By Dr. Georg Neureither, Heidelberg/Stuttgart
„Somehow, someplace, sometime“ – that’s how one might characterize the unsettling decision rendered by the German Federal Administrative Court.
A Berlin high school student performed his ritual Islamic prayer on the school corridor, outside class hours. We can’t have any of that here, said the school – a position approved by the German Federal Administrative Court. So what’s unsettling about that?
No balancing of interests…
All major premises formulated by the Administrative Court (which are completely in line with the Federal Constitutional Court’s case-law) consistently lead to the following statement: „With regard to the freedom of religion enshrined in Article 4.1, 4.2 of the German Constitution, the student … is entitled to perform his prayers at school outside of class hours“ (First Premise). Nonetheless, the appeal was unsuccessful because „this entitlement is subject to limitations necessary for preserving school peace“ (Second Premise). The result: „The restrictions on the fundamental right pursue an aim that is to be valued higher than the constraints upon that 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 action is basically protected by a fundamental right, an individual claim to exercize that right might not be granted because the legal interests protected by the restrictions on the basic right prevail. Or is it that common? For the past fifty years, didn’t interpreting the constitution require „practical concordance“, that is, calibrating the legal interests protected by the Constitution in such a way as to avoid realizing one interest at the expense of another? So as to fulfill all of them? So as even to realise each legally protected interest to its fullest extent? This is the spirit in which the Federal Administrative Court subscribed to the „principle of careful balance“ in its major premise – only to lose sight of it, unfortunately. While rhetorically appraising the pros and cons may serve an important communicative function, words alone are not sufficient; from a constitutional point of view, you need to deliver the goods.
Regrettably, we all have become used to what might be called the „ABBA principle“: in the end, someone wins and the other loses; „the winner takes it all.“ None of this actually has much to do with the finesses of legal reasoning. That’s what’s unsettling.
…among the unteachables
So what about school peace? It’s not doing well. In fact, it’s doing so poorly that we cannot really speak of school peace anymore, but rather of school strife. A few examples: amongst students, „there have been conflicts, some of which were rather violent, because some students accused others of disrespecting certain rules of conduct following from a specific interpretation of the Qur’an. Such rules included the wearing of a headscarf, fasting, performing prayers, abstaining from pork, and avoiding ‘indecent behavior’ and ‘indecent clothes’ as well as personal contacts with ‘impure’ fellow students.“ This resulted in „bullying, insults, in particular of an anti-Semitic nature, threats, and sexist discrimination.“ The overall climate was such that „displaying religious conduct, or openly distancing oneself from religious precepts, could easily fuel conflict, even if the cause in itself was insignificant.“ That’s what’s unsettling. The Federal Administrative Court (and the Berlin-Brandenburg Administrative Court as Court of Lower Instance) deserve credit for describing the situation at the school in such unflinching detail.
What is irritating in this context is the need apparently felt by the Federal Administrative Court to repeat over and over that it is bound by the Berlin-Brandenburg Court’s statements. While this is correct from a legal point of view, it is also common knowledge and does not need to be reiterated more than ten times. On the one hand, this creates an impression of distance – as if the Berlin judges had to decide the case, and not the judges in Leipzig. On the other hand, it seems as if the Federal Administrative judges wished to rid themselves of the case as quickly as possible – either via appeal to the Constitutional Court, or by simply closing it.
A victim of circumstance
Ultimately, the Federal Administrative Court paints the picture of a school where classes may still be held, but where genuine school life has ceased to exist. How could it come to this? And what is to be done about it? These questions are important, for it is this that prepares the ground for the Court’s knockout argument: because things are as bad as they are, praying must not be allowed, or things will go from bad to worse. In other words: the circumstances seal the claimant’s fate.
I beg your pardon! First: the claimant argued that he did not contribute to the oppressive conditions; his prayers did not cause any irritation. From the point of view of regulatory law, he is a „non-disturber“ and not liable – the others bear the liability. Maximilian Steinbeis provided a straightforward and accurate analysis of this issue (reacting to the lower court’s decision): „Keeping the peace at school? If some people at this school have an issue with a pupil performing his prayers, then they are the ones who are the problem, and not the person praying. Otherwise, one might as well lock up all the black people in Eberswalde so as not to upset the Nazis and risk disturbing public safety and order.“ The Federal Administrative Court worded this more subtly: „It is not the student exercising his freedom of religion, promised (sic!) to him by the German Basic Law, who disturbs the peace of the school, but the others who take offense to this in a way incompatible with tolerance.“
Second: here’s a school, and there’s a state. The state has an educational mandate. (So that we may learn how to take good care of our own freedom and that of others.) Also, the state is neutral, i.e., it does not privilege or discriminate against a specific religion or faith, but is open to all beliefs. That is, after all, what is so appealing to immigrants! But not all of them take good care of their freedom, nor of that of others.
So what options does the state have? „Where the school has been able to bring students involved in conflicts together to talk, these talks did not yield any results.“ Step 1: They tried to get students to talk to each other. Unfortunately, to no avail. Step 2: none! Steps 3, 4, 5 (and so on): none! Never happened! Reason: „the school’s capabilities for solving religiously motivated conflicts through educational means are limited“, especially in an environment where „dealing with single incidents does not seem promising in view of the effort that each incident requires.“
I am not an educator, but I can think of more options once talks have failed. The school also has the capacity to apply disciplinary measures. Then, there is the law of administrative offences. And finally, the decision mentioned „insults, in particular of an anti-Semitic nature“. Here’s where (juvenile) criminal law comes into play. There are plenty of differentiated means on all levels, they just need to be applied!
So what does the state do? Nothing! It surrenders and thus denies its protection to those who wanted to do what the state „wanted“ them to do, what they have a right to do. And it leaves the disturbers of the peace undisturbed. From the point of view of regulatory law, the state thus itself becomes a disturber: „disturber by status“ . This is precisely what the Federal Administrative Court’s decision means: right must yield to wrong . That’s what’s unsettling. In fact, that’s simply another way for the state to default!
„Somehow, someplace, sometime“
So what options is the claimant left with, in view of the circumstances? He could change schools, for he does enjoy the right to pray in a healthy school environment. But simply not at his school. Can this be right?
The Federal Administrative Court’s decision might go down in legal history as the „Nena decision“: one may pray – „somehow, someplace, sometime.“
Dr. Georg Neureither is an editor for Boorberg publishers and lectures in Staatskirchenrecht (Constitutional Law on State-Church-Relations) at the University of Heidelberg. This essay first appeared on 9 January 2012 on „Verfassungsblog – On Matters Constitutional„. We are grateful to Maximilian Steinbeis for his permission to republish a revised version here, and to Hannah Birkenkötter, who translated the original version into English.
 German regulatory law differentiates between two types of „disturbers“ („Störer“; a disturber is a person who is liable 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 norms by his or her legal status, e.g., the owner of a contaminated property).
 A variation on 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.