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УДК 101.1 : 378 (460)
Silvia Meseguer Velasco
Neutrality of the State, Religious Ethos and Public School in Spain*
This paper analyses some conflicts that arise in the process of admission of students in the different educational models clarified in the Spanish legal system, when the ethos religious of the school collides with the right of parents to educate their children in accordance with their religious or moral convictions. At the same time, examines the jurisprudential solutions, placing the focus of attention on the need for the educational system of a democratic society to manage the ideological and religious diversity that is shown in this area.
В статье анализируются некоторые конфликты, возникающие в процессе зачисления студентов в различные образовательные модели, принятые в испанской правовой системе, когда религиозные устои школы вступают в противоречие с правом родителей воспитывать своих детей в соответствии с их религиозными или моральными убеждениями. Наряду с этим рассматриваются решения из юридической практики, касающиеся необходимости учета существующего идеологического и религиозного разнообразия для системы образования в демократическом обществе.
Key words: ethos religious, neutrality of the State, educational system of a democratic society, public and private schools in Spain.
Ключевые слова: религиозный этос, нейтральность государства, система образования в демократическом обществе, общественные и частные школы в Испании.
1. Introduction
The European Court of Human Rights has reiterated on numerous occasions that the States that are part of the Council of Europe enjoy a margin of appreciation when it comes to reconciling the exercise of the functions they assume in the area of education and teaching to the right of parents to guarantee them according to their religious and philosophical convictions1.
© Meseguer Velasco Silvia, 2019
* The origin of this paper is based on the conference "Education and Religion", presented at the XVII Annual Colloquium of the Consortium of Latin American Religious Liberty, held at the Catholic University of Uruguay (Montevideo), from September 6 to 9, 2017. Published in the framework of the Research Project Neutralidad del espacio público: escuela pública y escuela privada (DER 2015-63823-P).
1 See: Kjeldsen, Busk Madsen y Pedersen v. Denmark, 7 December 1976, §§50-53; Folger0 v. Norway [GC], 29 June 2007, §84; Zengin v. Turkey, 9 October 2007, §§51-52; Lautsi and others v. Italy [Grand Chamber], 18 March 2011, §62.
With regard to the Spanish legislation, the state authorities in the organization of the Spanish education system - derived from its configuration as a public service - should be harmonized with the fundamental right that assists parents to educate their children according to their religious or moral convictions1. In other words, the issue involves the shift between the beneficiary role assumed by the State and the role that family and other players of civil society - including religious groups - in the education of children, with the common goal of seeking the best interest of the minor2.
In practice, however, conflicts have reached several issues which transcend strictly the national scope3. A good example of this are the pronouncements of the European Court of Human Rights on the use of certain garments or the presence of religious symbols in the classrooms, the dismissal of religious teachers, or the indoctrinating content of certain sub-jects4. In this paper we will pause to analyse those that arise in the process of admission of students in different educational models disposed in the Spanish legal system when the religious ethos of the school clashes with the right of parents to educate their children according to their religious or moral convictions5.
1 Article 27.1 Spanish Constitution guarantees the right to education and freedom of teaching.
2 Article 24.2 of the Charter of Fundamental Rights of the European Union: "In all actions concerning children, whether carried out by public authorities or private institutions, the interests of the child will be a fundamental consideration". Official Journal of the European Communities, 18 December 2000, C. 364.
3 An exhausted study of them can be looked up on: R. Navarro-Valls and J. MartÍnez-Torrón, Conflictos entre conciencia y ley. Las objeciones de conciencia, Iustel, Madrid, 2012, pp. 235-317; S. Ferrari, "Religion in the European Public Spaces: A Legal overview", Religion in Public Spaces. An European Perspective, Ashgate, 2012; R. Navarro-Valls and J. MartÍnez-Torrón, "The Protection of Religious Freedom in the System of Council of Europe", T. Lindom, W.C. Durham & B.G. Tazhib-Lie (eds.), Facilitating Freedom of Religion or Belief: A Deskbook, Leiden, 2004, pp. 209-238.
