Negotiating religious identity in public classrooms

Introduction: the efficiency of legal pluralism as a frame in religiously diverse education: power, agency and the law

The legal challenge in regulating and promoting religious diversity in public education across very different countries has one common basis: it presupposes the development and subsequent use of mechanisms that while engaging with legal, political and religious systems, recognize a base of broadly shared values. These values allow for negotiation to take place when conflicts arise.

In terms of equality, this requires “the ethical and political space which sets out the terms of reference for the recognition of people’s equal moral worth, their active agency and what is required for their autonomy and development”.^[1] This egalitarian trajectory does not deny local realities or a range of different values, nor does it question the value of the universalistic principles of freedom of religion, non-discrimination or the right to education. Instead, it deals with the more empirical dimensions of assumption and use of power to defend religious identity’ within and through education.

The use of legal pluralism, combined with comparative legal methodology, both from a global(izing) perspective and with the intention to protect difference, have been used to demonstrate how law is not the prerogative of the State and its institutions in public schools. This is, of course, not a novel statement. What is less widespread is the examination of how non-state actors - in our case, teachers, parents, religious organizations - compete, coordinate or clash with the liberal state. The focus, therefore, is shifting from the State to the lived reality of religiously alert individuals and communities asserting their religious identity in publicly funded schools, as the three case studies have shown. Actor-oriented approaches to the study of normative conflicts in public education reveal additional dimensions to the disputes for the legal

Negotiating religious identity 187 discipline: they help understand better the use of available legal frameworks, the symbolic but also real power dimensions as to who decides how religious diversity is taught (or not) in public schools, or the role of institutions in plural legal situations.

Within the framework of the competition as to who has the right to make and enforce rules in a given space, it emerges that legal pluralism as an approach is therefore inherently about normative conflict and the scope for conflict resolution. Law matters insofar as it has been perceived as “the main medium of social and institutional change”^[2] within States, although to maintain its unified character has today become largely fiction. With the State no longer being recognized as the exclusive ‘creator’ of law, new kinds of conflict on which norms must prevail in each case arise. They do so, as shown previously, both in situations where state law recognizes as its part norms developed outside its own context (e.g. personal and family law provisions in Israel) as well as when non-state normative orderings are rivals to state law (e.g. customary law in South Africa to a certain extent).

With an established connection to ‘governance’, understood here as the ways that and conditions under which law is produced, legal pluralism is insightful on the journey of State norms relevant to the protection of religious diversity in education: from their creation to their application, through the mediation of‘street level bureaucrats’, such as teachers or parents, norms are at times interpreted differently from the ‘official’ guidelines.

A second type of fiction, in this respect, is to be found in the assumption that State and non-state law remain completely separate entities/ Indeed, a more constructive, in terms of contextualization, reading of how legal pluralism affects law (and vice versa) would be to accept their interactions as ‘relational’. The State and societal actors use polycentric normative systems to accommodate the claims of sub-state groups, gain political support, reduce/escalate the risk of religious conflict or extend the rule of law into previously ‘unregulated’ areas. These interactions among actors and the State shed light on the state of‘legalconsciousness’^[3] of actors. They also highlight the changes that the assumptions and uses about and of law are producing in the area of education. On the one side, there is a supra-national legal framework that pushes national legislators towards a given content for norms such as religious freedom, education or equality and, on the other, a vast variety of ‘voices’ that advocate diverse legal and policy positions on the role of religious identity in education. In some cases, it is clear that the intended plurality of norms is able to empower specific interests, to the point of‘forcing’ the State to recognize them.

This type of empowerment poses great challenges to state-centric analyses of law, but, at the same time, in some sense it pushes forward the celebration of diversity, of flexible and elastic identities and of multiplicity. So, are we all fundamentally the ‘same’ or are we rather unambiguously ‘different’ and should we expect that ‘difference’ to be defended? In other words, how do and should legal and governance systems respond to the described plurality of religious identities in public schools?

Managing without elimination could be a preliminary response to these difficult questions, with the usual (but again difficult to define) caveat that certain practices may be considered worthy of being “killed off”, even within a pluralist framework if they are deemed ‘intolerable’.

Approaches to religious education within state schools accordingly vary: it is quite common that they are rooted in the history and socio-economic development of each state. Among the states surveyed in this study, teaching on religions can be confessional or non-confessional, obligatory or optional and with or without alternative options. In other cases, not covered here, such as the French model, religious education is entirely channeled through the teaching of historical religious facts and is thus integrated in other subjects.

Regardless of the approach chosen, it is becoming harder to contest that the relevance of educating learners about religious diversity with multicultural

Negotiating religious identity 189 schools is becoming the norm.¹’ There is a constant that explains the evolution of public school teaching: changes in state-religion relations directly affect relations between schools and religion.^[4] But the constitutional framework does not operate in isolation either: for different reasons in each case, as the three cases have shown here, very often the pressure towards educational efficiency and quality push State school policy-makers to place emphasis on civic and intercultural education policies at the expense of teaching about religions. These policies aim to privilege citizenship aspects over religious identity ones.

