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Dark Side of Fundamental Rights Conference

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Is There a Dark Side to Childrens rights?

For the hand that rocks the cradle
Is the hand that rules the world.

William Ross Wallace

Introduction

Childrens education has been an arena of contesting legal claims ever since the
beginnings of the institution of public education. Parents, religious and cultural
communities, and the state continue to assert their interests and rights over the minds of
children. While the stakes are very high for all of these claimants, they are highest for
children themselves the experience of education, which includes both in class
instruction, as well as extracurricular activities and peer interaction
1
exerts a powerful
influence on the childs sense of self, her relation to the outside world, her commitments
and life choices as a young adult. However, within the legal realm governing education it
is not students, but parents and the state that necessarily make the rules and tend to their
rights and interests, especially in the case of very young students. This gives rise to the
possibility that childrens rights and interests are instrumentalized and abused by the state
or other rights holders or used into the ideological battles of adults.
The paper will examine the concept of childrens rights and particularly their right to
autonomy in its relation to parental religious freedom rights in the public education
context. For the purpose of this paper childrens autonomy rights are understood to refer
to two related yet distinct concepts. In its first sense, autonomy means the protection of a
choice based right. The protection of this right depends on the maturity of children. For

1
For an insightful discussion on the often neglected issue of the importance of peer interaction in court
decisions on education, see Emily Buss, The Adolescent's Stake in the Allocation of Educational Control
between Parent and State, 67 U. CHI. L. REV. 1233 (2000).
Dark Side of Fundamental Rights Conference
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example Article 5 of the Convention on the Rights of the Child (CRC) states that: States
Parties shall respect the responsibilities, rights and duties of parents...to provide, in a
manner consistent with the evolving capacities of the child, appropriate direction and
guidance in the exercise by the child of the rights recognized in the present Convention.
2

Autonomy in the second sense means the protection of interest based rights. What is
protected is the interest children have to develop their capacity for critical thinking and
autonomous moral judgment.
3

As will be shown below childrens autonomy rights come under heavy criticism on
several grounds. It is claimed that such rights are harmful to children, parents, the family
as a whole as well as for distinct cultural or religious communities. The paper would
argue that childrens autonomy rights are important to protect childrens interests, but as
all rights they should be balanced with other rights and interests, such as the childrens
interests in preserving an intimate relationship with parents. Apart from the question of
balancing, it should be also noted that it is possible that childrens autonomy rights are
abused in cases in which the state acts on the pretext of protecting the autonomy rights
of children but is in effect aiming to accomplish other purposes.
What is the difference between the balancing between constitutional rights and values
on the one hand and abuse of fundamental rights? I would argue that in the first case
there may be a disagreement on the weight each right or value is accorded in the
balancing process. In this case some will argue that the balancing has been done in

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Convention on the Rights of the Child, Art. 5.
3
Different scholars have argued for the necessity of protection of various degrees of interest based
autonomy. In this paper interest based autonomy rights shall refer to the sort of Socratic nurturing
defended by Macleod, which he defines as aiming at developing within children the capacity for reasoned
reflection on the meaning , nature, and value of ends and commitments[and] at fostering enthusiasm or at
least receptiveness to the actual exercise of these capacities. See Colin Macleod, Shaping Childrens
Convictions, 1 (3) THEORY AND RESEARCH IN EDUCATION 315, 318 (2003).
Dark Side of Fundamental Rights Conference
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compliance with the constitution while others will claim that the balancing resulted in an
unconstitutional infringement of one or more of the conflicting rights. On the other hand,
in the case when arguably there is an instrumental use of fundamental rights, the state is
claiming to be enforcing a particular right while in fact it uses the rights simply as a
smokescreen.
4

Although it may be difficult to prove when the state acts in bad faith
5
I would argue
that if the means through which the state acts to protect childrens autonomy rights are
not rationally related to that purpose, or when the result of the states act in fact imposes
more burdens on these rights than it affords protection, then there is a strong evidence
that the state was trying to achieve other aims and children autonomy rights were just a
facade. Nevertheless, such need for balancing and the possibilities for abuse are not
problems specific only to childrens autonomy rights. Therefore instances of such
instrumental use are not sufficient to support a general rejection of the concept of
autonomy rights.
Childrens Autonomy Rights and Their Dark Sides
Childrens autonomy rights are subject to serious critique by conservative scholars.
The first objection raised is that the concept of childrens rights and particularly the
childs right to autonomy in Art. 5, 12
6
or Art. 14
7
of the CRC are being used by the state

