Following two initial rulings(1),(2) in summary proceedings, the Conseil d'État has ruled that the Minister of Education acted within the law in banning pupils in state schools from wearing abaya-type clothing at the start of the 2023 academic year. The behaviour of the pupils wearing these garments, reported to be used as part of a process of religious affirmation by many education authorities, led to the Conseil d’État’s conclusion that it could be considered a conspicuous manifestation of religious affiliation, as prohibited by the Law of 15 March 2004.
At the start of the 2023 school year, the Minister for Education and Youth issued a memorandum stating that the wearing of abaya-type clothing by pupils in state secondary schools constituted a conspicuous manifestation of religious affiliation, which is prohibited by law. Several associations appealed to the Conseil d'État to have the order suspended, and then annulled. The appeals for suspension were rejected by the Conseil d'État's urgent applications judge in September 2023. The Conseil d'État has now ruled, on the merits of the case, that the Minister of Education's memorandum complies with the law.
The Conseil d'État first noted that the Preamble to the 1946 Constitution, and again the Preamble to the 1958 Constitution, proclaim that ‘the organisation of free and secular public education at all levels is a duty of the State’. It also noted that article 1 of the Law of 15 March 2004 (article L. 141-5-1 of the French Education Code) prohibits the wearing of symbols or clothing through which pupils conspicuously show a religious affiliation in state schools. As in previous rulings, the Conseil d'État specified that this article prohibits symbols or clothing that clearly demonstrate a religious affiliation, either in themselves or because of the behaviour of the pupil.
The Conseil d'État noted that reports of breaches of secularism in schools have increased significantly: 4,710 such reports were made during the 2022-2023 school year (2,167 and 2,226 in the previous two years). In addition, 1,984 of these reports (compared with 148 in 2020-2021 and 617 in 2021-2022) concerned the wearing of symbols or clothing likely to be prohibited by the Law of 15 March 2004, most of which concerned abaya-type clothing. It also noted that wearing these garments was part of a process of religious affirmation, as discussions between the schools and the pupils concerned had shown that it was accompanied by doctrinal language, inspired by arguments shared on social media and developed to circumvent the prohibition set out in law.
The Conseil d'État, therefore, ruled that, at the date of publication of the disputed memorandum, the wearing of abaya-type clothing by pupils in state-run educational establishments could be considered as conspicuously manifesting a religious affiliation, and was, therefore, prohibited by the Law of 15 March 2004.
On these grounds, the Conseil d'État today rejected the request to annul the memorandum prohibiting the wearing of abaya-type clothing in state schools.
Read the decision ( in French)
(1) Ordonnance de référé n° 487891 du 7 septembre 2023
(2) Ordonnance de référé n° 487896 du 25 septembre 2023