the Council of State validates the ban on wearing the abaya at school

The Council of State ruled, Friday, September 27, that the Minister of National Education was able to legally prohibit, at the start of the 2023 school year, the wearing of abaya-type outfits by students in public establishments. To base his decision, the administrative judge does not rule on the nature of the clothing itself, avoiding in particular the very complex distinction of what is religious or cultural.

On the other hand, to validate the ministry’s memo, he considers, with regard to the behavior of the students and the context, that “wearing such outfits could be considered an ostensible manifestation of religious affiliation, prohibited by the law of March 15, 2004.”

The application circular for this law specified that the ban targeted the wearing of signs “which leads to being immediately recognized by one’s religious affiliation”, such as the Islamic veil, the yarmulke or a large cross, it was specified as an example. Case law then established that the conspicuous nature must be assessed with regard to the sign as such, but also to the behavior of the student.

4,710 reports

In this logic and as proposed during the session on September 9 by the public rapporteur, the Council of State therefore analyzes what motivated the ministry’s memo. He observes that reports of attacks on secularism at school have increased significantly: 4,710 reports during the 2022-2023 school year, more than double than in previous years.

1,984 of them (compared to 148 in 2020-2021 and 617 in 2021-2022) concerned the wearing of signs or outfits likely to be prohibited by the 2004 law, mainly long abaya-type outfits.

The Council of State also notes that wearing these outfits “is part of a logic of religious affirmation, the dialogue between the establishments and the students concerned having revealed that it is accompanied by a stereotypical discourse, inspired by arguments broadcast on social networks and developed to circumvent the ‘prohibition enshrined in law’.

Appeals rejected twice

For these reasons, the Council of State today rejects the request to cancel the memo. In 2023, he had already, on two occasions, rejected summary appeals (emergency) against the ban, already highlighting the context.

In his decision rendered Friday on the merits, the administrative judge takes care to emphasize that the abaya can be considered as ostensibly manifesting religious affiliation, “on the date of publication of the note”. In other words, outside the context of a proselytizing offensive, ambiguous clothing or signs do not automatically fall within the scope of the ban.