4
See Zdenek Khn, The Instrumental Use of Basic Rights by Stalinist Judiciary, 13th Annual Conference
on 'The Individual vs. the State', Central European University, Budapest, June 10/11, 2005,
<http://www.ceu.hu/legal/Dark_Side_conference/collection_papers/papers/Kuhn.pdf>.
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When a given law is enacted there are the familiar difficulties with deciphering the legislative intent
whose intent should be count, should we look at committee work, debates in the parliament, the statement
of those who voted on favor of the bill only, a justifications for the law made by MPs after the bill was
enacted , etc.
6
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to
express those views freely in all matters affecting the child, the views of the child being given due weight
in accordance with the age and maturity of the child.
Dark Side of Fundamental Rights Conference
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to assert its control over children at the expense of the rights of parents and the autonomy
of the family. Professor Morita asks: Aren't we now confronting the paradox of a new
brand of totalitarian state paternalism prepared in the name of autonomy and rights?
8

Human right NGOs are being accused of an attempt to grab power and impose their
secularist views through the courts and international organizations.
9

Similar objections have been voiced against calls for recognition of childrens
autonomy interests in US constitutional jurisprudence. According to Washburn, declaring
that children have an interest in education that is separate from the their parents and
separate from the state and extending what are essentially adults rights to children
presents the opportunity to take away freedoms which Americans, indeed humans in
general, have deemed fundamental for thousands of years.
10
Machel McConnel has also
argued that in disputes between parents and the state over the best interests of children
parents should not be expected to differentiate between their rights and their childrens

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Article 14, CRC:
1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to
provide direction to the child in the exercise of his or her right in a manner consistent with the evolving
capacities of the child
8
Akira Morita, Beyond the Myth of Children's Rights, Remarks to The World Congress of Families
,November 15, 1999, (visited August 3, 2005),
<http://www.worldcongress.org/wcf2_spkrs/wcf2_morita.htm>.
9
According to Balmforth, It [use of UN human rights mechanisms] is also a threat to longstanding,
universally recognized human rights to freedom of religion and conscience, and to guide the upbringing of
our children, particularly in the areas of morality, and religion. If we do not retain the liberty to pass our
time-tested values on to our children -- to give them the same chance at a principled, productive life that we
have enjoyed, thanks to our own parents -- then we are no longer free people. The anti-family faction has
targeted the human rights system because it is a direct path to power. The power they seek is the power to
curtail the freedom of most of humanity and to do it, ironically, in the name of human rights. (Kathryn
Balmforth, Hijacking Human Rights, Remarks to The World Congress of Families II, , November 17, 1999,
<http://www.newyorkeagleforum.org/eagle_articles/congress%20speech.htm>). See also Jane Adolphe,
The UN's Deconstruction of the Family, (visited 19 August 2005),
<http://www.clji.org/deconstruction.html>.
10
Thomas W. Washburne, The Boundaries of Parental Authority: A Response to Rob Reich of Stanford
University, <http://www.hslda.org/docs/nche/000010/200204230.asp#2>.
Dark Side of Fundamental Rights Conference
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rights since their are one at the same. So according to him it might be best to think of
"the family's" rights to autonomy vis--vis the state.
11

These arguments are related to the second objection, namely that the language of
rights is particularly inadequate and even harmful when applied to the relationships
within the family.
12
Morita claims that the Convention eliminates the subsidiary role of
the state and makes possible its intervention even when the family is not broken and
functioning.
13
According to Morita,
By endowing the child with legal autonomy, that is to say, enjoying rights independently of
the family, the new doctrine put the family in the position of mere caregivers, bound to the
observance of the child's rights. Every child becomes the adversary of the parents, at least in
the potential, and the adversary of brothers and sisters in competition for rights.... By
destroying the human factor in human relationships, the advocate of autonomy, especially the
autonomy of children, will create a society which lacks the principles of cohesiveness and
common purpose necessary to its common existence.

