DO MUSLIM SCHOOLCHILDREN HAVE TO ATTEND SWIMMING LESSONS AT SCHOOL OR CAN THEY BE EXEMPTED FOR RELIGIOUS REASONS?
Summarized: Participation in lessons, including swimming lessons, is considered a student’s obligation. Students must always participate, even if swimming lessons are not segregated by gender. An exemption from this is difficult to enforce and can only be considered if there are no compromising options such as separate changing rooms or the wearing of ‘burkinis’.
Admission to a public school establishes a relationship under public law, from which rights and obligations arise for the students.1 Participation in Physical Education at school is one of these obligations.2
Co-educational, i.e. mixed swimming lessons are an integral part of a school’s physical education in many places. Exemptions from lessons are usually only permitted for special reasons according to state law. Muslim pupils in particular often request an exemption out of religious reasons. However, this request is often not granted by the school.
Both German courts, including the Federal Constitutional Court and the Federal Administrative Court, as well as the European Court of Human Rights have dealt with the issue of mixed swimming lessons and the exemption from them for Muslim schoolchildren.3 Even though in the past there have been occasional exemptions on the grounds of religious concerns, there now seems to be a clear turnaround in administrative practice and German case law. The state's educational mandate is now increasingly being given priority in this matter and applications for exemptions from teaching are being rejected.4
Article 4 of the German Basic Law guarantees an all-encompassing right to freedom of religion. This may include dress and behavioral rules prescribed by a religion. Accordingly, in a case brought before the Federal Administrative Court, a Muslim female student was able to credibly demonstrate that the Islamic commandments require her to cover her body to a large extent in public vis-à-vis the male sex, and thus also in school, which is, however, incredibly difficult to do with the usual swimwear.5 Furthermore, the religious commandments require her to avoid any physical contact with men and boys outside of her family. The sight of men/boys in scantily clad swimwear is also not allowed. The obligation to participate in swimming lessons therefore constituted an encroachment on the student's freedom of religion according to Article 4 of the Basic Law, because the obligation to participate in mixed swimming lessons would make it impossible for the student to follow these religious commandments.
It could be asked whether this interference on part of the state could somehow be justified. The unconditionally granted fundamental right from Article 4 of the Basic Law can only be restricted with the constitution itself.6 The use of one's own religious freedom must not lead to an unreasonable impairment of other important constitutional rights of others. If such a clash of two positions relevant to fundamental rights occurs, a careful balance must be found between the two.7
The state's right to determine the school system in accordance with Article 7(1) of the Basic Law is tangential to a Muslim student’s freedom of religion. The former also has constitutional status and is thus of equal rank to freedom of religion. The state's educational mandate confers powers on the state to plan, organize, manage and shape the content and didactics of the school system, its training courses and the teaching provided there.8 This includes the power to determine the content of instruction and to decide on modalities such as whether or not classes should be mixed. To be able to do justice to both positions, the possibility of an exemption was created.9
The Federal Administrative Court ruled that an exemption can only be considered if there is no acceptable alternative and this impairment of a fundamental right is of a particularly serious intensity under the circumstances.10 This could be assumed, for example, if a religious commandment of conduct has an imperative character from the perspective of the person concerned. The student concerned in the case described above could have availed this alternative option.11 She could have had a separate changing room and, most importantly, the option of wearing a full-body swimming costume, a so-called ’burkini’, as a compromise. The court pointed out that exemptions in general should not function as a routine option for conflict resolution. Consequently, no exemption could be granted in the specific case. Participation in mixed swimming lessons therefore remained compulsory for this student. The European Court of Human Rights came to the same conclusion in a similar case.12
Likewise, another student under the age of 12 was not granted this exemption in a case brought before the Bremen Higher Administrative Court. Here, the court ruled that the student, who was not of legal age, could not have a conflict of conscience because of her age.13 Not so surprisingly, the same exemption request of a male student was rejected. He had argued that exposing his own body as well as the sight of other exposed bodies would violate the rules of his religion. The Cologne Administrative Court pointed out to the pupil that he had the option of lowering his gaze or lowering his eyes, as recommended by the Qur’an.14
As a result, exemption from co-ed swimming lessons on religious grounds is now difficult to enforce in court.
Other reasons that may justifiably prevent participation in class, such as illness, remain untouched from any of the other reasons discussed above. For example, the Higher Administrative Court of North Rhine-Westphalia ruled that a Muslim pupil did not have to participate in a school trip due to illness because her fear of not being able to fulfil her religious obligations during the school trip would have placed her in a comparable situation to a partially mentally disabled person.15
1 See Section 69 (1) of the Hesse School Act as an example.
2 Again see Section 69 (4) 1 of the Hesse School Act.
3 European Court of Human Rights, case from 10.01.2017, 29086/12; Federal Constitutional Court, decision from 08.11.2016, 1 BvR 3237/13.
4 Sacksofsky, Working Paper of the Department of Law at the Goethe-University Frankfurt/M Nr. 08/2016, margin 23.
5 Federal Constitutional Court, case from 11.09.2013, 6 C 25.12, margin 9.
6 Federal Constitutional Court, case from 26.05.1970, 1 BvR 83, 244, 345/69, margin 70.
7 Federal Constitutional Court, decision from 16.10.1979, 1 BvR 647/70, 7/47, margin 63.
8 See above, margin 11.
9 See above, margin 12.
10 See above, margin 22.
11 See above, margin 24.
12 European Court of Human Rights, case from 10.01.2017, 29086/12.
13 Higher Administrative Court Bremen, case from 13.06.2012, 1 B 99/12, margin 21.
14 Administrative Court Cologne, decision from 20.11.2012, 10 L 1400/12, margin 25.
15 Higher Administrative Court of North Rhine-Westphalia, decision from 17.01.2002, 19 B 99/02, margin 7.