APPENDIX A: RELIGIOUS ATTIRE IN FRANCE AND TURKEY

The policy of prohibiting Muslim dress in public educational institutions is not unique to Uzbekistan. The precedent for discriminatory expulsions of religiously observant students was set in the late 1980s and 1990s by the governments of France and Turkey. The policy rationales of the stringently secular governments of France and Turkey form a dramatically different backdrop, however, from the Uzbekistan government's deliberate cooptation of certain Islamic symbols and its attempt to regulate religious practice by propounding an official version of Islam.188 In the cases of France and Turkey, a strict interpretation of the separation of religion and state led to the violation of individuals' rights, and an unyielding commitment to secularism limited policy-makers' views of acceptable options.

France

Women and girls wearing veils was not a new phenomenon in France when the controversy began in 1989; some commentators have suggested that the controversy was fueled by fears of Islamic fundamentalism.189 In 1989, a school principal in the town of Creil sent three female students home because they would not remove their headscarves.190 Ruling on the case, the Conseil d'Etat held that wearing religious symbols is not in itself incompatible with the principle of secularism in the public schools; veils could not be prohibited outright. However, tolerance did not extend to religious symbols that "by their ostentatious character constitute an act of pressure, provocation, proselytism, or propaganda."191 The implication was that those wearing ostentatious symbols could be excluded, though the term was not defined.192 Although it is well established that the French political system is based in part on a strict interpretation of the separation of religion and state, the vague standard enunciated by the French court proved divisive and contentious and opened the door to continued arbitrary expulsions.

In a different case decided November 2, 1992, the Conseil d'Etat annulled the exclusion of three students in Montfermeil who had violated school policy by wearing Islamic headscarves. The school policy strictly forbade the wearing of all distinctive symbols, clothing or otherwise, of a religious, political, or philosophical character. This rule, in its broad terms, was found to violate students' rights of expression and the principles of neutrality and secularism in public education.193

In March 1995, the Conseil d'Etat for the first time upheld the exclusion of students in a case involving two sisters who had refused to obey an order from their physical education teacher to remove their headscarves.194 The court concluded that their refusal, along with their father's organization of demonstrations in front of the school toprotest the school's policy, amounted to a disturbance of educational activity. The court distinguished this case from the earlier cases where schools had issued general prohibitions on religious symbols.195

In July 1996, the Conseil d'Etat decided a case involving university students. A dean at the University of Lille II had excluded two students for wearing headscarves on grounds that it conflicted with public order. The lower court's reversal of the dean's decision was upheld by the high court: denying university access to young women wearing the veil was found to be without legal basis.196

In the next series of cases, decided in November 1996, the Conseil d'Etat confirmed twenty-three and overturned seven exclusions.197 The seven reversals all involved school policies that flatly prohibited headscarves. The court awarded damages in each case.198 Most or all of the confirmed exclusions involved students who had high rates of absenteeism, especially for physical education classes, and had participated in demonstrations against the policies, sometimes with their parents. The court seemed particularly likely to uphold the expulsion of students who publicly had protested the ban on religious expression at school, as demonstrations were seen to be a disturbance of public order.199

The controversy has continued to simmer. In late 1998, a twelve-year-old student in Flers (western France) was denied admission to two schools when her father informed the schools that his daughter would not remove her veil for gym class. The father went to an administrative tribunal to overturn the denial of admission. The school board of college Jean-Monnet intervened to admit the student, but teachers refused and denied her admission, motivated by the principle of secularism.

Certainly the incidents cannot be divorced from their political context: the cases arose at about the same time as the rise of the extreme right party Front National and its anti-immigrant platform, i.e., at a time when French mainstream politics was shifting to the right. The decisions indicate that both school officials and the courts have considerable discretion to decide whether a student is acting within the "boundaries of expression." If the school imposes a general ban on veils, the policy will not withstand scrutiny. But where students are required to remove their veils, claim that they cannot do so out of conviction, and then are excluded for their actions, the courts have upheld the exclusions on the basis of the student's "interference" with educational activities.

Turkey

In the case of Turkey, a secular-nationalist agenda apparently motivated student expulsions. The tension between the adamantly secular forces within the Turkish government and those who sought to raise the profile of Islam in politics had resulted in much controversy over the policy toward Islam. This political struggle culminated in June 1997, when the military and other secularist elements of the government, who felt Prime Minister Necmettin Erbakan had gone too far in promoting Islam's integration in state affairs, forced him to resign; in January 1998, the Supreme Constitutional Court outlawed his pro-Islam Welfare Party. The military had objected to, among other things, the Erbakan government's move to legalize female civil servants' right to wear headscarves in government buildings.