Yet, the traditional religions in all three cases occupy the most important positions within public education systems and enjoy access to both financial and public opinion privileges. The examples of Israel and England share an interesting commonality in this respect: while there is an openness to religious diversity (through separate tracks of education or types of schools), there has been an impressive growth in the number of private ‘faith schools’, provoking heated debates and criticism. At the same time, parental choice of such schools appears less and less determined by its religious ethos and more and more dictated by other priorities such as academic reputation (e.g. Catholic schools in England) or financial concerns (e.g. Haredi schools in Israel), among many others. Opposition is, nevertheless, growing on the use of certain admission criteria by faith independent schools, as well as by the de facto segregation that they may cause either on religious or socio-economic grounds. Whether designed to foster the acquisition of knowledge or to encourage learners to include their life experience of religion, teacher training on religious diversity management remains a persisting concern in all cases examined. The focus of such training is on nonbiased teaching of religions. This entails the critical examination of sources and documents as well as the consideration of a variety of interpretations of the same fact. Teaching about religions also often strikes politically sensitive cords, whether on the basis of historical and national identity reasons or for fear of fundamentalism and extremism.

• [1] David Held, ‘Cosmopolitanism: Ideals and Realities’, 49, 2010 as quoted in Paul Schiff Berman, ‘Global Legal Pluralism as a Normative Project’, UC Irvine Law Review, 8, 2018, 149-182, at 150. 2 This trajectory is emphasized also in Berman (2018) at 154.
• [2] Yüksel Sezgin, ‘A Political Account for Legal Confrontation Between State and Society: The Case of Israeli Legal Pluralism’, Studies in Law, Politics and Society, 32, 2004, 199-235, at 201. 2 Sezgin (2004) at 203 argues on this point that “legal pluralism is the fact while legal centralism is a myth” restating the 1986 position of John Griffiths. 3 In the context of the present analysis, legal pluralism is viewed in the form of the recognition of one legal system by the State (i.e. another legal system) and is labeled ‘normative legal pluralism’ [Cf. Keebet von Benda-Beckmann and Bertram Turner, ‘Legal Pluralism, Social Theory and the State*, Journal of Legal Pluralism and Unofficial Law, 2019, 255-274 at 264, doi: 10.1080/07329113.2018.1532674] 4 von Benda-Beckmann and Turner (2019) at 260-261. 5 For a categorization of the interactions between the two, see J. Starr, ‘Folk Law in Official Courts in Turkey’, in A. Allott and G.R. Woodman (eds.), People’s Law and State Law, Foris Publications, 1985, 123-141. 6 Sezgin (2004) at 208-210.
• [3] 2 Consider the examples of the claims of the Haredi communities in Israel towards exceptions in their stream of education or the movement for the proliferation of schools with a religious ethos in England analyzed in Chapters 3 and 5, respectively. 3 Berman (2018) at 156. 4 On the ‘violence’ of judicial interpretations and judges as ‘jurispathic’ entities for elimination competing normative assertions, see Robert M. Cover, ‘The Supreme Court 1982 Term— Foreword: Norms and Narrative*, Harvard Law Review, 97(4), 1983, 53. See also William Twining (ed.), Human Rights, Southern Voices-Francis Deng, Abdullahi An-Na’im, Tash Ghori and Upendra Baxi, Cambridge University Press, 2012. 5 The most common ones are non-confessional religious education, optional confessional religious education, compulsory religious education with opt-outs or teaching of religious facts (fait religieux) integrated in other subjects. (Cf. Luce Pépin, Teaching About Religions in European School Systems: Policy Issues and Trends, NEF Initiative on Religion and Democracy in Europe, 2009, at 19). 6 Based on Régis Debray’s 2002 Report to the French Minister of Education distinguishing between laicité d’incompetence and laicité d’intelligence.
• [4] See, for example, the Final Declaration of the 22nd Session of the Permanent Conference of European Ministers of Education of 4-5 May 2007 in Istanbul that stipulates “regardless of the religious education system that exists in a particular country, children must receive tuition that takes account of religious and philosophical diversity as part of their intercultural education”, at para. 23. 2 Pépin (2009) at 13. 3 Pépin (2009) at 18. 4 The example of South Africa is perhaps a system where a strong preference for shared citizenship is expressed (cf. Chapter 5 in this volume). 5 Here the typical illustration would be ‘academies’ in England, publicly funded types of independent schools in the form of public-private partnerships (Cf. Pépin (2009) at 39-40). 6 The OSCE’s Toledo Guiding Principles declare: “Teacher-training should ensure that educators’ personal, religious or non-religious commitments do not create bias in their teaching about different religions and philosophies”. 7 Pépin (2009) at 45.