4 Among others, as well as those mentioned in the first note of this report, see: Campbell and Cosans v. United Kingdom, 25 February 1982; the decisions of inadmissibility Dahlab v. Switzerland, 15 February 2001 and Kurtulmus v. Turkey, 24 January 2006; Leyla Sahin v. Turkey [Grand Chamber], 10 November 2005; Dogru v. France and Kervanci v. France, 4 December 2008; Grzelak c. Poland, 15 June 2010; Fernández Martínez v. Spain [Grand Chamber], 12 June 2014; Mansur Yal^n and others v. Turkey, 16 September 2014; Osmanoglu y Kocabas v. Switzerland, 10 January 2017.
5 On the major conflicts generated by religious education, see J. MartÍnez-Torrón, "La enseñanza de la religión en el sistema educativo español", Rivista di Storia del Cristianesimo 9 (2012), pp. 118-125.
2. Normative and Jurisprudential Framework in the Spanish Educational System 2.1. The Right of Parents to Choose the Education of Their Children
The fundamental right of parents to educate their children according to their religious and moral convictions is recognized in the European Convention of Human Rights and the Spanish Constitution of 19781. This right, as an extension of religious freedom and belief2, includes the right of every person to choose for themselves and, for the non-emancipated and disabled children, under his authority, both within and outside the school environment, the religious and moral education in conformity with their own convictions3.
Doctrine4 and jurisprudence5 have reiterated that the right of parents to educate their children reaches, at least, the following aspects: the freedom of choice of educational institution according to their convictions; the comprehensive education that parents want to give their children, including religious education in public schools; and the religious and ideological neutrality of public schools.
Thus, the right of parents to educate their children has two sides. There is a positive dimension, which occurs in cases where parents choose to have their children receive religious and moral instruction in private schools equipped with their own ideology or character. In its negative di-
1 Article 2 of the Additional Protocol number 1 to the European Convention on Human Rights, particularly, sets: "No one can be denied the right to education. The State, in the exercise of its functions regarding education and teaching, shall respect the right of parents to ensure the education in accordance with their religious and philosophical convictions". Article 27.3 of the Spanish Constitution guarantees parents' rights to choose the religious and moral education they wish for their children.
2 See art. 16.1 of Spanish Constitution: "Freedom of ideology, religion and worship of individuals and communities is guaranteed, with no other restriction on their expression than may be necessary to maintain public order as protected by law".
3 See art. 2.1 c) of the 1980 Organic Law on Religious Freedom (Ley Orgánica 7/1980, 5 July 1980, de Libertad Religiosa). In the other hand, the 1985 Organic Law on Right to Education (Ley Orgánica 8/1985, reguladora del Derecho a la Educación), in article 4.1 c) stipulates that parents or legal guardians have, with regard to the education of their children, among others, the right to receive religious and moral instruction that is in accordance with their own convictions (BOE No. 159, 04/07/1985).
4 See: J. Ferrer Ortiz, "Los derechos educativos de los padres en una sociedad plural", Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 10 (2006); L. MartÍn-Retortillo, "El derecho de los padres a escoger la educación de los hijos", La enseñanza de la religión en la escuela pública, Comares, Granada, 2014, pp. 3-18; M. E. Olmos Ortega, "El derecho de los padres a decidir la formación religiosa y moral de sus hijos", La enseñanza de la religión en la escuela pública, Comares, Granada, 2014, pp. 19-41; E. García-Antón Palacios, La objeción de conciencia de los padres a ciertos contenidos docentes en España y la jurisprudencia de Estrasburgo, Dykinson, Madrid, 2017.
5 See: Sentences of the Constitutional Court 5/1981, 13 February, FJ 9; 38/2007, 15 February, FJ 5.
mension, when this election is not possible, it assembles with the neutrality of the public school that is established as a guarantee of "non-indoctrination"1.