Religious dress was viewed by some in Turkey as a symbol of political affiliation and tantamount to advocating for the rise of Islam in politics. The ban on headscarves for workers in the public sector and students at state schools can thus be placed in the context of this struggle between secularism and religion-based governance. Secularism in Turkey is a fundamental part of Kemalist ideology and much of the discourse on the exclusion of students who wore headscarves was grounded in the ideas of modernism and the secular vision passed on by Ataturk.200

Eleven students were reportedly expelled from Istanbul University in 1998 for wearing headscarves and beards.201 Many observant Muslims in Turkey rallied around the cause of the students and the students took up their own cause actively, holding protests and hunger strikes and launching media campaigns to generate support for their reinstatement.

In February 1998, the Ministry of Education issued a restatement of government policy banning headscarves in state schools, making an exception for state religious schools. Students protested this and Istanbul University's policy compelling students to appear on their identification cards without headscarves or long beards or else be denied access to classes. Police in riot gear reportedly blocked thousands of student protesters from campus. The protesters appeared to have been partially successful, however, when the dean of the university agreed to rescind the identification-card policy.202

In June 1998, however, Istanbul University, with the active support of the police, barred students in Muslim dress from attending their final examinations.203 Religious students and others sympathetic to their cause practiced civil disobedience. The students also generated publicity and political attention to their plight by marching from Istanbul to Ankara.

In October 1998, universities refused to register females in headscarves. Police arrested hundreds of participants in large-scale protests against the state policy and the universities' implementation of the ban on headscarves.204 As of January 1999, the law banning headscarves for public workers and students of public schools remained in place.

In both France and Turkey, anti-religious restrictions had a radicalizing effect on observant Muslims. Deprived of their rights, students became politically active. French and, to a lesser extent, Turkish students and their supporters were able to express their disdain for the discriminatory laws and therefore, while radicalized or politicized, were still able to remain within the political system.

Students in Uzbekistan, however, were allowed no voice in the government-dominated discourse that determined their education and, ultimately, their livelihood. Nonetheless, they exhausted the few conventional channels open to them for reinstatement, such as writing to government leaders and filing appeals in civil court. Neither of these approaches proved fruitful, as government officials and the courts upheld government policy.

189 See, e.g., Judy Scales-Trent, African Women in France: Immigration, Family and Work, 24 Brooklyn J. Int'l L. 705, 714 (1999). Scales BTrent also suggests that the gender aspects of the issue have not been properly addressed. Id. at 716.

190 See Edward Mortimer, Liberte, Egalite, Lacite, The Financial Times, Dec. 12, 1989 at 19.

191 Circulaire du 12 décembre 1989, J.O., Dec. 15, 1989, page 15577, quoting Conseil d'Etat decision of Nov. 29, 1989. While Conseil d'Etat decisions are available via Lexis, the CONSET file is not complete. We have relied on press and other reports where cases could not be found.

192 Id. See also, Philippe Bernard, Les suites des polemiques de 1989 Le Conseil d'Etat annule l'exclusion de trois collegiennes portant le voile islamique, Le Monde, Nov. 4, 1992.

193 See Conseil d'Etat, Nov. 2, 1992, No. 130.394 (Kherouaa, Kachour, Balo, Kizic), available in Lexis, CONSET file.

194 See Conseil d'Etat, Mar. 10, 1995, No. 159.981(Aoukili), available in Lexis, CONSET file.

195 The sisters, according to the court, had crossed the line separating expression from provocation and proselytism Id. See also Philippe Bernard, Le Conseil d'Etat a confirme le renvoi de deux collegienne de Nantua, Le Monde, Mar. 13, 1995.

196 See Conseil d'Etat, July 26, 1996, no. 170106 (Universite de Lille II), available in Lexis, CONSET file.

197 See Philippe Bernard, Le Conseil d'Etat a confirme l'exclusion de vingt-trois eleves musulmanes voilees; Ces decisions demeurent dans le droit-fil de la jurisprudence elaboree depuis 1989, Le Monde, Nov. 29, 1996.

198 See, e.g., Conseil d'Etat, Nov. 27, 1996, nos. 170941 (Naderan), 172663 (Mechali), 172686 (Jeouit), 172898 (Antar, Mafta), available in Lexis, CONSET file.

199 See, e.g., Conseil d'Etat, Nov. 27, 1996, no. 172685 (Tlaouziti), available in Lexis, CONSET file. See also Phillippe Bernard, supra note 13.

200 It is notable that in February 1998, a Turkish court sentenced 128 members of the Islamic Aczmendi sect to prison terms ranging from twenty months to six years for "insulting Ataturk and disobeying security forces." Originally, when authorities arrested the group's members in 1996, they had charged them with violating rules of "modern dress reform" established by Ataturk. See: Human Rights Watch World Report 1999.

201 Agence France Presse, "Islamist Students Clash with Istanbul Police over Headscarf Ban," June 12, 1998.

202 Agence France Presse, "Istanbul University Backs Down in Row over Headscarves," February 26, 1998.

203 Agence France Presse, "Islamist Students Arrive in Ankara to Protest Headscarf Ban," June 24, 1998.

204 Agence France Presse, "Turkish Police Arrest 70 at Pro-Islamist Demonstration," October 14, 1998.