According to Moritas argument childrens rights to autonomy are harmful because
they will destroy the special bond between children and parents, that is from a fall-back
mechanism, which is what according to Osiatinsky rights should be in a private
relationship,
14
they become the standard means through which interests within the family
and community are articulated and defended.
A third objection to childrens choice autonomy rights is that it is a guise through
which adults want to escape from their duties towards children. Gregory has argued that

11
Michael McConnell, points of agreement, mail thread, Wed Dec 9 15:09:45 PST 1998
http://lists.ucla.edu/pipermail/religionlaw/1998-December/013904.html
12
The problem of the effect of rights in general on interpersonal and intercommunal relation, noting that
the hard edge that rights puts on claims justice and equality cuts the ties of family, community, tradition
and culture. (Lester Mazor, Too Many, Too Much, Too Strong: Is There A Need For A Doctrine Of Abuse
Of Political And Civil Rights? 13th Annual Conference on 'The Individual vs. the State', Central European
University, Budapest, June 10/11, 2005,
<http://www.ceu.hu/legal/Dark_Side_conference/collection_papers/papers/Mazor.doc>.
13
Morita, supra note 8.
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When we look at who will benefit the most from childhood emancipation inherent in
the CRC, we clearly see it is not children. Rather, the granting of childhood autonomy
reflects a selfish rejection of parental responsibility.
15
According to him this myth of
autonomy serves not the best interests of children but gratifies irresponsible adults.
16

These objections however, are in most cases unfounded because they start from the
wrong premise that a recognition and enforcement of childrens autonomy rights would
completely disregard parental and communal interests, that the state would grab all
decision making power in respect of childrens best interests or that the way childrens
autonomy rights will be enforced will be highly intrusive and have a devastating effect on
otherwise perfect family relationships. I would argue that in most cases these premises do
not stand.
For example, even scholars who argue for the abolition of parental rights as such, and
their replacement with a parental privilege for the education and upbringing of their
children,
17
although it should be noted that autonomy rights of children do not necessitate
this transformation, recognize that one of the most important interests that children have

14
Wiktor Osiatynski, Beyond Rights, 13th Annual Conference on 'The Individual vs. the State', Central
European University, Budapest, June 10/11, 2005,
<http://www.ceu.hu/legal/Dark_Side_conference/collection_papers/papers/Osiatynski.doc >.
15
David L. Gregory, The United States Concerns About The Convention On The Rights Of The Child,
EDUCATION AND THE LAW, Vol. 14, No. 3, 2002
16
Id. See also Bruce C. Hafen & Jonathan O. Hafen, Abandoning Children to Their Rights, 55 FIRST
THINGS 18 (1995) ,<http://www.firstthings.com/ftissues/ft9508/articles/hafen.html> , Adults face a
conflict of interest in thinking about autonomy for children. When they disengage themselves from the
arduous task of rearing and teaching children in the name of increasing children's autonomy, adults' actual-
even if not fully conscious-purpose may be to increase their own autonomy by freeing themselves from the
burdens of providing meaningful care. Even worse, some pro-child autonomy claims are merely a
smokescreen intended to protect the interests of adults who profit from such claims while indirectly
exploiting the actual interests of children.
17
See James G. Dwyer, Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents'
Rights, 82 (6) CALIFORNIA LAW REVIEW, 1371 (1994). See also, Nicholas Humphrey, What shall we tell
the children? The Values of Science, The 1997 Oxford Amnesty Lectures, (visited Aug 15, 2005),
<http://cogprints.org/400/>.
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is that of maintaining a close relationship with their parents. Dwyer argues, for instance,
that when schools teach certain subjects at school, such as evolution, which some parents
regard as sinful the potential trauma to the children may outweigh the benefits of
learning the mainstream view
18
and thus justify individual exemptions from the subject.
Apart from that, there may be cases where there is already present a strong conflict within
the child-parent relationship before the law intervenes. An example of such a case is
when a mature adolescent is determined to exercises a choice autonomy right regardless
of the strong objection of her parents.
19

On the other hand, there a lot of cases where giving due weight to children autonomy
rights is not likely to case severe damage to the parent-child relationship. For instance, a
UK statute which gives only to the parents the rights to exempt students from a
mandatory collective worship of a predominantly Christian character
20
, no matter what
the age of the student is, would need to be amended in order to give due weight to the
views of older children.
Communal identity and ties are also important for children, but as Macleod has
argued if it be true that certain cultures cannot tolerate any dissent and would ostracize a
member who differs from any of the communitys ways then the source of normative
loss isto be located in the failure of parents and communities to think imaginatively
about how to express love and a decent sense of belonging to non-conformists.
21
The