2.2. The Religious and Ideological Neutrality in Public Schools
Article 16.3 of the Spanish Constitution2 establishes the ideological and religious neutrality of the State as the proper framework to guarantee the right of religious freedom and beliefs and it imposes on the public authorities a positive attitude of cooperation with the religious confessions, which is specified in the assistance and promotional purpose that must be developed. Specifically, article 2.3 of Religious Freedom Law attribute to the public authorities the duty to adopt the necessary measures to facilitate religious training at public military, hospital, welfare, penitentiary and other similar public establishments of the State; among which can be found publicly owned schools.
From this perspective, the ideological and religious neutrality in the Spanish educational context implies several matters3. The first one is about public schools which must be ideologically neutral, without prejudice the fact that the diversity of religious and ideological beliefs of civil society is reflected on their environment. The neutral State must manage the ideological and religious pluralism that is shown in this scope without evaluating its legitimacy, beyond what corresponds to them by the application of the limits derived from the exercise of a fundamental right4. The second one is about State neutrality: guarantee the right of religious and ideological freedom of each person and the right that guarantees to parents to educate their children according to their religious and moral convictions5.
1 See: C. Garcimartin, "Neutralidad y escuela pública: a propósito de la Educación para la Ciudadanía", Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 14 (2007), pp. 9 y 12.
2 "There shall be no State religion. The public authorities shall take the religious beliefs of Spanish society into account and shall consequently maintain appropriate cooperation with the Catholic Church and the other confessions".
3 See: SSTC 46/2001, 15 February, FJ 4; 154/2002, 18 July, FJ 6; 101/2004, 2 June, FJ 3.
4 See articles 3.1 of Religious Freedom Law 7/1980 and 9.2 of European Convention on Human Rights.
5 See: J. MartÍnez-Torrón, Religión, Derecho y Sociedad. Antiguos y nuevos planteamientos en el Derecho Eclesiástico del Estado, Comares, Granada, 1999, pp. 180-182.
Read in conjunction, neutrality implies the prohibition of indoctrinating students in public school1, in a double way. On the one hand, it will affect the academic contents included in the study programme that, as already mentioned by Strasbourg Court, should be addressed in an "objective, critical and pluralistic manner"2. In the words of the Spanish Supreme Court, giving an account of the reality and the content of the different conceptions, without pressures directed to the capture of wills in favour of some of them3. On the other hand, it will be extended to teachers who perform their function in them an obligation to waive any form of ideological indoctrination, which is the only compatible attitude with the respect to the freedom of the families who, freely or forced by circumstances, have not chosen for their children schools with a specific and explicit ideological orientation4. Similarly, State neutrality operates in a "collaborative" manner, that is to say, it implies the action of public authorities to guarantee the right to education and academic freedom in the context of a plural society5, vetoing in advance, "any kind of confusion between religious and state functions"6.
1 See: I. Martín Sánchez, La recepción por el Tribunal Constitucional español de la jurisprudencia sobre el Convenio Europeo de Derechos Humanos respecto de las libertades de conciencia, religiosa y de enseñanza, Comares, Granada, 2002, pp. 193-204; R. Palomino Lozano, "El área de conocimiento Sociedad, Cultura y Religión: algunos aspectos relacionados con la libertad religiosa y de creencias", Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 10 (2006), pp. 12-13; S. Meseguer Velasco, "Neutralidad religiosa y enseñanza privada en España", Anuario de Derecho Eclesiástico del Estado Vol. XXIX (2013), pp. 144-146.
2 See: Folger0 v. Norway, 29 June 2007, §84; Zengin v. Turkey, 9 October 2007, §52. An exhausted study of them can be looked up on: M. A. Jusdado and S. Cañamares, "La objeción de conciencia en el ámbito educativo. Comentario a la sentencia del Tribunal Europeo de Derechos Humanos Folger0 v. Noruega", Revista General de Derecho Canónico y Derechos Eclesiástico del Estado 15 (2007), pp. 1-14; J. MartÍnez-Torrón, "La objeción de conciencia a la enseñanza religiosa y moral en la reciente jurisprudencia de Estrasburgo", Revista General de Derecho Canónico y Derechos Eclesiástico del Estado 15 (2007), pp. 123; R. Palomino Lozano, "Religion and Education in the Council of Europe: Toward a "Soft" Constitutionalization of a Model of Religious Teaching? ", W. C. Durham, S. Ferrari (edits.), Law, Religion, Constitution. Freedom of Religion, Equal Treatment, and the Law, Ashgate, 2013, pp. 377-381.
