Education in Belgium: Some legal cases

Submitted by admin on Tue, 02/01/2011 - 13:33
 
Case # 1: Belgian Linguistic Case
 
Forum: European Court of Human Rights 
 
Remainder of Citation: (No.1) (1967), Series A, No.5 (1979-80) 1 EHRR 241 (No.2) (1968), Series A, No.6 (1979-80) 1 EHRR 252 
 
Context:
FRENCH-SPEAKING RESIDENTS of certain Flemish-speaking areas of Belgium, who wanted their children to be educated through French.  While Dutch-speaking children in a particular French-speaking area were allowed to be educated in Dutch-speaking schools in a bilingual district outside the neighbourhood, French-speaking children in an equivalent Flemish area could not attend the French-speaking schools in the same bilingual district but were compelled to attend their local Dutch-language schools. 
 
On what breach of law was the case brought?
The Applicants argued that Section 4 of the Belgian Act of 30th July 1963 "relating to the use of languages in education" breached Articles 8 (right to private and family life) and 14 (non-discrimination) of the European Convention of Human Rights and Article 2 of Additional Protocol 1 (right to education) to the Convention.
           Section 4 of the Belgian Act states that the language of education shall be Dutch in the Dutch-speaking region, French in the French-speaking region and German in the German-speaking region.  
 
Process
The Applicants, inhabitants of Alsemberg, Beersel, Kraainem, Antwerp and environs, Ghent and environs, Louvain and environs and Vilvorde, submitted, between 1962 and 1964, six applications to the European Commission, both on their own behalf and on behalf of their children under age. The Commission referred the case to the European Court of Human Rights.
          The Applicants complained that the Belgian State:
-          does not provide or subsidise any French-language education in the municipalities where the Applicants live or, in the case of Kraainem, that the provision made for such education is, in their opinion, inadequate;
-          withholds grants from any institutions in these municipalities which may fail to comply with the linguistic provisions of the legislation for schools;
-          refuses to acknowledge the validity of certificates issued by such institutions;
-          does not allow the Applicants' children to attend the French classes which exist in certain places.  
 
Result of case
No breach of Article 2 of Protocol 1 as the Court decided that the right to education does not extend to require States to establish at their own expense, or to subsidise, education of any particular type or at any particular level, in other words it does not guarantee children or parents a right to obtain instruction in a language of his choice…
          For the right of education to be effective, there must be a right to official recognition of the studies a student has successfully completed.
Although Article 2 of Protocol 1 does not guarantee a right to ensure that public authorities create a particular kind of educational establishment, a State which had set up an establishment is prohibited from laying down entrance requirements that are discriminatory. As such, there had though been a violation of Article 14 of the Convention (anti-discrimination) in conjunction with Article 2 of Protocol 1 as the legislation prevented children from having access to French-language schools in certain communes of Brussels, solely on the basis of the residence of their parents. This was not the case for Dutch-language schools and thus constituted discriminatory treatment …
 
Decision
The Court held that only one provision of the Act of 1963, concerning access to the French-language schools existing in the six communes on the periphery of Brussels, including Kraainem, does not comply with the requirements of Article 14 of the Convention read in conjunction with the first sentence of Article 2 of the Protocol. It reserves for the Applicants concerned the right, should the occasion arise, to apply for just satisfaction in regard to this particular point.