18
James G. Dwyer, mail thread, Fri Dec 4 14:35:22 PST 1998,
<http://lists.ucla.edu/pipermail/religionlaw/1998-December/013829.html>.
19
For example it may be argued that in cases such as Planned Parenthood v. Danford 428. U.S. 52 (1976),
recognizing constitutionally protected privacy rights of minors, distinct from their parents and striking
down a statute giving parents a veto over minors decision on abortion, the parent child relationship was
already suffering from serious conflicts.
20
School Standards and Framework Act 1998.
21
Macleod, supra note 3, at 325.
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effect on the child may nevertheless be severe, that is why I would argue that in cases
where communal ties might be endangered the choice autonomy rights of mature children
may be given more weight than interest based autonomy rights.
Nevertheless an independent value of preservation of a culture as it exists at
present at the expense of children autonomy rights is hard to maintain. While the scope of
this paper exceeds a discussion of the place of diversity and autonomy in liberal theory,
suffuse it to say the preservation communal relations of the child and not the identity of
the community as a whole should be taken into consideration.
An example where only the first interests were taken into the balance, and then
again not from the perspective of the children but from the perspective of the parents and
their community is the famous case of Wisconsin v. Yoder (1972).
22
The case is
particularly interesting because it involves both types of autonomy rights of children. On
the one hand, it involves their interest based autonomy rights, because arguably if their
parents are granted the right not to send them to formal schooling after the 8
th
grade,
their right to an open future
23
is unduly burdened, as well as their capacity for
autonomous judgment, critical thinking and examination of ends and commitments. On
the other hand, it is also their choice based autonomy rights that are being denied,
because their views are not taken into consideration by the court.
Critics of the autonomy rights of children point out the case as an example of why
the CRC convention is contrary to American constitutional law and remind that

22
406. U.S. 205 (1972).
23
Feinberg, , A Child's Right to an Open Future, in Whose Child? Parental Rights, Parental Authority
and State Power, W. Aiken and H. LaFollette, H., Totowa, NJ: Littlefield, Adams, and Co.: 124-153(1980),
in Children's Rights, Stanford Encyclopedia of Philosophy, <http://plato.stanford.edu/entries/rights-
children/#2>.
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Douglass dissent is a view that has been rejected by the court.
24
However, I would argue
that it precisely in the fact that the majority did not consider the childrens autonomy
rights where the weaknesses of the judgment lie. It was enough for the court that Amish
children if precluded from attending high school for the last two years required by the
state law would not be a burden on the welfare system of society and will be able to
discharge the duties and responsibilities of citizenship.
25
The parental rights to the
religious upbringing of their children could be overridden only if their exercise resulted
in impairment of physical and mental health of the child.
26
The interests of children are
totally absent from consideration, according to the majority for good reasons.
27
Yoder
would be example where childrens autonomy rights were entirely neglected by the court.
The result of the case might not necessarily have been different had they been taken into
account but the rule would have been different and this is important.
Although in most cases, the protection of childrens autonomy rights does not amount
to the terrible evil coming upon the family, as portrayed by its critics it is possible, as will
be shown below that childrens autonomy rights are being instrumentally used by the
state.
Protection of Children Autonomy Rights and the French Law of March 2004.
I would argue that the law of March 2004
28
may be regarded as an example of an
instrumental use of children right to autonomy. Although the laws one of the professed
purposes was to guard the protect students from religious coercion, to protect the mission

24
See Hafen, supra note 16.
25
Yoder, supra note 22 at 229-234.
26
Id.
27
Id at 231-233.
28
The law bans the wearing of conspicuous religious symbols at state schools, LOI n 2004-228 du 15 mars
2004 encadrant, en application du principe de lacit, le port de signes ou de tenues manifestant une
Dark Side of Fundamental Rights Conference
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of pubic school to develop capacities for critical thinking and autonomous judgment, and
to safeguard the principle of gender equality it was mainly an attempt to react to the
failure of integration of Muslim immigrants and disconcerts about the growing visibility
of Islam.
29

