Religious diversity in education within an empowerment frame
Based on Martha Nussbaum’s conceptualization of ‘human capabilities’ as an approach to establish a threshold of social justice, it becomes relevant to explore if and how religious diversity in education can contribute towards empowerment of learners. As exposed in previous chapters, pluralism and respect for difference are explicitly articulated in the legal frameworks studied. Yet, according to Nussbaum’s capabilities frame, this is not sufficient: legal empowerment requires the material and institutional resources for right-holders to voice claims. The right to education being a ‘gateway’ right towards further access to various other rights and liberties amplifies the relevance of this frame: the degree to which individual learners (and their families) are able to access their right to religious freedom in the public school system constitutes in itself a distinct political, social and legal project. Any socio-legal frame has to account also for differences due to natural endowment or power structures towards giving learners as believers a real choice in education.
The duty of the State to provide education therefore has a potentially strong impact in shaping capabilities to exercise rights, both during education years but also beyond. The relevance of education both for economic growth as well as political functioning is crucial towards empowerment.
While interpretations of the rights to education and religion may differ on the understanding of their nature (individual vs. collective rights), on their function (constraints to state behavior or action-oriented) or on their ultimate aim (achieve well-being, realize goals, access resources), an empowerment agenda requires public policy to focus on all actors, including institutions that affect one’s capability to access the rights at stake. Public policy choices are highly contextual. In order to promote equality, however, it remains crucial forlearners to have options understood as possibilities to obtain culturally relevant education. In that respect, education not only functions as a source of skills and possibilities but also as a source of ‘images of worth’ that also leads to empowerment.
The importance of this dual dimension for empowerment cannot be underestimated for religious minorities. Gary Becker, in his 1992 Nobel address, argued that “the beliefs of employers, teachers, and other influential groups that minority members are less productive can be self-fulfilling” in the sense that vulnerable groups can and do internalize their second-class status in ways that force them to maintain this status. In addition, tradition and cultural settings often interfere with preference for basic liberties. In fulfillment of the right to equality, if not of a right to difference, States therefore have a compelling interest to provide education that is conducive to active citizenship. This cannot, nevertheless, justify unlimited interference with the parents’ liberty to pursue education for their children according to their religious beliefs.
And yet, this does not preclude from a human rights perspective the right to live a traditional hierarchical life to the extent that alternative choices are also available. But because religious groups and practices are human phenomena, and because religion should represent a matter of choice, the protection of religious belief occupies a firm position in the moral education of learners, as a ‘central vehicle of cultural continuity’. It is also legally framed as the object of (limited) State protection on the basis of autonomy and human dignity, so as to avoid harm to others.
In other words, learners should be enabled (in conjunction with their parents) to choose a way of life and learn in accordance with it. This choice should be coordinated with each learner’s individual capabilities, irrespective of the fact that religious communities function on a relational and collective basis. Any choice should therefore be tested at the individual level to confirm that it is consonant with the person’s will (vis-à-vis its degree of voluntariness) and as such empowering to them.’ This approach to legal empowerment on the basis of religious freedom exercise comes, however, at times at the cost of inequality in fact: inequality between religions seems almost inevitable when learners, for example, make exemption claims and are successful.
Ultimately, harmonizing religious pluralities in public education systems remains an essentially political process: the recognition of religious differences in the name of access to education and empowerment can produce consequences that are not necessarily desirable for all to the same degree. International human rights standards permit distinctions to be made on the basis of religion and culture. For those distinctions that constitute ''harmful practices’, however, with discriminatory effects, reform or removal is recommended. An intersectional dimension of conflicts of rights, where rights ought to be ‘balanced’ adds a different, more complex dimension: in scenarios of conflict of rights, often connected to contexts of plural legal orders, international human rights law advises their ‘enjoyment in totality’, in indivisible terms in order to avoid the fragmentation of one’s identity. As seen, nevertheless, in the preceding chapters on the individual national contexts, this indivisibility’ rarely is applied on the ground.
So how does one then assess claims to religious difference articulated in human rights terms? Empirically, this can only happen in contextual terms focusing on the impact of one’s choice.
-  Expression borrowed from Nussbaum (2000) at 288. 2 Among vulnerable groups Becker includes blacks, women, religious groups, immigrants. (Cf. Gary Becker, ‘The Economic Way of Looking at Behavior’, in Ramon Febrero and Pedro Schwartz (eds.), The Essence of Becker, Hoover Institution Press, 1995, 633-658, at 634. 3 Nussbaum (2000) at 115. 4 See, for example, in Wisconsin v. Toder (1972) 406 U.S. 205 the finding of the US Supreme Court that the State needs to have a “compelling interest” in preparing “citizens to participate effectively and intelligently in our open political system”. Conversely, see the analysis on Israel in Chapter 4 of this book, in particular on the educational content of ultra-Orthodox schools. 5 Nussbaum (2000) at 238. 6 Nussbaum (2000) at 179. 7 Nussbaum (2000) at 180. 8 Nussbaum unambiguously finds that “no State can allow its citizenship to search for the ultimate meaning of life in any way they wish, especially when it involves harm to others”. [Cf. Nussbaum (2000) at 180.] 9 Jacques Maritain expressed this point as follows: “There is real and genuine tolerance only when a man is firmly and absolutely convinced of a truth, or of what he holds to be a truth, and when he at the same time recognizes the right of those who deny this truth to exist, and to contradict him . . . not because they are free from truth but because they seek truth in their own way, and because he respects in them human nature and human dignity”. Cf. Jacques Maritain, ‘Truth and Human Fellowship’, in On the Uses of Philosophy: Three Essays, Princeton University Press, 1961, at 24, as quoted in Nussbaum (2000) at 181.
-  Nussbaum (2000) at 188. 2 The learner’s (child’s) age of consent is a grey zone in international human rights law. See Chapter 3 for more on this point. 3 The term is a carefully nuanced condemnation of discriminatory practices connected to certain aspects of culture and/or religion and appears, for example, in the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa. 4 For examples see International Council on Human Rights (ICHR), When Legal Worlds Overlap: Human Rights, State and Non-State Law, 2009, available at http://www.ichrp. org/files/reports/50/135_report_en.pdf. 5 See, for example, the Human Rights Council General Comment No. 28 on Equality of Rights Between Men and Women (at para. 2). Most debates in this specific frame relate to the clash between religion/ethnicity and gender. 6 This point echoes the work of Karima Bennoune, ‘Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression and Women’s Equality Under International Law’, Columbia Journal of Transnational Law, 45(2), 2007 at 393, 396. In connection to Muslim veiling, she puts forward the following factors of assessment: impact of the veil on other women (and girls) in the same environment; coercion; gender discrimination; violence against women related to the specific situation; motivations behind any imposed restriction; religious discrimination and Islamophobia; alternatives to restriction; the human rights consequences of both the restriction and non-restriction; the degree of consultation with the impacted communities.