3 See: Supreme Court Decision 341/2009, 11 February, FJ 10. See L. Ruano Espina, "Las sentencias del Tribunal Supremo de 11 de febrero de 2009 sobre Objeción de Conciencia a la Educación para la Ciudadanía", Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 20 (2009).
4 Constitutional Court Decision 5/1981, 13 February, FJ 9.
5 The European Court of Human Rights clarifies that: "When pluralism gives rise to tensions, the role of the authorities (...) is not to eliminate the cause of tension by eliminating pluralism, but to ensure that competing groups are tolerated mutually". Serif v. Greece, 14 December 1999, §53.
6 See: SSTC 24/1982, 13 May, FJ 1; 101/2004, 2 June, FJ 3.
2.3. Pluralism and Educational Models in the Spanish Context
In the school environment, the plurality of existing positions in society is reflected in the diversity of educational models in the terms recognized in the Constitutional text, and in the laws regulating the right to education and academic freedom1. In this way in Spain, teaching can be of public or private ownership2.
Public schools are ideologically neutral and free. There, one will be able to opt for the course of religion - mainly Catholic, but also evangelist and Islamic - on a voluntary basis. Conversely, private schools - all of which are financed by parents - are authorized to implant their own ethos, religious or not. Their ethos must be respected by the teachers, students and their parents3.
They include private schools may receive funding (although not on totally equal conditions that public schools) and in this case they are called "private concerted schools", with a legally established concert system that imparts compulsory education on a free basis4. The assistance is focused on the educational concerted, consisting of "a special public administrative contract financing in favour of third parties"5. Private concerted schools supported by public funds will maintain their educational ethos, religious or not. But at the same time, the economic agreement deprives them partially of their organisational autonomy that will be shown in different areas. For instance, they will have to respect the requirement of the participation of the educational community in the operation of the schools through the School Council. They will also have to guarantee the right of access to education for students on equal terms. This criteria, in the daily practice of the schools, raises some conflicts which will be developed below.
1 The current basic legislation that develops the constitutional norms is as follows: The Organic Law 8/1985, 3 July, regulates the Right to Education, LODE (BOE No. 159, 4 July); The Organic Law 2/2006, 3 May, of Education, LOE (BOE No. 106, 4 May); The Organic Law 4/2007 12 April, LOU, which modifies the Organic Law 6/2001, 21 December, of Universities (BOE n°. 89, 13 April); and Royal Decree 2377/1985, 18 November, which approves the Regulation of Basic Rules on Educational Charters (BOE No. 310, 27 December).
2 See article 108.1 y 2 of LOE. Article 27. 6. Spanish Constitution recognizes all physical and legal persons the freedom to create educational centres, provided that they respect constitutional principles.
3 See article 115 of LOE. About the ethos of educational institutions, J. Otaduy, "Carácter propio de los centros educativos y libertad de conciencia", Ius Canonicum 77 (1999), pp. 31-32.
4 See: J. M. Díaz Lema, Los conciertos educativos en el contexto de nuestro derecho nacional, y en el derecho comparado, Marcial Pons, Madrid, 1992, pp. 166-167.
5 See: I. De Los Mozos Touya, Educación en libertad y concierto escolar, Montecorvo, Madrid, 1995, pp. 348 y ss.
3. Admission Criteria and Disagreement with the Ethos Religious
Indeed, educational administrations must guarantee the right to education to all so that the criterion of admission in public schools and in the religiously oriented concerted schools is regulated by the right of access on equal terms. When there is a quantitative discrepancy between the number of parental applications in one type of school or another, and the specific school posts offered by the educational administrations, the admission process will be regulated by selection priority criteria. These include the economic situation of the family unit, the existence of other siblings enrolled in the school, the proximity of residence or the workplace of the parents, or the concurrence of disability of the pupil or one of their parents, without having, any of these criteria, a discriminatory na-
ture1.