Case # 2: Wearing of religious symbols (turbans) in Belgian Schools

ARTICLE 24 OF THE BELGIAN CONSTITUTION provides all students of school age (6 - 18) the right to a moral or religious education at the community’s expense. Schools run by the public authorities offer, until the end of compulsory education, the choice between the teaching of one of the recognised religions or a non-denominational ethics teaching. Parents are free to choose whether to send their children to a public school or to a community-based school of their religious preference.
          There is no law banning the display of religious symbols in public schools. Individual school boards are allowed, however, to determine whether or not a child may be allowed to wear items associated with or required by their religion. In this case, if a child insists on continuing to wear such religious symbols, the child can, and in many cases in the past has been denied admission to the schools they were attending.
          Schools owned by the Flemish community are organized by the Flemish government and are required by the Belgian constitution to be neutral. This means that everyone should be able to attend and the religious, philosophical or ideological convictions of parents and pupils must be respected.
          Subsidized free schools consist primarily of Catholic schools. There are also Protestant and Jewish schools among others. In addition to these denominational schools, there are also private schools that are not linked to religion e.g. alternative schools (Freinet, Montessori, etc).
          Each city has a group of people such as community leaders, school principals and experts, which meets to discuss individual cases of 'difficult' pupils, with the purpose of giving each student an equal chance at education. This body, known as the Lokale Overleg Platform, aims to fulfil the Belgian constitution’s guarantee of providing each student an equal opportunity of an education. The head of the LOP in each city is a full-time paid job, taken up by a civil servant.
 
Religious Symbols
The Belgian constitution requires communities to establish neutral education, which takes into account the philosophical, ideological and religious beliefs of parents and pupils. Moreover, the Constitution provides that all pupils or students, parents, staff and schools are equal before the law or decree. Apart from these constitutional principles, the federal government is responsible for the quality of education in Flemish schools.
          In practice, Flemish politics does not meddle in school matters. Most of the decision-making policy rests with the individual school’s board of management. Each school has a set of rules, which contains rules on matters such as admission of pupils, fees etc. The rule most relevant to allowing religious symbols in schools (page 20, nr.21) is:
          The school board, the organizing body of the school is in the position to decide whether a headscarf or other religious symbols are to be allowed in the school or not.

Lawsuits and decisions
On 1st July 2008, the Hasselt Civil Court overturned a ban on the Patka (a traditional Sikh head covering) that KTA Domein Speelhof (a state school) had imposed on five Sikh schoolboys, since 2005. The school has filed an appeal.
          Schools have increasingly banned religious symbols in recent years due to various reasons. Originally, this prohibition was applied to prevent Muslim girls from being forced against their will to wear a headscarf. Several moslem students who did not wear a headscarf were reported being threatened by their peers who wore or advocated wearing one. These tensions became so bad that the administrative council made a decision in September 2009 to ban religious symbols in all Flemish public schools starting in the school year 2009-2010. Because some schools had already set the school regulations for 2009-2010, the ban was postponed to school year 2010-2011.
 
The Sikh community’s actions
Upon hearing of this ban, various members of the public wrote to their members of parliament as well as the Flemish education ministry. The Supreme Administrative court of Belgium declared the ban as unconstitutional and ordered to suspend the decision, while the Belgian Constitutional Court was asked to examine whether administrative council 's decision is in conflict with the Belgian constitution. A decision has not been made.
          Following the Council of State's order, members of the Flemish parliament have since proposed tabling a legislation to ban religious symbols in Flemish community schools altogether. The Sikh community wrote to all members of the Flemish parliament explaining their views on the proposed ban and extending their hand to the parliament member for future dialogue. It also collaborates with a nonprofit foundation, International Committe, whose mission is to help migrant communities integrate and become more independent in Belgium.
A discussion process is currently taking place within the Commission for Education and Equal Opportunities Commissie voor Onderwijs en Gelijke Kansen to examine the feasibility of banning religious symbols in schools. This panel comprises of politicians and experts on the topic of religious symbols, including Etienne Vermeersch, a prominent Belgian moral philosopher. Hearings are continuing.
 
Summary
The Sikh community has faced many difficulties in Belgium for many years because dastaar-wearing children have been refused admission in several schools or expelled from others. In some cases, children have been given admission to schools which are outside their towns of residence and have to commute up to three hours a day. Key people among the Belgian education authorities as well as politicians are aware of the problems faced by the Sikh community. The Sikh communities are actively involved in engaging politicians as well as local education authorities in increasing understanding of the perspectives of both sides.
 
How to cite this article:
Atty. William Varias. “Education in Belgium: Some legal cases” @ www.OurHappySchool.com
 
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