In its recent ruling in Multani v. Commission scolaire Marguerite-Bourgeoys, the Supreme Court of Canada stressed the important role of public education in establishing respect for pluralism.
Justice Louise Charron rejected a Quebec school board's ban, supported by the provincial attorney general, which prohibited a Sikh student from taking his kirpan to public school. Unable to accede to the ban, the student enrolled in a private school.
The court affirmed a set of conditions designed to meet the board's safety concerns. It rejected other arguments, however, that characterized the kirpan as a violent symbol and said it was an impermissable special privilege to accommodate his religious practice of wearing the dagger-like object.
This judgment connects some important dots. It linked religious symbolism to the Charter's commitment to multiculturalism and then linked both to public education, which instills necessary practices for living in a diverse society.
The school board could not justify its full ban on the kirpan. The conditions it applied to the kirpan made it much less accessible than more harmful familiar items, such as scissors and baseball bats. Moreover, no one could cite a violent incident involving a kirpan in a school in over a century.
The ban's proponents unsuccessfully asserted that the kirpan's symbolism undermined educational values of peaceful, rational dispute resolution.
Charron's response was noteworthy: public education inculcates the mutual respect and tolerance that is necessary to live within a multicultural society. Students from diverse backgrounds thus acquire the sensitivity to distinguish between a weapon and an artefact that possesses abstract religious significance to an adherent of a minority religion. Education to that end, she noted, stands "at the very foundation of our democratic society".
This understanding permeates the Supreme Court's case law. It provides the rationale for a number of cases about public education. It also informs the leading cases on hate speech, which stipulate that we must respect both personal and group identity in our public interactions.
This rationale has become a leading feature of modern constitutional analysis. So, for example, the British House of Lords recently validated a public school's dress code, which stipulated one particular garment for Muslim female students after consultation with their parents and religious leaders.
In R. (on the application of Begum) v. Headteacher and Governors of Denbigh High School, the high court supported the school's rejection of one student's insistence upon wearing a more stringently religious garment.
This rejection served to protect adolescent female students from pressure to increased religious orthodoxy from sources beyond their family and local community. An important consideration in this decision was the fact that a nearby public school permitted her clothing preference so she could continue her public school education.
The European Court of Human Rights recently validated a ban on the Islamic headscarf in Turkish schools, invoking the Turkish Constitution's firm commitment to secularism as a bulwark against Islamic fundamentalist tendencies. The court considered the headscarf to be a symbol inconsistent with political stability, tolerance, and gender equality in the Turkish context. Many Muslim women had to discontinue their education.
Recent research calls into question the court's rationale, even in the Turkish context. By excluding women from higher and professional education, the ban added to the gender restrictions that their society imposed.
Moreover, recent research reveals a liberal mindset among Turkish women generally and an even stronger commitment to an open society among female students in advanced education, including those who choose to wear the headscarf.
The ban may therefore be counterproductive in excluding from higher education a number of citizens likely to support the separation of religion and state. The knowledge and analytic skills that higher education offers would enable them to take a leadership role to that end.
Six decades ago, the U.S. Supreme Court emphasized, in Brown v. Board of Education, the importance of public education for the fulfilment and flourishing of individuals and, by extension, the vibrancy of a democratic society. The court stressed the intangible educational, social and civic benefits that derive from diversity in public education.
The principles laid down in Multani, and evident in many other rights-protecting systems, enable us to make sense of the ever more diversified social and political contexts in which we live our lives. These principles affirm our common humanity by making it more difficult to associate unfamiliar religious symbolism with practices that we have rejected, such as violence and gender inequality.
Lorraine E. Weinrib is a professor at the Faculty of Law, University of Toronto.