However, as it can be guessed, the issues that arise in relation to the right of access on equal terms go further. At times, the right of access for students in private religious concerted schools, under the same conditions as in a public school, may clash with the right of parents to educate their children according to their religious and moral convictions. In particular, it is related to those assumptions that parents request for their child admission to a public school, however, the corresponding educational administration, usually due to the lack of places in the requested school, derives it to a private concerted school with Catholic religious ethos.
These conflicts arise in two directions. On the one hand, in some Spanish Autonomous Communities there are private concerted Catholic schools with a notable percentage of Muslim students enrolled, whose religious beliefs collide with the Catholic ethos of the school. In these cases, certain parents have refused to enrol their children in concerted schools arranged by the administration considering that the Catholic approach was incompatible with their Islamic religious beliefs2. In practice, these situations have been resolved through dialogue between the educational administrations and the families affected in two ways: either accepting attendance at the concerted school once the family is convinced that the respect for their religious beliefs is guaranteed; or moving the student to a public school3.
on the other hand, and this is the significant issue to analyse, when parents ask for admission for their children to a public school and are also moved to a private concerted religious school. In particular, this happened to parents who applied for admission in two public schools in Jaca (Huesca, Spain), but given that there were no vacancies in the schools elected in the first and the second election, they were allocated a place at the Catholic school Escuelas Pías in Jaca.
1 These requirements are subject to specific development by rules of each Autonomous community.
2 See: M. Moreno Antón, "Proyección multicultural de la libertad religiosa en el ámbito escolar", Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 10 (2006), p. 8.
3 Ibid. Some of these conflicts can be looked up on: S. Cañamares Arribas, Libertad religiosa, simbología y laicidad del Estado, Thomson Aranzadi, Cizur Menor, 2005, pp. 44-54.
The parents, not in conformity with that decision, expressed the absence of religious beliefs, arguing that they were an agnostic family - specifically stating that their son had not been baptized - so they demanded a secular education, according to their ideas; they considered that their child was not going to receive such education in a Catholic religious school. The appropriate educational administration, for its part, refused to make the change alleging the inability to increase the ratio of student-teacher numbers - established by law in twenty-five students - in the classrooms of the public school requested.
The subject was resolved by the Superior Court of Justice of Aragon, in sentence of 17 February 2017, in which the parents were given the reason. The allocation of the school place was cancelled in the religious concerted school, considering that it violates the constitutional precepts of religious and moral freedom, once the parents of the child declared that they opted for a secular education. The right of the appellants recognizes that, about exceptional circumstances, their child is enrolled and admitted to a public school1.
One can deduce the following considerations from the legal basis of the Tribunal. Firstly, that the right of religious freedom in its negative aspect includes the right not to be forced to practise acts of worship or to receive religious assistance contrary to the own convictions2. It follows that the right of the parents to a secular education, separated from any religious creed for their child, in the terms in which it is contemplated in the Spanish legislation and in the International Treaties, requires the correct schooling that implies, in this case, admission to a non-religious school. For the Tribunal, the approach of the Catholic school will naturally be transferred to all its activities, so it will entail that the child is exposed to the symbols that identify him/her or to the ordinary activities that are developed which cannot be balanced with the type of education that parents want to instil in the child.
Secondly, it recalls that the right of the parents not only guarantees the possibility of choosing a teaching centre, but it also reaches the right to educate the children in a certain religious or moral conviction. Therefore, in the eventual conflict that is presented in this case between maintaining a certain number of students per classroom and the right of parents to their child to receive a non-religious education, cannot be prejudiced by the autonomic law regulation of the process of admission of students, but must give priority to the exercise of the fundamental right.
