Ban on abaya in schools should be validated by administrative judge

Just one year after the ban on wearing the abaya in public schools, we are moving towards validation of the measure by the administrative judge. On Monday, September 9, the Council of State examined three requests against the service note sent in September 2023 by Gabriel Attal, then Minister of Education.

The note recalled the principle of the 2004 law, which prohibits in the name of secularism the wearing of signs or clothing by which students “overtly demonstrate religious affiliation.” Reporting a sharp increase in incidents during the 2022-2023 school year, Gabriel Attal announced a ban on wearing the abaya in schools.

No list of signs or outfits

The Council of State will deliver its decision in about two or three weeks, but during the hearing, the conclusions presented by the public rapporteur, Jean-François de Montgolfier, left little chance for the applicants, whose grievances he dismissed. Firstly, the government cannot be criticised for having clarified the law by specifically targeting an outfit that was not mentioned in 2004. The legislator had not drawn up a list of signs or items of clothing and the implementing circular, while taking the example of a large cross, the kippah or the veil, specified that the ban was intended to concern any new form of proselytizing expression.

The rapporteur then rejected the argument that the abaya is not in itself a religious garment but a traditional one, as evidenced by the fact that it is not prescribed by the Koran or by religious authorities.

It is not up to the public authority or even the judge to engage in the distinction between what is religious and what is not, to recognize what is dogmatic or not, but simply to consider a “social fact”This is what the Council of State had already said in September 2023, when it was seized in summary proceedings (urgently), noting that:“a sharp increase in the number of reports during the 2022-2023 school year is part of a logic of religious affirmation, as is particularly evident from the comments made during the discussions initiated with students”.

The rapporteur considered on Monday that the applicants, two unions (La Voix lycéenne and Sud-éducation) and an association (Action droits des musulmans), have not been able to provide any contradiction to these factual elements.

Austere version of the abaya

Identifying the abaya (what is the difference with a simple long skirt?) can certainly pose “difficulties of assessment”, recognizes the rapporteur. Throughout the world and according to fashions, there are many variations of these outfits. But in France “the austere version wins”, The rapporteur points out that most of the girls wearing abayas also wear the veil. “The whole thing forms a hijab” analysis Jean-François de Montgolfier.

Before entering schools, these students “remove the veil which alone would be forbidden” and the abaya thus appears as a form of subterfuge. Now “What applies to the veil also applies to the abaya,” concludes the magistrate.

Finally, the rapporteur dismisses the argument of a ” discrimination “ young Muslim girls. “If you have followed us in judging that wearing the abaya is part of a logic of religious affirmation, the applicants’ argument loses a large part of its force”.

By targeting the abaya, the Minister of Education “addresses the difficulties its services face”but the ministerial note concerns the application of the law regardless of religion and could very well concern other faiths.