Interestingly enough, in the headscarf debate in France, there were very few
arguments offered that even though adolescent girls might not wish to wear a headscarf it
was within legitimate parental rights to override their wishes. According to the IHRC
even if children were being coerced by their parents to wear headscarves, this was a
legitimate exercise of the rights of parents to educate their children according to their
own religious convictions. The state had no right to replace the parental authority over
the child with state control over the dress of individuals of an entire section of the
community.
30
However, not only the proponents by also the opponents of the headscarf
ban generally justified their position as protecting the autonomous choice of Muslim girls
and their freedom from coercion and pressure.
This is particularly interesting bearing in mind that according to the most
authoritative treatise on law and religion in France, Trait de droit franais, parents have
the rights to direct the moral formation of their children including their personal
believes and convictions and until the headscarf affair broke out conflicts about the

appartenance religieuse dans les coles, collges et lyces publics,
<http://www.legifrance.gouv.fr/WAspad/UnTexteDeJorf?numjo=MENX0400001L>.
29
The law has been defended on other grounds as well defense of the principle of secularity, defense of
law and order, protection of the principle of gender equality being the main ones. Whether these grounds
justify the law as a constitutional limitation on students religious freedom and freedom of expression is a
question for another discussion. What the discussion in the present paper aims to examine is limited to the
use of childrens autonomy rights as a justification of the law.
30
Islamic Human Rights Commission, Muslim Women, Human Rights and Religious Freedom: Europe
Under the Spotlight of National and International Law, 8 March 2004,
<http://www.ihrc.org.uk/show.php?id=1025>.
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religious liberty of children within the family had been resolved in favor of parents.
31

Thus a case in which a sixteen-year-old wanted to change her religion in conflict with her
parents desires, the court ruled in favor of the parents.
32
Such a decision is hard to square
with protecting a choice based autonomy right of mature children. Nevertheless, in the
headscarf debate almost nobody presented arguments based on parental rights.
Opponents to the headscarf ban argued that the law would be exerting coercion upon
and penalize Muslim girls for exercising their religion, while proponents argued that the
law would save girls from the pressure and coercion to which the girls were subjected by
their families and communities. Thus in the discourse the legitimacy of the girls right to
autonomous choice as to how to profess their religion was explicitly recognized by the
participants in the debate.
There were however, those feminist critics who argued that it is a mistake to think
that any girl could make the choice to wear a headscarf autonomously because even in
the lack of overt pressure, she has internalized the repressive customs of the religion, and
leaving her to exercise her choice would be detrimental to her own well being, therefore
such girls should be freed from them from the outside. As Raday observes, genuine
individual consent to a discriminatory practice or dissent from it may not be feasible
where these girls are not yet adult.
33

However, we can legitimately claim that any distinction between free-choice and
coercion is to some extent blurred. As Asad has noted the binary opposition of free
choice versus coercion, in respect to the wearing of the headscarves is a semiotic

31
T. Jeremy Gunn, French Secularism as Utopia and Myth, 42 HOUS. L. REV. 94 (2005).
32
Id.
33
Frances Raday, Culture, Religion, and Gender, Roundtable: An Exchange with Ronald Dworkin, 1 INT'L
J. CONST. L. 663,709 (2003).
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construction not an objective finding of fact, since in ordinary life the wish to choose
one thing rather than another is rooted in dominant conventions, in loyalties and habits
one has acquired over time, as well as in the anxieties and pleasures experienced in
interaction with lovers and friends, relatives, teachers and other authority figures.
34
This
holds true not only for children but for adults as well. While it is true, that we cannot
speak of a free choice independent of social influences, such simplification and
reduction to opposites might be difficult if not possible to avoid. Nevertheless, even such
schematic constructs should not be built so narrowly and should not exclude selectively.
Thus it is striking that given the central place the Stasi Commission accorded to
the distinction between girls who wore the headscarves by their own choice and those
who wore them as a result of coercion, the Stasi Commission did not consider at all what
were the real desires of those Muslim girls that did not wear a headscarf to school. It is
possible, as Asad, claimed, that some of those girls wanted to wear headscarves but were
embarrassed to do so because of how their French classmates or people on the streets
might react.
35
As, Gunn observes, a number of agents in the French society are putting
pressure on Muslim women not to wear a headscarfschool officials, politicians,
employers; however the Commission selectively ignored that issue.
36

If the effects of the law are considered it then it is difficult to see how the law
protects the autonomy choice-based rights of the students. The state is exerting coercion
upon the students who choose to wear a religious symbol if they wish to do so they
have to leave the public school system. On the other hand, those of the students who are

