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

By GEORG NEUREITHER

That’s how you could 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. The school found that was not ok. The German Federal Administrative Court confirmed. So what’s unsettling?

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 do his prayers at school outside of class hours” (First Premise). Nonetheless, the appeal was not successful because “this entitlement is subject to limitations necessary for preserving school peace” (Second Premise). The result: “The restrictions to the fundamental 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 covered by a basic right, an individual claim to that conduct might not be granted because the legal interests protected through the restrictions to the basic right prevail. Quite common? For the past 50 years, didn’t interpreting the constitution require “practical concordance”, that is to arrange 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 materialize all of them? Even more: 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 and cons might be important communicatively, words are not sufficient; from a constitutional standpoint, much more needs to be “delivered”. But let’s leave it at this as an introductory obiter dictum – unfortunately, we all got used to the ABBA-principle that in the end, someone wins and the other looses: „the winner takes it all.“ None of this has actually much to do with the fine arts of legal reasoning. That’s unsettling.

So what news on school peace? It’s not doing so well. In fact, it’s doing so badly that we cannot really speak of school peace anymore, but rather of school strife. Just 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 flowing from a specific interpretation of the Qur’an. Those rules included wearing a headscarf, fasting, doing prayers, not eating pork meat, and avoiding ‘indec…