CAN A PRIVATE SCHOOL APPLY A GENERAL BAN ON THE WEARING OF RELIGIOUS SYMBOLS SUCH AS HEAD COVERINGS WITHIN CONTRACTUAL TERMS?
Summarized: A private school can adopt a religious and ideological neutrality without exceptions within its contractual terms. A ban on any form of head coverings for Muslims or non-Muslims would then be permissible. This would need to however be contractually agreed upon with the parents in advance or made clear in the school statute.
The legality of wearing a headscarf at a private school differs from that of wearing one in a public school (for the situation at public schools see here). A private school is not a state institution, so a headscarf ban here wouldn’t be regarded as an attack on part of the state in the religious freedom of the student. Rather, it is a matter between two private individuals. Before the enrollment process, a civil contract would be signed between the two parties, which would lay down the rights and duties of the school and the student. The protection of each party’s fundamental rights is applied here ‘indirectly’ in such a way that both parties of the contract are obliged to take each other's fundamental rights into account. The rights of the school which come into play here are the freedom to practice any profession (Article 12 (1) 2, 19 (3) of the German Constitution) as well as the freedom of private schools (Article 7 (4) 1, 19 (3) of the Constitution). These fundamental rights stand in contrast with the freedom of religion of the headscarf-wearing student (Article 4 of the Constitution).
The freedom of private schools from Article 7 (4) of the German Basic Law entitles the private school to define its own educational goals. This freedom is the expression of a democratic and pluralistic society. Private schools should offer themselves as a counterpart to state schools by representing other concepts of upbringing and education. As a result, a private school can offer a no-exceptions religious and ideological neutrality within the terms of their contract and select students in such a way to be able to instruct in accordance with their ideas. In 2015, for example, the Bonn Regional Court ruled that a general ban on head coverings - i.e. not only Muslim headscarves were covered by the ban - can be legal as an expression of a concept of religious and ideological neutrality at a private school without exception. In 2015, for example, the Bonn Regional Court ruled that a general ban on all head covering can be legal as an expression of a concept of religious and ideological neutrality at a private school which makes for no exceptions.1 However, the prerequisite for this is that this special educational content and method of education has previously been contractually agreed with the parents or has been appropriately defined in the school statutes.2
1 Bonn Regional Court, decision from 20.03.2015, 1 O 365/14, margin 43.
2 Stuttgart Supreme Court, case from 13.09.1971, 13 U 100/71.