34
Talal Asad,, Reflections On Lacit & The Public Sphere, SSRC: Items and Issues, VOL. 5, NO. 3, 2005,
(visited 31 march 2005), <http://www.ssrc.org/publications/items/v5n3/reflections2.html>.
35
Id.
36
T. Jeremy Gunn, Religious Freedom and Laicite: A Comparison of The United States and France, 2004
Dark Side of Fundamental Rights Conference
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wearing them because of family or community pressure will either be removed by the
public school system by there parents or if not, as soon as they leave the school doors
they will be subject to the same pressure again. The law does more burdens more then it
protects the choice-based autonomy rights of children.
The Stasi Commission also argued that the law was needed to protect interest
based autonomy rights of children. According to the NA Commission Report the mission
of the school is hindered by the wearing of signs designating a religious identity because
this practice amounts to affirming in advance what is necessary to believe and closing to
any new knowledge that could question these beliefs.
37
The Stasi Commission also
noted that The visible character of a religious sign is felt by much as contrary with the
mission of the school which must be a space of neutrality and a place of awakening of the
critical conscience.
38

The reports fail to prove how the sole fact that a child wears religious symbols
closes her mind to new knowledge thus endangering the development of a capacity for
critical assessment of previously acquired beliefs and convictions. The wearing of a
religious signs is an expression and manifestation of religious belief and/or a religious
obligation imposed by the particular religious doctrine. In either case it is not the wearing
of the religious sign itself that might hinder the inculcation of critical thinking and the
development of a capacity for autonomous judgment in the child. What arguably might
hinder this mission of the school are parental demands for exemption from curriculum

B.Y.U. L. REV. 419, 473 (2004).
37
Rapport de la Mission dinformation de lAssemble nationale franaise sur la question du port des
signes religieux lcole - Lcole doit rester un lieu dapprentissage de la citoyennet,
<http://www.voltairenet.org/article12022.html>.
38
Commission de rflexion sur lapplication du principe de lacit dans la rpublique, rapport au prsident
de la rpublique, Remis le 11 dcembre 2003, <http://lesrapports.ladocumentationfrancaise.fr/cgi-
bin/brp/telestats.cgi?brp_ref=034000725&brp_file=0000.pdf>, at 58.
Dark Side of Fundamental Rights Conference
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subjects and readings that might collide or call into question the religious beliefs that they
wish to instill in their children. And indeed both the Stasi commission and the NA
Commission reports identified that the demands for curriculum exemptions as the main
challenge to the mission of the school.
39

In a thoughtful article Gay offers a partial defense of the French law arguing
that it may be seen as an approach that gives the government authority to facilitate free
choice among various religious options by unsettling religious preconceptions that
parents and religious communities instill in their children.
40
Gays argument is that the
French law tackles similar issues that have faced US courts regarding question of
curriculum exemptions. He fails to show why a girl wearing a headscarf or a boy wearing
a turban is less open or perceptive to different religious and secular ideas, that religious or
non-religious students who do not wear a religious sign. No argument can also support
the proposition that once a girl takes off her headscarf entering school she all of a sudden
becomes more liberated from her family and community religious teachings.
41

What is more, the purpose of developing critical thinking and autonomous
judgment is hard to reconcile with the claim of the NA Report that it is the development
of individualism and the claim of the right to difference that run counter to the principle

39
In a radio interview, Alain Touraine, a member of the Stasi Commission, admitted that the real issue to
be addressed was curriculum objections, but then did not made it clear in what way banning headscarves
would address this issue: First of all to accept the veil in high school is one thing. When these girls, some
of them, a few weeks afterwards say we dont want to make gym because of girls and boys together, when
two weeks afterwards they say I cannot go to the biology class because they speak about sex, when two
weeks afterwards they say I cannot even go to the history class because what the historians say about the
history of the world is contradictory with what the Koran says. Well, you cannot accept that."(See Alain
Touraine, Interview: Banning the Veil the French Option, Encounter, Sunday 22 August 2004,
<http://www.abc.net.au/rn/relig/enc/stories/s1177796.htm>.

