Photo Gallery: Freedom of Religion vs. the State

Foto: dpa Picture-Alliance / Rolf Haid/ picture-alliance/ dpa

Integration Case  Court to Rule on Swim Lessons for Muslim Girls

A German court will rule Wednesday whether Muslim girls can be exempted from co-ed swimming lessons, an issue that has sparked many disputes. The judges must decide what takes precedence: freedom of religion or the state's obligation to educate all.

Aisha, a 13-year-old schoolgirl, is actually an ideal student in the eyes of German politicians who advocate the integration of people from other cultures. Her parents moved to Germany from Morocco; her father is a tradesman and her mother is a housewife. Aisha (not her real name) attended school until the age of eight in Morocco, yet she still managed to do well at Helene Lange High School in Frankfurt. She received top grades in math, English and German. When she grows up, she wants to become a doctor.

Yet for a number of years her family has been locked in a dispute with the central German state of Hesse. This case is about whether Aisha, who has been raised according to the Muslim faith by her parents, can be forced to attend mixed swimming classes with boys. In a broader sense, though, it has to do with the relationship between the state and religion.

This Wednesday, the judges of Germany's Federal Administrative Court in Leipzig, the country's highest court for public and administrative disputes that don't concern the constitution, will examine the case. According to the court, it is necessary "to clarify the conditions under which a pupil, based on his or her basic right to freedom of religion, can, on an individual basis, be exempted from the obligation to attend a school event." The judges will have to make a fundamental decision between the individual's constitutional right to freedom of religion and the state's constitutional obligation to educate all children.

Conflicts repeatedly arise between families and schools when boys and girls are to attend co-ed swimming classes. According to a survey conducted on behalf of the German Islam Conference, a forum of dialogue between Muslim groups and the government, seven percent of Muslim girls don't attend co-ed swimming lessons, and roughly half of their families give religious reasons for this absenteeism. What's more, 10 percent of the girls don't take part in class trips where children spend nights away from home.

In extreme cases, this can mean the children are not allowed to attend certain schools. In the state of North Rhine-Westphalia, for example, middle schools, high schools and secondary schools are allowed to make a child's acceptance dependent on whether the parents consent to their son or daughter attending co-ed swimming classes. In the northern German state of Lower Saxony, a father recently pulled his daughter out of high school because she wasn't excused from swimming classes.

Conflicts over the point where the state's duty to educate children takes precedence over the right to exercise freedom of religion are not just limited to Muslims. This Wednesday, the judges of the Federal Administrative Court will also consider a lawsuit filed by Jehovah's Witnesses who object to their son having to watch the film "Krabat," based on a book by German children's books author Otfried Preussler, because the story involves black magic.

School Turned Down Family's Request

Aisha's high school is located in the Frankfurt district of Höchst, an old industrial part of town, where over 80 percent of the students come from immigrant families. Many of them are Muslims. When she entered the fifth grade in August 2011, co-ed swimming was already on Aisha's school schedule. Her parents applied for her to be excused from swimming lessons -- and included a pamphlet from a religious association called Islamischer Verein e.V., which stated that Muslim schoolgirls were "not allowed" to take part "in mixed swimming classes and physical education."

School officials turned down the request. Aisha skipped co-ed swimming classes, causing her to flunk physical education on her half-year report card. But she managed to squeeze by with the lowest possible passing grade on her final report card by attending normal gym classes: nearly completely covered from head to toe in a pair of long pants, a shirt with long sleeves and a headscarf.

She could dress similarly for swimming classes. A number of other girls at Aisha's school wear full-length bathing suits called burqinis, which only expose the face, hands and feet. As a rule, the schools usually manage to agree on this or a similar solution by discussing the matter with the parents, says Harald Achilles, a spokesman for the Hesse state Education Ministry.

But Aisha and her family also reject the burqini. The girl says she feels deeply embarrassed when she sees boys with naked upper bodies. What's more, the burqini is "an ugly plastic bag," says the family's Frankfurt lawyer, Klaus Meissner, who contends that the full-body swimsuit leads to ridicule and isolation, making integration even more difficult.

"A modern immigration society has to show consideration for religious sensitivities," argues Meissner, adding that "exempting a devout girl from swimming classes by no means creates a parallel world." Meissner also points out that in the strongly Catholic southern German states of Baden-Württemberg and Bavaria physical education classes for students in upper grades are separated according to gender.

'We Will Continue to Insist on Compulsory Attendance'

The principal of Aisha's high school rejects the idea, though, and Hesse Minister of Education Nicola Beer, who is a member of the business-friendly Free Democratic Party (FDP), the junior partner in Merkel's ruling coalition, agrees: "Even schoolgirls of the Muslim faith have to take part in physical education and swimming classes," she insists, adding: "We will continue to insist on compulsory attendance for all children."

It was 20 years ago, in August 1993, that the Federal Administrative Court exempted a 12-year-old Muslim girl from attending physical education classes if they were not held separately for boys and girls. But times have changed and today many courts have distanced themselves from this position. They now require Muslim girls to at least attend swimming classes dressed in a burqini.

For instance, the Düsseldorf Administrative Court issued the following ruling in the case of a sixth grader in the spring of 2009: The contours of her body could be perceived "only vaguely and thus with no negative impact" underwater, at least when wearing a burqini, the court wrote, noting that the plaintiff could wear a bathrobe at the edge of the pool and change her clothes in a private cubicle. Furthermore, the court ordered the school to make full use of "all pedagogical and organizational options" to prevent a stigmatization.

In Aisha's case, both the Frankfurt Administrative Court and the Hesse Higher Administrative Court have rejected the bid for an exemption -- and decided that the girl will have to tolerate the sight of her fellow male students wearing swimming shorts. According to these courts, an encroachment on the right to freedom of religion is justified here by the state's educational goals.

Mathias Rohe, an Islamic law expert in the Bavarian city of Erlangen, concurs with this approach -- and sees it as a sign of normalcy. Years ago, when relatively few Muslims lived in Germany, it was possible to make exceptions to the rules, says Rohe, "but now Islam has become part of Germany -- with all the rights and obligations that this entails," he argues.

Translated from the German by Paul Cohen
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