with regard to school education.

The primary focus is on the United Nations and European Council standards and practice in this field, especially with regard to article 18 of the International Covenant on Civil and Political Rights (CCPR),²and the article 9 of the European Convention on Human Rights (ECHR).³The last part of the paper provides an overview of the standards and practice in a number of European countries as well as in the United States and Canada.

II. UNITED NATIONS STANDARDS AND PRACTICE

Freedom of religion or belief as a human right includes internal and external, individual and collective, public and private dimensions.⁴The United Nations Human Rights Committee (HRC) has underlined that CCPR article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. Additionally, the freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief.⁵The fundamental character of these freedoms is reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4.2 of the Covenant.⁶The right of each person to have and to adopt a certain religious or non-religious belief-the forum internum-should enjoy absolute protection.⁷

The right to express this belief in different ways-the forum externum-can only be limited if the listed criteria in article 18, paragraph 3 are met. Restrictions on the freedom to manifest religion or belief are only permitted if the limitations are a) prescribed by law and b) necessary c) in order to pursue the legitimate aims of protecting "public safety, order, health or morals, or the fundamental rights and freedoms of others."⁸The HRC has underlined that this limitation clause is to be "strictly interpreted."⁹Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated.¹⁰The HRC has noted that "limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition."¹¹

A. The Rights of the Parents, the Child and the Teacher

Article 18, paragraph 4 of the CCPR reads: "The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions."¹²This ensures that the parents, or legal guardians, have the right to choose private schools for their children to facilitate a religious and moral upbringing according to the convictions of the parents, or legal guardians.¹³In the General Comment to article 18, the HRC underlines that "the liberty of parents or legal guardians to ensure that their children receive a religious and moral education in conformity with their own convictions, set forth in article 18.4, is related to the guarantees of the freedom to teach a religion or belief stated in article 18.1."¹⁴

Article 18, paragraph 4 and the General Comment seem to focus on the degree to which education has a character that is likely to influence children in the direction of beliefs different than the one(s) of their parents. In addition, according to the U.N. Convention on the Rights of the Child (CRC) article 14, the children enjoy the right to freedom of religion or belief. ¹⁵The external dimension of the right of the parents to "teach" their children their religion or belief is no longer the sole legal limitation that is to be considered. The internal dimension-freedom from coercion-of the child's freedom of thought, conscience, and religion should also be taken into account. Similarly, the rights of the child to manifest his or her religion or belief should be respected, within the legal limits drawn by reference to the limitation clause.¹⁶

Both aspects of the rights of the child should be seen in relation with the rights of the parents to ensure the child's upbringing. CRC article 14, paragraph 2 protects "the rights and duties of parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child."¹⁷

Article 18 of the CCPR states that freedom of religion or belief includes the right to manifest one's belief both in public and in private.¹⁸This excludes the conception of this right as limited only to the private sphere. Therefore, the right to manifest one's belief is to be applied for individuals working in or attending public schools. This calls for recognizing that both teachers and students enjoy the right to manifest their religion or belief, and that restrictions to this right have to meet the criteria of the limitation clauses.¹⁹

B. Education

In principle, questions falling within the scope of CCPR article 18, or CRC article 14 could arise in relation with all subjects taught in the realm of the public schools. The HRC, however, has addressed the possibility for infringements with these rights, in particular in relation with education in or about religion or belief.

The HRC General Comment on article 18 underlines that "public education that includes instruction in a particular religion or belief is inconsistent with article 18.4 unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians."²⁰

Nevertheless, the HRC states that article 18.4 permits "public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way."²¹

According to the HRC, if the education is considered to be neutral and objective, there is no infringement with the rights of the parents,²²or the child.²³Accordingly there is a need to determine if sound justifications exist for limiting these rights.²⁴This means that a crucial point for the protection of the right to freedom of religion or belief in relation with school education is the clarification of criteria determining whether the education is "neutral and objective.".

It seems that the committee distinguishes between education in a particular religion or belief-instruction in religion-and education about different religions or beliefs-history and comparative study of religion. Education in religion is assumed to be aiming at, or in practice leading to, influencing the child in the direction of a certain religion or belief. Education about religion, if given in a "neutral and objective" way, is assumed not to have such effect. In other words, compulsory education about religion or belief could be permitted, provided it has a "neutral and objective" approach. Using the terms "neutral and objective" in this context could be interpreted to mean not taking a stand on the truth claims or in other ways giving preference to a certain religion or belief. A question that remains is if this conception of neutrality means that equal attention, or time, must be given to a number of religions or traditions, or if particular emphasis could be given to a single tradition, for instance the majority tradition of the country. Another question would be if the neutrality criterion requires that the same pedagogical principles and methods be used in the teaching about different religions or beliefs, or if the pedagogical methods should be adjusted to the particular character of the various traditions. The General Comment to article 18 does not give an exact answer to these questions. If we look at the individual cases in this field treated by the HRC we find some more guidance.²⁵

In Hartikainen v. Finland, the committee underlined that CCPR article 18.4 protects the right of parents with an atheistic or agnostic world view to secure the upbringing of their children in accordance with their moral and philosophical convictions.²⁶This right was revisited in Leirvåg v. Norway, where parents belonging to the Norwgian Humanist Association claimed the right to full exemption for their children from the "Christian, Religious and Ethical Education" (CREE) subject.²⁷In the communication on Leirvåg, presented on November 18th 2004, the HRC found that the practice of a limited right to exemption from CREE constitutes a violation of CCPR article 18.4, guaranteeing the right of parents to ensure, and of students to receive, a religious and moral education that is in conformity with their own convictions.²⁸

The committee cited two reasons for giving a limited right of exemption to the children of the parties in Leirvåg. First, the HRC found that the education given through CREE , introduced in Norwegian public primary schools in

1997, was not imparted in a "neutral and objective way."²⁹This was demonstrated by the fact that the subject included activities understood both by the state party and the complainants as "being of a religious nature,"³⁰and...