Thirdly, it differentiates between the way in which it affects the protection of the right of the parents and the refusal in the admission in the first option indicated by them: either in a religious teaching school, or in a public school. In the first case, the fundamental right is not violated as the religious education is going to be given in the public school, even if it is not with the intensity and the concrete idea that the parents request. In the second one, on the contrary, allow-
1 See sentence of the High Tribunal of Justice in Aragón 60/2017, 17 February 2017.
2 See article 2.1 of Organic Law of Freedom of Religion.
ing education in a religious school would directly infringe the right of parents on moral and religious education in accordance with their convictions.
ultimately, the Court does not violate the legal doctrine in which it was determined that it was not possible to increase the ratio for primary education in schools supported by public funds since, in this case, "there is no judicial increase in the ratio, but admitting the student by exceptional circumstances"1.
4. Conclusions
As briefly clarified above, in the public-school environment - also in the concerted ones - arise some legal conflicts deriving substantially from the management and organization of the religious diversity that occurs in this specific area2. In some cases, the right of parents to educate their children, at least in the extent of international and national documents, remains unprotected. In other cases, the neutrality of the public schools is question-able3.
From these premises, often reference is made to the need to accommodate ideological and religious beliefs in a democratic and plural society. With this term, adopted first from the American law and after the Canadian jurisprudence, it is alluded to the need to adapt neutral rules which, in a certain multicultural and multi-religious context, cause discrimination in an individual or in a religious community, even though it is not the intended effect of the rule in question. This concept, that arises in relation to the accommodation of religious beliefs in the workplace, is being moderately transferred to European legislation and the jurisprudence of the Court of Strasbourg, to balance interests at stake and to solve conflicts or tensions that require an effort to adapt on both sides and, predominantly, to provide ad hoc solutions to certain conflicts4.
1 Supreme Court Sentence 30 March 2012.
2 See: A. Vega Gutiérrez, "La gestión de la diversidad religiosa en las políticas educativas españolas", A. Vega Gutiérrez (coord.), La gestión de la diversidad religiosa en el sistema educativo español, Thomson Reuters Aranzadi, Navarra, 2014.
3 See: R. Palomino Lozano, Neutralidad del Estado y espacio público, Thomson Reuters Aranzadi, Pamplona, 2014, pp. 188-202.
4 For instance: Eweida and Others v. United Kingdom, 15 January 2013. See L. Vickers, "Indirect Discrimination and Individual Belief: Eweida v. British Airways plc.", Ecclesiastical Law Journal Vol. 11, n. 2 (2009), pp. 197-203; M. Hill, "Religious Symbolism and Conscientious Objection in the Workplace: An Evaluation of Strasbourg's Judgment in Eweida and others v United Kingdom", Ecclesiastical Law Journal 15 (2013), pp. 191-203; M. Elósegui Itxaso, "El caso Eweida: los acomodamientos razonables y el test de proporcionalidad en el TEDH", Relaciones Laborales: Revista Crítica de Teoría y Práctica 4 (2014), p. 105; S. Chakrabart, "Faith in the Public Sphere", Journal of Law and Policy 22 (2014), pp. 492-495.
Parents are also responsible for the education of their children in school, regardless of the choice of religious education. So, the fundamental right of parents recognized in the Constitution is not to be limited to choosing a particular educational model founded on religious or moral convictions. Educational authorities should, to the extent possible, try to adapt educational policies; in this case, the admission criteria for students in public and concerted schools, to guarantee religious pluralism in the school environment. Ensuring their right will entail the need to accept the diversity of religious beliefs, even in cases where they are not legally enforcea-ble1, to reasonably balance the duty of State neutrality with the right of parents to educate their children according to their religious or moral convictions.
Статья поступила: 24.12.2018. Принята к печати: 31.01.2019
1 Guiding Principles of Toledo on Teaching about Religions and Beliefs in Public Schools, prepared by the Expert Advisory Board on Freedom of Religion or Belief of OSCE / ODIHR, 2008, p. 85.