40
Steven G. Gey, Free Will, Religious Liberty, And A Partial Defense of The French Approach to Religious
Expression In Public Schools, 42 HOUS. L. REV. 1, 4 (2005).
41
For an excellent critique of Prof. Gays arguments see Dina Alsowayel, The Elephant In The Room: A
Commentary On Steven Gey's Analysis Of The French Headscarf Ban, 42 HOUS. L. REV. 103 (2005).
Dark Side of Fundamental Rights Conference
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of lacit,
42
which claim was asserted in even stronger terms by Baroin, a NA deputy.
43
If
one of the main missions of secular education is to enable the child to develop
autonomous judgment and to empower her to make informed choices among different
conceptions of the good life, than to assert that this same mission is threatened by the
excessive legitimatizing of individualism
44
which is arguably demonstrated by the
wearing of religious symbols at school appears contradictory. According to the report the
wearing of religious signs privileges, and sometimes is even reduced to the identification
of oneself with the religious component and for this reason it represents an attack on
secularity.
45
However, the school does not teach independent judgment by refusing to
accept the expression of a persons identitybe it religious, communal, political, gender
etc. It is rather by acknowledging diverse identities and creating a sense of inclusion, that
the school can expose the child to new ideas which might create new identities for her or
enable her to examine critically her previously acquired identities. As Rowen has pointed
out, referring to Kymlickas Multicultural Citizenship, some strands of liberal theory link
the development of autonomy and critical thinking to the possibility to draw from ones
heritage: becoming a fully capable liberal individual, one who can formulate and
reformulate ideas and ideals, requires a tradition, a sense of respect for ones heritage that

42
Rapport de la Mission d'information de l'Assemble nationale franaise sur la question du port des signes
religieux l'cole - Un modle conforter, http://www.reseauvoltaire.net/article12020.html
43
The crisis of the scarf or the veil (the choice of the term is not indifferent), from this point of view, it is
less the sign of a return to the monk than the sign of a political crisis, social and cultural and it is not so
much a return of strength of religion in the schools but a destabilization of the school under the blows of
individualism. The veil it is an identity impulse in a world of individualities: it is a way of saying "I exist
as me, not as French and I want to be made hear.The freedom of expression and the recognition of the
differences are privileged compared to other values like the authority of the Master, the mission of
educating and emancipation of the person. . . .. As Martine Bartelemy underlines it, at a certain point,
secularity and human rights are contradictory( Franois Baroin, Pour une nouvelle lacit, (visited 23
March 2005), <http://www.reseauvoltaire.net/rubrique506.html>.
44
Rapport de la Mission dinformation de lAssemble nationale franaise sur la question du port des
signes religieux lcole - Le port des signes religieux et politiques : une manifestation du
communautarisme, <http://www.voltairenet.org/article12024.html>.
Dark Side of Fundamental Rights Conference
16
engenders respect for oneself.
46
Finally, it should not be forgotten that as a consequence
of the ban a number of parents may be willing to withdraw their children from private
school and enroll them in private religious schools where exposure to diverse values and
ideas would most probably be much less than had the children attended public schools.
The discussion above shows that the state fails to establish that there is at least a
rational relation between the protection of the interest based autonomy rights of students
and the law banning ostentatious religious symbols at public schools. Therefore it may
be argued that the state was using the language of autonomy rights as a pretext for
advancing other interests. Thus it is indeed possible that childrens autonomy rights may
be misused and but this is not a reason to argue that such legal rights should not exist at
all.





45
Id.
46
See John R. Bowen, Muslims And Citizens: Frances Headscarf Controversy, the BOSTON REVIEW 31,
35, February/March 2004,
<http://www.artsci.wustl.edu/~anthro/articles/Boston%20Review%20article.pdf>. Such a theory, however,
may not sit well with the traditional French doctrine of citizenship and democracy. As Fenemma and Tillie
point out the protection of the fundamental values of democracyequality, autonomy , and knowledge, as
conceptually developed in French political thought, arguably requires the relegation of symbols referring to
particularistic identities to the private sphere only. These symbols are viewed by some as a threat to civic
equality, because wearing these particular religious symbols in public space or on public duty is seen as
infringing upon the abstract equality of citizens and autonomy too is constructed by abstracting from all
vertical ties and loyalties except the national loyalty. (See Meindert Fennema and Jean Tillie, Democratic
Nationalism and Multicultural Democracy, (visited May 12, 2005),
<www.essex.ac.uk/ecpr/events/jointsessions/paperarchive/grenoble/ws24/fennema.pdf >, p. 9-11.)