Sharʿī norms and German Schools: Court Challenges to Participation in Swimming Lessons, School Trips and Sex Education

ABSTRACT

This article examines the treatment by German courts, from the early 1970s to 2016, of requests made by Muslims to be exempted from school activities for religious reasons. Based on a qualitative reading of 72 court rulings, the article demonstrates a shift in the courts’ decision-making, from initially tolerating Muslim requests for exemption to firmly denying them. Arguments from the court rulings are substantiated by an analysis of the public discourse on Muslims in German schools. The results suggest that the transformation of court attitudes corresponded with the rise of broader concerns about multiculturalism and manifestations of Islam in the public sphere, the liberalization of gender norms, and increasing secularism within German society. The article further demonstrates that, contrary to public perception, requests for exemptions from school activities were not a distinctly Muslim phenomenon. Christian families have challenged school activities in a similar way.

KEYWORDS:

• Islam and integration
• education
• swimming
• sex education
• multiculturalism
• Islam in Germany
• Islam and society

Acknowledgements

This article is based on a Master’s thesis. I am thankful to my thesis advisor, Prof. Uriya Shavit, and to Prof. Yosef Schwartz for their advice, as well as to Carl Yonker for editing the article. I am also thankful to the German Academic Exchange Service (DAAD) and to the Israeli Science Foundation (Grant number: 1434/17) for their generous support.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. ‘Other’ reasons are not defined in the study. The authors suggest that some pupils may have stated ‘other’ reasons to mask religious reasons.

2. All translations are my own, unless otherwise stated.

3. References to court documents in this article are given in the manner common to German legal databases, naming the court, the date of final ruling, and the case number: VG Köln, June 26, 1990–10 K 2307/89.

4. VG Hamburg, April 14, 2005–11 E 1044/05.

5. The Administrative Court of Munich first ruled on the case in 1986: VG München, February 24, 1986–M 3 K 85.6270. The Higher Administrative Court of Bavaria later reversed the ruling of the lower court: Bayerischer VGH, May 6, 1987–7 B 86. 01557.

6. AG Berlin-Tiergarten, April 25, 1986–286 OWi 17/86.

7. First hearing: VG Gelsenkirchen, June 26, 1991–4 K 2015/90; second hearing: OVG Nordrhein-Westfalen, November 15, 1991–19 A 2198/91; third hearing: BVerwG, August 25, 1993–6 C 8.91; 6 C 30.92.

8. First hearing: VG Würzburg, November 27, 1991–3 K 91.1329; second hearing: Bayerischer VGH, April 8, 1992–7 B 92.70; third hearing: BVerwG, August 25, 1993–6 C 7.93.

9. First hearing: VG Hamburg, April 14, 2005–11 E 1044/05; second hearing: OVG Hamburg, no date of ruling because a compromise was reached between the school and the family–1 Bs 135/05.

10. First hearing: VG Frankfurt am Main, April 26, 2012–5 K 3954/11.F; second hearing: Hessischer VGH, September 28, 2012–7 A 1590/12; third hearing: BVerwG, September 11, 2013–6 C 25.12; fourth hearing: BVerfG, November 8, 2016–1 BvR 3237/13.

11. BVerwG, September 11, 2013–6 C 25.12. Accessed July 21, 2019. https://www.bverwg.de/110913U6C25.12.0.

12. VG Hamburg, April 7, 2009–15 K 3337/08.

13. First hearing: VG Aachen, January 16, 2002–9 L 1313/01; second hearing: OVG Nordrhein-Westfalen, January 17, 2002–19 B 99/02.

14. OVG Nordrhein-Westfalen, January 17, 2002–19 B 99/02.

15. VG Hamburg, April 20, 2012–15 E 1056/12.

16. First hearing: VG Hamburg, April 24, 1972–V VG 165/71; second hearing: OVG Hamburg, January 3, 1973 – Bf. III 5/72; third hearing: BVerwG, November 15, 1974–VII C 8.73; fourth hearing: BVerfG, December 21, 1977–1 BvL 1/75 & 1 BvR 147/75.

17. First hearing: AG Paderborn, June 11, 2008–23 OWi 472 Js. 385/08; second hearing: OLG Hamm, March 5, 2009–Ss OWi 719/08; third hearing: BVerfG, July 21, 2009–1 BvR 1358/09; fourth hearing: ECtHR, September 22, 2011–892175.

18. VG Hannover, May 25, 1992–6 B 2024/92.

19. A temporary injunction (‘Einstweilige Verfügung’) grants the plaintiff the desired action or omission until the final court ruling.

20. VG Berlin, April 29, 1997–VG 3 A 142.97.

21. VG Hamburg, January 12, 2004–15 VG 5827/2003.

22. Ibid, p. 6.

Additional information

Funding

This work was supported by the Israeli Science Foundation [grant number 1434/17] and the German Academic Exchange Service (DAAD) [grant number 57314657].